143 GI/2014
(493)
foÙk ea=ky;
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ubZ fnYyh] 27 fnlacj] 2013
dkñvkñ 230.—dsanzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi&fu;e
¼4½ ds vuqlj.k esa layXu vuqca/k esa mfYyf[kr fuEufyf[kr
cSadksa dh lwphc) 'kk[kkvksa@dk;kZy;ksa dks] ftuds 80% ls vf/kd
deZpkfj;ksa us fgUnh dk dk;Zlk/kd Kku izkIr dj fy;k gS] vfèlwfpr
djrh gSA
Øe lañ
cSad ds uke
'kk[kkvksa dh la[;k
1-
;wfu;u cSad vkWQ bafM;k
100
2-
vka/kzk cSad
15
3-
LVsV cSad vkWQ chdkusj ,aM t;iqj
38
dqy
153
[Qkñlañ 11016@13@2013&fganh]
MkWñ osn izdk'k nwcs] la;qDr funs'kd ¼jkñHkkñ½
;wfu;u cSad vkWQ bafM;k
jktHkk"kk dk;kZUo;u izHkkx] dsanzh; dk;kZy;] eqacbZ
jktHkk"kk fu;e 10¼4½ esa vf/klwpukFkZ laLrqr 'kk[kk,a@dk;kZy;
¼d½
1-
{ks=h; dk;kZy;] dkuiqj ;wfu;u cSad
vkWQ bafM;k
cNjkoka 'kk[kk
iVsy uxj dkWyksuh
jk;cjsyh jksM] cNjkoka
ftyk jk;cjsyh&229301
mÙkj izns'k
2-
;wfu;u cSad vkWQ bafM;k]
gjpaniqj 'kk[kk
jsyos LVs'ku jksM
eqñ + iksLV gjpaniqj
ftyk jk;cjsyh&229303
mÙkj izns'k
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- 4]
ubZ fnYyh, tuojh 19—tuojh 25] 2014] 'kfuokj@ikS"k 29—ek?k 5] 1935
No. 4]
NEW DELHI, JANUARY 19—JANUARY 25, 2014, SATURDAY/PAUSA 29—MAGHA 5, 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)
494
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
3-
;wfu;u cSad vkWQ bafM;k]
e/kqiqjh 'kk[kk] MyeÅ jksM
iksLV eqa'khxat
ftyk jk;cjsyh&229405
mÙkj izns'k
4-
;wfu;u cSad vkWQ bafM;k]
ykyxat 'kk[kk
csgVk pkSjkgk ds ikl
eqñ + iksLV] ftyk jk;cjsyh&229206
mÙkj izns'k
5-
;wfu;u cSad vkWQ bafM;k]
xqtSuh 'kk[kk
15 ,evkbZth Mh CykWd
esu jksM] xqtSuh
dkuiqj&208022 mÙkj izns'k
6-
{ks=h; dk;kZy;] bankSj
;wfu;u cSad vkWQ bafM;k]
fVxfj;k lkapk 'kk[kk
iksLV ckaxj
xkao] fVxkfj;k lkapk
ftyk nsokl ¼eñizñ½
455001
7-
dnokyh cqtqxZ 'kk[kk
iksLV ekaxfy;k
rglhy lkaosj
xkao] dnokyh cqtqxZ
ftyk bankSj ¼eñizñ½
453771
8-
{ks=h; dk;kZy;] Hkksiky
;wfu;u cSad vkWQ bafM;k]
fHkaM 'kk[kk
fo|korh dkEIysDl] caxyk cktkj]
iksñ vkñ fHkaM
ftyk fHkaM] e/; izns'k&477001
9-
;wfu;u cSad vkWQ bafM;k]
djksan 'kk[kk esllZ ih th ,p baVsjus'kuy
izkbosV fyfeVsM I;wfiYl oYMZ
Hkkuiqj djksan jksM] iksñ ,e ,y uxj
gqtwj ftyk Hkksiky
e/; izns'k&462038
10-
;wfu;u cSad vkWQ bafM;k]
ckM+h 'kk[kk
okMZ uañ 11] esu jksM
iksLV ckM+h ftyk jk;lsu
e/; izns'k] fiu&464665
11-
;wfu;u cSad vkWQ bafM;k]
nfr;k 'kk[kk
rkU;k iSysl gksVy] dysDVªsV ds ikl
flfoy ykbu jksM] nfr;k
e/; izns'k] fiu&475661
12-
;wfu;u cSad vkWQ bafM;k]
lkstuk 'kk[kk
fo'ks"k {ks= fodkl izkf/kdj.k
'khryk lgk; iz'kklfud Hkou
xzke lkstuk ftyk Xokfy;j
e/; izns'k] fiu&474001
13-
;wfu;u cSad vkWQ bafM;k]
ftyk U;k;ky; 'kk[kk
ftyk U;k;ky;
Xokfy;j
e/; izns'k] fiu&474001
14-
;wfu;u cSad vkWQ bafM;k]
oklksnk 'kk[kk
'kkldh; ,lth,lihth dkWyst ds lkeus
dkykckx] xat cklksnk
ftyk fofn'kk
e/; izns'k] fiu&464221
15-
{ks=h; dk;kZy;] bykgkckn
;wfu;u cSad vkWQ bafM;k]
>walh 'kk[kk]
pd gfjgj ou] thñVhñ jksM] >walh
ftyk&bykgkckn&mÙkj izns'k
16-
;wfu;u cSad vkWQ bafM;k]
pqukj 'kk[kk]
ln~nwiqj eksguk]
iksLV&pqukj ftyk&ehjtkiqj
mÙkj izns'k] fiu&231304
17-
;wfu;u cSad vkWQ bafM;k]
ckcwxat 'kk[kk]
iksLV ckcwxat] rglhy Qwyiqj]
ftyk&bykgkckn] mÙkj izns'k
18-
;wfu;u cSad vkWQ bafM;k]
'kadjx<+ 'kk[kk]
jke Hkou pkSjkgk] f'kojktiqj jksM]
iksLV 'kadjx<+]
ftyk&bykgkckn]
mÙkj izns'k&212108
19-
;wfu;u cSad vkWQ bafM;k]
?kwjiqj 'kk[kk]
xzke o iksLV&?kwjiqj] rglhy&ckjk
ftyk bykgkckn] mÙkj izns'k
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
495
20-
;wfu;u cSad vkWQ bafM;k]
bVok mijokj 'kk[kk]
xzke&bVok] ckyxksfoan isVªksy iai ds lkeus]
iksLV&egkjktxat]
ftyk&lar jfonkl uxj ¼Hknksgh½]
mÙkj izns'k
21-
{ks=h; dk;kZy;] vkxjk
;wfu;u cSad vkWQ bafM;k]
laHky 'kk[kk]
vkye ljk;] fjyk;al isVªksy iEi ds ikl]
cgtksbZ jksM
laHky&244302
22-
;wfu;u cSad vkWQ bafM;k]
bXykl 'kk[kk]
gkFkjl jksM] fla?ky /keZdkaVk ds ikl
gkFkjl jksM] bXykl
ftyk vyhx<+&202124
23-
;wfu;u cSad vkWQ bafM;k]
iqjuiqj 'kk[kk
jktkxat
Cykd jksM] iqjuiqj ftyk
ihyhHkhr&262122
24-
;wfu;u cSad vkWQ bafM;k]
cgsM+h 'kk[kk
jru Vkdhl ds lkeus
uSuhrky jksM
cgsM+h
ftyk cjsyh&243201
25-
;wfu;u cSad vkWQ bafM;k]
Qjhniqj 'kk[kk
';ke lqUnjdU;k baVj dkyst ds ikl
Qjhniqj esu jksM]
ftyk cjsyh&243503
26-
;wfu;u cSad vkWQ bafM;k]
vkaoyk 'kk[kk
jkeuxj jksM] ljxe Vkdht ds ikl
vkaoyk]
ftyk cjsyh&243301
27-
;wfu;u cSad vkWQ bafM;k]
[kankSyh 'kk[kk
gkFkjl jksM] ,reknIywj
[kankSyh&282126
28-
;wfu;u cSad vkWQ bafM;k]
fclkSyh 'kk[kk
cnka;w jksM]
jkeyhyk eSnku ds lkeus
fclkSyh&243720
29-
;wfu;u cSad vkWQ bafM;k]
uokcxat 'kk[kk
ihyhHkhr ckbZ ikl jksM]
lhñvksñ dk;kZy; ds ikl
uokcxat&243406
30-
;wfu;u cSad vkWQ bafM;k]
m>kuh 'kk[kk
cnk;wa jksM
Hkkjrh; LVsV cSad ds lkeus
m>kuh&243639
31-
{ks=h; dk;kZy;] tcyiqj
;wfu;u cSad vkWQ bafM;k]
flfoy ykbUl lkxj 'kk[kk
gksVy laxe dSEil
5 flfoy ykbUl
lkxj&e/; izns'k
32-
;wfu;u cSad vkWQ bafM;k]
v/kkjrky 'kk[kk
foey ufl±x gkse ds ikl]
esu jksM] v/kkjrky]
tcyiqj fiu dksM & 482004
33-
;wfu;u cSad vkWQ bafM;k]
/kUoUrjh uxj czkap]
IykWV uañ 154] /kUoUrjh uxj]
x<+k jksM] tcyiqj&482 003
34-
;wfu;u cSad vkWQ bafM;k]
iukxj czkap]
jk"Vªh; ekxZ 7] eq[; ekxZ]
f'kokth okMZ] tcyiqj&483 220
35-
;wfu;u cSad vkWQ bafM;k]
tcyiqj jksM dVuh 'kk[kk]
,e ,l vkj xzqi]
,e ,e pkScs okMZ]
tcyiqj jksM] dVuh&483 551
36-
{ks=h; dk;kZy;] xksj[kiqj
;wfu;u cSad vkWQ bafM;k]
dqaMk 'kjhQiqj 'kk[kk]
iksLV flag bczkfgeckn
iksLV e/kqcu
ftyk eÅ&221603] ;wñihñ
496
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
37-
;wfu;u cSad vkWQ bafM;k]
fpLrhiqj ¼dksikxat½
iksLV dksikxat
ftyk eÅ&275305] ;wñihñ
38-
;wfu;u cSad vkWQ bafM;k]
lqjgqjiqj 'kk[kk]
iksLV lqjgqjiqj]
ftyk eÅ
fiu&276406] mÙkj izns'k
Hkkf"kd {ks= ^[k*
39-
{ks=h; dk;kZy;] eqacbZ ¼if'pe½ dkafnoyh
iwoZ] eqacbZ
;wfu;u cSad vkWQ bafM;k]
tksxs'ojh if'pe 'kk[kk
'kkWi uañ 6] 7 vk;'kk VkolZ
,lñohñ jksM] ,eVh,u,y ds utnhd
tksxs'ojh if'pe] eqacbZ&400102
Vsyh uañ 022&26763060
40-
;wfu;u cSad vkWQ bafM;k]
feM dkWiksZjsV tksxs'ojh 'kk[kk
'kkWi uañ 6] 7 vk;'kk VkolZ
,lñohñ jksM] ,eVh,u,y ds utnhd
tksxs'ojh if'pe] eqacbZ&400102
Vsyh uañ 022&26793942
41-
;wfu;u cSad vkWQ bafM;k]
feM dkWiksZjsV cksjhoyh 'kk[kk]
'kkWi uañ 1 ls 5 vkWfpMZ] ry eafty
dkVZj jksM uksñ 7 cksjhoyh iwoZ]
eqacbZ&400066
Vsyh uañ 022 28641001
42-
;wfu;u cSad vkWQ bafM;k]
fojkj if'pe 'kk[kk
'kkWi uañ 8&13] ;'koar gkbV~l
U;w bafM;k dks vkWi ysu
fojkj if'pe] Bk.ks 401303
Vsyh uañ 9930100470
43-
;wfu;u cSad vkWQ bafM;k]
yks[kaMokyk dkWEIysDl 'kk[kk]
'kkWi uañ 63] 64] 65
lsaVjh;e 'kkWfiax lsaVj
yks[kaMokyk dkWEIysDl
dkafnoyh iwoZ] eqacbZ&400101
Vsyh uañ 022 29650010
44-
{ks=h; dk;kZy;] eqacbZ ¼ukWFkZ½
;wfu;u cSad vkWQ bafM;k]
vafcdk Hkou] nqdku Øñ 1 vkSj 2
iqjkuk vkxzk jksM] dkYgsj]
rkyqdk&fHkoaMh] ftyk&Bk.ks&fiu&421302
45-
;wfu;u cSad vkWQ bafM;k]
eksjck 'kk[kk
xksaMsokyk dkWEIysDl]
iksLV eksjck] rkyqdk euxkao]
ftyk rk,x<+&402117
46-
{ks=h; dk;kZy;] ukfld
;wfu;u cSad vkWQ bafM;k]
vacM+ 'kk[kk
jkekJ; vikVZesaV lsDVj bZ IykWV uañ 2
,oa 3] Hknzink ds ikl] vkf'ou uxj]
U;w flM~dks jkts laHkkth ØhMk ladqy jksM]
ukfld&422009
47-
{ks=h; dk;kZy;] ukxiqj
;wfu;u cSad vkWQ bafM;k]
ewy 'kk[kk]
vaxqyheky fuokl]
ukxiqj jksM
33 dsoh,e,lbZch dk;kZy; ds ikl ewy
ftyk] panziqj]
fiu&441224
48-
{ks=h; dk;kZy;]
dksYgkiqj
;wfu;u cSad vkWQ bafM;k]
QyV.k 'kk[kk
f'kokth uxj]
fjax jksM]
okbZ lh dkWyst ds lkeus]
QyV.k&415523
ftyk&lkrkjk
49-
{ks=h; dk;kZy;] jktdksV
;wfu;u cSad vkWQ bafM;k]
okadkusj 'kk[kk
fnxacj tSu eafnj ds lkeus
izrki jksM]
okadkusj] ftyk jktdksV
fiu 363621 & xqtjkr
50-
;wfu;u cSad vkWQ bafM;k]
flgksj 'kk[kk
'kkWi ua 4] xksiky dkEIysDl
jktdksV jksM ftyk Hkkouxj
fiu 364240 & xqtjkr
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
497
51-
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ekaMoh ¼dPN½ 'kk[kk
4 T;ksrs'oj ikdZ
iapoVh Lokehukjk;.k ekxZ ds ihNs
ekaMoh] ftyk dPN
fiu 370465
xqtjkr
52-
;wfu;u cSad vkWQ bafM;k]
'kkij osjkoy 'kk[kk
cSadlZ daikmaM
ohul baMfLVª;y ikdZ
osjkoy esu jksM
ftyk jktdksV
fiu 360024] xqtjkr
Hkkf"kd {ks= ^x*
53-
{ks=h; dk;kZy;] usYywj
;wfu;u cSad vkWQ bafM;k]
6&1&66] ckcw vkxzgjke
JhdkygfLr Vkmu]
fpÙkwj ftyk] fiu 517644
54-
;wfu;u cSad vkWQ bafM;k]
dksIiksyq ¼,QñvkbZñ½
5&21@2] dksIiksyq]
izdkle ftyk] fiu 523287
55-
;wfu;u cSad vkWQ bafM;k]
VaxVq# 'kk[kk
Mksj la[;k 13@225] xzkmaM ¶yksj
iqjkuk thñVhñ jksM
VaxVq# 523274] izdkle ftyk]
nwjHkk"k la[;k&08592 242009
56-
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jkteisVk 'kk[kk
Mksj la[;k 6@460] 461
jsyos LVs'ku jksMjkteisVk 516115
okbZ,lvkj dM+ik ftyk
nwjHkk"k la[;k 08565 241112
57-
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losZ la[;k 129] izFke eafty
,e ih Mh vks vkWfQl ds lkeus]
enuiYyh jksM
iqaxquwj 517247
fpÙkwj ftyk
nwjHkk"k la[;k % 08581 250794
58-
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ckyhjsM~Mh ikyse 'kk[kk
eqEekjsM~Mhikyse
ckyhjsM~Mh ikyse 524415
,lñihñ,lñvkjñ usYywj ftyk
nwjHkk"k la[;k 08624 258055
59-
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E;wfufliy vkWfQl jksM
eqackokjh lsaVj]
fpjkyk 523155
izdkle ftyk
nwjHkk"k 08594 233719
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thñ,uñVhñ jksM
v#.kk jkbl fey ds lkeus iksLV
lqYywjisVk
lqYywjisVk] usYywj ftyk
vka/kz izns'k
61-
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jkfoikMw 'kk[kk
losZ Ø 284@2 lh
esbu jksM] LFkku o Mkd
jkfoikMw 522 603
ujlkjkoisV eaMy
xqaVwj ftyk] vka/kz izns'k
62-
{ks=h; dk;kZy;] Hkqous'oj
;wfu;u cSad vkWQ bafM;k]
vkLdk 'kk[kk
izefurk dkEIysDl
jkT; jktekxZ 007
vkLdk ftyk xatke]
vksfjlk fiu 761110
63-
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dekiYyh 'kk[kk
lkmFkdks] dksVZisVk cjgeiqj
ftyk xatke fodkl [kaM
cjgeiqj
vksfjlk fiu 760004
64-
;wfu;u cSad vkWQ bafM;k]
N=iqj 'kk[kk
jaxfyy;e esu jksM
N=iqj ftyk xatke
vksfjlk fiu 761020
498
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
65-
;wfu;u cSad vkWQ bafM;k]
txrflagiqj 'kk[kk
lw;Z eafnj QS'ku
luctkt nhmfyxzkes'oj
ftyk txrflagiqj
vksfjlk fiu 754103
66-
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nqcqjh 'kk[kk
dkWeu QsflfyVh lsaVj
tslhMh,y] iadiky Ldos;j ds ikl
ftyk t;iqj
vksfjlk fiu 755026
67-
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<ejk 'kk[kk
Mhlh,Q dkEIysDl] ihvks <ejk
fodkl [kaM <ejk ftyk Hknzd
vksfjlk 756171
68-
;wfu;u cSad vkWQ bafM;k]
rqjax 'kk[kk
IykV ua 5127 ¼ih½ esu jksM
rqjax] ftyk vaxqy]
vksfjlk fiu 759143
69-
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nkeksnjiqj 'kk[kk
fodkl [kaM
ckjhink lknj
ftyk e;wjHkat
vksfjlk 757003
70-
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u;kx<+ 'kk[kk
[kkaMikM+k jksM vkjVhvks vkWfQl ds lkeus
ftyk u;kx<+
vksfjlk 752069
71-
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iqj"kksÙkeiqj 'kk[kk
ukjk;.k Iyktk
esu jksM
ftyk xatke
vksfj'kk 761018
72-
{ks=h; dk;kZy;] eaxywj
;wfu;u cSad vkWQ bafM;k]
dqeVk 'kk[kk
losZ lañ 71@1] 73@2] ihñMCY;wñMhñ jksM ds
ikl] cLrh isB] ftyk&mÙkj dUuM+]
dukZVd&581343
73-
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iqÙkqj 'kk[kk
uokt dkWEIySDl esu jksM cksyokj] iqÙkqj
ftyk&nf{k.k dUuM] dukZVd&574201
74-
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c;kM~xh 'kk[kk ladsr fcfYMax] vkjñ,lñ
la[;k&186] IykWV uañ 1] xqeugYyh jksM]
ftyk&gkosjh]
dukZVd&581 106
75-
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jk"Vªh; jktekxZ&66] iksñ HkVdy
ftyk mÙkj dUuM+] dukZVd&581320
76-
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Hknzkorh 'kk[kk
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jksM Hknzkorh] ftyk f'keksxk]
dukZVd&577301
77-
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efYydês 'kk[kk
th&3] eksfj"kdk VkWolZ] csUnqj jksM] efYydês
ftyk&nf{k.k dUuM+]
dukZVd&575 002
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;wfu;u cSad vkWQ bafM;k]
fljlh 'kk[kk
Jh egkek;k ,e,l izHkq Hkou] lhVh,l
uañ 551] 22ch] puiVuk cktkj] fljlh]
ftyk&mÙkj dUuM+]
dukZVd&581 401
80-
;wfu;u cSad vkWQ bafM;k]
gqulqj 'kk[kk
uañ 2167] f'kokth jko dkWEIysDl] flfoy
dksVZ ds ikl] ch ,e ckbikl jksM] gqalqj
ftyk eSlwj]
dukZVd&571 105
81-
;wfu;u cSad vkWQ bafM;k]
gkosjh 'kk[kk
lh Vh ,l 3378 bZ]
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
499
f'kokthuxj] rhljk Økl] Vkmu Fkkuk ds
lkeus] iq.ks caxywj ekxZ gkosjh]
ftyk&gkosjh]
dukZVd&581110
82-
;wfu;u cSad vkWQ bafM;k]
{ks=h; dk;kZy;] eaxywj
igyh eafty] dkR;k;uh egkek;s]
vUuiw.ksZ'ojh dkEIysDl] dykdqat
ldZy] eaxywj ¼dukZVd½&575003
83-
{ks=h; dk;kZy;] xqokgkVh
;wfu;u cSad vkWQ bafM;k]
chjpUnzuxj 'kk[kk
cksdkQk jksM CykWd
'kkfrj cktkj Vdekpkjk
ftyk&nf{k.k f=iqjk
f=iqjk&799125
84-
;wfu;u cSad vkWQ bafM;k]
fc'kkyx<+ 'kk[kk
edku ua&290497
ckMksZ;kyh] ,ñMhñ uxj]
fc'kkyx<+ jksM vxjryk
ftyk&if'pe f=iqjk
f=iqjk&799003
85-
;wfu;u cSad vkWQ bafM;k]
/keZuxj 'kk[kk
ln; foyk
foosdkuan jksM
Mkd[kkuk&u;kikjk /keZuxj
ftyk&mÙkjh f=iqjk
f=iqjk&799250
86-
;wfu;u cSad vkWQ bafM;k]
xksyikjk 'kk[kk
xksyikjk iapjRu jksM
ftyk&xksyikjk
vle&783101
87-
;wfu;u cSad vkWQ bafM;k]
bVkuxj 'kk[kk
ysxh def'kZ;y dkEIysDl
cSad frukyh
Mkd[kkuk&bVkuxj
ftyk&ikiqaiqj
v#.kkpy izns'k&791111
88-
;wfu;u cSad vkWQ bafM;k]
dksdjk>kj 'kk[kk
tsñMhñ jksM
Mkd[kkuk&dksdjk>kj
ftyk&dksdjk>kj
vle&783376
89-
;wfu;u cSad vkWQ bafM;k]
eksjku 'kk[kk
,ñVhñ jksM] ,uñ,pñ ua&37
eksjku
ftyk&fMczwx<+
vle&785670
90-
;wfu;u cSad vkWQ bafM;k]
iYVu cktkj 'kk[kk
fot;k ekdsZV
iYVu cktkj] thñ,lñ jksM
Mkd[kkuk&jsgkckjh xqokgkVh
ftyk&dke:i ¼'kgjh½
vle&781008
91-
;wfu;u cSad vkWQ bafM;k]
lsok 'kk[kk
dke:i pSacj jksM
QSUlh cktkj] xqokgkVh
ftyk&dke:i ¼'kgjh½
vle&781001
92-
{ks=h; dk;kZy;] gSnjkckn
;wfu;u cSad vkWQ bafM;k]
vjkoYyh 'kk[kk
edku ua 2&95] vjkoYyh xzke
ixknkiYyh e.My
ftyk djheuxj
vkU/kz izns'k&505452
93-
;wfu;u cSad vkWQ bafM;k]
dksaMkijFkh 'kk[kk
edku ua 2&1] dksaMkijFkh xzke]
gUedksaMk e.My] ftyk ojaxy]
vkU/kz izns'k 506002
94-
;wfu;u cSad vkWQ bafM;k]
'kfuxzke 'kk[kk
edku ua 1&144] 'kfuxzke xzke
deykiqj e.My
ftyk djheuxj
vkU/kz izns'k 505 102
95-
;wfu;u cSad vkWQ bafM;k]
osYnh 'kk[kk
edku ua 3&113] osYnh xzke]
ekudksaMqj e.My
ftyk djheuxj
vkU/kz izns'k 505 469
500
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
96-
;wfu;u cSad vkWQ bafM;k]
pkSyq: 'kk[kk
edku ua 2&1] pkSyq: xzke]
fganwiqj e.My
ftyk vuariqj]
vkU/kz izns'k 505211
97-
{ks=h; dk;kZy;] csaxywj
;wfu;u cSad vkWQ bafM;k]
xhre dSail
13@3 o 5@2 xzkeh.k
ukxknsugYyh] ,u,p 207]
csaxywj xzkeh.k
csaxywj 561203
98-
;wfu;u cSad vkWQ bafM;k
gkjxís 'kk[kk
gkjxís xzkñ o iksLV
ftx.kh] cSaxywj xzkeh.k
csaxywj
99-
;wfu;u cSad vkWQ bafM;k
bafnjkuxj 'kk[kk
30] vkj ds Iyk>k
lh,e,p jksM]
ihñvksñ bafnjkuxj
ftyk csaxywj
100- ;wfu;u cSad vkWQ bafM;k
egkohj vkdsZM 97
fljlh ldZy jksM
pkejktisV
csaxywj 560018
101- vkU/kzk cSad
yksds'oje 'kk[kk
Hkxrflag ldZy
eq[; ekxZ] yksds'oje&504104
vfnykckn ftyk
vkU/kz izns'k
102- vkU/kzk cSad
fQjkst+iqj
uañ 7] n eky]
fQjkst+iqj
iatkc&152001
103- vkU/kzk cSad
#nziqj 'kk[kk
IykV uañ 2
vkokl fodkl
uSuhrky jksM
#nziqj
104- vkU/kzk cSad
eqDrlj 'kk[kk
Vh,e,p IykTk+k]
ckbZ ikl pkSd]
dksVdiqjk jksM
eqDrlj] iatkc&152026
105- vkU/kzk cSad
isíowjk 'kk[kk
tsM ih gkbZ Ldwy ds lkeus
esu jksM] isíowjk&508266
uyxksaMk ftyk
106- vkU/kzk cSad
gluifrZ 'kk[kk
edku Øeñ 144
esu jksM] gluifrZ
ojaxy ftyk&506371
107- vkU/kzk cSad
cYysiYyh 'kk[kk
losZ Øe@239@,
igyk ekyk] [kEee&bYyanq esu jksM
cYysifYy
[kEee ftyk&507002
108- vkU/kzk cSad
chnj 'kk[kk
uañ 19&1&207@30431
c`ankou def'kZ;y dkEIysDl
f'kouxj nf{k.k
chnj&585401
109- vkU/kzk cSad
nksM~MdUusfYy 'kk[kk
uañ 121@2] f'kokl Iyktk
ljtkiqj esbu jksM
nksM~MdUusfYy
csaxywj&560 035
110- vkU/kzk cSad
daftDdksM 'kk[kk
psM;u dy;
fizdkV ejhfM;u ds ikl
daftDdksM osLV iksLV vkfQl
daftDdksM&678623
111- vkU/kzk cSad
d..kwj 'kk[kk
Jh HkSjos'oj dkEIysDl
d..kwj&;ygadk jksM
csaxywj iwoZ rkywd
d..kwj&562149
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
501
112- vkU/kzk cSad
dksIiy 'kk[kk
uañ 1&11&1032@1] 1032@8
tokgj jksM
dksIiy ftyk
dukZVd&583231
113- vkU/kzk cSad
efÙrdsjs 'kk[kk
,e ,l vkj bZ jksM
efRrdsjs
csaxywj&560054
114- vkU/kzk cSad
fla/kuwj 'kk[kk
vkj th jksM
fla/kuwj
jk;pwj ftyk
dukZVd jkT;
115- vkU/kzk cSad
iw.kZ izKk ys vkmV 'kk[kk
mÙRkjgfYy] dsaxjh esbu jksM
iw.kZ izKk ys vkmV
csaxyw#&560021
116- dksVk flVh 'kk[kk
irk% eksjh guqeku eafnj ds ikl]
iqjkuh /kku eaMh] dksVk
iksLV&dksVk
ftyk&dksVk] jktLFkku
fiu&324006
117- dksVk vkbZ ,y 'kk[kk
irk% bUlwVªesaVs'ku Vkmuf'ki dksVk]
iksLV&dksVk]
ftyk&dksVk] jktLFkku
fiu&324005
118- dksVk jktHkou 'kk[kk
irk% jktHkou jksM 'kk[kk] dksVk
iksLV&dksVk]
ftyk&dksVk] jktLFkku
fiu&324001
119- jkexateaMh 'kk[kk
irk% cktkj Øekad 1]
jkexat eaMh dksVk]
iksLV&jkexateaMh]
ftyk&dksVk] jktLFkku
fiu&326519
120- dksVk Jhjkeuxj 'kk[kk
irk% Jhjkeuxj dksVk]
iksLV&dksVk
ftyk&dksVk] jktLFkku
fiu&324004
121- dksVk xqekuiqjk 'kk[kk
irk% 211] xqekuiqjk dksVk
iksLV&xqekuiqjk]
ftyk&dksVk] jktLFkku
fiu&324007
122- dksVk lh,Mh ldZy 'kk[kk
irk% nknkckM+h] dksVk lh,Mh ldZy]
dksVk
iksLV&dksVk]
ftyk&dkswVk] jktLFkku
fiu&324007
123- >kyjkikVu 'kk[kk
iksLV&>kyjkikVu
ftyk&>kykokM+] jktLFkku
124- fjf)&flf) uxj] dksVk 'kk[kk
irk% fjf)&flf) uxj dksVk
iksLV&dksVk
ftyk&dksVk] jktLFkku
fiu&324002
125- dSFkwu 'kk[kk
irk% esu jksM dSFkwu]
iksLV&dSFkwu
ftyk&dksVk] jktLFkku
fiu&325001
126- lqYrkuiqj 'kk[kk
irk% fon~;kihB ds lkeus] esu jksM lqYrkuiqj]
iksLV&lqYrkuiqj]
ftyk&dksVk] jktLFkku
fiu&325204
127- JhukFkiqje dksVk] 'kk[kk
irk% ch&77] ch,l,u,y ldZy]
esu jksM JhukFkiqje
iksLV&dksVk]
ftyk&dksVk] jktLFkku
fiu&324010
128- cwWanh 'kk[kk
irk% ?kkl eaMh ds lkeus]
/keZ'kkyk eaMh]
iksLV&cwWanh]
502
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
ftyk&cwWanh] jktLFkku
fiu&323001
129- fd'kuxat 'kk[kk
iksLV&fd'kuxat]
ftyk&ckjka] jktLFkku
fiu&325216
130- ckjka 'kk[kk
irk% Hkhexat cktkj ckjka]
ftyk ckjka] jktLFkku
iksLV&ckjka] jktLFkku
fiu&325205
131- NcM+kxqxksj 'kk[kk
iksLV&NcM+kxqxksj]
ftyk&ckjka] jktLFkku
fiu&325220
132- fNikcjksM 'kk[kk
iksLV&fNikcjksM]
ftyk&ckjka] jktLFkku
fiu&325220
133- dksVMh ckjka 'kk[kk
iksLV&dksVMh ckjka Ogk;k NcM+k xqxksj]
ftyk&ckjka] jktLFkku
134- LVs'ku jksM 'kk[kk
iksLV&LVs'ku jksM] dksVk taD'ku] dksVk]
ftyk&dksVk] jktLFkku
fiu&324 002
135- fnYyh vkapfyd dk;kZy;
iksLV&vfgalk Hkou] U;w jktsUnz uxj
ladj jksM] ubZ fnYyh&110060
136- ekyiqjk 'kk[kk
iksLV&ekyiqjk]
ftyk&Vksad] jktLFkku
fiu&304502
137- LVs'ku jksM] vtesj 'kk[kk
irk% LVs'ku jksM vtesj]
jsyos LVs'ku vtesj ds ikl
iksLV&vtesj]
ftyk&vtesj] jktLFkku
fiu&305001
138- ek[kqiqjk vkSn~;ksfxd {ks= vtesj 'kk[kk
irk% ek[kqiqjk vkSn~;ksfxd {ks=] vtesj
iksLV&vtesj]
ftyk&vtesj] jktLFkku
fiu&305002
139- C;koj 'kk[kk
irk% gksVy fouksn ds ikl]
LVs'ku jksM] C;koj
iksLV&C;koj]
ftyk&vtesj] jktLFkku
fiu&305901
140- enuxat fd'kux<+ 'kk[kk
irk% enuxat fd'kux<+] vtesj
iksLV&enuxat fd'kux<+
ftyk&vtesj] jktLFkku
fiu&305801
141- ulhjkckn 'kk[kk
irk% 61&,] esu ekdsZV] Qse th pkSd] ulhjkckn
iksLV&ulhjkckn]
ftyk&vtesj] jktLFkku
fiu&305601
142- iq"dj 'kk[kk
irk% egknso pkSd]
NksVh cLrh] iq"dj
iksLV&iq"dj]
ftyk&vtesj] jktLFkku
fiu&305022
143- ihlkaxu 'kk[kk
irk% egs'ojh Hkou] Hks: njokts ds ikl
iksLV&filkaxu
ftyk vtesj] jktLFkku
fiu&305204
144- oS'kkyh uxj] vtesj 'kk[kk
irk% 14] v'kksd fogkj] oS'kkyh uxj] vtesj
iksLV&vtesj]
ftyk&vtesj] jktLFkku
fiu&305001
145- vtesj 'kk[kk
irk% egf"kZ n;kuan ljLorh fo'o fon~;ky;] vtesj
iksLV&vtesj]
ftyk&vtesj] jktLFkku
fiu&305009
146- fipkSfy;ka 'kk[kk
irk% cl LVSaM ds ikl] fipkSfy;ka]
iksLV&fipkSfy;ka]
ftyk&vtesj] jktLFkku
fiu&305022
147- /kkSyk HkkVk] vtesj 'kk[kk
irk% /kkSykHkkVk pkSjkgk]
iksLV&vtesj]
ftyk&vtesj] jktLFkku
fiu&305001
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
503
148- ddksM+ 'kk[kk
iksLV&ddksM+]
ftyk&Vksad] jktLFkku
fiu&304024
149- lkoj 'kk[kk
irk% cl LVSaM ds ikl] lkoj
iksLV&lkoj]
ftyk&vtesj] jktLFkku
fiu&305022
150- panzojnkbZ uxj] vtesj 'kk[kk
irk% [ksy eSnku ds lkeus] pUnzojnkbZ uxj] vtesj
iksLV&vtesj]
ftyk&vtesj] jktLFkku
fiu&305001
151- fcNkSN 'kk[kk
iksLV&fcNkSN]
ftyk&lokbZ ek/kksiqj] jktLFkku
fiu&322214
152- pdsjh 'kk[kk
iksLV&pdsjh]
ftyk&lokbZ ek/kksiqj] jktLFkku
fiu&322034
153- vkSn~;ksfxd {ks= 'kk[kk] dksVk
iksLV&,&3] vkSn~;ksfxd {ks= 'kk[kk] dksVk
ftyk&dksVk] jktLFkku
fiu&324007
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 27th December, 2013
S.O. 230.—In pursuance of sub-rule (4) of rule 10 of
the Official Languages (use for official purpose of the
union) Rules, 1976, the Central Government, hereby, notifies
the listed branches/offices of the following Banks in the
attached annexure, more than 80% of the staff whereof
have acquired the working knowledge of Hindi.
Sl.
Name of the Banks
Number of
No.
Branches/
Offices
1.
Union Bank of India
100
2.
Andhra Bank
15
3.
State Bank of Bikaner & Jaipur
38
Total
153
[F.No. 11016/13/2013-Hindi]
DR. VED PRAKASH DUBEY, Jt. Director (OL)
UNION BANK OF INDIA
Official Language Implementation Division, Central
Office, Mumbai Branches/Offices recommended for
notification under Official Language Rule 10(4)
Linguistic Region 'A'
Sl. No.
Name & Address of Branch/Office
1.
Regional Office, Kanpur
Union Bank of India,
Bachhrawan Branch
Patel Nagar Colony
Raebareli Road, Bachhrawan
Dist Raebareli-229301
Uttar Pradesh
2.
Union Bank of India,
Harchandpur Branch
Railway Station Road
At and Post Harchandpur
Dist Raebareli-229303
Uttar Pradesh
3.
Union Bank of India,
Madhupuri Branch
Dalmau Road
Post Munshiganj
Dist Raebareli-229405
Uttar Pradesh
4.
Union Bank of India,
Lalganj Branch
Near Behta Chauraha
At & Post Lalganj
Dist Raebareli-229206
Uttar Pradesh
5.
Union Bank of India,
Guraini Branch
15-MIG D Block
Main Road
Kanpur-208022
Uttar Pradesh
6.
Regional Office, Indore
Union Bank of India,
Tigaria Sancha Branch
Post Bangar
Village Tigaria Sancha
Dist Dewas (M.P.) 455001
7.
Union Bank of India,
Kadwali Bujurg Branch
Post Mangalia
Tehsil Sanver
Village Kadwali Bujurg
Dist Indore (M.P.) 453771
504
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
8.
Regional Office, Bhopal
Union Bank of India,
Bhind Branch
Vidyavati Complex, Bangala Bazar
PO Bhid,
Dist. Bhind
Madhya Pradesh-477001
9.
Union Bank of India,
Karond Branch,
M/S. PGH International Pvt. Ltd.,
Peoples World
Bhanpur Karond Road,
PO M.L. Nagar
Huzur, Dist, Bhopal
Madhya Pradesh-462038
10.
Union Bank of India,
Badi Branch
Ward No. 11, Main Road
Post-Badi, Dist. Raisen
(Madhya Pradesh)
Pin-464665
11.
Union Bank of India,
Datia Branch
Tanya Palace Hotel
Near Collectorate, Civil Line Road
Datia (MP) Pin-475661
12.
Union Bank of India,
Sojana Branch
Special Area Development Authority
Shitla Sahai Administrative Bhawan
Village: Sojna, Dist: Gwalior
(MP) Pin-474001
13.
Union Bank of India,
Distict Court Branch
District Court
Gwalior (MP)
Pin-474001
14.
Union Bank of India,
Basoda Branch
In Fron of Govt. SGSPG College
Bareth Road, Kalabagh Ganj
Basoda, Dist: Vidisha (MP)
Pin-464221
15.
Regional Office, Allahabad
Union Bank of India,
Jhunsi Branch, Chak Hariharan,
G.T. Road, Jhunsi
Distt. Allahabad
Uttar Pradesh
16.
Union Bank of India,
Chunar Branch, Saddupur Mohana, Post-
Chunar,
Distt. Mirzapur
Uttar Pradesh
Pin-231304
17.
Union Bank of India,
Babuganj Branch
Post-Babuganj
Tahsil-Phulpur
Dist.-Allahabad, Uttar Pradesh
18.
Union Bank of India,
Shankargarh Branch, Ram Bhavan
Chauraha,
Shivrajpur Road, Post-Shankargarh,
Dist.-Allahabad-Uttar Pradesh 212108
19.
Union Bank of India,
Ghurpur Branch
Vill. & Post-Ghurpur
Tehsil-Bara
Dist-Allahabad, Uttar Pradesh
20.
Union Bank of India,
Itawa Uparwar Branch, Vill-Itawa, Opp.-
Balgovind Petrol Pump, Post-Maharajganj,
Dist.-Sant Ravidas Nagar (Bhadohi),
Uttar Pradesh
21.
Regional Office, Agra
Union Bank of India,
Sambhal Branch
Alamsaray, Near Reliance Petrol Pump
Bahajoi Road
Sambhal-244302
22.
Union Bank of India,
Iglas Branch
Hatharas Road,
Near Singhal Dharmakanta,
Iglas Distt. Aligarh-202124
23.
Union Bank of India,
Pooranpur Branch
Rajaganj Block Road
Pooranpur,
Dist. Pilibhit-262122
24.
Union Bank of India,
Bahedi Branch
Before Ratan Talkies
Nainital Road
Bahedi, Distt. Bareilly-243201
25.
Union Bank of India,
Faredpur Branch
Near Shyam Sundar Kanya Inter College,
Main Road Fareedpur
Dist. Bareilly-243503
26.
Union Bank of India,
Aonla Branch
Ramnagar Road
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
505
Sargam Talkies
Aonla-243301
27.
Union Bank of India,
Khandouli Branch
Hathras Road,
Etmadpur
Khandauli-282126
28.
Union Bank of India,
Bisauli Branch
Badaun Road
Opposite Ramleela Ground
Bisauli -43720
29.
Union Bank of India,
Nawabganj Branch
Pilibhit bypass Road,
Near C.O. Office
Nawabganj-243406
30.
Union Bank of India,
Ujhanee Road
Badaun Road
Before SBI
Ujhanee-243639
31.
Regional Office, Jabalpur
Union Bank of India
Civil Lines Sagar Branch
Hotel Sangum Campus
5 Civil Lines
Sagar, M.P.
32.
Union Bank of India,
Adhartal Branch,
Near Vimal Nursing Home,
Main Road, Adhartal,
Jabalpur-Pin Code 482004
33.
Union Bank of India,
Dhanvantari Nagar Branch
Plot No. 154, Dhanvantari Nagar
Garha Road
Jabalpur-482003
34.
Union Bank of India,
Panagar Branch
N.H. 7 Main Road
Shivaji Ward
Jabalpur-483220
35.
Union Bank of India,
Jabalpur Road Katni Branch
M.S.R. Groups
M.M. Chaubey Ward
Jabalpur Road
Katni-483551
36.
Regional Office, Gorakhpur
Union Bank of India,
Kunda Sarifpur Shakha
Post Sinh Ebrahimbad
Post Madhuban
Jilaa-Mau 221603 UP
37.
Union Bank of India,
Chistipur (Kopanganj Branch)
Post Kopaaganj
Jila 275305
38.
Union Bank of India,
Surhurpur Branch
At & Post Surhurpur
Dist.: Mau
Pin-276403 (UP)
39.
Regional Office, Mumbai (W)
Kandivli (E), Mumbai Union Bank of India,
Jogeshwari West Branch
Shop No. 6, 7 Ayesha Towers, S.V. Road
Near MTNL
Jogeshwari West, Mumbai 400102
Tel: 022 26763060
40.
Union Bank of India,
Mid Corporate Jogeshwari Branch
Shop No. 6, 7 Ayesha Towers
S.V. Road, Near MTNL
Jogeshwari West, Mumbai 400 102
Tel: 022 26793942
41.
Union Bank of India,
Mid Corporate Borivali Branch,
Shop No. 1 to 5 Orchid, Ground Floor
Carter Road No. 7, Borivali East
Mumbai 400 066
Tel. No. 022 28641001
42.
Union Bank of India,
Virar West Branch
Shop No. 8-13, Yashwant Heights
New India Co. Op Lane
Virara West, Thane-401303
Tel. No. 9930100470
43.
Union Bank of India,
Laokhandwala Complex Branch
Shop No. 63, 64, 65
Centrium Shopping Centre
Lakhandwala Complex
Kandivli East
Mumbai 400101
Tel. No. 022 29650010
506
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
44.
Regional Office,
Mumbai (N)
Union Bank of India,
Kalher Branch
Ambika Bhavan, Shop No. 1 & 2
Old Agra Road, Kalher
Dist.-Thane Pin-421302
45.
Union Bank of India,
Morba Branch
Gondewalla Complex,
At & Post Morba
Taluka-Mangaon, Dist-Taigad 402117
46.
Regional Office, Nasik
Union Bank of India,
Ambad Branch
Ramashreya Apartment,
Sector E, Plot No. 2 & 3
Near Bhadrapada Ashvin Nagar
New CIDCO
Raje Sambhaji Krida Sankul Road
Nasik 422009
47.
Regional Office, Nagpur
Union Bank of India,
Mul Branch
Angulimal Niwas
Nagpur Road
33 Near KVMSEB Office
Mul Dist., Chandrapur
Pin 441224
48.
Regional Office, Kolhapur
Union Bank of India,
Phaltan Branch
Shivaji Nagar, Ring Road
Opp. Y.C. College,
Phaltan-415523
Dist.-Satara
49.
Regional Office, Rajkot
Union Bank of India,
Wankaner
Opp Diagambar Jain Temple
Pratap Road, Wankaner
Dist. Rajkot Pin 363621, Gujarat
50.
Union Bank of India,
Sihore Branch
Shop No. 4, Gopal Complex
Rajkot Road, Dist. Bhavanagar
Pin 364 240 Gujarat
51.
Union Bank of India,
Mandvi (Kutch) Branch
4 Jyoteshwar Park
Behind Panchvati Swaminarayan Marg
Mandvi, Dist. Kutch
Pin 370465 Gujarat
52.
Union Bank of India,
Shapar (Veraval) Branch
Bankers Compound
Venus Industrial Park
Veraval Main Road
Dist. Rajkot
Pin 360024, Gujarat
Linguistic Region 'C'
53.
Regional Office, Nellore
Union Bank of India,
6-166 Babu Agraharam
Srikalahasti Town
Chittoor District
Pine 517644
54.
Union Bank of India,
Koppolu (FI)
5-21/2, Koppolu
Prakasam Dist
Pin 523287
55.
Union Bank of India,
Tangutur Branch
D. No. 13/225, Ground Floor
Old G.T. Road
Tangutur-n-523274
Prakasam Dist
Phone No.: 08592 242009
56.
Union Bank of India,
Rajampeta Branch
D. No. 6/460, 461
Railway Station Road
Rajampeta 516115
YSR Kadapa Dist
Phone No. 08565 241112
57.
Union Bank of India,
Survey No. 129
First Floor,
Opp. MPDO Office
Madamnapalle Road
Punganur 517247
Chittoor Dist,
Phone 08581 250794
58.
Union Bank of India,
Balireddy Palem Branch
Mummareddyapalem
Balireddy Palem 524415
S.P.S.R. Nellore Dist
Phone No. 08624 258055
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
507
59.
Union Bank of India,
D.No. 14-1-155
Municipal Office Road
Mumbavari Centre
Chirala 523155
Prakasam District
Phone No. 08594 233719
60.
Union Bank of India,
G N T Road
Opp. Aruna Raice Mill
Sullurpeta (At and Post)
Nellore District,
Andhra Pradesh
61.
Regional Office, Vijayawada
Union Bank of India,
Survey No. 284/2 C,
Main Road (At & Post)
Ravipadu 522603
Narsarao Pet Mandal
Dist. Gunturu A.P.
62.
Regional Office, Bhuvneshwar
Union Bank of India,
Aska Branch
Pramonita Complex
State Highway 007, Aska
Dist. Ganjam, Orissa 761110
63.
Union Bank of India,
Kamapalli Branch
Southco Courtpeta
Berhampur, Dist. Ganjam
Dev. Block Berhampur
Orissa 760004
64.
Union Bank of India,
Chhatarpur Branch
Rangalilayam, Main Road
Chaatrapur, Dist. Ganjam
Orissa 761020
65.
Union Bank of India,
Jagatsinghpur Branch
At Surya Mandir Fashion
Sanabazaz Deuligrameswar
Dist. Jagatsinghpur
Orissa 754103
66.
Union Bank of India,
Dubri Branch
Common Facility Centre
JCDL, Near Pankapal Square
Dist. Jajpur
Orissa 755026
67.
Union Bank of India,
Dhamra Branch
DFC Comples, P.O. Dhamara
Dev Block Dhamara, Dist. Bhadrak
Orissa 756171
68.
Union Bank of India,
Turan Branch
Plot No. 5127 (P) Main Road
Turang,
District-Angul 759143
69.
Union Bank of India,
Damodarpur Branch
At & PO Damodarpur
Dev Block Baripada Sadar
Dist. Mayurbhjanj, Orissa 757003
70.
Union Bank of India,
Nayagarh Branch
At Khandapara Road
In front of RTO Office
Dist. Nayagarh
Orissa 752069
71.
Union Bank of India,
Purushottampur Branch
Narayan Plaza, Main Road
Dist. Ganjam
Orissa 761018
72.
Regional Office, Mangalore
Union Bank of India,
Kumta Branch
PWD Rd., Sy. No. 72/1.73/2.,
Near PWD Road, Bastipeth, Kumta, Dist.
Uttar Kannada,
Karnataka-581 343
73.
Union Bank of India,
Puttur Branch
Nawaz Complex, Blowar, Puttur
Dist. Dakshin Kannada
Karnataka-574 201
74.
Union Bank of India,
Byadgi Branch
Sanket Building, R.S. No. 186, Plot No. 1
Gummanhalli Road
Dist. Haveri
Karnataka 106 581
75.
Union Bank of India,
Bhatkal Branch
Abhay Bldg., Hotel Shanbagh Residency,
NH 66, PO Bhatkal,
Dist. Uttar Kannada, Karnataka-581320
508
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
76.
Union Bank of India,
Bhadravati Branch
Near Muncipal Office, Tarikere Road,
Bhadravati
Dist. Shimoga
Karnataka-577301
77.
Union Bank of India,
Mallikatte Branch
G-3, Mourishka Towers, Bendur Road,
Mallikatte
Dist-Dakshin Kannada,
Karnataka-575 002
78.
Union Bank of India,
Sulia Branch
Nair Complex, Gandhinagar Main Road,
Sulia,
Dist. Dakshin Kannada,
Karnataka 239574
79.
Union Bank of India
Sirsi Branch
Shree Mahamaya, CTS No.
551, 22B, Channapatana Bazaar, Sirsi,
Dist: Uttar Kannada,
Karnataka-581401
80.
Union Bank of India
Hunsur Branch
2167, Shivaji Rao Complex,
Near Civil Court, B M Bypass Road,
Hunsur, Dist. Mysore,
Karnataka-571105
81.
Union Bank of India
Haveri Branch
CTS 3378 E,
Shivaji Nagar,
IIIrd Cross, Opp. Town Police Station,
Pune- Bangalore Road,
Dist. Haveri
Karnataka-581110
82.
Union Bank of India
Regional Office, Mangalore
Ist Floor, Katyayani Mahamaye,
Annapoorneshwari Complex, Kalakunj
Circle,
Mangalore
Karnataka-575003
83.
Regional Office, Guwahati
Union Bank of India
Birchandranagar Branch
Bokafa Road Block
Santir Bazar, Takmachara
Dist. South Tripura
Tripura-799125
84.
Union Bank of India
Bishalgarh Branch
House No. 290497
Bardoali, A.D. Nagar
Bishalgarh Road Agartala
Dist. West Tripura
Tripura-799003
85.
Union Bank of India
Dharmanagar Branch
Saday Villa
Vivekanand Road
P.O. Nayapara Dharmanagar
Dist. North Tripura
Tripura-799250
86.
Union Bank of India
Goalpara Branch
Goalpara Pancharatna Road
Dist. Goalpara
Assam-783101
87.
Union Bank of India
Itanagar Branch
Legi Commercial Complex
Bank Tinali
P.O. Itanagar
Dist. Papumpure
Arunachal Pradesh-791111
88.
Union Bank of India
Kokrajhar Branch
J.D. Road
P.O. Kokrajhar
Dist. Kokrajhar
Assam-783376
89.
Union Bank of India
Moran Branch
A.T. Road, N.H.-37
Moran
Dist. Dibrugarh
Assam-785670
90.
Union Bank of India
Paltan Bazar Branch
Vijaya Market
Paltan Bazar, G.S. Road
P.O. Rehabari Guwahati
Dist. Kamrup(M)
Assam-781008
91.
Union Bank of India
Service Branch
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
509
Kamrup Chamber Road
Fancy Bazar, Guwahati
Dist. Kamrup(M)
Assam-781001
92.
Regional Office, Hyderabad
Union Bank of India
Aravelli Branch
House No. 2-95, Aravelli Village
Pagadapalli Mandal,
Dist. Karimanagar,
Andhra Pradesh-505452
93.
Union Bank of India
Kondaparthy Branch
House No. 2-1, Kondaparthy Village
Hanmkonda Mandal
Dist. Warangal,
Andhra Pradesh-506002
94.
Union Bank of India
Shanigaram Branch
House No. 1-144, Shanigaram Village,
Kamalapur Mandal
Dist. Karimnagar,
Andhra Pradesh-505102
95.
Union Bank of India
Veldi Branch
House No. 3-113, Veldi Village
Mankondur Mandal
Dist. Karimnagar,
Andhra Pradesh 505469
96.
Union Bank of India
Chowluru Branch
House No. 2-1, Chowluru Village
Hindupur Mandal
Dist. Anantpur,
Andhra Pradesh-51521
97.
Regional Office, Bangalore
Union Bank of India
Geetham Campus
13/3 and 5/2, Nagadenahalli
NH 207, Bangalore Rural Dt.
Bangalore 561203
98.
Union Bank of India
Haragadde Branch
Hargadde V&P
Jigani Hobli Anekal Taluk
Bangalore Urban Dt.
Bangalore
99.
Union Bank of India
Indiranagar Branch
CMH Road,
P.O. Indiranagar
Dist. Bangalore-560038
100.
Union Bank of India
Mahaveer Arcade
Chamrajpet
Bangalore-560018
101.
Andhra Bank
Lokeshwaram Branch
Bahgatsingh Circle
Main Road, Lokeshwaram-504104
Adilabad District
Andhra Pradesh
102.
Andhra Bank
Ferozpur Branch
No, 7, The Mall
Ferozpur
Punjab-152001
103.
Andhra Bank
Rudrapur Branch
Plot No. 2
Avas Vikas
Nainital Road
Rudrapur
104.
Andhra Bank
Muktsar Branch
TMH Plaza,
Bye-Pass Chowk
Kothakpura Road
Muktsar, Punjab-152026
105.
Andhra Bank
Peddavoora Branch
Opp. ZP High School
Main Road, Peddavoora-508266
Nalgonda District
106.
Andhra Bank
Hasanparti Branch
House No. 144
Main Road, Hasanparti
Warangal District-506371
107.
Andhra Bank
Ballepalli Branch
Survey No. 239/A
First Floor, Khammam-Ellanudu Main Road
Ballepalli
Khammam-507002
108.
Andhra Bank
Bidar Branch
No. 19-1-207/30431
Brindavan Commercial Complex
Shivnagar South
Bidar-585401
510
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
109.
Andhra Bank
Doddakanelli Branch
No. 121/2, Shivas Plaza
Sarjapur Main Road
Doddakanelli
Bangalore-560035
110.
Andhra Bank
Kanjikode Branch
Chedayan Kalai
Near Precot Meridian
Kanjikode West P.O.
Kanjikode-678623
111.
Andhra Bank
Kannur Branch
Sri Bhairaveswar Plaza
Kannur-Yelahanka Road
Bangalore East Taluk
Kannur-562149
112.
Andhra Bank
Koppal Branch
No. 1-11/1032/1, 1032/8
Jawahar Road
Koppal District
Karnataka-583231
113.
Andhra Bank
Mathikere Branch
MSRE Road
Mathikere
Bangalore-560054
114.
Andhra Bank
Sindhanur Branch
RG Road
Sindhanur
Raichur District
Karnataka State
115.
Andhra Bank
Poorna Pragna Layout Branch
Uttarhalli, Kengeri Main Road
Poorna Pragna Layout
Bangalore-560021
116.
Kota City Branch
Post-Near Mori Hanuman Mandir,
Purani Dhan Mandi, Kota
Distt. Kota
(Rajasthan)
Pin.324006
117.
Kota 1 L Branch
Instrumentation Township, Kota
Post-Kota
Distt. -Kota
(Rajasthan)
Pin-324005
118.
Kota Rajbhawan Road Branch
Rajbhawan Road, Kota
Post-Kota
Distt.-Kota
(Rajasthan)
Pin-324001
119.
Ramganj Mandi Branch
Bazar No. 1 Ramganj Mandi Kota,
Post- Ramganj Mandi
Distt.- Kota
(Rajasthan)
Pin-326519
120.
Kota Shriramnagar Branch
Shriramnagar
Post-Kota,
Distt.-Kota
(Rajasthan)
Pin-324004
121.
Gumanpura Kota Branch
211, Gumanapura Kota
Post-Kota
Distt.-Kota
(Rajasthan)
Pin-324007
122.
Kota Cad Circle, Branch
Kota Cad Circle, Kota
Post-Kota,
Distt.-Kota (Rajasthan)
Pin-324007
123.
Jhalraptan Branch
Post-Jhalrapatan
Distt.-Jhalawad
(Rajasthan)
124.
Ridhi Sidhi Nagar, Kota Branch
Post-Ridhi Sidhi Nagar Kota,
Distt.-Kota
(Rajasthan)
Pin-324002
125.
Kaithoon Branch
Main Road Kaithoon
Post-Kaithoon
Distt.-Kota
(Rajasthan)
Pin-325001
126.
Sultanpur Branch
In Front of Vidya Peeth,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
511
Main Road, Sultanpur
Post-Sultanpur,
Distt.-Kota
(Rajasthan)
Pin-325204
127.
Shrinath Puram, Branch
B-77, BSNL Circle, Main Road
Shrinathpuram
Post-Kota
Distt.-Kota
(Rajasthan)
Pin-324010
128.
Bundi Branch
Near Ghas Mandi,
Dharamshala Mandi
Post-Bundi
Distt.-Bundi
(Rajasthan)
Pin-323001
129.
Kishan Ganj Branch
Post-Kishanganj,
Distt.-Baran
(Rajasthan)
Pin-325216
130.
Baran Branch
Bheem Ganj Bazar Baran,
Post-Baran
Distt.-Baran
(Rajasthan)
Pin-325205
131.
Chhabra Gugar Branch
Post-Chhabra Gugar,
Dist.-Baran
(Rajasthan)
Pin-325220
132.
Chhipa Barod Branch
Post-Chhipa Barod
Distt.-Baran
(Rajasthan)
Pin-325221
133.
Kotri Baran Branch
Post-Kotri Baran, via Chhabra Gugar
Distt.-Baran
(Rajasthan)
134.
Station Road Branch
Post-Station Road, Kota Jn., Kota
Distt.-Kota
(Rajasthan)
Pin-324002
135.
Delhi Zonal Office
Ahimsa Bhawan
New Rajendra Nagar,
Shankar Road
New Delhi-110060
136.
Malpura Branch
Post-Malpura,
Distt.-Tonk
(Rajasthan)
Pin-304502
137.
Station Road Ajmer Branch
Station Road Ajmer,
Near Railway Station, Ajmer
Post-Ajmer
Distt.-Ajmer
(Rajasthan)
Pin-305001
138.
Makhupura Industrial Estate, Ajmer Branch
Post-Makhupura Industrial Estate, Ajmer
Distt.-Ajmer
(Rajasthan)
Pin-305002
139.
Beawar Branch
Near Hotel Vinon,
Station Road Beawar,
Post-Beawar
Distt.-Ajmer
(Rajasthan)
Pin-305901
140.
Madan Ganj Kishangarh Branch
Madan Ganj Kishangarh
Post-Kishangarh,
Distt.-Ajmer
(Rajasthan)
Pin-305801
141.
Nasirabad Branch
61-A, Main Market, Fame G Chowk
Nasirabad
Post-Nasirabad
Distt.-Ajmer
(Rajasthan)
Pin-305601
142.
Pushkar Branch
Mahadev Chowk,
Chhoti Basti, Pushkar
Post-Pushkar,
Distt.-Ajmer
(Rajasthan)
Pin-305022
512
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
143.
Pisangan Branch
Maheshwari Bhawan,
Near Bheru Darwaja, Pisangan
Post-Pisangan
Distt.-Ajmer
(Rajasthan)
Pin-305204
144.
Vaishali Nagar Branch
14, Ashok Vihar,
Vaishali Nagar, Ajmer
Post-Ajmer
Distt.-Ajmer
(Rajasthan)
Pin-305001
145.
Maharshi Dayanand Vishwavidyalaya,
Ajmer Branch
Maharshi Dayanand Vishwavidyalaya, Ajmer
Post-Ajmer
Distt.-Ajmer
(Rajasthan)
Pin-305009
146.
Picholiya Branch
Near Bus Stand, Picholiya
Post-Picholiya,
Distt.-Ajmer
(Rajasthan)
Pin-305022
147.
Dholan Bhata Ajmer, Branch
Dhola Bhata Chauraha Ajmer,
Post-Ajmer
Distt.-Ajmer
(Rajasthan)
Pin-305001
148.
Kakod Branch
Post-Kakod,
Distt.-Tonk
(Rajasthan)
Pin-304024
149.
Sawar Branch
Near Bus Stand, Sawar
Post-Sawar
Distt.-Ajmer
(Rajasthan)
Pin-305022
150.
Chandra Vardai Nagar, Ajmer Branch
Post-Opposite Play Ground,
Chandra Vardai Nagar, Ajmer
Distt.-Ajmer
(Rajasthan)
Pin-305001
151.
Bichhochh Branch
Post-Bichhochh
Dist.-Sawai Madhopur
(Rajasthan)
Pin-322214
152.
Chakeri Branch
Post-Chakeri
Distt.-Sawai Madhopur
(Rajasthan)
Pin-322034
153.
Industrial Estate Branch, Kota
Post-A-3, Industrial Estate Branch, Kota
Distt.-Kota,
(Rajasthan)
Pin-324007
ubZ fnYyh] 3 tuojh] 2014
dkñvkñ 231.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ micaè½
Ldhe] 1970@1980 ds [kaM 9 ds mi&[kaM ¼1½ vkSj ¼2½ ds lkFk
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dh rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok dsujk cSad esa muds
vf/kdkjh ds in ij cus jgus rd vFkok vxys vkns'kksa rd] buesa ls
tks Hkh igys gks] dsujk cSad ds funs'kd e.My esa vf/kdkjh deZpkjh
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[Qkñ lañ 6@46@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 3rd January, 2014
S.O. 231.—In exercise of the powers conferred by
clause (f) of sub-section 3 of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertaking) Act,
1970/1980 read with sub-clause (1) & (2) of clause 9 of The
Nationalized Banks (Management and Miscellaneous
Provisions) Scheme, 1970/1980, the Central Government
after consultation with the Reserve Bank of India, hereby
re-appoints Shri G.V. Manimaran (DoB: 05.05.1961), Manager,
Canara Bank, as Officer Employee 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 he ceases
to be an officer of the Canara Bank, or until further orders,
whichever is the earliest.
[F. No. 6/46/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
¹Hkkx II—[k.M 3(ii)º
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513
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2004
l-ua- 5@5@1@2@13
¼iSdstcan izkd`frd
dksa<ok chds
feujy ty ds vykok½
rkyqdk gosyh
ftyk iq.ks
egkjk"Vª 411048
[la- lh,eMh@13%11]
ch- ,e- guhQ] oSKkfud ^,Q* ,oa izeq[k
514
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARD)
New Delhi, the 7th January, 2014
S.O. 232.—In pursuance of sub-regulation (5) of the regulation 4 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in
the following schedule :
SCHEDULE
Sl.
Licence
Grant
Name & Address of the Party
Title of the Standard
IS No.
Part
Section
Year
No.
No.
Date
1
2828266
30-11-2013
M/s S.J. Foods & Agro
Packaged drinking water
14543
2004
Industries
(Other than packaged
Gat No. 397
natural mineral water)
Ghantangri
Taluka & District Osmanabad
Maharashtra 413501
2
2828367
29-11-2013
M/s Krushnraj Mineral Water
Packaged drinking water
14543
2004
Milkat No. 3000
(Other than packaged
S.No. 96/13B
natural mineral water)
Manchar
Ambegaon
District Pune
Maharashtra 410503
3
2830859
7-12-2013
M/s Arjuna Beverages
Packaged drinking water
14543
2004
Plot No. 2-9-78
(Other than packaged
Somesh Colony
natural mineral water)
District Nanded
Maharashtra 431601
4
2830960
2-12-2013
M/s Aadi Plastic Industries Pvt
Textiles-Tarpaulins
7903
2011
Ltd
made from high density
Gat No. 133/14 & 121/1
polyethylene woven
Village Kagal
fabric-Specification
Taluka Kagal
District Kolhapur
Maharashtra 416216
5
2836669
21-12-2013
M/s Mahesh Agro Plast
Unplasticized PVC Pipes
4985
2000
Plot No. E-45/9
for Potable Water
Kurkumbh MIDC
Supplies-Specification
Taluka Daund
District Pune
Maharashtra 413802
6
2836568
21-12-2013
M/s Laxmi Pipe & Profiles
Unplasticized PVC Pipes
4985
2000
Gat No. 142/1A
for Potable Water
Jamgaon (A)
Supplies-Specification
Taluka Barshi
District Solapur
Maharashtra 413401
7
2836366
21-12-2013
SRF Beverages
Packaged drinking water
14543
2004
S.No. 5/5/1/2/13
(Other than packaged
Kondhawa BK
natural mineral water)
Taluka Haveli
District Pune
Maharashtra 411048
[No. CMD/13:11]
B.M. HANEEF, Scientist 'F' and Head
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
515
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 233.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e 1988 ds fofu;e 5 ds mifofu;e ¼6½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk
vf/klwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jn~n@LFkfxr dj fn;k x;k gSa%&
vuqlwph
Ø-
ykblsal la[;k
ykblsal/kkjh dk uke o irk
ykblsal ds varxZr oLrq@izØe lEc)
jn~n djus dh frfFk
la[;k
lh,e@,y&
Hkkjrh; ekud dk 'kh"kZd
fuy
[la- lh,eMh@13%13]
ch- ,e- guhQ] oSKkfud ^,Q* ,oa izeq[k
New Delhi, the 7th January, 2014
S.O. 233.—In pursuance of sub-regulation (6) of the regulation 5 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below
have been cancelled/suspended with effect from the date indicated against each :
SCHEDULE
Sr.No.
Licence No.
Name and Address of the Licensee
Article/Process with relevant Indian
Date of
CM/L-
Standards covered by the licence
cancellation
cancelled/suspension
NIL
[No. CMD/13:13]
B.M. HANEEF, Scientist 'F' and Head
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 234.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e] 1988 ds fofu;e 4 ds mifofu;e ¼5½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~okjk vf/klwfpr djrk gS fd ftuds fooj.k uhps vuqlwph esa fn, x, gSa] dks ykblsal iznku fd, x, gSa%
vuqlwph
Ø-
ykblsal
Lohd`r djus
ykblsal/kkjh dk
Hkkjrh; ekud dk
Hkkjrh;
Hkkx
vuqHkkx
o"kZ
la-
la[;k
dh frfFk
uke o irk
'kh"kZd
ekud
o"kZ@ekg
la-
1
2
3
4
5
6
7
8
9
01
5727477
06@11@2013
_)katyh TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
y{eh cktkj] okMZ
feJ/kkrq,a] vkHkw"k.k@
uañ Mh ,p&lh]
f'kYidkjh 'kq)rk ,oa
vkWxqy] vksfM'kk&759122
eqgjkadu&fof'kf"V
02
5727578
06@11@2013
ekW egky{eh TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
IykWV ua 231@2012
feJ/kkrq,a] vkHkw"k.k@
lSyJh fogkj] iksLV
f'kYidkjh 'kq)rk
neuk Nkd] [kqnkZ]
,oa eqgjkadu&
vksfM'kk&751016
fof'kf"V
03
5728782
11@11@2013
cØs'oj vyadkj
Lo.kZ ,oa Lo.kZ
1417
1999
ckyaxk] ftyk&iqjh]
feJ/kkrq,a] vkHkw"k.k@
vksfM'kk
f'kYidkjh 'kq)rk ,oa
eqgjkadu&fof'kf"V
04
5729279
12@11@2013
vks ,p ,e ikbZIl izk- fy-
is;ty vkiwfrZ ds fy,
4985
2000
Mh&7] 8] 49 ,oa 50]
vIykfLVd`r ihohlh&
lkseukFkiqj] vkbZvkbZMh
ikbi&fof'kf"V
lsaVj] ckys'oj]
vksfM'kk&756001
516
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
05
5729784
12@11@2013
fcu; csojsTl
iSdstcan ist ty
14543
2004
IykWV uañ 2149]
¼iSdstcan izkd`frd
ljkV] ckyhikVuk]
fefujy ty ds vykok½
ftyk] [kqnkZ
vksfM'kk&752102
06
5730365
13@11@2013
oanuk ,aVjizkbts+t
iSdstcan is; ty
14543
2004
:axVk xyh] iksLV]
¼iSdstcan izkd`frd
esu jksM] cztjktuxj]
fefujy ty ds vykok½
ftyk&>kjlqxqMk
vksfM'kk&768216
07
5730466
15@11@2013
cklqnso Tosyjh
Lo.kZ ,oa Lo.kZ
1417
1999
cM+k cktkj] uheiMk]
feJ/kkrq,a] vkHkw"k.k@
iksLV] uheiMk] ftyk
f'kYidkjh 'kq)rk ,oa
iqjh] vksfM'kk&752106
eqgjkadu & fof'kf"V
08
5729986
15@11@2013
iSjkMkbt TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
jkebZ VkWdht+ jksM]
feJ/kkrq,a] vkHkw"k.k@
gksVy iSjkMkbt ds lehi
f'kIdkjh 'kq)rk ,oa
flusekgkWy] cksykWxhj]
eqgjkadu & fof'kf"V
vksfM'kk&767001
09
5730062
15@11@2013
esgj ,.M lal
Lo.kZ ,oa Lo.kZ
1417
1999
lEcyiqj jksM]
feJ/kkrq,a] vkHkw"k.k@
egknso eafnj Nkd]
f'kYidkjh 'kq)rk ,oa
cksykWxhj]
eqgjkadu & fof'kf"V
10
5731872
26@11@2013
fdj.k TosylZ ,.M lal
Lo.kZ ,oa Lo.kZ
1417
1999
esu ekdsZV] mMkyk]
feJ/kkrq,a] vkHkw"k.k@
ckfjiMk] ftyk&
f'kYidkjh 'kq)rk ,oa
vkWxqy] vksfM'kk
eqgjkadu & fof'kf"V
11
5731973
27@11@2013
tSlfeu TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
IykWV ua 5,Q@718]
feJ/kkrq,a] vkHkw"k.k@
lsDVj 9] lhMh,]
f'kYidkjh 'kq)rk ,oa
ckMZ ua- lh;wlh MCyw]
eqgjkadu & fof'kf"V
iksLV& vfHkuo fcnuklh]
iksLV] ekdsZV uxj] dVd]
vksfM'kk&753014
12
5732066
27@11@2013
ekW larks"kh TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
vVyfcgkjh gkbZ Ldwy
feJ/kkrq,a] vkHkw"k.k@
ds lkeus] cklqnsoiqj]
f'kYidkjh 'kq)rk ,oa
ftyk&Hknzd] vksfM'kk
eqgjkadu & fof'kf"V
13
5733371
29@11@2013
U;w fdj.k TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
iksLV&mMkyk] mMkyk]
feJ/kkrq,a] vkHkw"k.k@
ftyk&eS;wjHkat]
f'kYidkjh 'kq)rk ,oa
vksfM'kk&757041
eqgjkadu & fof'kf"V
14
5733876
03@12@2013
lkgw Tosyjh
Lo.kZ ,oa Lo.kZ
1417
1999
LVs'ku jksM] iksLV&
feJ/kkrq,a] vkHkw"k.k@
Hkk"djxat] ftyk&
f'kYidkjh 'kq)rk ,oa
ckys'oj]
eqgjkadu & fof'kf"V
vksfM'kk&756001
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
517
15
5733977
03@12@2013
enu eksgu TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
cM+kcktkj] lk[khxksiky]
feJ/kkrq,a] vkHkw"k.k@
iqjh] vksfM'kk&752014
f'kYidkjh 'kq)rk ,oa
eqgjkadu & fof'kf"V
16
5734373
03@12@2013
tykjke ihohlh ,.M
is;ty vkiwfrZ ds fy,
4985
2000
ikWyhelZ ¼1½ izkñ fyñ
vIykfLVd`r ihohlh
IykWV ua- lh&32]
ikbi & fof'kf"V
baMfLVª;y ,LVsV] [kqnkZ]
vksfM'kk&752055
17
5734171
04@12@2013
t;Jh DykWFk LVksj ,aM
Lo.kZ ,oa Lo.kZ
1417
1999
Tosyjh [kkrk lañ 382@222]
feJ/kkrq,a] vkHkw"k.k@
IykWV ua- 340@3589]
f'kYidkjh 'kq)rk ,oa
okMZ lañ ,,uthlh
eqgjkadu & fof'kf"V
iksLV] Fkkuk] iYykgjk]
ftyk] vkWxqy] vksfM'kk
18
5734474
05@12@2013
jf'ke TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
vksYM cl LVSaM] fcadk]
feJ/kkrq,a] vkHkw"k.k@
lksusiqj] vksfM'kk&767019
f'kYidkjh 'kq)rk ,oa
eqgjkadu & fof'kf"V
19
5734575
05@12@2013
/kuy{eh TosylZ
Lo.kZ ,oa Lo.kZ
1417
1999
cM+xM+] esu jksM]
feJ/kkrq,a] vkHkw"k.k@
okMZ lañ 13] lksjnk]
f'kYdkjh 'kq)rk ,oa
ftyk& xatke]
eqgjkadu & fof'kf"V
vksfM'kk&761109
20
5734676
05@12@2013
jfo izqf"V vyadkj ,aM
Lo.kZ ,oa Lo.kZ
1417
1999
odZ'kkWi] IykWV uañ
feJ/kkrq,a] vkHkw"k.k@
2382@2585] daqtkckux<+]
f'kYidkjh 'kq)rk ,oa
iksLV&Fkkuk& nkliYyk]
eqgjkadu & fof'kf"V
ftyk] u;kx<+
vksfM'kk&752084
21
5736074
10@12@2013
esllZ dscYl ¼bafM;k½ izkñ
ok;oh; xqfPNr dscy&
14255
1995
fyñ ch@5] baMfLVª;y ,LVsV
1100 oksYV rd vkSj
ckys'oj vksfM'kk&756001
lfgr dh dk;Zdkjh
oksYVrk ds fy, & fof'kf"V
22
5735476
11@12@2013
usylu baMLVªht
iSdstcan is; ty
14543
2004
IykWV ua 949] Mksfyrk]
¼iSdstcan izkd`frd
iksLV] jft;k] ftyk&
fefujy ty ds vykok½
fd;ksa>kj
& fof'kf"V
vksfM'kk&758047
23
5735577
11@12@2013
ohtk LVhy fyñ
rIr csfYyr
2062
2011
dfyaxkuxj baMfLVª;y
e/;e ,oa mPp rU;rk
dkWEIysDl] t[kiqjk]
ds lajpuk bLikr&
tktiqj jksM] ftyk
& fof'kf"V
tktiqj vksfM'kk&755026
24
5737783
26@12@2013
'kkafr iSdsftax ,aM csojsTl
iSdstcan is; ty
14543
2004
izkñ fyñ ckVxka]
¼iSdstcan izkd`frd
chjgjsd`".kiqj] iqjh lnj
fefujy ty ds vykok½
ftyk& iqjh]
& fof'kf"V
vksfM'kk&752002
[lañ dsUnzh; izek.ku foHkkx@13%11]
v{k; dqekj iqjksfgr] oSKkfud&Mh
1
2
3
4
5
6
7
8
9
518
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 7th January, 2014
S.O. 234.—In pursuance of sub-regulation (5) of regulation 4 of the Bureau of Indian Standards (Certification) Regula-
tions, 1988, the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given below in the
following schedule :
Sl.
Licence
Grant
Name & Address of the Party
Title of the Standard
IS No.
Part
Section
Year
No.
No.
Date
1
2
3
4
5
6
7
8
9
01
5727477
06/11/2013
Sradhanjali
Gold and gold alloys,
1417
1999
Jewellers
Jewellery/artefacts-
At. Laxmibazar,
fineness and marking-
Ward No. DH-C,
Angul
Odisha-759122
02
5727578
06/11/2013
Maa Mahalaxmi
Gold and gold alloys,
1417
1999
Jewellers
Jewellery/artefacts-
Plot No. 231/2012,
fineness and marking-
Sailashree Vihar,
PO. Damana
Chhaka, Khurda
Odisha-751016
03
5728782
11/11/2013
Bakreswar
Gold and gold alloys,
1417
1999
Alankar
Jewellery/artefacts-
At/PO Balanga,
fineness and marking-
District-Puri,
Odisha
04
5729279
12/11/2013
Ohm Pipes Pvt Ltd
Unplasticized pvt
4985
2000
Block-D.S.P.A.
pipes for potable water
Complex,
supplies
Police Line
Square,
Balasore,
Odisha-756001
05
5729784
12/11/2013
Binay Beverages
Packaged drinking
14543
2004
Plot Not. 2149,
water(other than
Sarat, Balipatna,
packaged natural
District-Khurda,
mineral water)
Odisha-752102
06
5730365
13/11/2013
Vandana
Packaged drinking
14543
2004
Enterprises
Water(other than
At:-Rungta Gali
packaged natural
PO:-Main Road,
mineral water)
Brajarajnagar,
District-
Jharsuguda,
Odisha-768216
07
5730466
15/11/2013
Basudev
Gold and gold alloys,
1417
1999
Jewellery
Jewellery/artefacts-
At. Badabazar
fineness and marking-
Nimapada,
PO. Nimapada,
District-Puri,
Odisha-759106
08
5729986
15/11/2013
Paradise
Gold and gold alloys,
1417
1999
Jewellers
Jewellery/artefacts-
Ramai Talkies
fineness and marking-
Road,
Near Hotel
Paradise
At. Cinemahall,
Bolangir,
Odisha-767001
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
519
09
5730062
15/11/2013
Meher & Sons
Gold and gold alloys,
1417
1999
At. Sambalpur Road
Jewellery/artefacts-
Mahadev Mandir
fineness and marking-
Chhak, Bolangir,
Odisha-767001
10
5731872
26/11/2013
Kiran Jewellers and sons
Gold and gold alloys,
1417
1999
At. Main Market,
Jewellery/artefacts-
Udala, Baripada,
fineness and marking-
District-Angul,
Odisha
11
5731973
27/11/2013
Jasmin Jewellers
Gold and gold alloys,
1417
1999
Plot No. 5F/718,
Jewellery/artefacts-
Sector-9, CDA
fineness and marking-
Ward No.CU-CW
PO. Abhinab Bidanasi,
PS. Markat Nagar
District-Cuttack,
Odisha-753014
12
5732066
27/11/2013
Maa Santoshi Jewellers
Gold and gold alloys,
1417
1999
In front of
Jewellery/artefacts-
Atalbihari High School,
fineness and marking-
Basudevpur,
District-Bhadrak,
Odisha
13
5733371
29/11/2013
New Kiran Jewellers
Gold and gold alloys,
1417
1999
At. /PO Udala,
Jewellery/artefacts-
Dist.-Mayurbhanj,
fineness and marking-
Odisha-757041
14
5733876
03/12/2013
Sahu Jewellery
Gold and gold alloys,
1417
1999
At. Station Road
Jewellery/artefacts-
PO Bhaskarganj
fineness and marking-
District-Balasore,
Specification
Odisha-756001
15
5733977
03/12/2013
Madan Mohan Jewellers
Gold and gold alloys,
1417
1999
Bada Bazar,
Jewellery/artefacts-
Sakhigopal,
fineness and marking-
Puri,
Specification
Odisha-752014
16
5734373
03/12/2013
Jalaram PVC and
Unplasticized pvc
4985
2000
Polymers (I) Pvt. Ltd.
pipes for potable water
Plot No. C-32,
supplies-Specification
Industrial Estate,
Khurda,
Odisha-7520055
17
5734171
04/12/2013
Jayashree Cloth
Gold and gold alloys,
1417
1999
Store & Jewellery
Jewellery/artefacts-
Khata No. 382/222,
fineness and marking-
Plot No. 340/3589,
Specification
Ward No. ANG-C
PO. PS.-Pallahara
District-Angul,
Odisha
18
5734474
05/12/2013
Rashmi Jewellers
Gold and gold alloys,
1417
1999
Old Busstand
Jewellery/artefacts-
Road, Binka,
fineness and marking-
Sonepur,
Specification
Odisha-767019
19
5734575
05/121/2013
Dhanalaxmi Jewellers
Gold and gold alloys,
1417
1999
Badagada,
Jewellery/artefacts-
Mainroad Ward No. 13
fineness and marking-
Sorada
Specification
District-Ganjam,
Odisha-761109
1
2
3
4
5
6
7
8
9
520
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
20
5734676
05/12/2013
Rabi Prusty
Gold and gold alloys,
1417
1999
Alankar &
Jewellery/artefacts-
Workshop
fineness and marking-
Plot No. 2382/2585,
Specification
PO/PS-Daspalla,
Dist-Nayagarh,
Odisha-752084
21
5736074
10/12/2013
Cables (India) PVT Ltd.
Aerial bunched cables
14255
1995
B/5 Industrial Estate
for working voltages
Balasore,
upto and including
Odisha-756001
1100 volts-
Specification
22
5735476
11/12/2013
Nelson Industries
Packaged drinking
14543
2004
Plot No. 949
water (other than
Dolita, PO:-Rajia,
packaged natural
District-Keonjhar,
mineral water)-
Odisha-758047
Specification
23
5735577
11/12/2013
Visa Steel Limited
Hot rolled low,
2062
2011
Kalinganagar
medium and high
Industrial complex
tensile structural
Jakhapura, Jaipur Road
steel-Specification
District-Jaipur
Odisha-755026
24
5737783
26/11/2013
Shanti Packaging
Packaged drinking
14543
2004
& Beverages Pvt. Ltd.
water (other than
Batagan
packaged natural
Biraharekrushna Pur,
mineral water)
Puri Sadar, Puri
Specification
Odisha-752002
[No. CMD/13:11]
A.K. PUROHIT, Scientist 'D'
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 235.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e] 1988 ds fofu;e 4 ds mifofu;e 5 ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk
vf/klwfpr djrk gS fd ftuds fooj.k uhps vuqlwph esa fn, x, g®] dks ykblsal jí fd, x, g®%
vuqlwph
Ø-
ykblsal ua-
ykblsal/kkjh dk uke o irk
ykblsal ds varxZr oLrq@izØe lEc)
jn~n djus dh frfFk
Hkkjrh; ekud dk 'kh"kZd
01
5468883
ve`r ,Dok baMLVªht
Hkkjrh; ekud 14543%2004
07@11@2013
xksBikVuk] Hkqous'oj]
ds vuq:i iSdstcan is;
ftyk&[kqnkZ]
ty ¼iSdstcan izkd`frd
vksfM'kk&751003
fefujy ty ds vykok½
02
5687188
';ke eksVlZ ¼';keth ty½
Hkkjrh; ekud 14543%2004
12@11@2013
fctsiqj] iksLV&[kSfj;kj]
ds vuq:i iSdtcan is;
ftyk&uqvkiMk]
ty ¼iSdstcan izkd`frd
vksfM'kk&766107
fefujy ty ds vykok½
03
5210844
lkSHkkX; fMªaDl izkñ fyñ
Hkkjrh; ekud 14543%2004
10@12@2013
11] txriqj baMfLVª;y ,LVsV]
ds vuq:i iSdstcan is;
txriqj] ftyk&dVd]
ty ¼iSdstcan izkd`frd
vksfM'kk&751021
fefujy ty ds vykok½
04
5117551
d`f"k jlk;u eSrkiqj]
Hkkjrh; eku dk 8960%1978
13@12@2013
iksLV&jkuhrky] ftyk&ckys'oj]
ds vuq:i feFkkby iSjkfFk;ku
vksfM'kk&756111
MfLVax ikmMj
[lañ dsUnzh; izek.ku foHkkx@13%11]
v{k; dqekj iqjksfgr] oSKkfud&^Mh*
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
521
New Delhi, the 7th January, 2014
S.O. 235.—In Pursuance of sub-regulation (6) of regulation 5 of the Bureau of Indian Standards (Certification) Regula-
tions 1988, of the Bureau of Indian Standards, hereby notifies the licences particulars of which are given below have been
cancelled/suspended with effect from the date indicated against each:
SCHEDULE
Sr.No.
Licence No.
Name and Address of the Licensee
Article/Process with relevant Indian
Date of
CM/L-
Standards covered by the licence
cancellation
cancelled/suspension
01
5468883
Amrut Aqua Industries
Packaged drinking water
07/11/2013
at-Gothapatna,
(other than packaged
Bhubaneswar
natural mineral water)
Distt: Khurda
as per IS 14543:2004
Odisha-751003
02
5687188
Shyam Motors (Shyamji
Packaged drinking water
12/11/2013
Jall)
(other than packaged
at:-Bijepur PO:-Khariar,
natural mineral water)
Distt: Nuapada
as per IS 14543:2004
Odisha-766107
03
5210844
Saubhagya Drinks Private
Packaged drinking water
10/12/2013
Limited
(other than packaged
11, Jagatpur Industrial
natural mineral water)
Estate, Jagatpur,
as per IS 14543:2004
District: Cuttack,
Odisha-751021
04
5117551
Krishi Rasayan
Specification for Methyl
13/12/2013
at: Maitapur, PO:Ranital,
Parathion Dusting Powders
District: Balasore
as per IS 8960:1978
Odisha-756111
[No. CMD/13:11]
A.K. PUROHIT, Scientist 'D'
ubZ fnYyh] 6 tuojh] 2014
dkñvkñ 236.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e 1988 ds fu;e 4 ds mifu;e ¼5½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk
vf/klwpuk djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gS] os Lohd`r dj fn, x, gSa%&
vuqlwph
Ø-
ykblsal
Lohd`r djus
ykblsal/kkjh dk
Hkkjrh; ekud dk
Hkkjrh;
Hkkx
vuqHkkx
o"kZ
la-
la[;k
dh frfFk
uke o irk
'kh"kZd
ekud
o"kZ@ekg
la-
1
2
3
4
5
6
7
8
9
1
3902762
01@01@2013
eSllZ nsokaxh ToSylZ izk fy]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
109@110] Js;l Mk;eaM lSaVj] feuh
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
ghjk cktkj] ojkNk] jksM] lwjr 395006
eqgjkadu
2
3902863
01@01@2013
eSllZ dksBkjh ToSylZ] 3@4110(44&46]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
'kknhokyk ekdsZV] nkfy;k 'ksjh]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
uokiqjk] lwjr
eqgjkadu
522
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
3
3904564
02@01@2013
eSllZ Jh ik'oZ toSylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
22] jkes'oj dkEiySDl] laLd`fr
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
Ldwy ds lkeus] egknso Vsdjk] oL=ky
eqgjkadu
jksM+ vejkbZokMh] vgenkckn 380026
4
3904665
03@01@2013
eSllZ ije ToSylZ izkñ fyfeVsM]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
'kki uacj 2 vkSj 3] bldkWu lSaVj]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
f'kojatuh Økl jksM+ vgenkckn
eqgjkadu
380015
5
3904766
03@01@2013
eSllZ uhydaBojuh ToSylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
fd'ukys] lSaVj Iokb±V ds lkeus]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
vydkiqjh iqfyl LVs'ku ysu] vkj lh
eqgjkadu
nr jksM] vydkiqjh] oMksnjk 390007
6
3904059
03@01@2013
eSllZ vkbZ Jh [kksfM;kj ToSylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
8] 'kqdu iySfVue] oans ekrje
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
vkjdMs ds lkeus] U;w ,e th jksM]
eqgjkadu
xksrk] vgenkckn
7
3904160
03@01@2013
eSllZ d`".kk ToSylZ] 218 HkkxhjFk]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
uxj lkslkbVh] 1] e:fr pkSd] ,y
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
,p jksM] lwjr ojkNk
eqgjkadu
8
3904261
03@01@2013
dY;k.k ToSylZ bafM;k izk fy]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
uacj] 2211@,] tsryiqj jksM]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
oMksnjk ldkck] oMksnjk 390007
eqgjkadu
9
3904463
03@01@2013
ije ToSylZ izk fy]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
:nzkl] 31 jkeckx] iqfyl LVS'ku ds]
Lo.kZ rFkk Lo.kZ vkHkw"k.kksa
lkeus] e.khuxj] vgenkckn 380007
f'kYidkjh 'kq)rk ,oa eqgjkadu
10
3905667
03@01@2013
eSllZ vkjph baMLVªht]
lceflZcy
8034
&
&
2002
28@29 vej baMfLVª;y ,lVsV] ywch]
bySfDVªdy ds ikl] vfuy LVkpZ jksM]
`
eSedks] ujksMk jksM] vgenkckn
380025
11
3905970
03@01@2013
eSllZ lgtkuan fcousftl]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
144] ljnkj pkSd] oyklu]
iSdstM uspqjy feujy okVj½
rk rFkk fM vkuan] vkuan 388326
12
3905768
04@01@2013
eSllZ uhjok gSYFk ds;j]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
xkao izkafr;k] ,u ,p uacj 8]
iSdstM uspqjy feujy okVj½
fM xka/khuxj 382355
13
3905869
04@01@2013
eSllZ ije ToSylZ izk fy]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
xzkmaM Qyksj] 'kkWi ucj 01] VkbZe
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
Ldos;j fcfYMax] ijhlhek ds ikl]
eqgjkadu
uojaxiqjk] vgenkckn 380009
14
3906669
07@01@2013
eSllZ dYis'k HkkbZ ToSylZ ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
;w@9] vk'khZokn dkEiySDl] vtqZu
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
dkEiySDl ds lkeus] Hkkjr jksM]
eqgjkadu
lwjr 394210
15
3908774
08@01@2013
eSllZ Jh uodkj eSVyls fyfeVsM
LVsuySl LVhy dqfdax ;wVSaflyl 14756
&
&
2000
IykV uacj] 342] th vkbZ Mh lh]
vks<o] 'kSM uacj lh@1@515 rFkk 516]
vgenkckn 382415
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
523
16
3910054
08@01@2013
eSllZ Jh xqtjkr fVEcj dkiksZjs'ku]
oqMu Qy'k Mksj 'kVlZ ¼lkfyM
2202
1
&
1999
iykV uacj] 5820] jksM uacj 6] th
dksj VkbZi
vkbZ Mh lh] lfpu] lwjr 394230
17
3907873
08@01@2013
eSllZ vafcdk fcojst] IykV uacj 18]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
ikuh uh VSadh ds lkeus] xkao
iSdstM uspqjy feujy okVj½
pkWnyksfM;k] vgenkckn 382481
18
3908269
08@01@2013
eSllZ vVjs;k iSVªksdSe fyfeVsM]
U;w balwysfVax vk;y
335
&
&
1993
VqaMo vatslj jksM] xkao VqMo] rk
lkoyh] oMksnjk 391775
19
3908370
09@01@2013
eSllZ vkfnR; baMLVªht]
oqMu Qy'k Mksj 'kVlZ ¼lkfyM
2202
1
&
1999
Cykd uacj 1820] fp[kyh&oalnk jksM]
dksj VkbZi½
gal eSVy ds lkeus] vyhiqj] fp[kyh
uolkjh fcyheksjk 396409
20
3908471
09@01@2013
eSllZ dke/ksuq fcojst]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
losZ uacj 264@ih&1] tsriqj oMkxk
iSdstM uspqjy feujy okVj½
xkao] oMxke] rk [kkuiqj] iapegy
389230
21
3909069
09@01@2013
eSllZ ,l Vh vkbZ baMLVªht] losZ uacj]
ih oh lh balwysfVM dscy
694
&
&
1990
60@1 rFkk 2] okih neu jksM+] dqark
xkao] oylkn] ikjMh] xqtjkr 396191
22
3908875
10@01@2013
eSllZ lkeksj xksYM iSysl]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
y{eh dkEiySDl] izxfr cSad ds
vkHkw"k.k f'kYidkjh 'kq)rk ,oa
ikl] culdkaVk] ih vks Fkkjk 385555
eqgjkadu
23
3909170
11@01@2013
eSllZ dSyk'k xksYM]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
46@47] flyhdksu 'kkWilZ] lR;k uxj
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
ds lkeus] m/kuk esu jksM] lwjr]
eqgjkadu
ih vks m/kuk 394210
24-
3908572
11-01-2013
eSllZ ¶;wpj Vk;lZ izkñ fyfeVsM]
vksVkseksfVo Oghdy&U;weSfVd
15627
&
&
2005
IykV uEcj 29 & 30] thvkbZMhlh
Vk;j Qkj Vw ,.M Fzkh eksVj
,LVsV] iapegu] dyksy
foghdy
25-
3911460
13-01-2013
eSllZ 'kSedks IykfLVd izkñ fyñ]
VSDlVkbZYl Vkjiksfyu esM Qzke
7903
&
&
2011
IykV uañ ,&1@906@907] thvkbZMhlh]
gkbZ MSuflVh ikyfFkyhu oksou
vacjxkao] oylkn
QScfjd
26-
3909877
15-01-2013
eSllZ :nz ToSylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
'kkWi uañ 1290- tSu VSEiy ds ikl]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
Jkod LVªhV] ihvksvksMhbZ]
eqgjkadu
vkuan&388210
27-
3909978
15-01-2013
eSllZ ,u lh ToSylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
, 7@8] d`".kk oSyh dkEiySDl
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
vferuxj ldZy] t; vEcs Ldwy ds
eqgjkadu
lkeus] lkoyh jksM] oMksnjk
28-
3910155
16-01-2013
eSllZ iadt ToSylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
,&3] 547] cl LVSaM ds ikl]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
pkSdlh cktkj] ekaMoh] oMksnjk
eqgjkadu
29-
3910256
16-01-2013
eSllZ Jh vksedkj ty/kkjk]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
ch@,e@3] ek:fr bafMfLVª;y ,LVsV]
iSdstM uspqjy feujy okVj½
HksMokM m/kuk] lwjr&394221
1
2
3
4
5
6
7
8
9
524
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
30-
3910458
16-01-2013
eSllZ lksuh jefudyky Mkeksnjnkl]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
10@1144] Jhth fuokl] gokfn;k
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
pdyk[k] xksihiqjk] lwjr&395003
eqgjkadu
31-
3910963
16-01-2013
eSllZ ch,p fLeFk rFkk lUl]
cVj¶ykbZ okoyl Qkj tujy
13095
&
&
1991
x.knsoh jksM] nsolj] fcyheksjk]
ijil
uolkjh&396380
32-
3912260
16-01-2013
eSllZ jkds'k baftfu;fjax oDlZ]
lceflZcy iEilSV~l
8034
&
&
2002
6@7] uonqxkZ ,LVsV]
QkstZ rFkk Cyksoj ds lkeus]
ujksMk jksM] vgenkckn&380025
33-
3911258
21-01-2013
eSllZ vy euty TosylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
490@154] QdhjHkkbZ dh pky]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
eksuksxzke fey] j[kh;ky]
eqgjkadu
vgenkckn&380023
34-
3911359
21-01-2013
eSllZ fd'ku HkkbZ TosylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
1383] Hkkolkj okM] pkSdlh cktkj]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
ufM;kM] [ksMk&391440
eqgjkadu
35-
3912361
24-01-2013
eSllZ /kuqdk ,xzhVsd fyfeVsM
iSfLVlkbZM&dkjVsi
14183
&
&
1994
Mh&1] ,@Mh&1 ch] vtark
gkbZMªksDyksjkbM ,l ih
baMLVªh;y ,LVsV] ,V okl.kk&
vkbZok&lk.kan ohjexke jksM]
lk.kan ftyk&vgenkckn&382170
36-
3912462
24-01-2013
eSllZ /kuqdk ,xzhVsd fyfeVsM
iSfLVlkbZM & dkjVsi
14184
&
&
1994
Mh&1@, Mh&1 ch] vtark
gkbZMªksDyksjkbM th
b.MLVªh;y ,LVsV] ,V okl.kk&
vkbZok&lk.kan ohjexke jksM]
lk.kan ftyk&vgenkckn&382170
37-
3913363
24-01-2013
eSllZ flyhdksu Øksi lk;Ul ¼bZ½
izkQsuksQksl beyflQk,cy
15240
&
&
2002
izkbZosV fyfeVsM
dalaVªsV
32] ukjk;.k ,LVsV] lkuUn
fojexke jksM] ,V bZ;kok] lkuUn
ftyk% vgenkckn&382170
38-
3913565
24-01-2013
eSllZ nsokaxh fcojsftl
iSdstcan is;ty ¼vnj nSu
14534
&
&
2004
,&151] 'kqHke b.MLVªh;y ,LVsV]
iSdsTM uspqjy feujy okVj½
edkMk xke] xqtjkr ftyk&lwjr&394325
39-
3912058
24-01-2013
eSllZ gkb&Vsd cksMZ izkñfyñ
oqM izksMDV~l & izhysfeusfVM
12823
&
&
1990
IykV uañ 48@1] iksñ lkjHkksu]
ikfVZdy cksMZ
lkjHkksu iqus esu jksM] xkao ckjMksyh]
ftyk&lwjr&394601
40-
3912159
24-01-2013
eSllZ gkb&Vsd cksMZ izkñfyñ
oqM ik£Vdy cksMZ ¼fefM;e
3087
&
&
2005
IykV uañ 48@1] iksñ lkjHkksu]
MsaflVh½ Qkj tujy ijil
lkjHkksu iqus esu jksM] xkao ckjMksyh]
ftyk&lwjr&394601
41-
3915468
28-01-2013
eSllZ jtk QwM ,aM fcojthl]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
jks gkml uañ 2] veku&,&xqfyLrk
iSdsTM uspqjy feujy okVj½
lkslk;Vh ljnkj Le`fr lkslk;Vh ds
ikl lj[kst jksM] vgenkckn&380055
42-
3913868
28-01-2013
eSllZ ukjk;.k ToSylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
15&16] voUrh psEclZ] ,Dlizsl
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
gksVy ds ihNs] vkjñlhñ nÙk jksM]
eqgjkadu
vydkiqjh] ftyk&oMksnjk
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
525
43-
3916773
29-01-2013
eSllZ fodkl ,.Vjizkbt
53 xzsM vkfMujh iksVZySaM flesaV
12269
&
&
1987
olMk jksM] vyhiksj] iksLV&ceuosy]
ph[kyh] ftyk&uolkjh&396409
44-
3915367
30-01-2013
eSllZ esVªks b.MLVªht
lceflZcy iEilSV~l
8034
&
&
2002
23] iarjRu ,LVsV]
panu b.MLVªht ds ikl]
d`".kk xksiky ,LVsV ds ihNs] esEdks]
ujksMk jksM] vgenkckn&380025
45-
3916874
31-01-2013
eSllZ ;wukbZVsM flesaV dEiuh]
53 xzsM vkfMujh iksVZySaM flesaV
12269
&
&
1987
CykWd uEcj 1374]
t; vkVks oulMk ds lkeus]
,V vyhiqj] rk fp[kyh] uolkjh
46-
3916268
31-01-2013
eSllZ nsoka'kh ikolZ fyfeVsM]
ihohlh balwysfVM dscy
694
&
&
1990
IykV uañ 418] 419 thvkbZMhlh ,LVsV]
vkuan] foV~By] m|ksxuxj&388121
47-
3916369
31-01-2013
eSllZ nsoka'kh ikolZ fyfeVsM]
ihohlh balwysfVM ¼gSoh M~;wVh½
1554
1
&
1988
IykV uañ 418] 419 thvkbZMhlh
bySfDVªd dscy
,LVsV] vkuan] foV~By]
m|ksxuxj&388121
48-
3917068
31-01-2013
eSllZ Hkkjr ,aVjizkbZl]
IykbZoqM Qkj tujy ijil
303
&
&
1989
IykV uañ ch@2@6] lfpu m|ksx uxj]
oat lfpu] lwjr&394230
[la- lh,eMh@13%11]
MkW- ,l- ,y- ikydj] oSKkfud ^,Q* rFkk izeq[k
New Delhi, the 6th January, 2014
S.O. 236.—In pursuance of sub-regulation (5) of the regulation 4 of the Bureau of Indian Standards (Certification)
regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in
the following schedule:
SCHEDULE
Sl.
Licences
Grant
Name & Address of the Party
Title of the Standard
IS No.
Part
Section
Year
No.
No.
Date
1
2
3
4
5
6
7
8
9
1
3902762
01/01/2013
M/s Devangi Jewellers Pvt Ltd
Gold and gold alloys,
1417
-
-
1999
109/110, Shreyas Diamond
jewellery/artefacts -
Centre Mini Hira Bazar,
fineness and marking -
Varachha Road, Surat 395006
2
3902863
01/01/2013
M/s Kothari Jewellers
Gold and gold alloys,
1417
-
-
1999
3/4110; 44-46,
jewellery/artefacts -
Shaddiwala Market
fineness and marking -
Daliya Sheri,
Navapuria Surat Bhagal
3
3904564
02/01/2013
M/s Shree Parshwa Jewellers
Gold and gold alloys,
1417
-
-
1999
22, Rameshwar Complex,
jewellery/artefacts -
Opp Sanskruti School,
fineness and marking -
Mahadev Tekra, Vastral Road,
Amraiwadi 380026
1
2
3
4
5
6
7
8
9
526
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
4
3904665
03/01/2013
M/s Param Jewels Private Ltd.
Gold and gold alloys,
1417
-
-
1999
Shop No 2 & 3, Iscon Centre
jewellery/artefacts
Shivranjani Cross Road,
fineness and marking -
Ahmedabad-380015
5
3904766
03/01/2013
M/s Neelkanthvarni Jewellers
Gold and gold alloys,
1417
-
-
1999
Kishnalay, Opp Centre Point,
jewellery/artefacts -
Alkapuri Police Station Lane,
fineness and marking -
R.C. Dutt Road, Alkapuri,
Vadodara-390007
6
3904059
03/01/2013
M/s AAI Shree Khodiyar
Gold and gold alloys,
1417
-
-
1999
Jewellers 8, Shukan Platinum,
jewellery/artefacts -
Opp. Vande Mataram Arcade,
fineness and marking -
New S G Road, Gota,
Ahmedabad
7
3904160
03/01/2013
M/s Krishna Jewellers
Gold and gold alloys,
1417
-
-
1999
218, Bhagirath Nagar Soc-1
jewellery/artefacts -
Maruti Chowk, L H Road,
fineness and marking -
Surat, Varachha
8
3904261
03/01/2013
M/s Kalyan Jewellers
Gold and gold alloys,
1417
-
-
1999
India Pvt Ltd
jewellery/artefacts -
No. 2211/A, Jetalpur Road
fineness and marking -
Vadodara Sakaba-390007
9
3904463
03/01/2013
M/s Param Jewels Pvt Ltd
Gold and gold alloys,
1417
-
-
1999
Rudraksh, 31, Rambaug,
jewellery/artefacts -
Opp Police Station, Maninagar,
fineness and marking -
Ahmedabad-380007
10
3905667
03/01/2013
M/s Aarchi Industries
Submersible pumpsets
8034
-
-
2002
28/29 Amar Ind. Estate,
Nr. Lubi Electrical,
Anil Startch Road, Memco,
Naroda Road, Ahmedabad-380025
11
3905970
03/01/2013
M/s Sahjanand Beverages
Packaged drinking water
14543
-
-
2004
144, Sardar Chowk Valasan,
(other than packaged
Tal & Dist Anand-388326
natural mineral water)
12
3905768
04/01/2013
M/s Neerwa Health Care,
Packaged drinking water
14543
-
-
2004
Village Prantiya, NH No. 8,
(other than packaged
Dist: Gandhinagar,
natural mineral water)
Prantiya-382355
13
3905869
04/01/2013
M/s Param Jewels Pvt Ltd
Gold and gold alloys,
1417
-
-
1999
Ground Floor, Shop No. 01,
jewellery/artefacts -
Times Square Building,
fineness and marking
1417
-
-
1999
Near Parisima Ahmedabad,
Navrangpura-380009
14
3906669
07/01/2013
M/s Kalpeshbhai Jewellers
Gold and gold alloys,
1417
-
-
1999
U/9, Ashirwad Complex,
jewellery/artefacts -
Opp. Arjun Complex, Surat,
fineness and marking -
Bhatar Road-394210
15
3908774
08/01/2013
M/s Shri Navkar Metals Limited
Stainless steel cooking
14756
-
-
2000
Plot No. 342, GIDC, Odhav,
utensils -
Shed No. C/1/515 & 516,
Ahmedabad-382415
16
3910054
08/01/2013
M/s Shree Gujarat Timber
Wooden flush door
2202
1
-
1999
Corporation
shutter
Plot No. 5820, Road No. 6,
(Solid Core Type)
GIDC, Sachin, Surat-394230
17
3907873
08/01/2013
M/s Ambica Beverages
Packaged drinking water
14543
-
-
2004
Plot No. 18, Opp.
(other than packaged)
Pani-ni-Tanki
Village: Chandlodia
Ahmedabad-382481
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
527
18
3908269
08/01/2013
M/sAtreya Petrochem Ltd
New insulating oils
335
-
-
1993
Tundav Anjesar Road,
Village Tundav, Taluka Savli,
Baroda-391775
19
3908370
09/01/2013
M/s Aditya Industries
Wooden flush door
2202
1
-
1999
Block No. 1820,
shutters (solid core type):
Chikhli-Vansda Road,
Opp. Hans Metal, Alipore,
Chikhli, Navsari,
Bilimora-396409
20
3908471
09/01/2013
M/s Kamdhenu Beverages
Packaged drinking water
14543
-
-
2004
Survey No. 264/P-1, Jetpur,
(other than packaged)
Vadaga Village Vadgam,
Taluka Khanpur,
Panchamahal-389230
21
3909069
09/01/20013
M/s STI Industries
Pvc insulated cables
694
-
-
1990
Survey No. 60/1 & 2, Vapi,
Daman Road, Kunta Village,
Valsad, Pardi-396191
22
3908875
10/01/2013
M/s Samor Gold Palace
Gold and gold alloys,
1417
-
-
1999
2/3/4 Laxmi Complex,
jewellery/artefacts -
Near Pragati Bank
fineness and marking -
Banas Kantha,
P.O. Thara-385555
23
3909170
11/01/2013
M/s Kalash Gold
Gold and gold alloys,
1417
-
-
1999
46/47, Silicon Shoppers,
jewellery/artefacts -
Opp. Satya Nagar,
fineness and marking -
Udhna Main Road, Surat
P.O. Udhna-394210
24
3908572
11/01/2013
M/s Future Tyres Private Ltd.
Automotive vehicles -
15627
-
-
2005
Plot No. 29 & 30, GIDC Estate
pneumatic tyres for two
Panchamahal, Kalol
and three-wheeled motor
vehicles -
25
3911460
13/01/2013
M/s Shamco Plastics Pvt. Ltd.
Textiles-tarpaulins made
7903
-
-
2011
Plot No. A-1/906/907, GIDC,
from high density
Umbergaon, Dist: Valsad
polyethylene woven fabric
26.
3909877
15/01/2013
M/s Rudhra Jewellers
Gold and gold alloys,
1417
-
-
1999
Shop No. 1290,
jewellery/artefacts-
Near Jain Temple
fineness and marking
Shravak Street, Anand,
P.O. ODE-388210
27.
3909978
15/01/2013
M/s N C Jewels
Gold and gold alloys,
1417
-
-
1999
A, 7/8 Krishna Valley Complex
jewellery/artefacts-
Amitnagar Circle, Opp.
fineness and marking-
Jay Ambe School Savli Road,
Vadodara
28.
3910155
16/01/2013
M/s Pankaj Jewellers
Gold and gold alloys,
1417
-
-
1999
A-3, 547, Near Bus Stand
jewellery/artefacts-
Choksi Bazar, Vadodara,
fineness and marking-
Mandvi
29.
3910256
16/01/2013
Shree Omkar Jaldhara
Packaged drinking water
14543
-
-
2004
B/M/3, Maruti Industrial Estate,
(other than packaged)
Bhedwad Udhna,
at Vill. Surat-394221
30.
3910458
16/01/2013
M/s Soni Ramniklal
Gold and gold alloys,
1417
-
-
1999
Damodardas 10/144,
jewellery/artefacts- fineness
Shreeji Nivas, Havadiya Cakla,
and marking
Gopipura, Surat-395003
31.
3910963
16/01/2013
M/s B.H. Smith & Sons
Butterfly valves for
13095
-
-
1991
Gandevi Road, Devsar,
general purposes
Bilimora Navsari-396380
32.
3912260
16/01/2013
M/s Rakesh Engineering
Submersible pumpsets
8034
-
-
2002
Works 6/7, Navdurga Estate,
Opp. Forge & Blower Ahmadabad,
Naroda Road-380025
1
2
3
4
5
6
7
8
9
528
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
33.
3911258
21/01/2013
M/s AL Manjal Jewellers
Gold and gold alloys,
1417
-
-
1999
490/154, Fakirbhais Chawle,
jewellery/artefacts-fineness
Monogram Mills, Rakhial,
and marking
Ahmadabad-380023
34.
3911359
21/01/2013
M/s Kishanbhai Jewellers
Gold and gold alloys,
1417
-
-
1999
1383, Bhavsarvard,
jewellery/artefacts-
Choksi Bazar Nadiad,
fineness and marking-
Kheda-387001
35.
3912361
24/01/2013
M/s Dhanuka Agritech
Pesticide-cartap
14183
-
-
1994
Limited D-1 A/D-1B,
hydrochloride sp
Ajanta Industrial Estate,
at Vasna-Iyava,
Sanad Viramgam Road,
Sanand, Ahmedabad-382170
36.
3912462
24/01/2013
M/s Dhanuka Agritech
Pesticide-cartap
14184
-
-
1994
Limited
hydrochloridge g
D-1 A/D-1B
Ajanta Industrial Estate,
At. Vasna-Iyava,
Sanad Viramgam Road,
Sanand, Amedabad-382170
37.
3913363
24/01/2013
M/s Silicon Crop
Profenofos emulsifiable
15240
-
-
2002
Science Pvt Ltd
concentrate-
32, Narayan Estate, Sanand-
Viramgam Road, At:Iyava,
Ahmedabad,
Sanand-382170
38.
3913565
24/01/2013
M/s Devangi Beverages
Packaged drinking water
14543
-
-
2004
A-151 Shubham Industrial Estate
(other than packaged
Surat, At: Makada Gam-394325
natural mineral water
39.
3912058
24/01/2013
M/s HI-TECH Board Pvt Ltd
Wood products-
12823
-
-
1990
Plot No. 48/1, At post Ninat,
prelaminated particle
Post Sarbhon,
boards
Sarbhon-Puni Mainroad,
Village Bardoli, Surat-394601
40.
3912159
24/01/2013
M/s HI-TECH Board Pvt Ltd
Wood particle products-
3087
-
-
2005
Plot No. 48/1,
(medium density) for
At post Ninat, Post Sarbhon,
general purposes
Sarbhon-Puni Main road,
Village Bardoli, Surat-394601
41.
3915468
28/01/2013
M/s Raza Food and
Packaged drinking water
14543
-
-
2004
Beverages
(other than packaged
Row ouse No. 2, Aman-E-Gulista
natural mineral water)
Society Nr. Sardar Smurty Society,
Sarkhej Road. Ahmadabad-380055
42.
3913868
28/01/2013
M/s Narayan Jewellers
Gold and gold alloys,
1417
-
-
1999
15-16 Avanti Chambers,
jewellery/ artefacts-fineness
B/H, Express Hotel,
and marking
R C Dutt Road, Alkapuri
Vadodara
43.
3916773
29/01/2013
M/s Vikas Enterprises
53 grade ordinary
12269
-
-
1987
Vansda Road, Alipura, Post
portland cement
Bamnvel, Navsari, Chikhli-396409
44.
3915367
30/01/2013
M/s Metro Industries
Submersible pumpsets
8034
-
-
2002
23, Pancharatna Estate,
NR. Chandan Industries, B/H Krishna
Gopal Estate, Memco, Naroda Road,
Ahmadabad-380025
45.
3916874
31/01/2013
M/s United Cement
53 grade ordinary
12269
-
-
1987
Company
portland cement
Block No. 1374, Opp,
Jay Auto-Vansda, At Alipre,
Tal:Chikhly, Dist: Navsari,
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
529
46.
3916268
31/01/2013
M/s Devanshi Power
PVC insulated cables
694
-
-
1990
Limited
Plot No. 418,. 419 GIDC Estate
Vithal Udyognagar, Anand-388121
47.
3916369
31/01 /2013
Devanshi Power
PVC inslated (heavy
1554
1
-
1988
Limited Plot No. 418,
duty) electric cables
419 GIDC Estate
Vithal Udyognagar
Anand-388121
48.
3917068
31/01/2013
Bharat Enterpirse
Plywood for general
303
-
-
1989
Plot No/ B/2/6,
purposes
Sachin Udhyog Nagar,
Vanz Sachin, Surat-394230
[No. CMD/13:11]
Dr. S. L. PALKAR, Scientist ‘F’ & Head
ubZ fnYyh] 6 tuojh] 2014
dkñvkñ 237.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e] 1988 ds fofu;e 5 ds mifofu;e ¼6½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~}kjk vf/klwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jn~n@LFkfxr dj fn;k x;k gS%&
vuqlwph
Ø-
ykblsal la-
ykblsal/kkjh dk uke o irk
ykblsal ds varxZr oLrq@izØe lEc)
jn~n djus dh frfFk
la-
lh,e@,y
Hkkjrh; ekud dk 'kh"kZd
1
3716260
eSllZ lujkbZl ,aVjizkbZl]
iSdstcan is;ty ¼vnj nSu iSdstM uspqjy
03@01@2013
5&ch] ljLorh baMfLVª;y ,LVsV`
feujy okVj½
MkaMh jksM] lqHkk"kpanz xkMZu ds lkeus]
vkbZ,l 14543%2004
eksjk Hkkxy] lwjr&395005
2-
7537280
eSllZ dqekj ,aVjizkbZl]
iSdstcan is;ty ¼vnj nSu iSdstM uspqjy
04@01@2013
IykV uacj 1] Cykd uacj 758]
feujy okVj½
vrqy oylkn jksM] ikesjk]
vkbZ ,l 14543%2004
fM oylkn &396001
3-
7834387
eSllZ lkeksj ,aVjizkbZl]
iSdstcan is;ty ¼vnj nSu iSdstM uspqjy
04@01@2013
vkj ,l uacj 430@1 2 vkSj 431]
feujy okVj½
Fkkjk] culdkaVk
vkbZ ,l 14543&2004
4-
7892304
eSllZ uhek Lohpxh;j]
QyseizqQ ,uDyksllZ Qkj bySfDVªdy ,ijsVl
04@01@2013
lh&1@2609] rhljh Qsl]
vkbZ ,l 2148&2004
th vkbZ Mh lh] okih]
oylkn&396195
5-
3713557
eSllZ Qksj,oj izhlh;l TosylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds vkHkw"k.kksa f'kYidkjh
21@01@2013
,UM Mk;eaM fyfeVsM] lqjr lsaUVªy] 'kq)rk ,oa eqgjkadu
xzkmaM Q~yksj] vkjh'k eksy]
vkbZ ,l 1417%1999
osysuVkbZu eYVhIys{k ds lkeus]
lwjr Mqel jksM] xkSjoiFk&395007
[lañ lh,eMh@13%13]
MkWñ ,l-,y- ikydj] oSKkfud ^,Q* rFkk izeq[k
1
2
3
4
5
6
7
8
9
530
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 6th January, 2014
S.O. 237.—In pursuance of sub-regulation (6) of the regulation 5 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below
have been cancelled with effect from the date indicated against each:
SCHEDULE
Sr.No.
Licences No.
Name and Address of the Licensee
Article/Process with relevant Indian
Date of
CM/L-
Standards covered by the licence
cancellation
cancelled/suspension
1.
3716260
M/s Sunrise Enterprise
Packaged drinking water (other
03/01/2013
5-B, Saraswati Industrial
than packaged
Estate, Dandi Road,
natural mineral water)
Opp. Shubhas Chandra Garden,
IS 14543:2004
Mora Bhagal, Distt: Surat-395005
2.
7537280
M/s Kumar Enterprise
Packaged drinking water (other
04/01/2013
Plot No. 1, Block No. 758,
than packaged
Atul-Valsad Road, Parnera,
natural mineral water)
Disst. Valsad-396001
IS 14543:2004
3.
7834387
M/s Samor Enterprise
Packaged drinking water (other
04/01/2013
R S No. 430/1 2 & 431, Thara
than packaged
Distt: Banaskantha
natural mineral water)
IS 14543:2004
4.
7892304
M/s Nema Switch Gear
Flameproof enclosures for
04/01/2013
C-1/2609, Third Phase, G.I.D.C.,
electrical Apparatus
Vapi
IS 2148:2004
Distt: Valsad-396195
5.
3713557
M/s Forever Previous Jewellery &
Gold and Gold Alloys
21/01/2013
Diamond Ltd. Surat Central,
Jewellery/Artefact
Ground Floor, Iris, Mall
Fineness and Marking
Opp. Valentine Multiplex,
IS 1417:1999
Surat Dumas Road, Gourav Path,
Distt: Surat-395007
[No. CMD/13:13]
Dr. S. L. PALKAR, Scientist 'F' & HEAD
ubZ fnYyh] 6 tuojh] 2014
dkñvkñ 238.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e] 1988 ds fu;e 4 ds mifu;e ¼5½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk
vf/klwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gS] os Lohd`r dj fn, x, gSa%&
vuqlwph
Ø-
ykblsal
Lohd`r djus
ykblsal/kkjh dk
Hkkjrh; ekud dk
Hkkjrh;
Hkkx
vuqHkkx
o"kZ
la-
la[;k
dh frfFk
uke o irk
'kh"kZd
ekud
o"kZ@ekg
la-
1
2
3
4
5
6
7
8
9
1-
3916975
01-02-2013
ljl IykbZoqM izksMDV~l izkñfyñ
oqMu Qy'k Mksj 'kVlZ ¼lkfyM
2202
1
&
1999
IykV uañ 744] U;w thvkbZMhlh
dksj VkbZi½
xqaMyko] oylkM&396001
2-
3915872
01-02-2013
vjgke iEIl
vksiuoSy lceflZcy iEilSV
14220
&
&
1994
ch&10] ch&12] ch 28] ch 29]
txUukFk bUMLVªh;y ,LVsV]
xqtjkr cksVfyax ds ikl]
jf[k;ky vgenkckn
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
531
3-
3916167
04-02-2013
f'ko xaxk fcojthl]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
IykV uañ lh 5&6] mfe;k uxj b.Mñ
iSdsTM uspqjy feujy okVj½
lkslk;Vh egsUnzk 'kks :e ds ihNs]
tksxuh ekrk eafnj ds ikl ;w,e jksM]
lwjr& 395007
4-
3917169
04-02-2013
nhid bUMLVªht
vksiuoSy lceflZcy iEilSV
14220
&
&
1994
12@3] Jethoh olkgr ,LVsV]
jktsUnz ikdZ] pkj jkLrk ds ikl]
oujkt lksi QSDVªh ds ihNs] jf[k;ky]
vgenkckn&380023
5-
3918070
04-02-2013
nsoka'kh ikoj fyfeVsM
ØklfyaDM ikyfFkfyu balwysfVM
7098
1
&
1988
IykV uañ 418] 419]
ih oh lh 'khFkM dscy
vkbZMhlh ,LVsV] foV~By m|ksxuxj]
vk.kan] ftyk vk.kan&388121
6-
3918474
04-02-2013
'kqHky{eh dkLVhax izkñfyñ
dkcZu LVhy dkLV fcysV
2830
&
&
2012
20&21] ekSjS;k bUMLVªh;y ,LVsV]
buxksVl] fcysVl] Cywel rFkk
loksZn; gksVsy ds ikl] rkñ
Lyscl Qkj fjjksfyax baVw LVhy
vgenkckn
Qkj tujy LVdpyZ ijil
7-
3917876
07-02-2013
jksfl,V ToSYl izkñ fyñ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
6@1347] ekr` Nk;k fcfYMax]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
igyh eafty] tkMk [kkM]
eqgjkadu
efg/kjiqjk] ftyk&lwjr&395003
8-
3919476
07-02-2013
lu ,UVjizkbZt
IykbZoqM Qkj tujy ijil
303
&
&
1989
losZ uañ 87&88] nsok?k] xksM?kjk jksM]
ftyk&lwjr
9-
3919577
08-02-2013
Jh oS'uksnsoh esVy odZl
MkseSfLVd izs'kj dqdj
2347
&
&
2006
lh@1@ch&96] thvkbZMhlh]
ok?kksfM;k] oMksnjk&391760
10-
3920360
11-02-2013
ctjax dkfLVax izkñ fyñ
dkcZu LVhy dkLV fcysV
2830
&
&
2012
144] xkao b;kok] fgiksyhu ds
buxksVl] fcysVl] Cywel rFkk
ikl] rkñ lk.kan] ftyk&
Lyscl Qkj fjjksfyax baVw LVhy
vgenkckn&382110
Qkj tujy LVdplZ ijil
11-
3918171
11-02-2013
lR;e IykbZ bUMLVªht
oqMu ¶y'k Mksj 'kVlZ ¼lkfyM
2202
1
&
1999
matk fl)iqj gkbZos] izhr jsLVksjsUV
dksj VkbZi½
ds ikl] czãokMk]
ftyk&esglk.kk&384215
12-
3919375
11-02-2013
jks;y Vp ysehusV~l izkñfyñ
ikfyfouk;y ,lhVsV fMlij'ku
4835
&
&
1979
Cykd uañ 27&32] jk/ks bUMLVªh;y
cslM ,MgSflol Qkj oqM
,LVsV] rktiqj jksM] pkaxksnj]
ftyk&vgenkckn&382213
13-
3921261
14-02-2013
Vksjk TosylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
,&602] Mkbe.M oYMZ] feuh
vkHkw"k.ksa f'kYidkjh 'kq)rk ,oa
cktkj] ojkNk jksM] ftyk&lwjr&395006
14-
3921362
18-02-2013
ds vkj ToSylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
3@644] pksDlh cktkj] uokiqjk]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
dkjok jksM] Hkkxy
eqgjkadu
ftyk% lwjr&395003
15-
3921463
18-02-2013
buLVkbZy TosylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
5767] QLVZ ¶yksj] Hkokuh tsEl]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
xksnkuh ldZy ds ikl] cEckokMh]
eqgjkadu
drkjxke ftyk&lwjr
1
2
3
4
5
6
7
8
9
532
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
16-
3921665
18-02-2013
ts ts TosylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
;w&6] vkghjokM dkWEiysDl]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
ÅekHkou ldZy ds ikl] Hkrkj jksM
eqgjkadu
ftyk&lwjr
17-
3921766
18-02-2013
fMQkbZu TosylZ
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
th&20] 21] vksisjk gkml] lqij
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
Mk;e.M ekdsZV ds ihNs] feuh cktkj]
eqgjkadu
ojkNk jksM] ftyk&lwjr
18-
3922263
22-02-2013
fQuksysDl bUMLVªht fyñ
;wihohlh ikbZil Qkj
13592
&
&
1992
¼eklj ikbZi fMfotu½
lk;l rFkk osLV fMLpktZ
Cykd uañ 1184] 1185] 1186]
flLVe balkbZM fcfYMax
1199@ih&1] 1201] 1202]
buDywfMax oSafVys'ku rFkk
1203] 1205] 1211
jsuokVj flLVe
eklj xkao jksM] ekulj] iknjk]
ftyk&oMksnjk&391421
19-
3922364
22-02-2013
fQuksysDl bUMLVªh;y fyñ
vuIykfLVlkbM ihohlh ikbZi
4985
&
&
2000
¼eklj ikbZi fMfotu½
Qkj iksVscy okVj lIykbZl
Cykd uañ 1184] 1185] 1186]
1199@ih&1] 1201] 1202] 1203]
1205] 1211] eklj xkao jksM] ekulj]
iknjk] ftyk&oMksnjk&391421
20-
3924772
27-02-2013
vydksd lhesaV ikbZIl
izhdkLV dkaØhV esugksy doj
12592
&
&
2002
,.M dkaØhV oDlZ
rFkk Qzse
U;w dksVu fey uañ 2 ds ikl]
vtksM Msjh ds ikl] ikuh Vadh ds lkeus]
vkflek Msfue dh ykbZu esa]
jf[k;ky pkj jkLrk] jf[k;ky]
ftyk&vgenkckn
[lañ lh,eMh@13%11]
MkWñ ,l- ,y- ikydj] oSKkfud ^,Q* rFkk izeq[k
New Delhi, the 6th January, 2014
S.O. 238.—In pursuance of sub-regulation (5) of the regulation 4 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in
the following schedule:
SCHEDULE
Sl.
Licence
GOL
Name of the Firm
Product
IS No.
Part
Section
Year
No.
No.
Date
1
2
3
4
5
6
7
8
9
1.
3916975
01/02/2013
Saras Plywood Product
Wooden flush door shutters
2202
1
—
1999
Pvt. Ltd.
(solid core type):
Plot No. 744, New GIDC,
Gundlav, Valsad-396035
2.
3915872
01/02/2013
Arham Pumps
Openwell subersible
14220
—
—
1994
B-10, B-12, B-28, B-29,
pumpsets
Jagannath Industrial
Estate, Near Gujarat
Bottling, Rakhial
Ahmedabad
3.
3916167
04/02/2013
Shiv Ganga Beverages
Packaged drinking water
14543
—
—
2004
Plot No. C-5-6 Umiya
(other than packaged
Nagar Ind. SOC, Behind
natural mineral water)
Mahendra Show room
near Jogani Mata Mandir,
Surat, U M Road-395007
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
533
4.
3917169
04/02/2013
Deepak Industries
Openwell submersible
14220
—
—
1994
12/3, Shramjivi
pumpsets
Vasahat Estate,
Near Rajendra Park Char
Rasta, B/H Vanaraj Soap
Factory Rakhial
Ahmedabad-380023
5.
3918070
04/02/2013
Devansi Power Limited
Crosslinked polyethylene
7098
1
—
1988
Plot No. 418, 419, GIDC
insulated pvc
Estate, Vithal Udyog Nagar
sheathed cables
Anand-388121
6.
3918474
04/02/2013
Shubhlaxmi Casting Pvt. Ltd
Carbon steel cast billet
2830
—
—
2012
20-21, Moraiya
ignots, billets, blooms
Industrial Estate,
and slabs for re-rolling into
near Sarvoday
steel for general
Hotel, Dist. Ahmedabd
structural puposes
Moraiya
7.
3917876
07/02/2013
Roseate Jewels Private
Gold and gold alloys,
1417
—
—
1999
Limited
jewellery/artefacts-
6/1347, Matru Chhaya
fineness and marking
Building, 1st Floor, Jada
Khadi, Surat
Mahidharpura-395003
8.
3919476
07/02/2013
Sun Enterprise
Ploywood for general
303
—
—
1989
S.No. 87 & 88 Devadh,
purposes
Godadara Road,
Surat
9.
3919577
08/02/2013
Shree Vaishnow Devi Metal
Domestic pressure cookers
2347
—
—
2006
Works
C/1/B-96, G.I.D.C. Waghodia,
Vadodara-391760
10.
3920360
11/02/2013
Bajrang Castings Pvt. Ltd.
Carbon steel cast billet
2830
—
—
2012
144, Village Iyava,
ingots, billets, blooms
Near Hoppolin, TA Sanand
and slabs for re-rolling into
Ahmedabad, Iyava-382110
steel for general
structural purposes
11.
3918171
11/02/2013
Satyam Ply Industries
Wooden flush door shutters
2202
1
—
1999
Unjha Siddhpur Highway,
(solid core type):
Near Preet Resturant
Mahesana, Brahmanwada-384215
12.
3919375
11/02/2013
Royal Touch Laminates Pvt. Ltd.
Ployvinyl acetate dispersion
4835
—
—
1979
Block No. 27—32, Radhe
based adhesives
Industrial Estate,
for wood
Tajpur Road, Changodar.
Ahmedabad-382213
13.
3921261
14/02/2013
Torra Jewels
Gold and gold alloys,
1417
—
—
1999
A-602, Diamond World
jewellery/artefacts-
Mini Bazar
fineness and marking
Suraj, Varachha Road-395006
14.
3921362
18/02/2013
K.R. Jewellers
Gold and gold alloys,
1417
—
—
1999
3/644, Choksi Bazar
jewellery/artefacts-
Navapura, Karwa Road
fineness and marking
Surat, Bhagal-395003
15.
3921463
18/02/2013
Instyle Jewellery
Gold and gold alloys,
1417
—
—
1999
5767, Ist Floor, Bhavani
jewellery/artefacts-
Gems, Near Godhani Circle
fineness and marking
Bambawadi, Surat
Katargam Road
16.
3921665
18/02/2013
J.J. Jewellers
Gold and gold alloys,
1417
—
—
1999
U-6, Ahirward Complex
jewellery/artefacts-
Near Umabhavan Circle,
fineness and marking
Surat, Bhatar Road
1
2
3
4
5
6
7
8
9
534
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
17.
3921766
18/02/2013
Define Jewellery
Gold and gold alloys,
1416
—
—
1999
G-20, 21, Opera House
jewellery/artefacts-
Behind Super Diamond
fineness and marking
Market, Mini Bazar
Surat, Varachha Road
18.
3922263
22/02/2013
Finolex Industries Ltd.
Upvc pipes for soil and waste 13592
—
—
1992
(Masar Pipe Division)
discharge systems inside
Block No. 1184, 1185,
buildings including ventilation
1186, 1199/p. 1, 1201, 1202,
and rainwater system
1203, 1205, 1208 & 1211,
Masar Village Road, Mansar,
Padra, Vadodara-391421
19.
3922364
22/02/2013
Finolex Industries Ltd.
Unplasticized pvc pipes for
4985
—
—
2000
(Masar Pipe Division)
potable water supplies
Block No. 1184, 1185,
1186, 1199/p.1, 1201, 1202,
1203, 1205, 1208 & 1211,
Masar Village Road, Mansar,
Padra, Vadodara-391421
20.
3924772
27/02/2013
Alcock Cement Pipes &
Precast concrete manhole
12592
—
—
2002
Concrete Works
cover and frame
Near New Cotton Mill No. 2,
Near, Ajod Dairy Opp. Water
Tank, in the lane of Ashima
Denim, Rakhiyal Char Rasta,
Rakhial, Ahmedabad
[No. CMD/13:11]
Dr. S.L. PALKAR, Scientist 'F'& Head
ubZ fnYyh] 6 tuojh] 2014
dkñvkñ 239.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e] 1988 ds fu;e 4 ds mifu;e ¼5½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk
vfèlwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gSa] os Lohd`r dj fn, x, gSa%&
vuqlwph
Ø-
ykblsal
Lohd`r djus
ykblsal/kkjh dk
Hkkjrh; ekud dk
Hkkjrh;
Hkkx
vuqHkkx
o"kZ
la-
la[;k
dh frfFk
uke o irk
'kh"kZd
ekud
o"kZ@ekg
la-
1
2
3
4
5
6
7
8
9
1-
3924873
04@03@2013
'kk'or ,Dok]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
uañ 239] CykWd 332] losZ uañ
iSdstM uspqjy feujy okVj½
445@ch] vk'kkjke ckiw vkJe ds ikl]
iz;kslk gkbZV ds lkeus]
fcy jksM] oMkSnjk&391410
2-
3924974
04@03@2013
dsesV osVl ,UM Qykst izkñfyñ]
vYQklk;ijeSFkjhu MCY;w ih
15603
&
&
2005
IykV uacj 129@lh@2]
th vkbZ Mh lh ,LVsV]
vadys'oj&393 002
3-
3925067
04@03@2013
xaxk TosylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
IykWV uañ&200] fMfLVªDV 'kks¯ix
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
lsUVj] lsDVj&21]
eqgjkadu
xka/khuxj&382021
4-
3926675
04@03@2013
eSllZ jks;y Vp ,sY;qfefu;e izkñfyñ]
,Y;wfefu;e ,yk; V~;wc Qkj
7092
2
&
1987
IykWV uañ 30&31
bjhxs'ku ijil
lkdsr bUMLVªh;y
,sLVsV] uksok isVªksdsfedYl ds ikl]
lj[kst ckoyk gkbos] eksj;k xke]
lkuan] vgenkckn&382213
1
2
3
4
5
6
7
8
9
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
535
5-
3925572
05@03@2013
, ih TosylZ]
Lo.kZ rFkk Lo.kZ /kkrqvksa ds
1417
&
&
1999
796@1] xqtj iksy ds lkeus]
vkHkw"k.kksa f'kYidkjh 'kq)rk ,oa
uok cktkj] izkafrt
eqgjkadu
ftyk % lkcjdkaBk&383205
6-
3925976
05@03@2013
eSllZ ,Llkj LVhy fyfeVsM]
LVhy IysVl Qkj izs'kj oSly
2041
&
&
1995
27 fdñehñ] lwjr&gftjk jksM] gftjk]
;wlM ,V eksMjsV rFkk yks
ftyk % lwjr
VSEijspj
7-
3926776
06@03@2013
iwtk bUMLVªht]
53 xzsM vkfMujh iksVySaM flesaV
12269
&
&
1987
CykWd uañ 1603@1] 1603@5]
okalnk jksM] vyhiksj]
rkyqdk&ph[kyh] ftyk % uolkjh
8-
3927374
06@03@2013
y{eh ikbZi bUMLVªht]
izhdkLV dkafØV ikbZi ¼fon rFkk
458
&
&
2003
losZ uañ 1597@34@9]
fonkmV fjfuQkslZeSaV½
ohluxj&xka/khuxj gkbZos] xkstkjh;k]
ftyk % esglkuk&382825
9-
3927071
08@03@2013
eSllZ jsucks LØhu bal]
oSy LØhul rFkk lyksfVM
8110
&
&
2000
ch ywch baMfLVª;y ikdZ] oMlj
ikbZIl
[krjkt jksM] rk dyksy fMfLVªDV
xka/khuxj&382721
10-
3932771
18@03@2013
eSllZ vtqZu ,yk;l]
dkcZu LVhy dkLV fcysV
2830
&
&
2012
21&22] iapjRuk baMfLVª;y ,LVsV]
buxksVl] fcysVl] Cywel rFkk
y{ehukjk;.k isVªksy iEi ds ikl]
Lyscl Qkj fjjksfyax baVw LVhy
lj[kst ckoyk gkbZos] pkaxksnj]
Qkj tujy LVdpyZ ijil
vgenkckn&382213
11-
3932973
18@03@2013
eSllZ dsñihñ,lñ bUMLVªht
lceflZcy iEilSV
8034
&
&
2002
52] 53] 54] eksuk ,LVsV]
vfuy LVkpZ fey ds lkeus]
vfuy fey jksM] ujksMk jksM]
vgenkckn&380025
12-
3933672
20@03@2013
eSllZ ijQsDV IykbZ bUMLVªht izkñ
eSfju IykbZoqM
710
&
&
2010
fyñ] rkjkiqj [ksMk jksM] xkao ifj;st]
rñ ekrj] ftyk % [kksMk&388180
13-
3933773
22@03@2013
eSllZ ukxvtqZu QfVZykbtj ,aM
bZjhxs'ku bD;wieSaV&
14151
2
&
2008
dsfedy fyfeVsM] IykWV uacj 2505]
Lijhdyj ikbZi
2506] th vkbZ Mh lh] gyksy]
fMLVªDV% iapegy&389350
14-
3933470
22@03@2013
eSllZ xuScks bafM;k izksñ fyñ]
gk;j dsisflVh MªkbZ ikmMj
10658
&
&
1999
IykV uacj] 1302&1306]
QkW;j ,DlfVaxof'kj ¼Vªkyh
th vkbZ Mh lh baMfLVª;y
ekmafVM½
,LVsV] paikusj jksM] gyksy]
ftyk % iapegy&389350
15-
3934270
25@03@2013
,eikoj ,Dok Vsd izkñ fyñ]
iSdstcan is;ty ¼vnj nSu
14543
&
&
2004
IykWV uañ 8] vatyh baMLVªh;y
iSdstM uspqjy feujy okVj½
,LVsV foHkkx&1] jsyos ykbZu ds ikl]
vejksyh&lk;u jksM] ,V iksLV xksFkku]
rkyqdk % vkyikM] ftyk %
lwjr&395004
16-
3935272
25@03@2013
lkjFkh ,xzks dse]
uhe csLM bZ lh daVsfuax
14300
&
&
1995
1306@5] Qst 4] th vkbZ Mh
vtkfMjsfDVu
lh] ujksMk] vgenkckn & 382330
17-
3936072
25@03@2013
Jh vfEcdk cksMZ bUMLVªht]
ohuMZ MSdksjsfVo IykbZoqM
1328
&
&
1996
CykWd uañ 61] mtfM;k jksM]
xkao&egh;ky] rkyqdk&ryksn] ftyk %
lkcjdkaBk&383215
[lañ lh,eMh@13%11]
MkWñ ,lñ,yñ ikydj] oSKkfud ^,Q* rFkk izeq[k
1
2
3
4
5
6
7
8
9
536
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 6th January, 2014
S.O. 239.—In pursuance of sub-regulation (5) of the regulation 4 of the Bureau of Indian Standards (Certification)
Regulations, 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in
the following schedule:
SCHEDULE
Sl.
Licence
Grant
Name & Address of the Party
Title of the Standard
IS No.
Part
Section
Year
No.
No.
Date
1
2
3
4
5
6
7
8
9
1
3924873
04/03/2013
Shashwat Aqua
Packaged drinking water
14543
-
-
2004
No. 239, Block No. 332,
(other than packaged
Survey No. 445/B
natural mineral water)
Near Asharam Bapu Ashram,
Opp. Prayosha Height, Bill Road
Vadodara-391410
2
3924974
04/03/2013
Chemet Wets & Flows Pvt.Ltd.
Alphacypermethrin, wp
15603
-
-
2005
Plot No. 129/C/2, GIDC Estate,
Bharuch Ankleshwar-393002
3
3925067
04/03/2013
Ganga Jewellers
Gold and gold alloys,
1417
-
-
1999
Plot No. 200,
jewellery/artefacts-
District Shopping Centre,
fineness and marking
Sector-21, Gandhinagar-382021
4
3926675
04/03/2013
Royal Touch Aluminium Pvt. Ltd.
Aluminium alloy tube for
7092
2
-
1987
Plot No. 30-31,
irrigation purpose
Saket Industrial Estate,
Near Nova Petrochemicals,
Sarkhej Bavla Highway,
Moraiya Gam,
Ahmedabad-382213
5
3925572
05/03/2013
A P Jewellers
Gold and gold alloys,
1417
-
-
1999
796/1, Opp Gujjars Pole,
jewellery/artefacts-
Nawa Bazar, Prantij
fineness and marking
Sabarkantha
Gujarat-383205
6
3925976
05/03/2013
Essar Steel India Limited
Steel plates for pressure
2041
-
-
1995
27Km, Surat-Hazira Road
vessels used at
Surat, P.O. Hazira-394270
moderate and low
temperature
7
3926776
06/03/2013
Pooja Industries
53 grade ordinary
12269
-
-
1987
Block No. 1603/5, Vansda Road,
portland cement
At: Alipore, TA: Chikhli,
Navsari
8
3927374
06/03/2013
Laxmi Pipe Industries
Precast concrete pipes
458
-
-
2003
Survey No. 1597/34/9,
(with and without
Visnagar Gandhinagar Highway,
reinforcement)
Gozaria Mahesana-382825
9
3927071
08/03/2013
Rainbow Screen Inc.
Well screens and slotted
8110
-
-
2000
B.Lubi Industrial Park
pipes
Vadsar-Khatraj Road,
Taluka Kalol
Dist.: Gandhinagar-382721
10
3932771
18/03/2013
Arjun Alloys
Carbon steel cast billet
2830
-
-
2012
21-22,
ingots, billets, blooms
Panchratna Industrial Estate,
and slabs for re-rolling
Near Laxminarayan
into steel for general
Petrol Pump,
structural purposes
Sarkhej Bavla Highway,
Changodar
Ahmedabad-382213
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
537
11
3932973
18/03/2013
K. P. S. Industries
Submersible pumpsets
8034
-
-
2002
52, 53, 54 Mona Estate,
Opp. Anil Starch Mill,
Anil Mill Road, Naroda Road,
Ahmedabad-380025
12
3933672
20/03/2013
Perfect Ply Industries Pvt. Ltd.
Marine plywood
710
-
-
2010
Tarapur-Kheda Road,
AT & Post: Pariyej
TA: Matar, Kheda,
Pariyej-388180
13
3933773
22/03/2013
Nagarjuna Fertilizers &
Irrigation equipment-
14151
2
-
2008
Chemicals Limited
sprinkler pipes
Plot No. 2505, 2506,
GIDC, Panchamahal
Halol-389350
14
3933470
22/03/2013
Gunnebo India Private Ltd.
Higher capacity dry
10658
-
-
1999
Plot No. 1302-1306, GIDC
powder fire extinguisher
Industrial Estate,
(trolley mounted)
Champaner Road,
Panchamahal Halol-389350
15
3934270
25/03/2013
M Power Aqua Tech Pvt. Ltd.
Packaged drinking water
14543
-
-
2004
Plot No. 8, Anjali Indl.
(other than packaged
Estate Vibhag-1,
natural mineral water)
Near Railway Line,
Amroli-Sayan Road,
AT Post: Gothan, Surat,
TAL: Olpad
16
3935272
25/03/2013
Sarathi Agro Chem.
Neem based ec
14300
-
-
1995
1306/5 Phase 4, G.I.D.C.
containing azadirachtin
Ahmedabad-382330
17
3936072
25/03/2013
Shree Ambica Board Industries,
Veneered decorative
1328
-
-
1996
Block No. 61, Ujedia Road,
plywood
Village- Mahiyal, Taluka Talod,
Sabarkantha-383215
[No. CMD/13:11]
Dr. S. L. PALKAR, Scientist 'F' & Head
ubZ fnYyh] 6 tuojh] 2014
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7948911
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21@03@2013
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MkWñ ,lñ ,yñ ikydj] oSKkfud ^,Q* rFkk izeq[k
1
2
3
4
5
6
7
8
9
538
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 6th January, 2014
S.O. 240.—In pursuance of sub-regulation (6) of the regulation 5 of the Bureau of Indian Standards (Certification)
Regulations, 1988, of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below
have been cancelled with effect from the date indicated against each:
SCHEDULE
Sr.No.
Licences No.
Name and Address of the Licensee
Article/Process with relevant Indian
Date of
CM/L-
Standards covered by the licence
cancellation
cancelled/suspension
No.
CM/L-
covered by the licence cancelled
1
7948911
M/s. Astral Polytechnic Limited,
UPVC pipes for soil and waste
21/03/2013
Block No. 1253, Village Santej, Near Shah
discharge systems inside
Alloys, Taluka Kalol, Dist.: Gandhinagar,
buildings including Ventilation
Santij
and rain water system IS 13592:1992
[No. CMD/13:13]
Dr. S. L. PALKAR, Scientist 'F' & Head
isVªksfy;e vkSj izkd`frd xSl ea=ky;
ubZ fnYyh] 8 tuojh] 2014
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dh /kkjk 2 ds [k.M ¼d½ ds vuqlj.k esa uhps nh xbZ vuqlwph ds LrEHk ¼1½ esa mfYyf[kr O;fDr dks mDr vuqlwph ds LrEHk ¼2½ esa dh rRLFkkuh izfof"V
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th,lih,y bfUM;k xSlusV fyfeVsM ¼thvkbth,y½]
egslkuk&HkfV.Mk uspqjy xSl ikbiykbu vkSj HkfV.Mk&tEew&Jhuxj izkd`frd xSl ikbiykbu usVodZ
2- ;g vf/klwpuk tkjh gksus dh rkjh[k ls ykxw gksxhA
[Qkñ lañ ,y&14014@39@2011&thñihñ]
Jh izdk'k vxzoky] voj lfpo
MINISTRY OF PETROLEUM AND NATURAL GAS
New Delhi, the 8th January, 2014
S.O. 241.—In pursuance of clause (a) of section 2 of the Petroleum and Minerals Pipelines (Acquisition of Right of user
in Land) Act, 1962 (50 of 1962), the Central Government hereby Authorizes the person mentioned in column (1) of the
Schedule given below to perform the functions of the Competent Authority under the said Act, in respect of the areas
mentioned in column (2) of the said Schedule namely:—
SCHEDULE
Name and Address of the Authority
Area of Jurisdiction
District Revenue Officer, Office of the Deputy Commissioner
District of Pathankot
Pathankot, Punjab State, GSPL India Gasnet Limited (GIGL)
(Punjab State)
Mehsana - Bhatinda Pipeline and Bhatinda - Jammu
Natural Gas Pipeline Network
2. This notification will be effective from the date of its issue.
[F. No. L-14014/39/2011-GP]
S. P. AGARWAL, Under Secy.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
539
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ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 242.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkWfQlj dekafMax
nsYgh dkUV ds izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
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vfèdj.k ,oa Je U;k;ky; lañ&1 ds iapkV ¼lanHkZ la[;k 125@1999½
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr gqvk
FkkA
[Qkñ lañ ,y&14012@92@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 31st December, 2013
S.O. 242.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 125/1999)
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 Officer Commanding, Delhi Cantt, New
Delhi and their workman, which was received by the Central
Government on 26/12/2013.
[F. No. L-14012/92/98-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. 125/1999
Shri Chandrika,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
Award
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as 'Casual Labourers (Grant of
Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Candrika, engaged as a casual labour, he raised an
industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/92/98/IR(DU), New Delhi, dated 19.04.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Chandrika, S/o Shri Vag Nath is legal
and justified? If not, to what relief the workman is
entitled?"
2. Claim statement was filed by Shri Chandrika,
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of June 1980. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 8 years. He rendered duties from
8 a. m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the mangement, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW1/1 as
evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
540
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the clendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the
High Court of Delhi, it is expedient to announce
that the management is under an obligation to
produce records relating to attendance of the
claimants while in service of the respondent,
including muster rolls. Resultantly, application is
granted. Management shall produce muster rolls
in respect of the claimants on the next date of
hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
541
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Vocher LPG Account from 01.07.1990 to
31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soad Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 01.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment-M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.091984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—Black
Cheque from 01.04.1978 to31.03.1991, IAFA—Red Cheque
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD Imprest
Account from 01.04.1972 to 31.03.1992, IAFA 177—Red
Cheque FD Imp Account from 01.04.1972 to 31.03.1992,
IAFA 176 Black Cheque Public Fund Accounts from
01.04.1971 to 31.03.1992 and IAFA 177 (red Cheque) Public
Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the county of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer (2002 (3) SSC
25). Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
542
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(bb)
termination of the services of the workman as
a result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation
in that behalf contained therein; or
(c)
termination of the services of a workman on
the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years'
service or any part thereof provided it exceeds
six months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in a industry for not less than 240 days is to be
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than. 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
543
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking [1985 (2) LLJ 539], wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa [1981 (1) LJ 308] was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 1997 to September
1996, August 1996 to September 1995, August 1995 to
September 1994, August 1994 to September 1993 and so
on. On careful examination of the attendance registers, it
came to light that Ms. Chandrika served for 84 days from
August 1997 to September, 1996, 71 days from August
1996 to September 1995, 44 days from August 1995 to
September 1994, 192 days from August 1994 to September,
1993, 178 days from August 1993 to September 1992, 146
days from August 1992 to September 1991, 168 days from
August 1991 to September 1990 and 10 days from August
1990 to July 1990.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from August 1994 to September 1993,
he reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service to 240 days to avail benefit of
provisions of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement.
No evidence was brought to show that he was employed
for a fixed term of contract and his services came to an
end on non renewal of contract of employment. It was
not asserted that his services were terminated on the
ground of continued ill-health. Neither services of the
claimant were done away as punishment for a domestic
action nor action of the management falls within the
category exempted under second limb of section 2(oo) of
the Act. Thus it is obvious that termination of services of
the claimant, for any other reason, amounts to
retrenchment, as defined by clause (oo) of section 2 of
the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act, According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obiligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
[1964 (1) LLJ 351], Adaishwar Laal (1970 Lab.I.C. 936) and
B.M. Gupta [1979 (1) LLJ 168] announce that subseqnet
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice
nor pay in lieu there of nor retrenchment compensation
was paid to him by the management. Therefore, his
544
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
retrenchment is violative of the provisions of section 25-
F of the Act.
24. Services of the workman were retrenched without
payment of notice pay, and retrenchment compensation. It
is well settled that in a case of wrongful retrenchment,
dismissal or discharge, the normal rule is to award
reinstatement. But where a case falls in any of the exception
to general rule, the industrial adjudicator has discretion to
award reasonable and adequate compensation, in lieu of
re-instatement. Section 11A of the Act vests the industrial
adjudicator with discretionary jurisdication to give "such
other relief to the workman" in lieu of discharge or dismissal
as the circumstances of the case may require, where for
some valid reasons it considres that reinstatement with or
without conditions will not be fair or proper.
25. In Uma Devi [2006 (4) SCC 1] the Apex Court
considered the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be ordered
to be made permanent in their posts, to prevent regular
recruitment to the posts concerned. Catena of decisions
over the subject were considered and the court declined
the submissions of the workman to be made permanent on
the posts which were held by them in temporary or ad-hoc
capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here-can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh [1992 (4) SCC 118] is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P.Chandra Shekhara Rao and Others [2006 (7)
SCC 488] the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
[2004(7) SCC 112] and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. in
Somveer Singh [2006 (5) SCC 493] the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a casual,
ad-hoc or daily rated employee) or payment of regular
salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a peromise. It is also abvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been brought
over the record to project that the management engaged
him through employment exchange or an open recruitment
process. There is complete vacuum of evidence to the effect
that the process through which the claimant was engaged
by the management was made known to public at large, so
that other eligible candidates may offer their candidature
for recruitment. Evidently, it was a back-door entry in
service. His engagement by the management was not in
consonance with the statutory rules. In view of his wrongful
employment, there is no justification for his reinstatement
in the service of the management. In the alternative, this
Tribunal has to award compensation to the workman in
lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty [1957 (11) LLJ
¹Hkkx II—[k.M 3(ii)º
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545
696] the Apex court indicated some relevant factors which
an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement, the
industrial adjudicator would also have to take into
account the present value of what his salary, benefits
etc. would be till he attained the age of superannuation
and the value of such benefits would have to be
computed as from the date when such reinstatement
was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
29. A Divisional Bench of the Patna High Court in B.
Choudhary Vs. Presiding Officer, Labour Court, Jamshedpur
(1983) Lab.I.1755 (1758) deduced certain guidelines which
have to be borne in mind in determining the quantum of
compensation viz. (i) the back wages receivable (ii)
compensation for deprivation of the job with future
prospect and obtainability of alternative employment; (iii)
employee's age (iv) Length of service in the establishment
(v) capacity of the employer to pay and the nature of the
employer's business (vi) gainful employment in mitigation
of damages; and (vii) circumstances leading to the
disengagement and the past conduct. These factors are
only illustrative and not exhaustive. In addition to the
amount of compensation, it is also within the jurisdiction
of the Tribunal to award interest on the amount determined
as compensation. Furthermore, the rate of such interest is
also in discretion of the Tribunal. Reference can be made
to Tabesh Process, Shivakashi (1989 Lab.I.C.1887).
30 In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
machinery Ltd. [1966(1)LLJ 398] the amount of
compensation equivalent to two year salary of the employee
awarded by the industrial Tribunal was reduced by the
Supreme Court to an amount equivalent to one year salary
of the employee in view of the fact that she had been in
service with the employer only for 5 months and also took
into consideration the unusual manner of her appointment
at the instance of the Chief Minister of the State. In A.K.
Roy [1970(1) LLJ 228] compensation equivalent to two
years salary last drawn by the workmen was held to be fair
and proper to meet the ends of justice. In anil Kumar
Chakaraborty [1962 (II) LLJ 483] the Count converted the
award of reinstatment into compensation of a sum of Rs.
50000/- as just and fair compensation in full satisfaction of
all his claims for wrongful dismissal from service. In O.P.
Bhandari [1986 (II) LLJ 509], the Apex Court observed that
it was a fit case for grant of compensation in view of
reinstatement. The Court awarded compensation equivalent
to 3.33 years salary as reasonable. In M.K. Aggarwal (1988
Lab.I.C.380), the Apex Court though confirmed the order of
reinstatement yet restricted the back salary to 50% of what
would otherwise be payable to the employee. In Yashveer
Singh (1993 Lb.I.C.44) the court directed payment of Rs.
75000/- in view of reinstatement with back wages. In Naval
Kishor [1984 (II) LLJ 473] the Apex Court observed that in
view of the special circumstances of the case adequate
compensation would be in the interest of the appellant. A
sum of Rs. 2 lac was awarded as compensation in lieu of
reinstatement. In Sant Raj [1985 (II) LLJ 19] a sum of Rs. 2
lac was awarded as compensation in lieu of reinstatement.
In Chandu Lal (1985 Lab.I.C.1225) a compensation of Rs. 2
lac by way of back wages in lieu of reinstatement was
awarded. In Ras Bihari 1988 Lab.I.C.107) a compensation
of Rs. 65000/- was granted in lieu of reinstatement, since
the employee was gainfully employed ellewhere. In V.V.
Rao (1991 Lab.I.C.1650) a compensation of Rs. 2.50 lac was
awarded in lieu of reinstatement.
31. Claimant rendered one year continuous service
to the management, besides other spells which fell sort of
240 days. He was young man, when he was engaged by
the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had to
constest the case for a period of more than 15 years to seek
redressal of his grievances. Keeping in view these facts, I
am of the view that an amount of Rs. 30,000.00 as
compensation in lieu of reinstatement in service, besides a
sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of his
services, besides cost of proceedings, referred above. An
546
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 243.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 122/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[F. No. L-42012/87/98-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. I, DELHI
I.D. No. 122/1999
Shri Gokul Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
... Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
... Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Gokul Yadav, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/92/98/IR(DU), New
Delhi, dated 19.04.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Gokul Yadav, S/o Shri Bechu Yadav
is legal and justified? If not, to what relief the
workman is entitled?"
2. Claim statement was filed by Shri Gokul Yadav,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of June 1986. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 10 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
¹Hkkx II—[k.M 3(ii)º
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547
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each ofthe 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scruitiny by the Labour Court and the
petitioner shal also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's procedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
548
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment - M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1993 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1990 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts-Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 TO 31.05.1984, IAFA-
Black Cheque from 01.04.1978 To 31.03.1991, IAFA-Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Accountg from 01.04.1972 to 31.03.1992, IAFA
177-Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992 IAFA 177-Black Cheque Public Fund Acounts
from 01.04.1971 to 31.04.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management as held by the Apex
Court in Range Forest Officer (2002 (3) SSC (25) Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act,is extracted thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reasons whatsoever, otherwise than as a
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549
punishment inflicted by way of disciplinary
action, but does not include-
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inficted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punlishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman,
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (ii) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one months' notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one months' notice should have
expired before retrenchment is enforced, or the
workman as been paid in lieu of such notice the
wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to 15
days average pay for every one years service or
any part thereof provided it exceeds six months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
services for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a ficition to the effect that
even if a workman is not in "continous service" within
the meaning of clause (1) for a period of one year of six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-seciton (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section.The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one years'
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking [1985 (2) LLJ 539], wherein it was ruled
that the expression 'actually worked under the employer',
cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in July 1997. Therefore, for reckoning continuous service
for the period of 240 days in preceding 12 months from the
date when services of the claimant were dispensed with,
the Tribunal had to count service rendered by the claimant
from July 97 to August 96, July 96 to August 95, July 95 to
August 94, July 94 to August 93 and so on. On careful
examination of the attendance registers, it came to light
that Shri Gokul Yadav served for 52 days from July 1997 to
August 1996, 61 days from July 1996 to August 95, 30 days
from July 95 to August 94, 128 days frofm July 1994 to
August 1993, 175 days from July 1993 to August 1992, 111
days from July 1992 to August 1991, 140 days from July
1991 to August 1990, 138 days from July 1990 to August
1989, 85 days from July 1989 to August 1988, 181 days from
July 1988 to August 1987 and 96 days from July 1987 to
August 1986.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods preferred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has not been
able to project that he rendered continuous service of 240
days to avail benefit of provisions of section 25F of the
Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 10 years,
with the management At the outset the management
denied that the claimant was engaged as a casual
employee at intermittent periods. However, no specific
denial was made to the effect that the claimant had not
rendered continuous service for a period of 10 years as
claimed by him. Evasive reply given by the management
was not taken as admission of act by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there is
discretion available to Courts/Tribunals to require a party
to prove facts admitted, otherwise than by such admission.
While using that discretion, the Tribunal called upon the
claimant to enter the witnessbox, to establish that he
rendered continuous service for a period of 240 days in a
calendar year or every year in which he served the
management During the course of testimony, the claimant
made a bald assertion to the effect that he continuously
served the management for a period of 10 years. No
document such as salary slip or wage receipt or any record
or order issued by the management was brought over the
record to substantiate the factum of continuous service of
240 days in a calendar year, not to talk of continuous service
of ten years, as claimed. Self-serving words, detailed by
the claimant, are not sufficient to discharge the burden
resting on him. Burden to prove that he had rendered
continuous service of 240 days in a calendar year lies on
the claimant. To discharge that burden, he had to lead
¹Hkkx II—[k.M 3(ii)º
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551
cogent evidence to show that he had in fact worked for 240
days in a year preceding his termination. Mere filing of
affidavit or by giving his own statement, was found not to
be enough by the Apex Court, to prove factum that he had
worked with the management for 240 days, in Rajasthan
State Ganganagar Mills Ltd. [2004 (103) FLR 192] and Essen
Deinki [2003 SC (L&S) 113]. Also see Municipal
Corporation, Faridabad [2004 (8) SCC 195] and Reserve
Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to prove
the fact that he had worked for 240 days in a calendar year.
No proof of receipt of salary or wages or any record or
order in that regard was produced to establish that he had
rendered continuous service for a period of 240 days in a
calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F of
the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the categtory
in which he was employed. Therefore, provisions of section
25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
conclided that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated: 25.10.2013
Dr. R. K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 244.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 124/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[F.No. L-14012/85/98-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. 124/1999
Shri Shyam Narain Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time, Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Shyam Narain Yadav, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
552
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
adjudication, vide order No. L-14012/85/98/IR(DU),
New Delhi, dated 19.04.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Syam Narain Yadav, S/o Shri Murli
Yadav is legal and justified? If not, to what relief the
workman is entitled?"
2. Claim statement was filed by Shri Shyam Narain
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of June 1993.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 5 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each ofthe 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they servved the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scruitiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
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553
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts—Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978 to
31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from
01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD Imp
Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to
31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
554
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer (2002 (3) SSC 25). Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as
a result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation
in that behalf contained therein; or
(c)
termination of the services of a workman on
the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years'
service or any part thereof provided it exceeds
six months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
¹Hkkx II—[k.M 3(ii)º
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555
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in an industry for not less than 240 days is to be
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than. 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted
services. Fiction under section 25-B of the Act will
operate if workmen has actually worked for 240 days in
a calendar year. The explanation appended to section
25-B of the Act specifically includes the days on which
workman was laid off under an agreement or he has
been on leave with full wages, or he has been absent
due to temporary disablement caused by accident arising
out of and in the course of his employment and in the
case of a female, maternity leave, under the expression
'actually worked' used under sub-section (2) of section
25-B of the Act. Question for consideration would be
as to whether the words 'actually worked' would not
include holidays, Sundays and Saturdays for which full
wages are paid. The Apex Court was confronted with
such a proposition in American Express Banking
Corporation [1985 (2) LLJ 539], wherein it was ruled that
the expression 'actually worked under the employer',
cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the
number of days on which the workman had actually
worked though he had not so worked and no other days.
The Court observed that the explanation is only
clarificatory, as all explanations are, and cannot be used
to limit the expanse of the main provision. Precedent in
Lalappa Lingappa [1981 (1) LJ 308] was distinguished
by the Apex Court in the case referred above. The
precedent was followed in Standard Motor Products of
India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from
the law laid above that Sundays and holidays shall be
included in computing continuous service under section
25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in September 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from September 1997 to October
1996, September 1996 to October 1995, September 1995 to
October 1994 to October 1993 and so on. On careful
examination of the attendance registers, it came to light
that Shri Shyam Narain Yadav served for 7 days from
556
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
September 1997 to October 1996, 54 days from September
1996 to October 1995, 38 days from September 1995 to
October 1994, 103 days from September 1994 to October
1993 and 37 days from September 1993 to June 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches national figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
to 240 days to avail benefit of provisions of section 25F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 5 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240
days in a claendar year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of 5
years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd
[2004 (103) FLR 192] and Esen Deinki {2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 25.10.2013
Dr. R. K. YADAV, Presiding Officer
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557
New Delhi, the 31st December, 2013
S.O. 245.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 120/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[F. No. L-14012/89/98-IR (DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
DELHI
I.D. No. 120/1999
Shri M.C. Pandey,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
... Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G.,
Delhi Cantt., New Delhi-10.
... Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(c) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual labourers
(Grant of Temporary Status and Regularization) Scheme
of Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri M.C. Pandey, engaged as a casual labour, he raised
an industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred
that dispute to this Tribunal for adjudication, vide order
No. L-14012/89/98 (DU), New Delhi, dated 19.04.1999,
with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri M.C. Pandey S/o Shri D.B. Pandey is
legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri M.C. Pandey,
pleading therin that he was engaged as a casual labour
by Officer Commanding in the month of June 1993. He
had woked for the Officer Commanding in godown or
storage or as watchman for about 14 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in liew thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that ther existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(c) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206) days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant opted not to enter the witness box to
testify facts. The management also followed suit. Thus,
no evidence was adduced by the parties, to substantiate
their respective case.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before the
High Court of Delhi by way of writ petition, which came
to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether or not they
558
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribnual, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For conveninence, said order
is reproduced thus:
"Shri Saini moves an application praying therein
that the respondent may be directed to produce
muster rolls pertaining to the claimant. Notice of
the application is given to Shri Tyagi, who had
replied the application orally. I have gone through
the order dated 10.05.2013 passed by the high Court
of Delhi, wherein following directions were issued:
"In the light of the aforesaid dispute, I am
inclined to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in
respect of each ofthe 35 petitioners herein to
ascertain whether, or not they or any of them
had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The
said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expendient to announce that
the management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted Management
shall produce muster rolls in respect of the claimants
on the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the years 1983-1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possesion, since it
has been destroyed. On account of distruction of muster
rolls, it cannot be produced, pursuant to order dated
05.08.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for
10 years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
¹Hkkx II—[k.M 3(ii)º
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559
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts—Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978 to
31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from
01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD Imp
Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to
31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
560
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(c)
termination of the services of a workman on the
ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year."
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking [1985 (2) LLJ 539], wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
¹Hkkx II—[k.M 3(ii)º
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561
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa [1981 (1) LJ 308)] was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in June 1996. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from June 1996 to July 1995,
June 1995 to July 1994, June 1994 to July 1993, June 1993
to July 1992 and so on. On careful examination of the
attendance registers, it came to light that Shri M.C. Pandey
served for 98 days from June 1996 to July, 1995, 88 days
from June 1995 to July 1994, 147 days from June 1994 to
July 1993, 59 days from June 1993 to July, 1992, and 36
days from June 1992 to April 1992,
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has been
able to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 14 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 14 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240
days in a calendar year or every year in which he served
the management. As pointed out above, the claimant had
not adduced any evidence to established that he served
the management for a period of one year, as contemplated
by section 25B of the Act. Burden to prove that he had
rendered continuous service of 240 days in a calendar
year lies on the claimant. To discharge that burden, he
had to lead cogent evidence to show that he had in fact
worked for 240 days in a year preceding his termination.
To discharge that onus, the claimant had not produced
any evidence to prove the fact that he had worked for
240 days in a calendar year. No proof of receipt of salary
or wages or any record or order in that regard was
produced to establish that he had rendered continuous
service for a period of 240 days in a calendar year. The
claimant opted not to examine a co-worker or to produce
any document to contradict facts recorded in the
attendance registers, produced by the management before
the Tribunal. Therefore, it is crystal clear that the claimant
has not been able to prove that he had rendered
continuous service of 240 days in any calendar year, to
entitle him for protection of section 25F of the Act.
23. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
24. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 1.11.2013
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 vkWfQlj
dekafMax nsYgh dkUV ds izcUèra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
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¼lanHkZ la[;k 121@1999½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 26@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&14012@88@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 246.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 121/
1999) 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 Officer Commanding,
Delhi Cantt., New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[F. No. L-14012/88/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 121/1999
Shri Mahender Yadav - I,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Mahender Yadav - I, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/88/98/IR(DU),
New Delhi, dated 19.04.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Mahender Yadav - I, S/o Shri Nanku
Yadav is legal and justified? If not, to what relief the
workman is entitled?"
2. Claim statement was filed by Shri Mahender
Yadav-1, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of April 1993.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 5 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
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563
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
564
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's procedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important
matters of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning
with effect from 15.10.2011 and subsequent dates.
Records, which have been burnt, pertain to Payment VR
Supply & Services from 01.02.1971 to 31.12.2000,
Payment Vochers of Regiment from 01.01.1998 to
31.12.1998, Payment Voucher Regiment Fund Account
from 12.08.1970 to 30.07.2001, Black Cheque Regiment
Fund Account from 01.04.1976 to 31.03.1992, Red Cheque
from 01.04.1973 to 31.03.1992, Payment Voucher CSE from
01.04.1990 to 31.03.2001, Receipt Voucher CSD Canteen
from 01.04.1997 to 31.03.2001, CSD Canteen Account
Columnar Cash Book from 01.08.1971 to 31.05.1984, Red
Cheque from 01.04.1969 to 31.03.1992, FD Imprest
Account 01.09.1984 to 31.08.2001, Payment Voucher File
FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995
to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts
from 01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992,—90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15-05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of case CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts—Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978
to31.03.1991, IAFA—Red Cheque 01.01.1977 to
31.03.1991, IAFA 176 Black Cheque FD Imprest Account
from 01.04.1972 to 31.03.1992, IAFA 177—Red Cheque
FD Imp Account from 01.04.1972 to 31.03.1992, IAFA 176
Black Cheque Public Fund Accounts from 01.04.1971 to
31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini
opted not to comment anything on the proposition as
to whether above records were destroyed or not. It came
to light that the claimant has nothing to say that the
above records were destroyed by the management.
When claimant does not question the fact that the above
records stood destroyed, facts emerging out of above
certificate, issued by the Board of Officers and counter
signed by the Commandant, are to be accepted.
Resultantly, it is concluded that above records were
destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October, 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
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565
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one years'
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
566
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
to have completed one year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May, 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in September 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from September, 1997 to October
1996, September 1996 to October 1995, September, 1995
to October 1994, September 1994 to October 1993 and so
on. On careful examination of the attendance registers, it
came to light that Shri Mahender Yadav - I, served for 43
days from September 1997 to October 1996, 44 days from
September 1996 to October 1995, 50 days from September,
1995 to October 1994, 61 days from September 1994 to
October 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year he reaches notional figure of 240 days, to
claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able
to project that he rendered continuous service to 240
days to avail benefit of provisions of section 25F of the
Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 5 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
¹Hkkx II—[k.M 3(ii)º
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567
that he rendered continous service for a period of 240
days in a calendar year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of 5
years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continous service of 240 days in a calender year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calendar year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2004 (103) FLR 192] and Essen Deinki [2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and reserve Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior
to him was retained, when his services were dispensed
with. He also could not highlight that after termination
of his service, management employed some other person
in the category in which he was employed. Therefore,
provisions of section 25-G and 25-H of the Act have no
application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated: 25.10.2013
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 247.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 119/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[F. No. L-42012/90/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 119/1999
Shri Chander Bali Yadav-II,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
568
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Chander Bali Yadav II, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-42012/90/98/IR(DU), New
Delhi, dated 19.04.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Chander Bali Yadav-II, S/o
Shri Nanky is legal and justified? If not, to what relief
the workman is entitled?"
2. Claim statement was filed by Shri Chandrika,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of June 1989. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 8 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
569
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund Account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water Account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% Payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.5.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for Cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
570
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or
(ii) retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
¹Hkkx II—[k.M 3(ii)º
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571
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one years'
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in an industry for not less than 240 days is to be
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than. 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25-B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year.".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking [1985 (2) LLJ 539], wherein it was ruled
that the expression 'actually worked under the employer',
cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
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[PART II—SEC. 3(ii)]
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in August 1997. Therefore, for reckoning continuous service
for the period of 240 days in preceding 12 months from the
date when services of the claimant were dispensed with,
the Tribunal had to count service rendered by the claimant
from August 1997 to September 1996, August 1996 to
September 1995, August 1995 to September 1994, August
1994 to September 1993 and so on. On careful examination
of the attendance registers, it came to light that Ms. Chander
Bali Yadav-II, served for 49 days from August 1997 to
September, 1996, 154 days from August 1996 to September
1995, 42 days from August 1995 to September 1994, 155
days from August 1994 to September 1993, and 166 days
from August 1993 to September 1992, 138 days from August
1992 to September 1991, 140 days from August 1991 to
September 1990 and 42 days from August 1990 to October
1989.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in noe of the years he reaches notional figure of 240 days,
to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able to
project that he rendered continuous service to 240 days to
avail benefit of provisions of section 25-F of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management denied
that the claimant was engaged at all in service. But in the
subsequent breath, it was pleaded hat he was engaged as
a saxual emplopyee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 8 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is settled proposition of law that facts admitted
by a party need not be proved. However, there is discretion
available to Courts/Tribunals to require a party to prove
facts admitted, otherwise than by such admission. While
using that discretion, the Tribunal called upon the claimant
to enter the witness box, to established that he rendered
continuous service for a period of 240 days in a calendar
year or every year in which he served the management.
During the course of testimony, the claimant made a bald
assertion to the effect that he continuously served the
management for a period of 8 years. No document such as
salary slip or wage receipt or any record or order issued by
the management was brought over the record to
substantiate the factum of continuous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calendar year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
preceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan Sate Ganganagar
Mills Ltd. [2004 (103) FLR 192] and Essen Deinki [2003 SC
(L&S) 113]. Also see municipal Corporation, Faridabad
(2004 (8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to prove
the fact that he had worked for 240 days in a calendar year.
No proof of receipt of salary or wages or any record or
order in that regard was produced to establish that he had
rendered continuous service for a period of 240 days in a
calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F of
the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of
section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 24.10.2013
Dr. R.K. YADAV, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
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573
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[Qkñ lañ ,y&14012@86@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 248.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 123/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[F. No. L-14012/86/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
No. 1, DELHI
I.D. No. 123/1999
Shri Shakal Dev Dubey,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Shakal Dev Dubey, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/86/98/IR(DU), New
Delhi, dated 19.04.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Shakal Dev Dubey, S/o Shri Vag Nath
is legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Shakal Dev
Dubey, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of June 1993.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 5 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
574
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
¹Hkkx II—[k.M 3(ii)º
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575
(e)
Financial documents (to be retained for
10 years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001,
Black Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Vocher LPG Account from 01.07.1990 to
31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soda Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 01.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for Cash/Cheque Regiment Account from
01.01.1962 to 30.03.1977, IAFA 175 Receipt of cash CSE
canteen account from 01.07.1977 to 30.03.1992, IAFA 175
Receipt for Cash/Cheque Public Fund from 10.04.1963 to
November 1985, Labour Imprest accounts — Cash Book
from 01.12.1965 to 01.07.1970, Public Fund Account
Columnar Cash Book from 01.03.1956 to 30.091984,
Regiment. Fund Account Columnar Cash Book from
12.08.1970 to 18.01.1986, CSE Canteen Account Columnar
Cash Book 01.08.1971 to 31.05.1984, IAFA—Black Cheque
from 01.04.1978 to31.03.1991, IAFA—Red Cheque
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD Imprest
Account from 01.04.1972 to 31.03.1992, IAFA 177—Red
Cheque FD Imp Account from 01.04.1972 to 31.03.1992,
IAFA 176 Black Cheque Public Fund Accounts from
01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque) Public
Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the country of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer (2002 (3) SSC 25). Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of Sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by Sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
¹Hkkx II—[k.M 3(ii)º
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577
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under Sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking [1985 (2) LLJ 539], wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa [1981 (1) LJ 308] was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in October 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from October 1997 to November
1996, October 1996 to November 1995, October 1995 to
November 1994, October 1994 to November 1993 and so
on. On careful examination of the attendance registers, it
came to light that Sh. Shakal Lal Yadav served for
182 days from October 1997 to November, 1996, 138 days
from October 1996 to November 1995, 152 days from
October 1995 to November 1994, 209 days from October
1994 to November 1993 and 69 days from October 1993 to
June 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from August 1994 to September 1993,
he reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service to 240 days to avail benefit of
provisions of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement.
No evidence was brought to show that he was employed
for a fixed term of contract and his services came to an
end on non-renewal of contract of employment. It was not
asserted that his services were terminated on the ground
of continued ill-health. Neither services of the claimant
were done away as punishment for a domestic action nor
action of the management falls within the category
exempted under second limb of section 2(oo) of the Act.
Thus it is obvious that termination of services of the
claimant, for any other reason, amounts to retrenchment,
as defined by clause (oo) of section 2 of the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act. According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obiligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
[1964 (1) LLJ 351], Adaishwar Laal (1970 Lab.I.C. 936) and
B.M. Gupta [1979 (1) LLJ 168] announce that subsequent
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
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[PART II—SEC. 3(ii)]
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice
nor pay in lieu there of nor retrenchment compensation
was paid to him by the management. Therefore, his
retrenchment is violative of the provisions of section 25-F
of the Act.
24. Services of the workman were retrenched
without payment of notice pay, and retrenchment
compensation. It is well settled that in a case of wrongful
retrenchment, dismissal or discharge, the normal rule is
to award reinstatement. But where a case falls in any of
the exception to general rule, the industrial adjudicator
has discretion to award reasonable and adequate
compensation, in lieu of re-instatement. Section 11A of
the Act vests the industrial adjudicator with discretionary
jurisdiction to give "such other relief to the workman" in
lieu of discharge or dismissal as the circumstances of the
case may require, where for some valid reasons it
considers that reinstatement with or without conditions
will not be fair or proper.
25. In Uma Devi [2006 (4) SCC I] the Apex Court
considred the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be
ordered to be made permanent in their posts, to prevent
regular recruitment to the posts concerned. Catena of
decisions over the subject were considered and the court
declined the submissions of the workman to be made
permanent on the posts which were held by them in
temporary or ad-hoc capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here-can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh [1992 (4) SCC 118] is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P.Chandra Shekhara Rao and Others [2006 (7)
SCC 488] the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
[2004(7) SCC 112] and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. in
Somveer Singh [2006 (5) SCC 493] the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a
casual, ad-hoc or daily rated employee) or payment of
regular salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a peromise. It is also abvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been
brought over the record to project that the management
engaged him through employment exchange or an open
recruitment process. There is complete vacuum of
evidence to the effect that the process through which
the claimant was engaged by the management was made
known to public at large, so that other eligible candidates
may offer their candidature for recruitment. Evidently, it
was a back-door entry in service. His engagement by
the management was not in consonance with the
statutory rules. In view of his wrongful employment,
there is no justification for his reinstatement in the
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579
service of the management. In the alternative, this
Tribunal has to award compensation to the workman in
lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty [1957 (11)
LLJ 696] the Apex court indicated some relevant factors
which an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement, the
industrial adjudicator would also have to take into
account the present value of what his salary, benefits
etc. would be till he attained the age of superannuation
and the value of such benefits would have to be
computed as from the date when such reinstatement
was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
30. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable (ii) compensation for deprivation of the job
with future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment (v) capacity of the employer to pay
and the nature of the employer's business (vi) gainful
employment in mitigation of damages; and
(vii) circumstances leading to the disengagement and the
past conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in discretion
of the Tribunal. Reference can be made to Tabesh Process,
Shivakashi (1989 Lab.I.C. 1887).
30. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the
Apex Court took into account countervailing facts that
the employer had paid certain sums to the workmen and
her own earning in the alternative employment and
ordered that "it would be fair and just to direct the
appellant a substantial sum as compensation to her". In
Utkal Machinery Ltd. [1966(1)LLJ 398] the amount of
compensation equivalent to two year salary of the
empooyee awarded by the industrial Tribunal was
reduced by the Supreme Court to an amount equivalent
to one year salary of the employee in view of the fact
that she had been in service with the employer only for
5 months and also took into consideration the unusual
manner of her appointment at the instance of the
Chief Minister of the State. In A.K. Roy [1970(1) LLJ 228]
compensation equivalent to two years salary last drawn
by the workmen was held to be fair and proper to meet
the ends of justice. In Anil Kumar Chakaraborty [1962 (II)
LLJ 483] the Count converted the award of reinstatement
into compensation of a sum of Rs. 50000/- as just and fair
compensation in full satisfaction of all his claims for
wrongful dismissal from service. In O.P. Bhandari [1986
(II) LLJ 509], the Apex Court observed that it was a fit
case for grant of compensation in view of reinstatement.
The Court awarded compensation equivalent to 3.33 years
salary as reasonable. In M.K. Aggarwal (1988 Lab.I.C.380),
the Apex Court though confirmed the order of
reinstatement yet restricted the back salary to 50% of
what would otherwise be payable to the employee. In
Yashveer Singh (1993 Lab.I.C.44) the court directed
payment of Rs. 75000/- in view of reinstatement with back
wages. In Naval Kishor [1984 (II) LLJ 473] the Apex Court
observed that in view of the special circumstances of the
case adequate compensation would be in the interest of
the appellant. A sum of Rs. 2 lac was awarded as
compensation in lieu of reinstatement. In Sant Raj [1985
(II) LLJ 19] a sum of Rs. 2 lac was awareded as
compensation in lieu of reinstatement. In Chandu Lal (1985
Lab.I.C.1225) a compensation of Rs. 2 lac by way of back
wages in lieu of reinstatement was awarded. In Ras Bihari
(1988 Lab.I.C.107) a compensation of Rs. 65000/- was
granted in lieu of reinstatement, since the employee was
gainfully employed elsewhere. In V.V. Rao (1991
Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded
in lieu of reinstatement.
31. Claimant rendered one year continuous service
to the management, besides other spells which fell sort
of 240 days. He was young man, when he was engaged
by the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had
to constest the case for a period of more than 15 years
to seek redressal of his grievances. Keeping in view
these facts, I am of the view that an amount of
Rs. 30,000.00 as compensation in lieu of reinstatement
in service, besides a sum of Rs. 25,000.00 as cost of
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
proceedings would be sufficient to meet the ends of
justice. Accordingly the management is commanded to
pay compensation to the claimant as quantified above,
in lieu of reinstatement of his services, besides cost of
proceedings, referred above. An award is, accordingly,
passed. It be sent to the appropriate Government for
publication.
Dated : 1.11.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
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dekafMax nsgyh dSUV ds izcUèra= ds lac) fu;kstdksa vkSj muds
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¼lanHkZ la[;k 116@1999½ izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
26@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&14012@95@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 249.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 116/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[F. No. L-14012/95/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 116/1999
Shri Sangam Lal Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
... Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi
Cantt., New Delhi, from time to time. Casual labour, who
rendered atleast 240 days (206 days in the case of offices
observing five day week), is to be granted temporary
status in view of office memorandum No. 49014/2/86-
Estt(C) dated 07.06.1988. Subsequently, a scheme for
grant of temporary status was formulated, which is
known as 'Casual Labourers (Grant of Temporary Status
and Regularization) Scheme of Government of India,
1993'. When Officer Commanding, instead of granting
temporary status, terminated services of Shri Sangam Lal
Yadav engaged as a casual labour, he raised an
industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred
that dispute to this Tribunal for adjudication, vide order
No. L-14012/95/98/IR(DU), New Delhi, dated 19.04.1999,
with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Sangam Lal Yadav is legal and
justified? If not, to what relief the workman is
entitled?"
2. Claim statement was filed by Shri Sangam Lal
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of April
1990. He had worked for the Officer Commanding in
godown or storage or as watchman for about 8 years.
He rendered duties from 8 a. m. to 5 p.m. He made a
demand for regularization of his services. Instead of
regularizing his services, his services were dispensed
with on 31.10.1997 orally, without giving any notice or
pay in lieu thereof and retrenchment compensation. His
wages for the month of September and October 1997
were also not paid. He claimed reinstatement in service
of the mangement, with continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for
recruitment of persons on daily wage basis were issued
by Central Government vide office memorandum No.
49014/2/86-Estt.(C) dated 07.06.1988, which are being
followed. Temporary status would be conferred on a
casual labour when he renders atleast 240 days (206
days in case of offices observing five day week)
continuous service in a calendar year. Since the claimant
had not rendered continuous service of 240 days in any
calendar year, he was not entitled for grant of temporary
¹Hkkx II—[k.M 3(ii)º
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581
status. It was claimed that his claim statement may be
dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned only for
the limited purpose of examining the records of the
respondent in respect of each of the 35 petitioner herein
to ascertain whether or not they or any of them had served
for 240 days either in the year preceding their termination,
or in any of the years during which they served the
respondent. The said computation shall be made in
accordance with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its findings
in respect of each of the 35 petitioners, proceed to pass
consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster rolls
pertaining to the claimant. Notice of the application is
given to Shri Tyagi, who had replied the application orally.
I have gone through the order dated 10.05.2013 passed
by the High Court of Delhi, wherein following directions
were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned only
for the limited purpose of examining the records of the
respondent in respect of each of the 35 petitioners herein
to ascertain whether, or not, they or any of them had
served for 240 days either in the year preceding their
termination, or in any of the years during which they
served the respondent. The said computation shall be
made in accordance with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, ti is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
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[PART II—SEC. 3(ii)]
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989, IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts — Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978 to
31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from
01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD Imp
Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to
31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial
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583
Disputes Act, 1947 (in short the Act) defines "termination
by the employer of the service of a workman for any
reasons whatsoever", except the categories exempted in
sub-section 2(oo), to be retrenchment. The definition of
the term "retrenchment", as enacted by the Act, is
extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of
employment between the employer and the
workman concerned contains a stipulation in
that behalf; or
(bb)
termination of the services of the workman as
a result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation
in that behalf contained therein; or
(c)
termination of the services of a workman on
the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service
of a workman by the employer "for any reason
whatsoever" otherwise then as a punishment inflicted
by way of disciplinary action. Thus main part of the
definition itself excludes the termination of service, as a
measure of punishment inflicted by way of disciplinary
action from the ambit of retrenchment. The second part
further excludes (i) voluntary retirement of the workman,
or (ii) retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of
employment in terms of a stipulation contained in the
contract of employment in that behalf, or (v) termination
of service on the ground of continued ill health of the
workman. Reference can be made to the precedents in
Avon Services (Production Agencies) (Pvt.) Ltd. [1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed one year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking [1985 (2) LLJ 539], wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa [1981 (1) LJ 308] was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 1997 to September
1996, August 1996 to September 1995, August 1995 to
September 1994, August 1994 to September 1993 and so
on. On careful examination of the attendance registers, it
came to light that Shri Sangam Lal Yadav served for 31
days from August 1997 to September, 1996, 30 days from
August 1996 to September 1995, 136 days from August
1994 to September 1993 and 122 days from August 1993
to September 1992, 123 days from August 1992 to
September 1991, 135 days from August 1991 to September
1990 and 56 days from August 1990 to April 1990.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly it is obvious that the claimant has not
been able to project that he rendered continuous service
of 240 days to avail benefit of provisions of section 25F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 8 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240
days in a calendar year or every year in which he served
the management. During the course of testimony, the
¹Hkkx II—[k.M 3(ii)º
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585
claimant made a bald assertion to the effect that he
continuously served the management for a period of
8 years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year proeceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2004 (103) FLR 192] a nd Essen Deinki 2003 SC (L&S)
113). Also see Municipal Corporatio, Faridabad [2004 (8)
SCC 195] and Reserve Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 25.10.2013
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 250.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkWfQlj
dekafMax nsgyh dSUV 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; lañ&1 ds iapkV
¼lanHkZ la[;k 117@1999½ izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
26@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&14012@93@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 250.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 117/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[F. No. L-14012/93/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 117/1999
Shri Bechu Prasad,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
586
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt. (C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual Labourers
(Grant of Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Bechu Prasad, engaged as a casual labour, he raised
an industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/93/98/IR(DU), New Delhi, dated 19.04.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating services
of Shri Bechu Prasad, S/o Shri Vijay Pal is legal and justified?
If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Bechu Prasad,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of April 1992. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 6 years. He rendered duties from
8 a. m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the mangement, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1 as
evidence. He also faced rigors of cross examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the calendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with
section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
¹Hkkx II—[k.M 3(ii)º
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587
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 1505.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
for Cash/Cheque Public Fund from 10.04.1963 to
November 1985, Labour Imprest accounts — Cash Book
from 01.12.1965 to 01.07.1970, Public Fund Account
Columnar Cash Book from 01.03.1956 to 30.09.1984,
Regiment Fund Account Columnar Cash Book from
12.08.1970 to 18.01.1986, CSE Canteen Account Columnar
Cash Book 01.08.1971 to 31.05.1984, IAFA—Black Cheque
from 01.04.1978 to31.03.1991, IAFA—Red Cheque
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD
Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp. Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the country of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or
(ii) retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
¹Hkkx II—[k.M 3(ii)º
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589
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in a industry for not less than 240 days is to be
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than. 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
590
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in October 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from October 97 to November
96, October 96 to November 95, October 95 to November
94, October 94 to November 93 and so on. On careful
examination of the attendance registers, it came to light
that Shri Bechu Prasad served for 20 days from October
1997 to November 1996, 43 days from October 1996 to
November 1995, 22 days from October 1995 to November
1994, 127 days from October 1994 to November 1993 and
56 days from October 1993 to November 1992.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has been
able to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 6 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded hat he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 6 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is settled proposition of law that facts admitted
by a party need not be proved. However, there is discretion
available to Courts/Tribunals to require a party to prove
facts admitted, otherwise than by such admission. While
using that discretion, the Tribunal called upon the claimant
to enter the witness box, to establish that he rendered
continous service for a period of 240 days in a calendar
year or every year in which he served the management.
During the course of testimony, the claimant made a bald
assertion to the effect that he continuously served the
management for a period of 6 years. No document such as
salary slip or wage receipt or any record or order issued
by the management was brought over the record to
substantiate the factum of continuous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calendar year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
preceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan State
Ganganagar Mills Ltd. [2004 (103) FLR 192] and Essen
Deinki [2003 SC (L&S) 113]. Also see Municipal
Corporation, Faridabad [2004 (8) SCC 195] and Reserve
Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to protect that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 25.10.2013
Dr. R.K. YADAV, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
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591
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New Delhi, the 31st December, 2013
S.O. 251.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 90/
1999) 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 Officer Commanding,
Delhi Cantt., New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[No. L-42012/75/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURT COMPLEX, DELHI
I.D. No. 90/1999
Shri Om Prakash,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Om Prakash, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-42012/75/98/IR(DU), New
Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating services
of Shri Om Prakash S/o Shri Ram Chander is legal and
justified? If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Om Prakash,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of May, 1991. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 7 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October, 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also.
Col. Konical Satish Kumar tendered his affidavit Ex. MW
1/1 as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
592
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25-B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
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593
(f)
Regiment long roll, and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989, IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November, 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(b)
retirement of the workman on reaching the age
of superannuation if the contract of
employment between the employer and the
workman concerned contains a stipulation in
that behalf; or
(bb)
termination of the services of the workman as
a result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation
in that behalf contained therein; or
(c)
termination of the services of a workman on
the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25-F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned;
(ii)
The notice should specify the reasons for
retrenchment;
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period;
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years'
service or any part thereof provided it exceeds
six months;
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25-B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25-B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
¹Hkkx II—[k.M 3(ii)º
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595
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in July 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from July 97 to August 96, July
96 to August 95, July 95 to August 94, July 94 to August
93 and so on. On careful examination of the attendance
registers, it came to light that Shri Om Prakash served for
154 days from July 1997 to August, 1996, 110 days from
July 1996 to August 95, 68 days from July 95 to August
94, 178 days from July 1994 to August 1993, 188 days
from July 1993 to August 1992, 100 days from July 1992
to August 1991, 160 days from July 1991 to August 1990
and 104 days from July 1990 to October 1989.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
to 240 days to avail benefit of provisions of section 25-F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 7 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 7 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240
days in a calendar year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of 7
years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
596
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2004 (103) FLR 192] and Essen Deinki [2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25-F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior
to him was retained, when his services were dispensed
with. He also could not highlight that after termination
of his service, management employed some other person
in the category in which he was employed. Therefore,
provisions of section 25-G and 25-H of the Act have no
application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 24.10.2013
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
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[lañ ,y&42012@74@98&vkbZvkj¼Mh;w½]
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New Delhi, the 31st December, 2013
S.O. 252.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 91/1999)
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 Officer Commanding, Delhi
Cantt., New Delhi and their workman, which was received
by the Central Government on 26/12/13.
[No. L-42012/74/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No. 91/1999
Shri Vinod Kumar,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Vinod Kumar, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
¹Hkkx II—[k.M 3(ii)º
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597
adjudication, vide order No. L-42012/74/98/IR(DU), New
Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating services
of Shri Vinod Kumar, S/o Shri Ramkhilawan is legal and
justified? If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Vinod Kumar,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of January 1993. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 6 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned only for
the limited purpose of examining the records of the
respondent in respect of each of the 35 petitioner herein
to ascertain whether or not they or any of them had served
for 240 days either in the year preceding their termination,
or in any of the years during which they served the
respondent. The said computation shall be made in
accordance with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its findings
in respect of each of the 35 petitioners, proceed to pass
consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster rolls
pertaining to the claimant. Notice of the application is
given to Shri Tyagi, who had replied the application orally.
I have gone through the order dated 10.05.2013 passed
by the High Court of Delhi, wherein following directions
were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned only
for the limited purpose of examining the records of the
respondent in respect of each of the 35 petitioners herein
to ascertain whether, or not, they or any of them had
served for 240 days either in the year preceding their
termination, or in any of the years during which they
served the respondent. The said computation shall be
made in accordance with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the years 1983-1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possession, since it
has been destroyed. On account of destruction of muster
rolls, it cannot be produced, pursuant to order dated
5.8.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to 30.03.1992
IAFA 175 Receipt for Cash/Cheque Public Fund from
10.04.1963 to November 1985, Labour Imprest accounts -
Cash Book from 01.12.1965 to 01.07.1970, Public Fund
Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to 31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
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599
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
600
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one years'
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed one year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in February 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from February 1997 to March
1996, February 1996 to March 1995, February 1995 to
March 1994, February 1994 to March 1993 and so on. On
careful examination of the attendance registers, it came to
light that Shri Vinod Kumar served for 5 day from February
1997 to March 1996, 45 days from February 1996 to March
1995 and 98 days from February 1995 to February 1994.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
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601
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
of 240 days to avail benefit of provisions of section 25F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 6 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 6 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240
days in a calendar year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of 6
years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2004 (103) FLR 192] and Essen Deinki [2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 25.10.2013
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
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¼lanHkZ la[;k 97@1999½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
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New Delhi, the 31st December, 2013
S.O. 253.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 97/1999)
of the Central Government Industrial Tribunal/Labour
602
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
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 Officer Commanding, Delhi
Cantt, New Delhi and their workman, which was received
by the Central Government on 26/12/13.
[No. L-14012/48/98-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. 97/1999
Shri Vijay Shankar,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Vijay Shankar, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/48/98/IR(DU), New
Delhi, dated 09.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating services
of Shri Vijay Shankar S/o Shri Bechu Yadav is legal and
justified? If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Vijay Shankar,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of May 1989. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 8 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant opted not to enter the witness box to
testify facts. The management also followed suit. Thus,
no evidence was adduced by the parties, to substantiate
their respective case.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
¹Hkkx II—[k.M 3(ii)º
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603
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
"In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
604
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts—Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978 to
31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from
01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD Imp
Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to
31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
¹Hkkx II—[k.M 3(ii)º
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605
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
606
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May, 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in October, 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August, 1997 to November,
1996, October, 1996 to November, 1995, October, 1995 to
November, 1994, October, 1994 to November, 1993 and so
on. On careful examination of the attendance registers, it
came to light that Shri Vijay Shankar served for 31 days
from October, 1997 to November, 1996, 70 days from
October, 1996 to November, 1995, 30 days from October,
1995 to November, 1994, 135 days from October, 1994 to
November, 1993, 98 days from October, 1993 to November,
1992, 129 days from October, 1992 to November, 1991, 71
days from October, 1991 to November, 1990, 62 days from
October, 1990 to November, 1989 and 43 days from
October, 1989 to May, 1989.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
of 240 days to avail benefit of provisions of Section 25F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 8 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continuous service for a period of 240
days in a calendar year or every year in which he served
the management. As pointed out above, the claimant had
not adduced any evidence to establish that he served
the management for a period of one year, as contemplated
by section 25B of the Act. Burden to prove that he had
rendered continuous service of 240 days in a calendar
year lies on the claimant. To discharge that burden, he
had to lead cogent evidence to show that he had in fact
worked for 240 days in a year preceding his termination.
To discharge that onus, the claimant had not produced
any evidence to prove the fact that he had worked for
240 days in a calendar year. No proof of receipt of salary
or wages or any record or order in that regard was
produced to establish that he had rendered continuous
service for a period of 240 days in a calendar year. The
claimant opted not to examine a co-worker or to produce
any document to contradict facts recorded in the
attendace registers, produced by the management before
the Tribunal. Therefore, it is crystal clear that has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
23. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
¹Hkkx II—[k.M 3(ii)º
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607
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
24. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated: 01.11.2013
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 254.—In pursuance of Section 17 of the
Industrial Disptues Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 93/1999)
of the Central Government Industrial Tribunal/Labour
Court No. 1, New Delhi now as shown in the Annexure in
the Industrial Disptue between the employers in relation
to the management of The Officer Commanding, Delhi
Cantt, New Delhi and their workman, which was received
by the Central Government on 26/12/13.
[No. L-14012/65/98-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. 93/1999
Shri Ram Vachan,
C/o Sh. M.A. Khan, 5/385
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Ram Vachan, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/65/98/IR(DU),
New Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi, Cantt., in terminating
services of Shri Ram Vachan is legal and justified?
If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Ram Vachan,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of August '92. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 6 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October, 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on acasual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
4. Claimant tenders his affidavit Ex.WW1/1 as
evidence. He faced rigors of cross-examination also. Col.
Konical Satish Kumar tendered his affidavit Ex.MW1/1
as evidence. He also faced rigors of cross-examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioner herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they servved the
respondent. The said computation shall be made in
accordance with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, ti is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the years 1983-1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possession, since it
has been destroyed. On account of destruction of muster
rolls, it cannot be produced, pursuant to order dated
5.8.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October, 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
¹Hkkx II—[k.M 3(ii)º
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609
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for
10 years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund Account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water Account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros. from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989, IAFA 175 Receipt for Cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November, 1985, Labour Imprest
Accounts—Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from 01.03.1956
to 30.09.1984, Regiment Fund Account Columnar Cash
Book from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to 31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October, 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October, 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non-production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer (2002 (3) SSC 25). Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
610
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill-health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one years'
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
¹Hkkx II—[k.M 3(ii)º
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611
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation (1985 (2) LLJ
539), wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa (1981 (1) LJ
308) was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. (1986 (1) LLJ 34). Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May, 1983 to December, 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in January 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from January, 1997 to December,
1996, January, 1996 to February, 1995, January, 1995 to
February, 1994, January, 1994 to February, 1993 and so
on. On careful examination of the attendance registers, it
came to light that Shri Ram Vachan servied for 35 days
from January 1997 to February 1996, 11 days from January
1996 to February 1995, 49 days from January 1995 to
February 1994, 75 days from January 1994 to February
1993 and 40 days from January 1993 to February 1992.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has been
able to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 6 years,
with the management At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 6 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
612
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
that he rendered continuous service for a period of 240
days in a calendar year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of
6 years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calendar year lies on the claimant. To discharge that
burden, he had to lead congent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2004 (103) FLR 192] and Essen Deinki [2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated: 24.10.2013
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 255.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 101/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[No. L-14012/45/98-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. I, KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 101/1999
Shri Mohinder Prasad-II,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt, New Delhi-10.
...Management
¹Hkkx II—[k.M 3(ii)º
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613
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time, Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Mohinder Prasad-II, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/45/98/IR(DU),
New Delhi, dated 09.03.1999, with following terms:
"Whether action of the management of the Officer
Commanding, 226, COY ASC (Sup.), Type G, Delhi
Cantt., in terminating services of Shri Mohinder
Prasad-II is legal and justified? If not, to what relief
that workman is entitled?"
2. Claim statement was filed by Shri Mohinder
Prasad-II, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of April 1993.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 5 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between casual
labour. Guidelines for recruitment of persons on daily wage
basis were issued by Central Government vide office
memorandum No. 49014/2/86-Estt.(C) dated 07.06.1988,
which are being followed. Temporary status would be
conferred on a casual labour when he renders atleast 240
days (206 days in case of offices observing five day week)
continuous service in a calendar year. Since the claimant
had not rendered continuous service of 240 days in any
calendar year, he was not entitled for grant of temporary
status. It was claimed that his claim statement may be
dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross-examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross-examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
614
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, ti is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management
shall produce muster rolls in respect of the claimants
on the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's procedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment — M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for Cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of Cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for cash/Cheque Public Fund
from 10.04.1963 to November 1985, Labour Imprest
Accounts - Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
¹Hkkx II—[k.M 3(ii)º
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615
01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978
to31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from
01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD Imp
Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to
31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25-F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
616
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25-B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in an industry for not less than 240 days is to be
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than. 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25-B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year."
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
¹Hkkx II—[k.M 3(ii)º
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617
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in January 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from January 1997 to December
1996, January 1996 to February 1995, January 1995 to
February 1994, January 1994 to February 1993 and so on.
On careful examination of the attendance registers, it came
to light that Shri Mohinder Prasad-II served for 61 days
from January 1997 to February 1996, 28 days from January
1996 to February 1995, 95 days from January 1995 to
February 1994 and 88 days from January 1994 to April
1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
to 240 days to avail benefit of provisions of section 25-F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 5 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continuous service for a period of 240
days in a calender year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
contiuously served the management for a period of 5
years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
contiuous service of 240 days in a calender year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2204 (103) FLR 192] and Essen Deinki [2003 SC(L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, projection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to protect that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated: 25.10.2013
Dr. R.K. YADAV, Presiding Officer
618
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
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[lañ ,y&14012@46@98&vkbZvkj¼Mh;w½]
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New Delhi, the 31st December, 2013
S.O. 256.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 100/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[No. L-14012/46/98-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
No. 1, KARKARDOOMA COURT COMPLEX, DELHI
I.D. No. 100/1999
Shri Ram Adhar Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five days week), is to be granted temporary status in
view of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Ram Adhar Yadav, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/46/98-IR/(DU), New
Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Ram Adhar Yadav S/o Shri Nanku
Yadav is legal and justified? If not, to what relief
the workman is entitled?"
2. Claim statement was filed by Shri Ram Adhar
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of June 1984.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 13 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
¹Hkkx II—[k.M 3(ii)º
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619
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shal also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein
that the respondent may be directed to produce
muster rolls pertaining to the claimant. Notice of
the application is given to Shri Tyagi, who had
replied the application orally. I have gone through
the order dated 10.05.2013 passed by the High Court
of Delhi, wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment — M/s. MS Oberoi & Bros.
from 01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
for Cash of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a punishment
¹Hkkx II—[k.M 3(ii)º
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621
inflicted by way of disciplinary action, but does
not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
622
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation (1985 (2) LLJ
539), wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa (1981 (1) LJ
308) was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. (1986 (1) LLJ 34). Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 1997 to September
1996, August 1996 to September 1995, August 1995 to
September 1994, August 1994 to September 1993 and so
on. On careful examination of the attendance registers, it
came to light that Shri Ram Adhar Yadav served for 119
days from August 1997 to September, 1996, 78 days from
August 1996 to September 1995, 40 days from August
1995 to September 1994, 164 days from August 1994 to
September, 1993, 171 days from August 1993 to September
1992, 129 days from August 1992 to September 1991, 134
days from August 1991 to September 1990, 151 days from
August 1990 to September 1989, 206 days from August
1989 to September 1988, 153 days from August 1988 to
September 1987, 148 days from August 1987 to September
1986, 172 days from August 1986 to September 1985, 140
days from August 1985 to September 1984 and 43 days
from August 1984 to June 1984.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from August 1989 to September 1988,
he reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service to 240 days to avail benefit of
provisions of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement.
No evidence was brought to show that he was employed
for a fixed term of contract and his services came to an
end on non-renewal of contract of employment. It was
not asserted that his services were terminated on the
ground of continued ill-health. Neither services of the
claimant were done away as punishment for a domestic
action nor action of the management falls within the
category exempted under second limb of section 2(oo) of
the Act. Thus it is obvious that termination of services of
the claimant, for any other reason, amounts to
retrenchment, as defined by clause (oo) of section 2 of
the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act, According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obiligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
(1964 (1) LLJ 351), Adaishwar Laal (1970 Lab.I.C. 936) and
B.M. Gupta (1979 (1) LLJ 168) announce that subsequent
payment of compensation can not validate an invalid order
of retrenchment.
¹Hkkx II—[k.M 3(ii)º
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623
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice
nor pay in lieu thereof nor retrenchment compensation
was paid to him by the management. Therefore, his
retrenchment is violative of the provisions of section
25-F of the Act.
24. Services of the workman were retrenched
without payment of notice pay, and retrenchment
compensation. It is well settled that in a case of wrongful
retrenchment, dismissal or discharge, the normal rule is
to award reinstatement. But where a case falls in any of
the exception to general rule, the industrial adjudicator
has discretion to award reasonable and adequate
compensation, in lieu of re-instatement. Section 11A of
the Act vests the industrial adjudicator with discretionary
jurisdiction to give "such other relief to the workman" in
lieu of discharge or dismissal as the circumstances of the
case may require, where for some valid reasons it
considres that reinstatement with or without conditions
will not be fair or proper.
25. In Uma Devi (2006 (4) SCC 1) the Apex Court
considered the proposition as to whether the persons
who got employment, without following of a regular
procedure or even from the back door or on daily wages
can be ordered to be made permanent in their posts, to
prevent regular recruitment to the posts concerned. Catena
of decisions over the subject were considered and the
court declined the submissions of the workman to be
made permanent on the posts which were held by them
in temporary or ad-hoc capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here—can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh (1992 (4) SCC 118) is to some extent in-
consistent with the conclusion in para 45 of the said
judgement therein. With great respect, it appears to
us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P.Chandra Shekhara Rao and Others (2006 (7)
SCC 488) the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
(2004(7) SCC 112) and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. In
Somveer Singh (2006 (5) SCC 493) the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. (2007 (1) SCC 408) the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a
casual, ad-hoc or daily rated employee) or payment of
regular salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also abvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been
brought over the record to project that the management
engaged him through employment exchange or an open
recruitment process. There is complete vacuum of
evidence to the effect that the process through which
the claimant was engaged by the management was made
known to public at large, so that other eligible candidates
may offer their candidature for recruitment. Evidently, it
was a back-door entry in service. His engagement by the
management was not in consonance with the statutory
624
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
rules. In view of his wrongful employment, there is no
justification for his reinstatement in the service of the
management. In the alternative, this Tribunal has to award
compensation to the workman in lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty (1957 (11)
LLJ 696) the Apex court indicated some relevant factors
which an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party,
the possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement,
the industrial adjudicator would also have to take
into account the present value of what his salary,
benefits etc. would be till he attained the age of
superannuation and the value of such benefits
would have to be computed as from the date when
such reinstatement was ordered under the terms of
the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
30. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable (ii) compensation for deprivation of the job
with future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment (v) capacity of the employer to pay
and the nature of the employer's business (vi) gainful
employment in mitigation of damages; and (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in discretion
of the Tribunal. Reference can be made to Tabesh Process,
Shivakashi (1989 Lab.I.C.1887).
31. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
Machinery Ltd. (1966(1)LLJ 398) the amount of
compensation equivalent to two year salary of the
empooyee awarded by the industrial Tribunal was reduced
by the Supreme Court to an amount equivalent to one year
salary of the employee in view of the fact that she had been
in service with the employer only for 5 months and also
took into consideration the unusual manner of her
appointment at the instance of the Chief Minister of the
State. In A.K. Roy (1970(1) LLJ 228) compensation
equivalent to two years salary last drawn by the workmen
was held to be fair and proper to meet the ends of justice.
In anil Kumar Chakaraborty (1962 (II) LLJ 483) the Count
converted the award of reinstatment into compensation of
a sum of Rs. 50000/- as just and fair compensation in full
satisfaction of all his claims for wrongful dismissal from
service. In O.P. Bhandari (1986 (II) LLJ 509), the Apex Court
observed that it was a fit case for grant of compensation in
view of reinstatement. The Court awarded compensation
equivalent to 3.33 years salary as reasonable. In M.K.
Aggarwal (1988 Lab.I.C.380), the Apex Court though
confirmed the order of reinstatement yet restricted the back
salary to 50% of what would otherwise be payable to the
employee. In Yashveer Singh (1993 Lab.I.C.44) the court
directed payment of Rs. 75000/- in view of reinstatement
with back wages. In Naval Kishor (1984 (II) LLJ 473) the
Apex Court observed that in view of the special
circumstances of the case adequate compensation would
be in the interest of the appellant. A sum of Rs. 2 lac was
awarded as compensation in lieu of reinstatement. In Sant
Raj (1985 (II) LLJ 19) a sum of Rs. 2 lac was awareded as
compensation in lieu of reinstatement. In Chandu Lal (1985
Lab.I.C.1225) a compensation of Rs. 2 lac by way of back
wages in lieu of reinstatement was awarded. In Ras Bihari
(1988 Lab.I.C.107) a compensation of Rs. 65000/- was
granted in lieu of reinstatement, since the employee was
gainfully employed elsewhere. In V.V. Rao (1991
Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded
in lieu of reinstatement.
32. Claimant rendered one year continuous service
to the management, besides other spells which fell short
of 240 days. He was a young man, when he was engaged
by the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had
to constest the case for a period of more than 15 years to
seek redressal of his grievances. Keeping in view these
¹Hkkx II—[k.M 3(ii)º
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625
facts, I am of the view that an amount of Rs. 30,000.00 as
compensation in lieu of reinstatement in service, besides
a sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of
his services, besides cost of proceedings, referred above.
An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 257.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 99/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[No. L-14012/47/98-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. 99/1999
Shri Sant Ram Saroj
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Sant Ram Saroj, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/47/98/IR(DU), New
Delhi, dated 09.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Sant Ram Saroj, S/o Shri Ayodhya
Prasad is legal and justified? If not, to what relief
the workman is entitled?"
2. Claim statement was filed by Shri Sant Ram Saroj,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of April 1983. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 14 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:—
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioner herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:—
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same".
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
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627
mentioned in Board's procedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:—
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash cse canteen account from 01.07.1977 to 30.03.1992,
IAFA 175 Receipt for Cash/Cheque Public Fund from
10.04.1963 to November 1985, Labour Imprest accounts
Cash Book from 01.12.1965 to 01.07.1970, Public Fund
Account Columnar Cash Book from 01.03.1956 to
30.091984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the country of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:—
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:—
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:—
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in a industry for not less than 240 days is to be
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629
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year."
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking [1985 (2) LLJ 539], wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa [1981 (1) LJ 308] was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 1997 to August
1993, July 1996 to August 1995, July 1995 to August 1994,
August 1994 to August 1993 and so on. On careful
examination of the attendance registers, it came to light
that Shri Sant Ram Saroj served for 110 days from July
1997 to August, 1996, 99 days from July 1996 to August
1995, 37 days from July 1995 to August 1994, 176 days
from July 1994 to August 1993, 200 days from July 1993
to September 1992, 128 days from July 1992 to August
1991, 137 days from July 1991 to August 1990, 171 and
from July 1990 to August 1989, 143 days from July 1989
to August 1988, 135 days from July 1988 to August 1987,
178 days from July 1987 to August 1986, 159 days July
1986 to from August 1985, 190 days from July, 1985 to
August, 1984, 201 days from July 1984 to August 1983
and 60 days from July 1983 to May 1983.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from July 1993 to August 1992, July
1985 to August 1984 and July 1984 to August 1983, he
reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service to 240 days to avail benefit of
provisions of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement.
No evidence was brought to show that he was employed
for a fixed term of contract and his services came to an
end on non-renewal of contract of employment. It was
not asserted that his services were terminated on the
ground of continued ill-health. Neither services of the
claimant were done away as punishment for a domestic
action nor action of the management falls within the
category exempted under second limb of section 2(oo) of
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
the Act. Thus it is obvious that termination of services of
the claimant, for any other reason, amounts to
retrenchment, as defined by clause (oo) of section 2 of
the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act, According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obiligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
[1964 (1) LLJ 351], Adaishwar Laal [1970 Lab.I.C. 936] and
B.M. Gupta [1979 (1) LLJ 168] announce that subseqnet
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice
nor pay in lieu there of nor retrenchment compensation
was paid to him by the management. Therefore, his
retrenchment is violative of the provisions of section
25-F of the Act.
24. Services of the workman were retrenched
without payment of notice pay, and retrenchment
compensation. It is well settled that in a case of wrongful
retrenchment, dismissal or discharge, the normal rule is
to award reinstatement. But where a case falls in any of
the exception to general rule, the industrial adjudicator
has discretion to award reasonable and adequate
compensation, in lieu of re-instatement. Section 11A of
the Act vests the industrial adjudicator with discretionary
jurisdication to give "such other relief to the workman"
in lieu of discharge or dismissal as the circumstances of
the case may require, where for some valid reasons it
considers that reinstatement with or without conditions
will not be fair or proper.
25. In Uma Devi [2006 (4) SCC 1] the Apex Court
considred the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be
ordered to be made permanent in their posts, to prevent
regular recruitment to the posts concerned. Catena of
decisions over the subject were considered and the court
declined the submissions of the workman to be made
permanent on the posts which were held by them in
temporary or ad-hoc capacity for a fairly long spell.
The Court ruled thus:—
"With respect, why should the State be allowed to
depart from the normal rule and indulge in tempoary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment.
The direction to make permanent the distinction
between regularization and making permanent, was
not emphasized here-can only encourage the State,
the model employer, to flout its own rules and
would confer undue benefits on a few at the cost
of many waiting to compete. With respect the
directions made in Piara Singh [1992 (4) SCC 118] is
to some extent inconsistent with the conclusion in
para 45 of the said judgement therein. With great
respect, it appears to us that the last of the
directions clearly runs counter to the constitutional
scheme of employment recognized in the earlier part
of the decision. Really, it cannot be said that this
decision has laid down the law that all ad-hoc,
temporary or casual employees engaged without
following a regular recruitment procedure should
be made permanent."
26. In P. Chandra Shekhara Rao and Others [2006
(7) SCC 488] the Apex Court referred Uma Devi's Case
(Supra) with approval. It also relied the decision in a Uma
Rani [2004(7) SCC 112] and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. In
Somveer Singh [2006 (5) SCC 493] the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a
casual, ad-hoc or daily rated employee) or payment of
regular salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
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631
they are or to make them permanent. The State cannot
constitutionally make such a peromise. It is also abvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been
brought over the record to project that the management
engaged him through employment exchange or an open
recruitment process. There is complete vacuum of
evidence to the effect that the process through which
the claimant was engaged by the management was made
known to public at large, so that other eligible candidates
may offer their candidature for recruitment. Evidently, it
was a back-door entry in service. His engagement by the
management was not in consonance with the statutory
rules. In view of his wrongful employment, there is no
justification for his reinstatement in the service of the
management. In the alternative, this Tribunal has to award
compensation to the workman in lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty [1957 (11)
LLJ 696] the Apex court indicated some relevant factors
which an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:—
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party,
the possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement,
the industrial adjudicator would also have to take
into account the present value of what his salary,
benefits etc. would be till he attained the age of
superannuation and the value of such benefits
would have to be computed as from the date when
such reinstatement was ordered under the terms of
the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be to make as correct as estimate as is
possible bearing, of course in mind all the relevant
factors pro and con."
30. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable (ii) compensation for deprivation of the job
with future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment (v) capacity of the employer to pay
and the nature of the employer's business (vi) gainful
employment in mitigation of damages; and (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in discretion
of the Tribunal. Reference can be made to Tabesh Process,
Shivakashi [1989 Lab.I.C.1887].
31. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
Machinery Ltd. [1966(1)LLJ 398] the amount of
compensation equivalent to two year salary of the
empooyee awarded by the industrial Tribunal was reduced
by the Supreme Court to an amount equivalent to one year
salary of the employee in view of the fact that she had been
in service with the employer only for 5 months and also
took into consideration the unusual manner of her
appointment at the instance of the Chief Minister of the
State. In A.K. Roy [1970(1) LLJ 228] compensation
equivalent to two years salary last drawn by the workmen
was held to be fair and proper to meet the ends of justice.
In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count
converted the award of reinstatment into compensation of
a sum of Rs. 50000/- as just and fair compensation in full
satisfaction of all his claims for wrongful dismissal from
service. In O.P. Bhandari [1986 (II) LLJ 509], the Apex Court
observed that it was a fit case for grant of compensation in
view of reinstatement. The Court awarded compensation
equivalent to 3.33 years salary as reasonable. In M.K.
Aggarwal (1988 Lab.I.C.380), the Apex Court though
confirmed the order of reinstatement yet restricted the back
salary to 50% of what would otherwise be payable to the
employee. In Yashveer Singh (1993 Lab. I.C. 44) the court
directed payment of Rs. 75000/- in view of reinstatement
with back wages. In Naval Kishor [1984 (II) LLJ 473] the
Apex Court observed that in view of the special
circumstances of the case adequate compensation would
be in the interest of the appellant. A sum of Rs. 2 lac was
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
awarded as compensation in lieu of reinstatement. In Sant
Raj [1985 (II) LLJ 19] a sum of Rs. 2 lac was awareded as
compensation in lieu of reinstatement. In Chandu Lal (1985
Lab.I.C.1225) a compensation of Rs. 2 lac by way of back
wages in lieu of reinstatement was awarded. In Ras Bihari
(1988 Lab. I.C.107) a compensation of Rs. 65000/- was
granted in lieu of reinstatement, since the employee was
gainfully employed elsewhere. In V.V. Rao (1991
Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded
in lieu of reinstatement.
32. Claimant rendered three years continuous service
to the management, besides other spells which fell sort of
240 days. He was young man, when he was engaged by
the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had to
constest the case for a period of more than 15 years to
seek redressal of his grievances. Keeping in view these
facts, I am of the view that an amount of Rs. 75,000.00 as
compensation in lieu of reinstatement in service, besides a
sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of his
services, besides cost of proceedings, referred above. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 4.11.2013
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 258.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 98/1999)
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 Officer Commanding, Delhi
Cantt., New Delhi and their workman, which was received
by the Central Government on 26/12/2013.
[No. L-14012/49/98-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. 98/1999
Shri Hari Shankar,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Hari Shankar, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/92/49/IR(DU), New
Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Hari Shankar, S/o Shri Bansi Lal Pal
is legal and justified? If not, to what relief the
workman is entitled?"
2. Claim statement was filed by Shri Hari Shankar,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of May 1989. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 8 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
¹Hkkx II—[k.M 3(ii)º
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633
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW1/1 as
evidence. He faced rigors of cross-examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW1/1
as evidence. He also faced rigors of cross-examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioner herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983—1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possession, since it
has been destroyed. On account of destruction of muster
rolls, it cannot be produced, pursuant to order dated
5.8.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
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[PART II—SEC. 3(ii)]
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll; and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water Account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts
from 01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
3.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.091984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978
to31.03.1991, IAFA—Red Cheque 01.01.1977 to
31.03.1991, IAFA 176 Black Cheque FD Imprest Account
from 01.04.1972 to 31.03.1992, IAFA 177—Red Cheque
FD Imp Account from 01.04.1972 to 31.03.1992, IAFA
176 Black Cheque Public Fund Accounts from 01.04.1971
to 31.03.1992 and IAFA 177 (Red Cheque) Public Fund
Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592—596 of Regulation for the
Army. Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
635
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non-production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25-F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned;
(ii)
The notice should specify the reasons for
retrenchment;
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period;
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months;
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
636
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25-B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 1997 to September
1996, August 1996 to September 1995, August 1995 to
September 1994, August 1994 to September 1993 and so
on. On careful examination of the attendance registers, it
came to light that Hari Shankar served for 48 days from
August 1997 to September, 1996, 36 days from August
1996 to September 1995, 26 days from August 1995 to
September 1994, 147 days from August 1994 to September,
1993, 148 days from August 1993 to September 1992, 106
days from August 1992 to September 1991, 145 days from
August 1991 to September 1990 and 119 days from August
1990 to September 1989 and 70 days from August 1989 to
May 1989.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from August 1990 to September 1989,
he reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service to 240 days to avail benefit of
provisions of section 25-F of the Act.
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637
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement.
No evidence was brought to show that he was employed
for a fixed term of contract and his services came to an
end on non-renewal of contract of employment. It was not
asserted that his services were terminated on the ground
of continued ill-health. Neither services of the claimant
were done away as punishment for a domestic action nor
action of the management falls within the category exempted
under second limb of section 2(oo) of the Act. Thus it is
obvious that termination of services of the claimant, for
any other reason, amounts to retrenchment, as defined by
clause (oo) of section 2 of the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act, According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
[1964 (1) LLJ 351], Adaishwar Laal [1970 Lab.I.C. 936] and
B.M. Gupta [1979 (1) LLJ 168] announce that subsequent
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice
nor pay in lieu thereof nor retrenchment compensation
was paid to him by the management. Therefore, his
retrenchment is violative of the provisions of section
25-F of the Act.
24. Services of the workman were retrenched
without payment of notice pay, and retrenchment
compensation. It is well settled that in a case of wrongful
retrenchment, dismissal or discharge, the normal rule is
to award reinstatement. But where a case falls in any of
the exception to general rule, the industrial adjudicator
has discretion to award reasonable and adequate
compensation, in lieu of re-instatement. Section 11A of
the Act vests the industrial adjudicator with discretionary
jurisdication to give "such other relief to the workman"
in lieu of discharge or dismissal as the circumstances of
the case may require, where for some valid reasons it
considers that reinstatement with or without conditions
will not be fair or proper.
25. In Uma Devi [2006 (4) SCC 1] the Apex Court
considered the proposition as to whether the persons
who got employment, without following of a regular
procedure or even from the back door or on daily wages
can be ordered to be made permanent in their posts, to
prevent regular recruitment to the posts concerned. Catena
of decisions over the subject were considered and the
court declined the submissions of the workman to be
made permanent on the posts which were held by them
in temporary or ad-hoc capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in tempoary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here-can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh [1992 (4) SCC 118] is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P.Chandra Shekhara Rao and Others [2006 (7)
SCC 488] the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
[2004(7) SCC 112] and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. In
Somveer Singh [2006 (5) SCC 493] the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a
casual, ad-hoc or daily rated employee) or payment of
regular salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
638
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a peromise. It is also abvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been
brought over the record to project that the management
engaged him through employment exchange or an open
recruitment process. There is complete vacuum of
evidence to the effect that the process through which
the claimant was engaged by the management was made
known to public at large, so that other eligible candidates
may offer their candidature for recruitment. Evidently, it
was a backdoor entry in service. His engagement by the
management was not in consonance with the statutory
rules. In view of his wrongful employment, there is no
justification for his reinstatement in the service of the
management. In the alternative, this Tribunal has to award
compensation to the workman in lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty [1957 (11)
LLJ 696] the Apex court indicated some relevant factors
which an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party,
the possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the employer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement,
the industrial adjudicator would also have to take
into account the present value of what his salary,
benefits etc. would be till he attained the age of
superannuation and the value of such benefits
would have to be computed as from the date when
such reinstatement was ordered under the terms of
the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
30. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable; (ii) compensation for deprivation of the job
with future prospect and obtainability of alternative
employment; (iii) employee's age; (iv) Length of service
in the establishment; (v) capacity of the employer to pay
and the nature of the employer's business; (vi) gainful
employment in mitigation of damages; and (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in discretion
of the Tribunal. Reference can be made to Tabesh Process,
Shivakashi (1989 Lab.I.C.1887).
31. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
machinery Ltd. [1966(1)LLJ 398] the amount of
compensation equivalent to two year salary of the employee
awarded by the industrial Tribunal was reduced by the
Supreme Court to an amount equivalent to one year salary
of the employee in view of the fact that she had been in
service with the employer only for 5 months and also took
into consideration the unusual manner of her appointment
at the instance of the Chief Minister of the State. In A.K.
Roy [1970(1) LLJ 228] compensation equivalent to two
years salary last drawn by the workmen was held to be fair
and proper to meet the ends of justice. In Anil Kumar
Chakaraborty [1962 (II) LLJ 483] the Count converted the
award of reinstatment into compensation of a sum of
Rs. 50000/- as just and fair compensation in full satisfaction
of all his claims for wrongful dismissal from service. In O.P.
Bhandari [1986 (II) LLJ 509], the Apex Court observed that
it was a fit case for grant of compensation in view of
reinstatement. The Court awarded compensation equivalent
to 3.33 years salary as reasonable. In M.K. Aggarwal
¹Hkkx II—[k.M 3(ii)º
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639
(1988 Lab.I.C.380), the Apex Court though confirmed the
order of reinstatement yet restricted the back salary to 50%
of what would otherwise be payable to the employee. In
Yashveer Singh [1993 Lb.I.c.44] the court directed payment
of Rs. 75000/- in view of reinstatement with back wages. In
Naval Kishor [1984 (II) LLJ 473] the Apex Court observed
that in view of the special circumstances of the case
adequate compensation would be in the interest of the
appellant. A sum of Rs. 2 lac was awarded as compensation
in lieu of reinstatement. In Sant Raj [1985 (II) LLJ 19] a sum
of Rs. 2 lac was awarded as compensation in lieu of
reinstatement. In Chandu Lal (1985 Lab.I.C.1225) a
compensation of Rs. 2 lac by way of back wages in lieu of
reinstatement was awarded. In Ras Bihari (1988 Lab.I.C.107)
a compensation of Rs. 65000/- was granted in lieu of
reinstatement, since the employee was gainfully employed
elsewhere. In V.V. Rao (1991 Lab.I.C.1650) a compensation
of Rs. 2.50 lac was awarded in lieu of reinstatement.
32. Claimant rendered one year continuous service
to the management, besides other spells which fell sort
of 240 days. He was young man, when he was engaged
by the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had
to contest the case for a period of more than 15 years to
seek redressal of his grievances. Keeping in view these
facts, I am of the view that an amount of Rs. 30,000.00 as
compensation in lieu of reinstatement in service, besides
a sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of
his services, besides cost of proceedings, referred above.
An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated : 1.11.2013
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 259.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 102/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[No. L-14012/54/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 102/1999
Shri Ashok Kumar Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
............Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
............Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi
Cantt., New Delhi, from time to time. Casual labour, who
rendered at least 240 days (206 days in the case of
offices observing five day week), is to be granted
temporary status in view of office memorandum No.
49014/2/86-Estt(C) dated 07.06.1988. Subsequently, a
scheme for grant of temporary status was formulated,
which is known as 'Casual Labourers (Grant of Temporary
Status and Regularization) Scheme of Government of
India, 1993'. When Officer Commanding, instead of
granting temporary status, terminated services of Shri
Ashok Kumar Yadav, engaged as a casual labour, he
raised an industrial dispute before the Conciliation
Officer. Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred
that dispute to this Tribunal for adjudication, vide order
No. L-14012/54/98-IR(DU), New Delhi, dated 01.03.1999,
with following terms:
"Whether action of Officer Commanding, 226,
COY ASC (Sup.), Type G, Delhi Cantt., in
terminating services of Shri Ashok Kumar Yadav,
S/o Shri Dwarka Yadav is legal and justified? If not,
to what relief the workman is entitled?"
640
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
2. Claim statement was filed by Shri Ashok Kumar
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of August
1989. He had worked for the Officer Commanding in
godown or storage or as watchman for about 8 years. He
rendered duties from 8 a. m. to 5 p.m. He made a demand
for regularization of his services. Instead of regularizing
his services, his services were dispensed with on
31.10.1997 orally, without giving any notice or pay in lieu
thereof and retrenchment compensation. His wages for
the month of September and October 1997 were also not
paid. He claimed reinstatement in service of the
mangement, with continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders at least 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross-examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of write petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioner herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein
that the respondent may be directed to produce
muster rolls pertaining to the claimant. Notice of
the application is given to Shri Tyagi, who had
replied the application orally. I have gone through
the order dated 10.05.2013 passed by the High
Court of Delhi, wherein following directions were
issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
¹Hkkx II—[k.M 3(ii)º
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641
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the years 1983—1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possession, since it
has been destroyed. On account of destruction of muster
rolls, it cannot be produced, pursuant to order dated
5.8.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund Account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water Account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989, IAFA 175 Receipt for Cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
for Receipt of cash CSE canteen account from 01.07.1977
to 30-3-1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.091984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to 31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imprest Account from 01.04.1972
to 31.03.1992, IAFA 176 Black Cheque Public Fund
Accounts from 01.04.1971 to 31.03.1992 and IAFA 177
(Red Cheque) Public Fund Accounts from 01.04.1971 to
31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
642
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the
periods for which the claimant worked with the
management, were more than ten years old in October
2011, hence were destroyed as per para 592—596 of
Regulation for the Army. Shri Saini opted not to raise
an eyebrow on the proposition that the muster rolls,
kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the count
of destruction of muster rolls by the management.
Therefore, it is crystal clear that the management had
destroyed muster rolls in October 2011 and as such,
rightly seeks exemption from filing those documents
for consideration of this Tribunal. Mere non-production
of muster rolls for a particular period per se without
any plea of suppression by the claimant will not be a
ground for the Tribunal to draw an adverse inference
against the management, as held by the Apex Court in
Range Forest Officer [2002 (3) SSC 25]. Since non-
production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
¹Hkkx II—[k.M 3(ii)º
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643
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25-B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act, will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act, specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking [1985 (2) LLJ 539], wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa [1981 (1) LJ 308] was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in July 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from July 97 to August 96, July
96 to August 95, July 95 to August 94, July 94 to August
93 and so on. On careful examination of the attendance
registers, it came to light that Shri Ashok Kumar Yadav
served for 139 days from July 1997 to August 1996, 98
days from July 1996 to August 1995, 85 days from July
1995 to August 1994, 152 days from July 1994 to August
1993, 94 days from July 1993 to August 1992, 107 days
from July 1992 to August 1991, 145 days from July 1991
to August 1990, 80 days from July 1990 to February 1990.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
644
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has been
able to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25-F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 8 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witnessbox, to establish
that he rendered continous service for a period of 240
days in a calender year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of 8
years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd
[2004 (103) FLR 192] and Essen Deinki [2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his service were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated : 24.10.2013
Dr. R. K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 260.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 115/
1999) 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 Officer Commanding,
Delhi Cantt., New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[No. L-14012/94/98-IR(DU)]
P. K. VENUGOPAL, Section Officer
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645
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKAR DOOMA COURTS COMPLEX, DELHI
I.D. No. 115/1999
Shri Raj Kumar,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
.............Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
.............Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Raj Kumar, engaged as a casual
labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/94/98/IR(DU),
New Delhi, dated 19.04.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Raj Kumar, S/o Shri Sar Dev is legal
and justified? If not, to what relief the workman is
entitled?"
2. Claim statement was filed by Shri Raj Kumar,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of January 1989. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 8 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant opted not to enter the witness box to
testify facts. The management also followed suit. Thus,
no evidence was adduced by the parties, to substantiate
their respective case.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
646
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein
that the respondent may be directed to produce
muster rolls pertaining to the claimant. Notice of
the application is given to Shri Tyagi, who had
replied the application orally. I have gone through
the order dated 10.05.2013 passed by the High
Court of Delhi, wherein following directions were
issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the years 1983-1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possession, since it
has been destroyed. On account of destruction of muster
rolls, it cannot be produced, pursuant to order dated
5.8.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
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647
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts — Cash Book from 01.12.1965 to 01.07.1970,
Public Fund Account Columnar Cash Book from
01.03.1956 to 30.091984, Regiment Fund Account Columnar
Cash Book from 12.08.1970 to 18.01.1986, CSE Canteen
Account Columnar Cash Book 01.08.1971 to 31.05.1984,
IAFA—Black Cheque from 01.04.1978 to 31.03.1991,
IAFA—Red Cheque 01.01.1977 to 31.03.1991, IAFA 176
Black Cheque FD Imprest Account from 01.04.1972 to
31.03.1992, IAFA 177—Red Cheque FD Imp Account from
01.04.1972 to 31.03.1992, IAFA 176 Black Cheque Public
Fund Accounts from 01.04.1971 to 31.03.1992 and IAFA
177 (Red Cheque) Public Fund Accounts from 01.04.1971
to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplus age in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health.
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
648
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
¹Hkkx II—[k.M 3(ii)º
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649
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in March 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from March 1997 to April 1996,
March 1996 to April 1995, March 1995 to April 1994, March
1994 to April 1993 and so on. On careful examination of
the attendance registers, it came to light that Shri Raj
Kumar served for 11 days from March 1997 to April 1996,
37 days from March 1996 to April 1995, 54 days from
March 1995 to April 1994, 108 days from March 1994 to
April 1993, 113 days from March 1993 to April 1992, 67
days from March 1992 to April 1991, 137 days from March
1991 to April 1990 and 124 days from March 1990 to March
1989.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
none of the years, he reaches notional figure of 240 days,
to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has not been
able to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 8 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continuous service for a period of 240
days in a calendar year or every year in which he served
the management. As pointed out above, the claimant had
not adduced any evidence to establish that he served
the management for a period of one year, as contemplated
by section 25B of the Act. Burden to prove that he had
rendered continuous service of 240 days in a calendar
year lies on the claimant. To discharge that burden, he
had to lead cogent evidence to show that he had in fact
worked for 240 days in a year preceding his termination.
To discharge that onus, the claimant had not produced
any evidence to prove the fact that he had worked for
240 days in a calendar year. No proof of reciept of salary
or wages or any record or order in that regard was
produced to establish that he had rendered continuous
service for a period of 240 days in a calendar year. The
claimant opted not to examine a co-worker or to produce
any document to contradict facts recorded in the
attendance registers, produced by the management before
the Tribunal. Therefore, it is crystal clear that the claimant
has not been able to prove that he had rendered
continuous service of 240 days in any calendar year, to
entitle him for protection of section 25F of the Act.
23. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
650
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
24. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated : 1.11.2013
DR. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 261.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 105/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/13.
[No. L-14012/62/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 105/1999
Shri Ram Niwas Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Ram Niwas Yadav, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/62/98/IR(DU),
New Delhi, dated 09.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Ram Niwas Yadav is legal and
justified? If not, to what relief the workman is
entitled?"
2. Claim statement was filed by Shri Ram Niwas
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of October
1987. He had worked for the Officer Commanding in
godown or storage or as watchman for about 10 years.
He rendered duties from 8 a. m. to 5 p.m. He made a
demand for regularization of his services. Instead of
regularizing his services, his services were dispensed with
on 31.10.1997 orally, without giving any notice or pay in
lieu thereof and retrenchment compensation. His wages
for the month of September and October 1997 were also
not paid. He claimed reinstatement in service of the
management, with continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
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651
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioner herein to ascertain whether or not they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shal also be entitled to inspection of
the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in
the year preceding their termination, or in any of
the years during which they served the respondent.
The said computation shall be made in accordance
with Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and
the petitioner shall also be entitled to inspection of
the same."
In the light of the above orders passed by the High
Court of Delhi, ti is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceeddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.091984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the country of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer (2002 (3) SSC 25). Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
¹Hkkx II—[k.M 3(ii)º
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653
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking (1985 (2) LLJ 539), wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa (1981 (1) LJ 308) was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. (1986 (1) LLJ 34). Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in September 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from September 97 to October
96, September 96 to October 95, September 95 to October
94, September 94 to October 93 and so on. On careful
examination of the attendance registers, it came to light
that Shri Ram Niwas Yadav served for 35 days from
September 1997 to October, 1996, 67 days from September
95 to October 94, 151 days from September 1994 to October
1993, 169 days from September 1993 to October 1992, 146
days from September 1992 to October 1991, 132 days from
September 1991 to October 1990, 166 days from September
1990 to October 1989, 199 days from September 1989 to
October 1988 and 144 days from September 1988 to
October 1987.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from September 1989 to October
1988, he reaches notional figure of 240 days, to claim
continuous service for a period of one year. Resultantly,
it is obvious that the claimant has been able to project
that he rendered continuous service to 240 days to avail
benefit of provisions of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement.
No evidence was brought to show that he was employed
for a fixed term of contract and his services came to an
end on nonrenewal of contract of employment. It was not
asserted that his services were terminated on the ground
of continued ill-health. Neither services of the claimant
were done away as punishment for a domestic action nor
action of the management falls within the category
exempted under second limb of section 2(oo) of the Act.
Thus it is obvious that termination of services of the
claimant, for any other reason, amounts to retrenchment,
as defined by clause (oo) of section 2 of the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act, According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obiligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
(1964 (1) LLJ 351), Adaishwar Laal (1970 Lab.I.C. 936) and
B.M. Gupta (1979 (1) LLJ 168) announce that subsequent
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice
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655
nor pay in lieu there of nor retrenchment compensation
was paid to him by the management. Therefore, his
retrenchment is violative of teh provisions of section 25-
F of the Act.
24. Services of the workman were retrenched
without payment of notice pay, and retrenchment
compensation. It is well settled that in a case of wrongful
retrenchment, dismissal or discharge, the normal rule is
to award reinstatement. But where a case falls in any of
the exception to general rule, the industrial adjudicator
has discretion to award reasonable and adequate
compensation, in lieu of re-instatement. Section 11A of
the Act vests the industrial adjudicator with discretionary
jurisdiction to give "such other relief to the workman" in
lieu of discharge or dismissal as the circumstances of the
case may require, where for some valid reasons it
considres that reinstatement with or without conditions
will not be fair or proper.
25. In Uma Devi (2006 (4) SCC I) the Apex Court
considred the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be
ordered to be made permanent in their posts, to prevent
regular recruitment to the posts concerned. Catena of
decisions over the subject were considered and the court
declined the submissions of the workman to be made
permanent on the posts which were held by them in
temporary or ad-hoc capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in tempoary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here-can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh (1992 (4) SCC 118) is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P.Chandra Shekhara Rao and Others (2006 (7)
SCC 488) the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
(2004(7) SCC 112) and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. in
Somveer Singh (2006 (5) SCC 493) the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. (2007 (1) SCC 408) the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a
casual, ad-hoc or daily rated employee) or payment of
regular salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a peromise. It is also obvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been
brought over the record to project that the management
engaged him through employment exchange or an open
recruitment process. There is complete vacuum of
evidence to the effect that the process through which
the claimant was engaged by the management was made
known to public at large, so that other eligible candidates
may offer their candidature for recruitment. Evidently, it
was a back-door entry in service. His engagement by the
management was not in consonance with the statutory
rules. In view of his wrongful employment, there is no
justification for his reinstatement in the service of the
management. In the alternative, this Tribunal has to award
compensation to the workman in lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty (1957 (11)
LLJ 696) the Apex Court indicated some relevant factors
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[PART II—SEC. 3(ii)]
which an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party,
the possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement,
the industrial adjudicator would also have to take
into account the present value of what his salary,
benefits etc. would be till he attained the age of
superannuation and the value of such benefits
would have to be computed as from the date when
such reinstatement was ordered under the terms of
the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
30. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable (ii) compensation for deprivation of the job
with future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment (v) capacity of the employer to pay
and the nature of the employer's business (vi) gainful
employment in mitigation of damages; and (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in discretion
of the Tribunal. Reference can be made to Tabesh Process,
Shivakashi (1989 Lab.I.C. 1887).
31. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
machinery Ltd. (1966(1)LLJ 398) the amount of
compensation equivalent to two year salary of the
empooyee awarded by the industrial Tribunal was reduced
by the Supreme Court to an amount equivalent to one year
salary of the employee in view of the fact that she had been
in service with the employer only for 5 months and also
took into consideration the unusual manner of her
appointment at the instance of the Chief Minister of the
State. In A.K. Roy (1970(1) LLJ 228) compensation
equivalent to two years salary last drawn by the workmen
was held to be fair and proper to meet the ends of justice.
In anil Kumar Chakaraborty (1962 (II) LLJ 483) the Count
converted the award of reinstatment into compensation of
a sum of Rs. 50000/- as just and fair compensation in full
satisfaction of all his claims for wrongful dismissal from
service. In O.P. Bhandari (1986 (II) LLJ 509), the Apex Court
observed that it was a fit case for grant of compensation in
view of reinstatement. The Court awarded compensation
equivalent to 3.33 years salary as reasonable. In M.K.
Aggarwal (1988 Lab.I.C.380), the Apex Court though
confirmed the order of reinstatement yet restricted the back
salary to 50% of what would otherwise be payable to the
employee. In Y ashveer Singh (1993 Lb.I.c.44) the court
directed payment of Rs. 75000/- in view of reinstatement
with back wages. In Naval Kishor (1984 (II) LLJ 473) the
Apex Court observed that in view of the special
circumstances of the case adequate compensation would
be in the interest of the appellant. A sum of Rs. 2 lac was
awarded as compensation in lieu of reinstatement. In Sant
Raj (1985 (II) LLJ 19) a sum of Rs. 2 lac was awareded as
compensation in lieu of reinstatement. In Chandu Lal (1985
Lab.I.C.1225) a compensation of Rs. 2 lac by way of back
wages in lieu of reinstatement was awarded. In Ras Bihari
1988 Lab.I.C.107) a compensation of Rs. 65000/- was granted
in lieu of reinstatement, since the employee was gainfully
employed ellewhere. In V.V. Rao (1991 Lab.I.C.1650) a
compensation of Rs. 2.50 lac was awarded in lieu of
reinstatement.
32. Claimant rendered one year continuous service
to the management, besides other spells which fell sort of
240 days. He was young man, when he was engaged by
the management. Now, he had crossed maximum of age,
required for recruitment in Government service. He had to
constest the case for a period of more than 15 years to seek
redressal of his grievances. Keeping in view these facts, I
am of the view that an amount of Rs. 30,000.00 as
compensation in lieu of reinstatement in service, besides a
sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of his
services, besides cost of proceedings, referred above. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 4.11.2013
Dr. R.K. YADAV, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
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657
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vf/kdj.k ,oa Je U;k;ky; lañ 1 ds iapkV ¼lanHkZ la[;k 104@1999½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr
gqvk FkkA
[lañ ,y&14012@78@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 31st December, 2013
S.O. 262.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 104/1999)
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 Officer Commanding, Delhi Cantt, New
Delhi and their workman, which was received by the Central
Government on 26/12/2013.
[No. L-14012/78/98-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. 104/1999
Shri Sardar Yadav
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as 'Casual Labourers (Grant of
Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Sardar Yadav engaged as a casual labour, he raised
an industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/78/98/IR(DU), New Delhi, dated 9.03.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Sardar Yadav, S/o Shri Nanku Yadav
is legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Sardar Yadav
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of May 1989. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 8 years. He rendered duties from
8 a. m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the management, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt (C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1 as
evidence. He also faced rigors of cross examination. No
other witness was examined by either of the parties.
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the calendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shal also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 05.08.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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 :—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
¹Hkkx II—[k.M 3(ii)º
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659
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers of
Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Vocher LPG Account from 01.07.1990 to
31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soda Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment—M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989, IAFA 175
Receipt for Cash/Cheque Regiment Account from
01.01.1962 to 30.03.1977, IAFA 175 Receipt of Cash CSE
canteen account from 01.07.1977 to 30.03.1992, IAFA 175
Receipt for Cash/Cheque Public Fund from 10.04.1963 to
November 1985, Labour Imprest Accounts - Cash Book
from 01.12.1965 to 01.07.1970, Public Fund Account
Columnar Cash Book from 01.03.1956 to 30.091984,
Regiment Fund Account Columnar Cash Book from
12.08.1970 to 18.01.1986, CSE Canteen Account Columnar
Cash Book 01.08.1971 to 31.05.1984, IAFA—Black Cheque
from 01.04.1978 to 31.03.1991, IAFA—Red Cheque
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD Imprest
Account from 01.04.1972 to 31.03.1992, IAFA 177—Red
Cheque FD Imp Account from 01.04.1972 to 31.03.1992,
IAFA 176 Black Cheque Public Fund Accounts from
01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque) Public
Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the count of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non-production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer [2002 (3) SSC
25]. Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
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[PART II—SEC. 3(ii)]
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include:
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or
(iii) termination of the service of a workman as a result of
non-renewal of contract of employment, or (iv) termination
of contract of employment in terms of a stipulation
contained in the contract of employment in that behalf, or
(v) termination of service on the ground of continued ill
health of the workman. Reference can be made to the
precedents in Avon Services (Production Agencies) (Pvt.)
Ltd. [1979 (I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of sub-section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
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661
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed one year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year."
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking [1985 (2) LLJ 539], wherein it was ruled
that the expression 'actually worked under the employer',
cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34)]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in September 1997. Therefore, for reckoning continuous
service for the period of 240 days in preceding 12 months
from the date when services of the claimant were dispensed
with, the Tribunal had to count service rendered by the
claimant from September 1997 to October 1996, September
1996 to October 1995 September 1995, to October 1994,
September 1994 to October 1993 and so on. On careful
examination of the attendance registers, it came to light
that Shri Sardar Yadav served for 57 days from September
1997 to October, 1996, 151 days from September 1996 to
October 1995, 70 days from September 1995 to October
1994, 152 days from September, 1994 to October 1993, 130
days from September 1993 to October 1992, and 169 days
from September 1992 to October 1991, 164 days from
September 1991 to October 1990, 158 days from September
1990 to June1990 and 75 days from September 1989 to May
1989.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able to
project that he rendered continuous service to 240 days to
avail benefit of provisions of section 25F of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management denied
that the claimant was engaged at all in service. But in the
662
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
subsequent breath, it was pleaded that he was engaged as
a casual employee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 10 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there is
discretion available to Courts/Tribunals to require a party
to prove facts admitted, otherwise than by such admission.
While using that discretion, the Tribunal called upon the
claimant to enter the witness box, to establish that he
rendered continous service for a period of 240 days in a
calendar year or every year in which he served the
management. During the course of testimony, the claimant
made a bald assertion to the effect that he continuously
served the management for a period of 8 years. No
document such as salary slip or wage receipt or any record
or order issued by the management was brought over the
record to substantiate the factum of continuous service
of 240 days in a calendar year, not to talk of continuous
service of ten years, as claimed. Self-serving words, detailed
by the claimant, are not sufficient to discharge the burden
resting on him. Burden to prove that he had rendered
continuous service of 240 days in a calendar year lies on
the claimant. To discharge that burden, he had to lead
cogent evidence to show that he had in fact worked for
240 days in a year preceding his termination. Mere filing
of affidavit or by giving his own statement, was found not
to be enough by the Apex Court, to prove factum that he
had worked with the management for 240 days, in Rajasthan
Sate Ganganagar Mills Ltd [2004 (103) FLR 192] and Essen
Deinki [2003 SC (L&S) 113]. Also see Municipal
Corporation, Faridabad [2004 (8) SCC 195] and Reserve
Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a calendar
year. No proof of receipt of salary or wages or any record
or order in that regard was produced to establish that he
had rendered continuous service for a period of 240 days
in a calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F
of the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of section
25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. 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
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New Delhi, the 31st December, 2013
S.O. 263.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 103/1999)
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 Officer Commanding, Delhi Cantt, New
Delhi and their workman, which was received by the Central
Government on 26/12/13.
[No. L-14012/55/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
¹Hkkx II—[k.M 3(ii)º
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663
I.D. No. 103/1999
Shri Ganga Ram,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as 'Casual Labourers (Grant of
Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Ganga Ram, engaged as a casual labour, he raised
an industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order
No. L-14012/55/98/IR(DU), New Delhi, dated 09.03.1999,
with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Ganga Ram S/o Shri Moti Ram Sajivan
Tiwari is legal and justified? If not, to what relief the
workman is entitled?"
2. Claim statement was filed by Shri Ganga Ram
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of March 1993. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 5 years. He rendered duties from
8 a. m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the mangement, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1 as
evidence. He also faced rigors of cross examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the calendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each ofthe 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they servved the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scruitiny by the Labour Court and the
petitioner shal also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, ti is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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.
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for
10 years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Voucher LPG Account from 01.07.1990
to 31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soda Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 01.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
¹Hkkx II—[k.M 3(ii)º
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Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt of cash CSE canteen
account from 01.07.1977 to 30.03.1992, IAFA 175 Receipt
for Cash/Cheque Public Fund from 10.04.1963 to November
1985, Labour Imprest accounts - Cash Book from 01.12.1965
to 01.07.1970, Public Fund Account Columnar Cash Book
from 01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978 to
31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from 01.04.1972
to 31.03.1992, IAFA 177—Red Cheque FD Imp. Account
from 01.04.1972 to 31.03.1992, IAFA 176 Black Cheque Public
Fund Accounts from 01.04.1971 to 31.03.1992 and IAFA
177 (Red Cheque) Public Fund Accounts from 01.04.1971
to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the count of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer [2002 (3) SSC
25]. Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or (iii)
termination of the service of a workman as a result of non-
renewal of contract of employment, or (iv) termination of
contract of employment in terms of a stipulation contained
in the contract of employment in that behalf, or (v)
termination of service on the ground of continued ill health
of the workman. Reference can be made to the precedents
in Avon Services (Production Agencies) (Pvt.) Ltd. (1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
666
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[PART II—SEC. 3(ii)]
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of sub section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
“Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year.”
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking Corporation [1985 (2) LLJ 539], wherein it
was ruled that the expression 'actually worked under the
employer', cannot mean those days only when the workman
worked with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
¹Hkkx II—[k.M 3(ii)º
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667
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in August 1997. Therefore, for reckoning continuous service
for the period of 240 days in preceding 12 months from the
date when services of the claimant were dispensed with,
the Tribunal had to count service rendered by the claimant
from August 97 to September 96, August 96 to September
95, August 95 to September 94, August 94 to September 93
and so on. On careful examination of the attendance
registers, it came to light that Ganga Ram served for 31
days from August 1997 to September, 1996, 16 days from
August 1996 to September 1995, 38 days from August 1995
to September 1994, 127 days from August 1994 to September,
1993 and 44 days from August 1993 to March 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has not been
able to project that he rendered continuous service of 240
days to avail benefit of provisions of section 25F of the
Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management denied
that the claimant was engaged at all in service. But in the
subsequent breath, it was pleaded that he was engaged as
a casual employee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 5 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there is
discretion available to Courts/Tribunals to require a party
to prove facts admitted, otherwise than by such admission.
While using that discretion, the Tribunal called upon the
claimant to enter the witness box, to establish that he
rendered continous service for a period of 240 days in a
calendar year or every year in which he served the
management. During the course of testimony, the claimant
made a bald assertion to the effect that he continuously
served the management for a period of 5 years. No document
such as salary slip or wage receipt or any record or order
issued by the management was brought over the record to
substantiate the factum of continuous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calender year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
proeceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan State
Ganganagar Mills Ltd. [2004 (103) FLR 192] and Essen Deinki
2003 SC (L&S) 113. Also see Municipal Corporation,
Faridabad [2004 (8) SCC 195] and Reserve Bank of India
[2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to prove
the fact that he had worked for 240 days in a calendar year.
No proof of receipt of salary or wages or any record or
order in that regard was produced to establish that he had
rendered continuous service for a period of 240 days in a
calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F of
the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to protect that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of section
25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 25.10.2013
Dr. R.K. YADAV, Presiding Officer
668
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 31st December, 2013
S.O. 264.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 88/1999)
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 Officer Commanding, Delhi Cantt., New
Delhi and their workman, which was received by the Central
Government on 26/12/2013.
[No. L-14012/59/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
No. 1, DELHI
I.D. No. 88/1999
Shri Har Govind,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual Labourers
(Grant of Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Har Govind, engaged as a casual labour, he raised
an industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/59/98/IR(DU), New Delhi, dated 01.03.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Har Govind S/o Shri Luxman Singh is
legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Har Govind,
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of May 1993. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 5 years. He rendered duties from
8 a.m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the mangement, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1 as
evidence. He also faced rigors of cross examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
¹Hkkx II—[k.M 3(ii)º
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669
the clendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for
10 years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers of
Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Vocher LPG Account from 01.07.1990 to
31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soda Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment — M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for Cash/Cheque Regiment Account from
01.01.1962 to 30.03.1977, IAFA 175 Receipt of cash CSE
canteen account from 01.07.1977 to 30.03.1992, IAFA 175
Receipt for Cash/Cheque Public Fund from 10.04.1963 to
November 1985, Labour Imprest accounts — Cash Book
from 01.12.1965 to 01.07.1970, Public Fund Account
Columnar Cash Book from 01.03.1956 to 30.09.1984,
Regiment Fund Account Columnar Cash Book from
12.08.1970 to 18.01.1986, CSE Canteen Account Columnar
Cash Book 01.08.1971 to 31.05.1984, IAFA—Black Cheque
from 01.04.1978 to 31.03.1991, IAFA—Red Cheque
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD Imprest
Account from 01.04.1972 to 31.03.1992, IAFA 177—Red
Cheque FD Imp. Account from 01.04.1972 to 31.03.1992,
IAFA 176 Black Cheque Public Fund Accounts from
01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque) Public
Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the count of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer [2002 (3) SSC
25]. Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
¹Hkkx II—[k.M 3(ii)º
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671
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or (iii)
termination of the service of a workman as a result of non-
renewal of contract of employment, or (iv) termination of
contract of employment in terms of a stipulation contained
in the contract of employment in that behalf, or (v)
termination of service on the ground of continued ill health
of the workman. Reference can be made to the precedents
in Avon Services (Production Agencies) (Pvt.) Ltd. [1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of Sub-section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by Sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year."
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under Sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking Corporation [1985 (2) LLJ 539], wherein it
was ruled that the expression 'actually worked under the
employer', cannot mean those days only when the workman
worked with hammer, sickle or pen, but must necessarily
672
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[PART II—SEC. 3(ii)]
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in October 1997. Therefore, for reckoning continuous
service for the period of 240 days in preceding 12 months
from the date when services of the claimant were dispensed
with, the Tribunal had to count service rendered by the
claimant from October 1997 to November 1996, October
1996 to November 1995, October 1995 to November 1994,
October 1994 to November 1993 and so on. On careful
examination of the attendance registers, it came to light
that Shri Har Govind served for 203 days from October
1997 to November, 1996, 194 days from October 1996 to
November 1995, 185 days from October 1995 to November
1994, 230 days from October 1994 to November 1993 and
105 days from October 1993 to May 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from October 1997 to November 1996,
October 1996 to November 1995 and October 1994 to
November 1993, he reaches notional figure of 240 days, to
claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able to
project that he rendered continuous service to 240 days to
avail benefit of provisions of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement. No
evidence was brought to show that he was employed for a
fixed term of contract and his services came to an end on
nonrenewal of contract of employment. It was not asserted
that his services were terminated on the ground of continued
ill-health. Neither services of the claimant were done away
as punishment for a domestic action nor action of the
management falls within the category exempted under
second limb of section 2(oo) of the Act. Thus it is obvious
that termination of services of the claimant, for any other
reason, amounts to retrenchment, as defined by clause
(oo) of section 2 of the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act. According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obligation to
pay him compensation for retrenchment, when his services
were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
[1964 (1) LLJ 351], Adaishwar Laal [1970 Lab.I.C. 936] and
B.M. Gupta [1979 (1) LLJ 168] announce that subsequent
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice nor
pay in lieu there of nor retrenchment compensation was
paid to him by the management. Therefore, his retrenchment
is violative of the provisions of section 25-F of the Act.
24. Services of the workman were retrenched without
payment of notice pay, and retrenchment compensation. It
is well settled that in a case of wrongful retrenchment,
dismissal or discharge, the normal rule is to award
reinstatement. But where a case falls in any of the exception
to general rule, the industrial adjudicator has discretion to
award reasonable and adequate compensation, in lieu of
re-instatement. Section 11A of the Act vests the industrial
adjudicator with discretionary jurisdiction to give "such
other relief to the workman" in lieu of discharge or dismissal
as the circumstances of the case may require, where for
some valid reasons it considers that reinstatement with or
without conditions will not be fair or proper.
¹Hkkx II—[k.M 3(ii)º
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673
25. In Uma Devi [2006 (4) SCC I] the Apex Court
considered the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be ordered
to be made permanent in their posts, to prevent regular
recruitment to the posts concerned. Catena of decisions
over the subject were considered and the court declined
the submissions of the workman to be made permanent on
the posts which were held by them in temporary or ad-hoc
capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here-can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh [1992 (4) SCC 118] is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P. Chandra Shekhara Rao and Others [2006 (7)
SCC 488] the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
[2004(7) SCC 112] and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. in
Somveer Singh [2006 (5) SCC 493] the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a casual,
ad-hoc or daily rated employee) or payment of regular
salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been brought
over the record to project that the management engaged
him through employment exchange or an open recruitment
process. There is complete vacuum of evidence to the effect
that the process through which the claimant was engaged
by the management was made known to public at large, so
that other eligible candidates may offer their candidature
for recruitment. Evidently, it was a back-door entry in
service. His engagement by the management was not in
consonance with the statutory rules. In view of his wrongful
employment, there is no justification for his reinstatement
in the service of the management. In the alternative, this
Tribunal has to award compensation to the workman in
lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty [1957 (11) LLJ
696] the Apex court indicated some relevant factors which
an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the employer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement, the
industrial adjudicator would also have to take into
account the present value of what his salary, benefits
etc. would be till he attained the age of superannuation
and the value of such benefits would have to be
674
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
computed as from the date when such reinstatement
was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
30. A Divisional Bench of the Patna High Court in B.
Choudhary Vs. Presiding Officer, Labour Court, Jamshedpur
(1983) Lab.I.1755 (1758) deduced certain guidelines which
have to be borne in mind in determining the quantum of
compensation viz. (i) the back wages receivable (ii)
compensation for deprivation of the job with future
prospect and obtainability of alternative employment; (iii)
employee's age (iv) Length of service in the establishment
(v) capacity of the employer to pay and the nature of the
employer's business (vi) gainful employment in mitigation
of damages; and (vii) circumstances leading to the
disengagement and the past conduct. These factors are
only illustrative and not exhaustive. In addition to the
amount of compensation, it is also within the jurisdiction
of the Tribunal to award interest on the amount determined
as compensation. Furthermore, the rate of such interest is
also in the discretion of the Tribunal. Reference can be
made to Tabesh Process, Shivakashi (1989 Lab.I.C. 1887).
31. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
Machinery Ltd. [1966(1)LLJ 398] the amount of
compensation equivalent to two year salary of the employee
awarded by the industrial Tribunal was reduced by the
Supreme Court to an amount equivalent to one year salary
of the employee in view of the fact that she had been in
service with the employer only for 5 months and also took
into consideration the unusual manner of her appointment
at the instance of the Chief Minister of the State. In A.K.
Roy [1970(1) LLJ 228] compensation equivalent to two
years salary last drawn by the workmen was held to be fair
and proper to meet the ends of justice. In Anil Kumar
Chakaraborty [1962 (II) LLJ 483] the Count converted the
award of reinstatement into compensation of a sum of Rs.
50000/- as just and fair compensation in full satisfaction of
all his claims for wrongful dismissal from service. In O.P.
Bhandari [1986 (II) LLJ 509], the Apex Court observed that
it was a fit case for grant of compensation in view of
reinstatement. The Court awarded compensation equivalent
to 3.33 years salary as reasonable. In M.K. Aggarwal [1988
Lab.I.C.380], the Apex Court though confirmed the order of
reinstatement yet restricted the back salary to 50% of what
would otherwise be payable to the employee. In Yashveer
Singh [1993 Lab.I.C.44] the court directed payment of Rs.
75000/- in view of reinstatement with back wages. In Naval
Kishor [1984 (II) LLJ 473] the Apex Court observed that in
view of the special circumstances of the case adequate
compensation would be in the interest of the appellant. A
sum of Rs. 2 lac was awarded as compensation in lieu of
reinstatement. In Sant Raj [1985 (II) LLJ 19] a sum of Rs. 2
lac was awarded as compensation in lieu of reinstatement.
In Chandu Lal (1985 Lab.I.C.1225) a compensation of Rs. 2
lac by way of back wages in lieu of reinstatement was
awarded. In Ras Bihari 1988 Lab.I.C.107) a compensation
of Rs. 65000/- was granted in lieu of reinstatement, since
the employee was gainfully employed elsewhere. In V.V.
Rao (1991 Lab.I.C.1650) a compensation of Rs. 2.50 lac was
awarded in lieu of reinstatement.
32. Claimant rendered three years’ continuous service
to the management, besides other spells which fell sort of
240 days. He was a young man, when he was engaged by
the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had to
contest the case for a period of more than 15 years to seek
redressal of his grievances. Keeping in view these facts, I
am of the view that an amount of Rs. 75,000.00 as
compensation in lieu of reinstatement in service, besides a
sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of his
services, besides cost of proceedings, referred above. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 4.11.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 265.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkWfQlj dekafMax
fnYyh dSUV ds izcU/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky; lañ&1 ds iapkV ¼lanHkZ la[;k 87@1999½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr
gqvk FkkA
[lañ ,y&14012@60@98&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 31st December, 2013
S.O. 265.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 87/1999)
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
¹Hkkx II—[k.M 3(ii)º
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675
management of The Officer Commanding, Delhi Cantt, New
Delhi and their workman, which was received by the Central
Government on 26/12/13.
[No. L-14012/60/98-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. 87/1999
Shri Sardar Yadav
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as 'Casual Labourers (Grant of
Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Sardar Yadav, engaged as a casual labour, he raised
an industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/60/98-IR(DU), New Delhi, dated 01.03.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Sardar Yadav, S/o Shri Hardev Yadav
is legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Sardar Yadav,
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of June 1987. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 10 years. He rendered duties
from 8 a. m. to 5 p.m. He made a demand for regularization
of his services. Instead of regularizing his services, his
services were dispensed with on 31.10.1997 orally, without
giving any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the mangement, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant opted not to enter the witness box to
testify facts. The management also followed suit. Thus, no
evidence was adduced by the parties, to substantiate their
respective case.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the clendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25-B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a) Papers containing decision on important matters
of departmental policy,
(b) Maps and plans relating to operation,
(c) Office Orders,
(d) War diaries,
(e) Financial documents (to be retained for 10 years),
(f) Regiment long roll and
(g) Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers of
Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Vocher LPG Account from 01.07.1990 to
¹Hkkx II—[k.M 3(ii)º
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677
31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soda Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment —M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt of cash CSE canteen
account from 01.07.1977 to 30.03.1992, IAFA 175 Receipt
for Cash/Cheque Public Fund from 10.04.1963 to November
1985, Labour Imprest accounts — Cash Book from
01.12.1965 to 01.07.1970, Public Fund Account Columnar
Cash Book from 01.03.1956 to 30.091984, Regiment Fund
Account Columnar Cash Book from 12.08.1970 to
18.01.1986, CSE Canteen Account Columnar Cash Book
01.08.1971 to 31.05.1984, IAFA—Black Cheque from
01.04.1978 to31.03.1991, IAFA—Red Cheque 01.01.1977 to
31.03.1991, IAFA 176 Black Cheque FD Imprest Account
from 01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD
Imp Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to 31.03.1992
and IAFA 177 (Red Cheque) Public Fund Accounts from
01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the count of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer [2002 (3) SSC
25]. Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or (iii)
termination of the service of a workman as a result of non-
renewal of contract of employment, or (iv) termination of
contract of employment in terms of a stipulation contained
678
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
in the contract of employment in that behalf, or (v)
termination of service on the ground of continued ill health
of the workman. Reference can be made to the precedents
in Avon Services (Production Agencies) (Pvt.) Ltd. [1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout or cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of sub section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking [1985 (2) LLJ 539], wherein it was ruled
that the expression 'actually worked under the employer',
cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
¹Hkkx II—[k.M 3(ii)º
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679
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in September 1997. Therefore, for reckoning continuous
service for the period of 240 days in preceding 12 months
from the date when services of the claimant were dispensed
with, the Tribunal had to count service rendered by the
claimant from September 1997 to October 1996, September
1996 to October 1995, September 1995 to October 1994,
September 1994 to October 1993 and so on. On careful
examination of the attendance registers, it came to light
that Shri Sardar Yadav served for 26 days from September
1997 to October, 1996, 87 days from September 1996 to
October 1995, 54 days from September 1995 to October
1994, 116 days from September 1994 to October, 1993, 148
days from September 1993 to October 1992, and 108 days
from Septermber 1992 to March 1992.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able to
project that he rendered continuous service to 240 days to
avail benefit of provisions of section 25F of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 10 years,
with the management. At the outset the management denied
that the claimant was engaged at all in service. But in the
subsequent breath, it was pleaded hat he was engaged as
a casual employee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 10 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is settled proposition of law that facts admitted
by a party need not be proved. However, there is discretion
available to Courts/Tribunals to require a party to prove
facts admitted, otherwise than by such admission. While
using that discretion, the Tribunal called upon the claimant
to enter the witness box, to establish that he rendered
continous service for a period of 240 days in a calendar
year or every year in which he served the management. As
pointed out above, the claimant had not adduced any
evidence to establish that he served the management for a
period of one year, as contemplated by section 25B of the
Act. Burden to prove that he had rendered continuous
service of 240 days in a calendar year lies on the claimant.
Toi discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
preceding his termination. To discharge that onus, the
claimant had not produced any evidence to prove the fact
that he had worked for 240 days in a calendar year. No
proof of receipt of salary or wages or any record or order in
that regard was prodeuced to establish that he had rendered
continuous service for a period of 240 days in a calendar
year. The claimant opted not to examine a co-worker or to
produce any document to contradict fracts recorded in the
attendance registers, produced by the management before
the Tribunal. Therefore, it is crystal clear that the claimant
has not been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
23. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of section
25-G and 25-H of the Act have no application.
24. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 1.11.2013
Dr. R.K. YADAV, Presiding Officer
680
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 31st December, 2013
S.O. 266.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 85/1999)
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 Officer Commanding, Delhi Cantt., New
Delhi and their workman, which was received by the Central
Government on 26/12/2013.
[F. No. L-14012/63/98-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. 85/1999
Shri Jai Govind,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as 'Casual Labourers (Grant of
Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Jai Govind, engaged as a casual labour, he raised an
industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/63/98/IR(DU), New Delhi, dated 01.03.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Jai Govind, S/o Shri Ram Sajivan
Tiwari is legal and justified? If not, to what relief the
workman is entitled?"
2. Claim statement was filed by Shri Jai Govind,
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of June 1993. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 10 years. He rendered duties
from 8 a. m. to 5 p.m. He made a demand for regularization
of his services. Instead of regularizing his services, his
services were dispensed with on 31.10.1997 orally, without
giving any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the management, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1 as
evidence. He also faced rigors of cross examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
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The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the clendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scruitiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value.
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[PART II—SEC. 3(ii)]
10. Certificate issued by the Board of Officers, counter
signed by the Commandant, 226 Company ASC, has also
been annexed. It has been certified therein that old records
have been destroyed by way of burning with effect form
15.10.2011 and subsequent dates. Records, which have
been burnt, pertain to Payment VR Supply & Services
from 01.02.1971 to 31.12.2000, Payment Vochers of Regiment
from 01.01.1998 to 31.12.1998, Payment Voucher Regiment
Fund Account from 12.08.1970 to 30.07.2001, Black Cheque
Regiment Fund account from 01.04.1976 to 31.03.1992, Red
Cheque from 01.04.1973 to 31.03.1992, Payment Voucher
CSE from 01.04.1990 to 31.03.2001, Receipt Voucher CSD
Canteen from 01.04.1997 to 31.03.2001, CSD Canteen
Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Voucher LPG Account from 01.07.1990
to 31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soad Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment—M/s. MS Oberoi & Bros. from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt of cash CSE canteen
account from 01.07.1977 to 30.03.1992, IAFA 175 Receipt
for Cash/Cheque Public Fund from 10.04.1963 to November
1985, Labour Imprest accounts - Cash Book from 01.12.1965
to 01.07.1970, Public Fund Account Columnar Cash Book
from 01.03.1956 to 30.091984, Regiment.
Fund Account Columnar Cash Book from 12.08.1970
to 18.01.1986, CSE Canteen Account Columnar Cash Book
01.08.1971 to 31.05.1984, IAFA—Black Cheque from
01.04.1978 to31.03.1991, IAFA—Red Cheque 01.01.1977 to
31.03.1991, IAFA 176 Black Cheque FD Imprest Account
from 01.04.1972 to 31.03.1992, IAFA 177—Red Cheque FD
Imp Account from 01.04.1972 to 31.03.1992, IAFA 176 Black
Cheque Public Fund Accounts from 01.04.1971 to 31.03.1992
and IAFA 177 (Red Cheque) Public Fund Accounts from
01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the country of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer [2002 (3) SSC
25]. Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
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(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or
(iii) termination of the service of a workman as a result of
non-renewal of contract of employment, or (iv) termination
of contract of employment in terms of a stipulation
contained in the contract of employment in that behalf, or
(v) termination of service on the ground of continued ill
health of the workman. Reference can be made to the
precedents in Avon Services (Production Agencies) (Pvt.)
Ltd. [1979 (I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of sub section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in atleast 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occured during the course
of job has to be included in uninterrupted services. Fiction
under section 25-B of the Act will operate if workmen has
actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking [1985 (2) LLJ 539], wherein it was ruled
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[PART II—SEC. 3(ii)]
that the expression 'actually worked under the employer',
cannot mean those days only when the workman worked
with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in September 1997. Therefore, for reckoning continuous
service for the period of 240 days in preceding 12 months
from the date when services of the claimant were dispensed
with, the Tribunal had to count service rendered by the
claimant from September 1997 to October 1996, September
1996 to October 1995, September 1995 to October 1994,
September 1994 to October 1993 and so on. On careful
examination of the attendance registers, it came to light
that Shri Jai Govind served for 36 days from September
1997 to October, 1996, 77 days from September 1996 to
October 1995, 45 days from September 1995 to October
1994, 138 days from September 1994 to October, 1993, 150
days from September 1993 to October 1992, 179 days from
September 1992 to October 1991, 130 days from September
1991 to October 1990, 148 days from September 1990 to
October 1989, 197 days from September 1989 to October
1988 and 112 days from September 1988 to October 1987.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from September 1989 to October 1988,
he reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service to 240 days to avail benefit of provisions
of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement. No
evidence was brought to show that he was employed for a
fixed term of contract and his services came to an end on
non-renewal of contract of employment. It was not asserted
that his services were terminated on the ground of continued
ill-health. Neither services of the claimant were done away
as punishment for a domestic action nor action of the
management falls within the category exempted under
second limb of section 2(oo) of the Act. Thus it is obvious
that termination of services of the claimant, for any other
reason, amounts to retrenchment, as defined by clause
(oo) of section 2 of the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act, According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obiligation
to pay him compensation for retrenchment, when his
services were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
(1964 (1) LLJ 351), Adaishwar Laal (1970 Lab.I.C. 936) and
B.M. Gupta (1979 (1) LLJ 168) announce that subsequent
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice nor
pay in lieu there of nor retrenchment compensation was
paid to him by the management. Therefore, his retrenchment
is violative of the provisions of section 25-F of the Act.
24. Services of the workman were retrenched without
payment of notice pay, and retrenchment compensation. It
is well settled that in a case of wrongful retrenchment,
dismissal or discharge, the normal rule is to award
reinstatement. But where a case falls in any of the exception
to general rule, the industrial adjudicator has discretion to
award reasonable and adequate compensation, in lieu of
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685
re-instatement. Section 11A of the Act vests the industrial
adjudicator with discretionary jurisdication to give "such
other relief to the workman" in lieu of discharge or dismissal
as the circumstances of the case may require, where for
some valid reasons it considers that reinstatement with or
without conditions will not be fair or proper.
25. In Uma Devi (2006 (4) SCC I) the Apex Court
considered the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be ordered
to be made permanent in their posts, to prevent regular
recruitment to the posts concerned. Catena of decisions
over the subject were considered and the court declined
the submissions of the workman to be made permanent on
the posts which were held by them in temporary or ad-hoc
capacity for a fairly long spell.
The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent—the distinction
between regularization and making permanent, was
not emphasized here—can only encourage the State,
the model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh (1992 (4) SCC 118) is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent".
26. In P.Chandra Shekhara Rao and Others (2006 (7)
SCC 488) the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
(2004(7) SCC 112) and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. in
Somveer Singh (2006 (5) SCC 493) the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. (2007 (1) SCC 408) the Apex Court reiterated the law
and announced that the rules of recruitment cannot be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a casual,
ad-hoc or daily rated employee) or payment of regular
salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a peromise. It is also obvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job".
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been brought
over the record to project that the management engaged
him through employment exchange or an open recruitment
process. There is complete vacuum of evidence to the effect
that the process through which the claimant was engaged
by the management was made known to public at large, so
that other eligible candidates may offer their candidature
for recruitment. Evidently, it was a back-door entry in
service. His engagement by the management was not in
consonance with the statutory rules. In view of his wrongful
employment, there is no justification for his reinstatement
in the service of the management. In the alternative, this
Tribunal has to award compensation to the workman in
lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty (1957 (11) LLJ
696) the Apex court indicated some relevant factors which
an adjudicator has to take into account in computing
compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
Industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement, the
industrial adjudicator would also have to take into
account the present value of what his salary, benefits
etc. would be till he attained the age of superannuation
and the value of such benefits would have to be
computed as from the date when such reinstatement
was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be to make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con".
29. A Divisional Bench of the Patna High Court in B.
Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable (ii) compensation for deprivation of the job with
future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment (v) capacity of the employer to pay and
the nature of the employer's business (vi) gainful
employment in mitigation of damages; and (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in the
discretion of the Tribunal. Reference can be made to Tabesh
Process, Shivakashi (1989 Lab.I.C. 1887).
30. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
Machinery Ltd. (1966(1)LLJ 398) the amount of
compensation equivalent to two year salary of the employee
awarded by the Industrial Tribunal was reduced by the
Supreme Court to an amount equivalent to one year salary
of the employee in view of the fact that she had been in
service with the employer only for 5 months and also took
into consideration the unusual manner of her appointment
at the instance of the Chief Minister of the State. In A.K.
Roy (1970(1) LLJ 228) compensation equivalent to two
years salary last drawn by the workmen was held to be fair
and proper to meet the ends of justice. In Anil Kumar
Chakaraborty (1962 (II) LLJ 483) the Count converted the
award of reinstatement into compensation of a sum of
Rs. 50000 as just and fair compensation in full satisfaction
of all his claims for wrongful dismissal from service. In O.P.
Bhandari (1986 (II) LLJ 509), the Apex Court observed that
it was a fit case for grant of compensation in view of
reinstatement. The Court awarded compensation equivalent
to 3.33 years salary as reasonable. In M.K. Aggarwal (1988
Lab.I.C.380), the Apex Court though confirmed the order of
reinstatement yet restricted the back salary to 50% of what
would otherwise be payable to the employee. In Yashveer
Singh (1993 Lab.I.C.44) the court directed payment of
Rs. 75000 in view of reinstatement with back wages. In
Naval Kishor (1984 (II) LLJ 473) the Apex Court observed
that in view of the special circumstances of the case
adequate compensation would be in the interest of the
appellant. A sum of Rs. 2 lac was awarded as compensation
in lieu of reinstatement. In Sant Raj (1985 (II) LLJ 19) a sum
of Rs. 2 lac was awareded as compensation in lieu of
reinstatement. In Chandu Lal (1985 Lab.I.C.1225) a
compensation of Rs. 2 lac by way of back wages in lieu of
reinstatement was awarded. In Ras Bihari 1988 Lab.I.C.107)
a compensation of Rs. 65000 was granted in lieu of
reinstatement, since the employee was gainfully employed
elsewhere. In V.V. Rao (1991 Lab.I.C.1650) a compensation
of Rs. 2.50 lac was awarded in lieu of reinstatement.
31. Claimant rendered one year continuous service
to the management, besides other spells which fell sort of
240 days. He was young man, when he was engaged by
the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had to
constest the case for a period of more than 15 years to seek
redressal of his grievances. Keeping in view these facts, I
am of the view that an amount of Rs. 30,000.00 as
compensation in lieu of reinstatement in service, besides a
sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of his
services, besides cost of proceedings, referred above. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 1.11.2013
Dr. R.K. YADAV, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
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New Delhi, the 31st December, 2013
S.O. 267.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 84/1999)
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 Officer Commanding, Delhi Cantt, New
Delhi and their workman, which was received by the Central
Government on 26/12/13.
[No. L-14012/64/98-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. 84/1999
Shri Shrikant,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as 'Casual Labourers (Grant of
Temporary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Shrikant, engaged as a casual labour, he raised an
industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion
that an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No. L-
14012/64/98/IR(DU), New Delhi, dated 01.03.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Shrikant, S/o Shri Krishna Kumar is
legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Shrikant, pleading
therein that he was engaged as a casual labour by Officer
Commanding in the month of March 1993. He had worked
for the Officer Commanding in godown or storage or as
watchman for about 5 years. He rendered duties from
8 a. m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the management, with continuity and full back
wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW1/1 as
evidence. He also faced rigors of cross examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
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[PART II—SEC. 3(ii)]
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the calendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
¹Hkkx II—[k.M 3(ii)º
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689
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Voucher LPG Account from 01.07.1990
to 31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soda Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment—M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989, IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt for Cash CSE canteen
account from 01.07.1977 to 30.03.1992, IAFA 175 Receipt
for Cash/Cheque Public Fund from 10.04.1963 to November
1985, Labour Imprest accounts—Cash Book from 01.12.1965
to 01.07.1970, Public Fund Account Columnar Cash Book
from 01.03.1956 to 30.091984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978 to
31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from 01.04.1972
to 31.03.1992, IAFA 177—Red Cheque FD Imp Account
from 01.04.1972 to 31.03.1992, IAFA 176 Black Cheque Public
Fund Accounts from 01.04.1971 to 31.03.1992 and IAFA
177 (Red Cheque) Public Fund Accounts from 01.04.1971
to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the count of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer [2002 (3) SSC
25]. Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Industrial Disputes Act, 1947 (in short
the Act) defines "termination by the employer of the service
of a workman for any reasons whatsoever", except the
categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
690
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[PART II—SEC. 3(ii)]
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or (iii)
termination of the service of a workman as a result of non-
renewal of contract of employment, or (iv) termination of
contract of employment in terms of a stipulation contained
in the contract of employment in that behalf, or (v)
termination of service on the ground of continued ill health
of the workman. Reference can be made to the precedents
in Avon Services (Production Agencies) (Pvt.) Ltd. [1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of sub-section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed one year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking Corporation [1985 (2) LLJ 539], wherein it
was ruled that the expression 'actually worked under the
employer', cannot mean those days only when the workman
worked with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
¹Hkkx II—[k.M 3(ii)º
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691
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa [1981
(1) LJ 308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in July 1997. Therefore, for reckoning continuous service
for the period of 240 days in preceding 12 months from the
date when services of the claimant were dispensed with,
the Tribunal had to count service rendered by the claimant
from July 1997 to August 1996, July 1996 to August 1995,
July 1995 to August 1994, July 1994 to August 1993 and so
on. On careful examination of the attendance registers, it
came to light that Shri Shrikant served for 108 days from
July 1997 to August 1996, 107 days from July 1996 to August
1995, 14 days from July 1995 to August 1994, 128 days from
July 1994 to August 1993, 42 days from July 1993 to March
1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the none of years, he reaches notional figure of
240 days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
to 240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management denied
that the claimant was engaged at all in service. But in the
subsequent breath, it was pleaded that he was engaged as
a casual employee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 5 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is settled proposition of law that facts admitted
by a party need not be proved. However, there is discretion
available to Courts/Tribunals to require a party to prove
facts admitted, otherwise than by such admission. While
using that discretion, the Tribunal called upon the claimant
to enter the witness box, to establish that he rendered
continuous service for a period of 240 days in a calendar
year or every year in which he service the management.
During the course of testimony, the claimant made a bald
assertion to the effect that he continuously served the
management for a period of 5 years. No document such as
salary slip or wage receipt or any record or order issued by
the management was brought over the record to
substantiate the factum of continuous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calender year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
preceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan State
Ganganagar Mills Ltd. [2004 (103) FLR 192] and Essen Deinki
[2003 SC (L&S) 113]. Also see Municipal Corporation,
Faridabad [2004 (8) SCC 195] and Reserve Bank of India
[2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that the worked for 240 days in a calender with the
management. To discharge that onus, apart from oral
evidence claimant had not produced any evidence to prove
the fact that he had worked for 240 days in a calendar year.
No proof of reciept of salary or wages or any record or
order in that regard was produced to establish that he had
rendered continuous service for a period of 240 days in a
calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F of
the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of
section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 24.10.2013
Dr. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 268.—In pursuance of Section 17 of the
Industrial Disptues Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 83/1999)
of the Central Government Industrial Tribunal/Labour Court
No. 1, New Delhi now as shown in the Annexure in the
Industrial Disptue between the employers in relation to the
management of The Officer Commanding, Delhi Cantt., New
Delhi and their workman, which was received by the Central
Government on 26/12/13.
[No. L-14012/57/98-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. 83/1999
Shri Meva Lal,
C/o Sh. M.A. Khan, 5/385
Trilokpuri, Delhi-110091.
.....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10
.....Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view of
office memorandum No. 49014/2/86-Estt(C) dated 07.06.1988.
Subsequently, a scheme for grant of temporary status was
formulated, which is known as Çasual Labourers (Grant of
Temprary Status and Regularization) Scheme of
Government of India, 1993'. When Officer Commanding,
instead of granting temporary status, terminated services
of Shri Meva Lal, engaged as a casual labour, he raised an
industrial dispute before the Conciliation Officer.
Commanding Officer contested his claim, as such
conciliation proceedings failed. On submission of failure
report, the appropriate Government formed an opinion that
an industrial dispute was in existence and referred that
dispute to this Tribunal for adjudication, vide order No.
L-14012/57/98-IR(DU), New Delhi, dated 01.03.1999, with
following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi, Cantt., in terminating
services of Shri Meva Lal S/o Shri Ram Charan is
legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Meva Lal,
pleading therein that he was engaged as a casual labour by
Officer Commanding in the month of August '1987. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 6 years. He rendered duties from
8 a.m. to 5 p.m. He made a demand for regularization of his
services. Instead of regularizing his services, his services
were dispensed with on 31.10.1997 orally, without giving
any notice or pay in lieu thereof and retrendchment
compensation. His wages for the month of September and
October 1997 were also not paid. He claimed reinstatement
in service of the management, with continuity and full back
wages.
¹Hkkx II—[k.M 3(ii)º
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693
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988, which are beign followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex.MW1/1 as
evidence. he also faced rigors of cross examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of which
dispute raised by the claimant, besides disputes of 39 other
workmen of his category, was answered against him. The
award was assailed before the High Court of Delhi by way
of writ petition, which came to be disposed off on 10.05.2013.
The High Court remanded the matter back to this Tribunal
for adjudication on the issue as to whether the claimant
had rendered continuous service of 240 days in or any of
the calendar years, when he worked with the management.
For sake of convenience, the order passed by the High
Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shal also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Vocher LPG Account from 01.07.1990 to
31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soad Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 01.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment—M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.091984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—Black
Cheque from 01.04.1978 to31.03.1991, IAFA—Red Cheque
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD Imprest
Account from 01.04.1972 to 31.03.1992, IAFA 177—Red
Cheque FD Imp Account from 01.04.1972 to 31.03.1992,
IAFA 176 Black Cheque Public Fund Accounts from
01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque) Public
Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it is
clear that the claimant has nothing to say on the country of
destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed muster
rolls in October 2011 and as such, rightly seeks exemption
from filing those documents for consideration of this
Tribunal. Mere non production of muster rolls for a
particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as held
by the Apex Court in Range Forest Officer (2002 (3) SSC
25). Since non-production of muster rolls was on account
of destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against the
management.
13. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour
saving machinery etc. The Industrial Disputes Act, 1947
(in short the Act) defines "termination by the employer of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
695
the service of a workman for any reasons whatsoever",
except the categories exempted in sub-section 2(oo), to be
retrenchment. The definition of the term "retrenchment",
as enacted by the Act, is extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of a
workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement of
workman on reaching the age of superannuation, or (iii)
termination of the service of a workman as a result of non-
renewal of contract of employment, or (iv) termination of
contract of employment in terms of a stipulation contained
in the contract of employment in that behalf, or (v)
termination of service on the ground of continued ill health
of the workman. Reference can be made to the precedents
in Avon Services (Production Agencies) (Pvt.) Ltd. [1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen, as
enacted by provisions of sub section (1) of section 25B of
the Act. Sub-section (2) of the said section introduces a
fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for a
period of one year or six months, he shall be deemed to in
continuous service for that period under an employer if he
has actually worked for the days specified in clauses (a)
and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C. 1180)
it was held that one year's period contemplated by sub-
section (2) furnished a unit of measure and if during that
unit of measure the period of service actually rendered by
the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the period
of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking Corporation (1985 (2) LLJ 539), wherein it
was ruled that the expression 'actually worked under the
employer', cannot mean those days only when the workman
worked with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa (1981
(1) LJ 308) was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. (1986 (1) LLJ 34). Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous service
under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in August 1997. Therefore, for reckoning continuous service
for the period of 240 days in preceding 12 months from the
date when services of the claimant were dispensed with,
the Tribunal had to count service rendered by the claimant
from August 97 to September 96, August 96 to September
95, August 95 to September 94, August 94 to September 93
and so on. On careful examination of the attendance
registers, it came to light that Shri Meva Lal served for 90
days from August 1997 to September, 1996, 172 days from
August 1996 to September 1995, 171 days from August
1995 to September 1994, 183 days from August 1994 to
September, 1993, and 197 days from August 1993 to
September 1992, 144 days from August 1992 to September
1991, 153 days from August 1991 to September 1990, 180
days from August 1990 to September 1989, 179 days from
August 1989 to September 1988, 119 days from August
1988 to September 1987 and 85 days from august 1987 to
February 1987.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in the year reckoned from August 1993 to September 1992,
he reaches notional figure of 240 days, to claim continuous
service for a period of one year. Resultantly, it is obvious
that the claimant has been able to project that he rendered
continuous service of 240 days to avail benefit of provisions
of section 25F of the Act.
21. It is not the case that the claimant reached the
age of superannuation or sought voluntary retirement. No
evidence was brought to show that he was employed for a
fixed term of contract and his services came to an end on
non-renewal of contract of employment. It was not asserted
that his services were terminated on the ground of continued
ill-health. Neither services of the claimant were done away
as punishment for a domestic action nor action of the
management falls within the category exempted under
second limb of section 2(oo) of the Act. Thus it is obvious
that termination of services of the claimant, for any other
reason, amounts to retrenchment, as defined by clause
(oo) of section 2 of the Act.
22. The claimant had rendered continuous service
for a period of one year, as contemplated by section 25-B
of the Act. According to him, retrenchment compensation
was not paid, which fact was not dispelled by the
management. The management was under an obligation to
pay him compensation for retrenchment, when his services
were dispensed with. Payment of retrenchment
compensation is a condition precedent to a valid order of
retrenchment. Precedents in Bombay Union of Journalists
(1964 (1) LLJ 351), Adaishwar Laal (1970 Lab.I.C. 936) and
B.M. Gupta (1979 (1) LLJ 168) announce that subseqnet
payment of compensation can not validate an invalid order
of retrenchment.
23. Claimant deposed that his services were
terminated by the management on 31.10.1997 without any
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notice. He further declares that his earned wages for a
period of two months were not paid. Out of facts unfolded
by the claimant, it stand crystallized that neither notice nor
pay in lieu there of nor retrenchment compensation was
paid to him by the management. Therefore, his retrenchment
is violative of the provisions of section 25-F of the Act.
24. Services of the workman were retrenched without
payment of notice pay, and retrenchment compensation. It
is well settled that in a case of wrongful retrenchment,
dismissal or discharge, the normal rule is to award
reinstatement. But where a case falls in any of the exception
to general rule, the industrial adjudicator has discretion to
award reasonable and adequate compensation, in lieu of
re-instatement. Section 11A of the Act vests the industrial
adjudicator with discretionary jurisdiction to give "such
other relief to the workman" in lieu of discharge or dismissal
as the circumstances of the case may require, where for
some valid reasons it considers that reinstatement with or
without conditions will not be fair or proper.
25. In Uma Devi [2006 (4) SCC I] the Apex Court
considered the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be ordered
to be made permanent in their posts, to prevent regular
recruitment to the posts concerned. Catena of decisions
over the subject were considered and the court declined
the submissions of the workman to be made permanent on
the posts which were held by them in temporary or ad-hoc
capacity for a fairly long spell. The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insists on the State making regular
and proper recruitments, and is bound not to
encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment. The
direction to make permanent the distinction between
regularization and making permanent, was not
emphasized here—can only encourage the State, the
model employer, to flout its own rules and would
confer undue benefits on a few at the cost of many
waiting to compete. With respect the directions made
in Piara Singh [1992 (4) SCC 118] is to some extent
inconsistent with the conclusion in para 45 of the
said judgement therein. With great respect, it appears
to us that the last of the directions clearly runs counter
to the constitutional scheme of employment
recognized in the earlier part of the decision. Really,
it cannot be said that this decision has laid down the
law that all ad-hoc, temporary or casual employees
engaged without following a regular recruitment
procedure should be made permanent."
26. In P.Chandra Shekhara Rao and Others [2006 (7)
SCC 488] the Apex Court referred Uma Devi's Case (Supra)
with approval. It also relied the decision in a Uma Rani
[2004(7) SCC 112] and ruled that no regularization is
permissible in exercise of statutory powers conferred in
Article 162 of the Constitution, if the appointments have
been made in contravention of the statutory rules. In
Somveer Singh [2006 (5) SCC 493] the Apex Court ruled
that appointment made without following due procedure
cannot be regularized. In Indian Drugs & Pharmaceuticals
Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law
and announced that the rules of recruitment can not be
relaxed and court can not direct regularisation of temporary
employees dehors the rules, nor can it direct continuation
of service of a temporary employee (whether called a casual,
ad-hoc or daily rated employee) or payment of regular
salaries to them.
27. In Uma Devi (supra) it was laid that "when a
person enters a temporary employment or get engagement
as contractual or casual worker and the engagement is not
based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequence of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed for the post, when an
appointment to the post could be made only by following
a proper procedure or selection in any concerned cases, in
consultation with the public service commission. Therefore,
the theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It cannot also be held that the State held out any promise
while engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also abvious
that the theory cannot be invoked to seek relief of being
made permanent in the post. In view of those precedent
neither continuance nor regularisation of services of the
claimants can be ordered, since it would amount to back
door entry into Government job."
28. The claimant was engaged by the management
dehors the recruitment rules. No evidence has been brought
over the record to project that the management engaged
him through employment exchange or an open recruitment
process. There is complete vacuum of evidence to the effect
that the process through which the claimant was engaged
by the management was made known to public at large, so
that other eligible candidates may offer their candidature
for recruitment. Evidently, it was a back-door entry in
service. His engagement by the management was not in
consonance with the statutory rules. In view of his wrongful
employment, there is no justification for his reinstatement
in the service of the management. In the alternative, this
Tribunal has to award compensation to the workman in
lieu of his reinstatement.
29. No definite yardstick for measuring the quantum
of compensation is available. In S.S. Shetty [1957 (11) LLJ
696] the Apex Court indicated some relevant factors which
an adjudicator has to take into account in computing
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
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compensation in lieu of reinstatement, in the following
words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the emloyer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
Industrial Tribunal in the event of industrial disputes
arising between the parties in future....In computing
the money value of the benefits of reinstatement, the
industrial adjudicator would also have to take into
account the present value of what his salary, benefits
etc. would be till he attained the age of superannuation
and the value of such benefits would have to be
computed as from the date when such reinstatement
was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be to make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con."
30. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, Labour Court,
Jamshedpur (1983) Lab.I.1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz. (i) the back wages
receivable (ii) compensation for deprivation of the job with
future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment (v) capacity of the employer to pay and
the nature of the employer's business (vi) gainful
employment in mitigation of damages; and (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in discretion
of the Tribunal. Reference can be made to Tabesh Process,
Shivakashi (1989 Lab.I.C. 1887).
31. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex
Court took into account countervailing facts that the
employer had paid certain sums to the workmen and her
own earning in the alternative employment and ordered
that "it would be fair and just to direct the appellant a
substantial sum as compensation to her". In Utkal
Machinery Ltd. [1966(1)LLJ 398] the amount of
compensation equivalent to two year salary of the
employee awarded by the Industrial Tribunal was reduced
by the Supreme Court to an amount equivalent to one year
salary of the employee in view of the fact that she had been
in service with the employer only for 5 months and also
took into consideration the unusual manner of her
appointment at the instance of the Chief Minister of the
State. In A.K. Roy [1970(1) LLJ 228] compensation
equivalent to two years salary last drawn by the workmen
was held to be fair and proper to meet the ends of justice.
In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count
converted the award of reinstatment into compensation of
a sum of Rs. 50000/- as just and fair compensation in full
satisfaction of all his claims for wrongful dismissal from
service. In O.P. Bhandari [1986 (II) LLJ 509], the Apex Court
observed that it was a fit case for grant of compensation in
view of reinstatement. The Court awarded compensation
equivalent to 3.33 years salary as reasonable. In M.K.
Aggarwal (1988 Lab.I.C.380), the Apex Court though
confirmed the order of reinstatement yet restricted the back
salary to 50% of what would otherwise be payable to the
employee. In Yashveer Singh (1993 Lb.I.C.44) the court
directed payment of Rs. 75000/- in view of reinstatement
with back wages. In Naval Kishor [1984 (II) LLJ 473] the
Apex Court observed that in view of the special
circumstances of the case adequate compensation would
be in the interest of the appellant. A sum of Rs. 2 lac was
awarded as compensation in lieu of reinstatement. In Sant
Raj [1985 (II) LLJ 19] a sum of Rs. 2 lac was awarded as
compensation in lieu of reinstatement. In Chandu Lal (1985
Lab.I.C.1225) a compensation of Rs. 2 lac by way of back
wages in lieu of reinstatement was awarded. In Ras Bihari
(1988 Lab.I.C.107) a compensation of Rs. 65000/- was
granted in lieu of reinstatement, since the employee was
gainfully employed elsewhere. In V.V. Rao (1991
Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded
in lieu of reinstatement.
32. Claimant rendered one year continuous service
to the management, besides other spells which fell sort of
240 days. He was young man, when he was engaged by
the management. Now, he had crossed maxima of age,
required for recruitment in Government service. He had to
contest the case for a period of more than 15 years to seek
redressal of his grievances. Keeping in view these facts, I
am of the view that an amount of Rs. 30,000.00 as
compensation in lieu of reinstatement in service, besides a
sum of Rs. 25,000.00 as cost of proceedings would be
sufficient to meet the ends of justice. Accordingly the
management is commanded to pay compensation to the
claimant as quantified above, in lieu of reinstatement of his
services, besides cost of proceedings, referred above. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated: 24.10.2013
Dr. R.K. YADAV, Presiding Officer
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699
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New Delhi, the 31st December, 2013
S.O. 269.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 82/
1999) 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 Officer Commanding,
Delhi Cantt, New Delhi and their workman, which was
received by the Central Government on 26/12/2013.
[No. L-14012/56/98-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. I, DELHI
I.D. No. 82/1999
Shri Brahm Dev Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt, New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time, Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Brahm Dev Yadav, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/56/98/IR(DU),
New Delhi, dated 01.03.1999, with following terms:
"Whether action of the management of the Officer
Commanding, 226, COY ASC (Sup.), Type G, Delhi
Cantt., in terminating services of Shri Brahm Dev
Yadav S/o Shri Ram Chander Yadav is legal and
justified? If not, to what relief the workman is
entitled?"
2. Claim statement was filed by Shri Brahm Dev
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of June 1990.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 8 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October, 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross-examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross-examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
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[PART II—SEC. 3(ii)]
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioners
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the
High Court of Delhi, it is expedient to announce
that the management is under an obligation to
produce records relating to attendance of the
claimants while in service of the respondent,
including muster rolls. Resultantly, application is
granted. Management shall produce muster rolls
in respect of the claimants on the next date of
hearing positively."
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October, 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceddings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
¹Hkkx II—[k.M 3(ii)º
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701
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll, and
(g)
Documents of historical and archival value.
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water Account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989, IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.091984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non-production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer [2002 (3) SSC 25]. Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplus age in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
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[PART II—SEC. 3(ii)]
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health."
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under Section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in an
industry for not less than 240 days is to be deemed to
have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not less
than 240 days during period of 12 calendar months
immediately preceding the retrenchment. These provisions
of law do not show that a workman after satisfying the
test under Section 25B has further to show that he has
worked during all the period he has been in the service of
the employer for 240 days in the year."
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
f
¹Hkkx II—[k.M 3(ii)º
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703
workmen has actually worked for 240 days in a calendar.
The explanation appended to section 25-B of the Act
specifically includes the days on which workman was
laid off under an agreement or he has been on leave with
full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May, 1983 to December, 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in September, 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from September, 1997 to October,
1996, September, 1996 to October, 1995, September, 1995
to October, 1994, September, 1994 to October, 1993 and
so on. On careful examination of the attendance registers,
it came to light that Shri Brahm Dev Yadav served for 22
days from September 1997 to October 1996, 89 days from
September 1996 to October 1995, 16 days from September
1995 to October 1994, 137 days from September 1994 to
October 1993, 105 days from September, 1993 to October
1992, 123 days from September 1992 to October 1991, 77
days from September 1991 to October 1990 and 43 days
from September, 1990 to June 1990.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has been
able to project that he rendered continuous service of
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 8 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 8 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove fracts admitted, otherwise than by such
admisssion. While using that discretion, the Tribunal
called upon the claimant to enter the witness box, to
establish that he rendered continuous service for a
period of 240 days in a calender year or every year in
which he served the management. During the course of
testimony, the claimant made a bald assertion to the
effect that he contiuously served the management for a
period of 8 years. No document such as salary slip or
wage receipt or any record or order issued by the
management was brought over the record to substantiate
the factum of contiuous service of 240 days in a
calender year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
704
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
claimant, are not sufficient to discharge the burden
resting on him. Burden to prove that he had rendered
continuous service of 240 days in a calender year lies
on the claimant. To discharge that burden, he had to
lead cogent evidence to show that he had in fact worked
for 240 days in a year preceding his termination. Mere
filing of affidavit or by giving his own statement, was
found not to be enough by the Apex Court, to prove
factum that he had worked with the management for 240
days, in Rajasthan State Ganganagar Mills Ltd. [2004
(103) FLR 192] and Essen Deinki [2003 SC(L&S) 113].
Also see Municipal Corporation, Faridabad [2004 (8) SCC
195] and Reserve Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant
to prove that he worked for 240 days in a calendar with
the management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him
for protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior
to him was retained, when his services were dispensed
with. He also could not highlight that after termination
of his service, management employed some other person
in the category in which he was employed. Therefore,
provisions of section 25-G and 25-H of the Act have no
application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. 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
Dated: 24.10.2013
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New Delhi, the 31st December, 2013
S.O. 270.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 81/1999)
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 Officer Commanding, Delhi
Cantt, New Delhi and their workman, which was received
by the Central Government on 26/12/13.
[No. L-14012/53/98-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. 81/1999
Shri Uday Raj-I,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091
...Workman
Versus
The Officer Commanding,
226, COY, ASC (SUP) Type G,
Delhi Cantt., New Delhi-10
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
¹Hkkx II—[k.M 3(ii)º
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705
Commanding, instead of granting temporary status,
terminated services of Shri Uday Raj-I, engaged as a casual
labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/53/98/IR/(DU), New
Delhi, dated 09.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Uday Raj-I S/o Shri Kedar Nath is
legal and justified? If not, to what relief the workman
is entitled?"
2. Claim statement was filed by Shri Uday Raj-I,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of April' 93. He had
worked for the Officer Commanding in godown or storage
or as watchman for about 5 years. He rendered duties
from 8 a. m. to 5 p.m. He made a demand for regularization
of his services. Instead of regularizing his services, his
services were dispensed with on 31.10.1997 orally, without
giving any notice or pay in lieu thereof and retrenchment
compensation. His wages for the month of September
and October 1997 were also not paid. He claimed
reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the clendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they servved the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scruitiny by the Labour Court and the
petitioner shal also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
706
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Vocher LPG Account from
01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soad Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
31.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for Cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to
30.03.1992, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
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707
from 01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light
that the claimant has nothing to say that the above
records were destroyed by the management. When
claimant does not question the fact that the above records
stood destroyed, facts emerging out of above certificate,
issued by the Board of Officers and counter signed by
the Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer (2002 (3) SSC 25). Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
708
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen,
as enacted by provisions of sub section (1) of section 25B
of the Act. Sub-section (2) of the said section introduces
a fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for
a period of one year or six months, he shall be deemed to
in continuous service for that period under an employer if
he has actually worked for the days specified in clauses
(a) and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C.
1180) it was held that one year's period contemplated by
sub-section (2) furnished a unit of measure and if during
that unit of measure the period of service actually rendered
by the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the
period of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months,
he is deemed to have completed one year's service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if workmen
has actually worked for 240 days in a calendar year. The
explanation appended to section 25-B of the Act
specifically includes the days on which workman was laid
off under an agreement or he has been on leave with full
wages, or he has been absent due to temporary disablement
caused by accident arising out of and in the course of his
employment and in the case of a female, maternity leave,
under the expression 'actually worked' used under sub-
section (2) of section 25-B of the Act. Question for
consideration would be as to whether the words 'actually
worked' would not include holidays, Sundays and
Saturdays for which full wages are paid. The Apex Court
was confronted with such a proposition in American
Express Banking Corporation (1985 (2) LLJ 539), wherein
it was ruled that the expression 'actually worked under the
employer', cannot mean those days only when the workman
worked with hammer, sickle or pen, but must necessarily
comprehend all those days during which he was in the
employment of the employer and for which he had been
paid wages either under express or implied contract of
service or by compulsion of statute, standing orders etc.
The Court ruled that Sundays and other holidays, would
be comprehended in the words 'actually worked' and it
countenanced the contention of the employer that only
days which are mentioned in the explanation should be
taken into account for the purpose of calculating the number
of days on which the workman had actually worked though
he had not so worked and no other days. The Court
observed that the explanation is only clarificatory, as all
explanations are, and cannot be used to limit the expanse
of the main provision. Precedent in Lalappa Lingappa
(1981 (1) LJ 308) was distinguished by the Apex Court in
the case referred above. The precedent was followed in
Standard Motor Products of India Ltd. (1986 (1) LLJ 34).
Thus, it is crystal clear from the law laid above that Sundays
and holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by the
High Court of Delhi. On examination of aforesaid registers,
it came to light that the claimant last served the management
in August 1997. Therefore, for reckoning continuous service
for the period of 240 days in preceding 12 months from the
¹Hkkx II—[k.M 3(ii)º
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709
date when services of the claimant were dispensed with,
the Tribunal had to count service rendered by the claimant
from August 1997 to September 1996, August 1996 to
September 1995, August 1995 to September 1994, August
1994 to September 1993 and so on. On careful examination
of the attendance registers, it came to light that Shri Uday
Raj-I, served for 107 days from August 1997 to September,
1996, 162 days from August 1996 to September 1995, 49
days from August 1995 to September 1994, 171 days from
August 1994 to September, 1993, and 77 days from August
1993 to April 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years he reaches notional figure of 240 days,
to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able
to project that he rendered continuous service to 240 days
to avail benefit of provisions of section 25F of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management denied
that the claimant was engaged at all in service. But in the
subsequent breath, it was pleaded that he was engaged as
a casual employee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 5 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is descretion available to Court/Tribunals to require a
party to prove facts admitted, otherwise then by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to established
that he rendered continuous service for a period of 240
days in a calendar year or every year in which he served
the management. During the course of testimony, the
claimant made a bald assertion to the effect that he
continuously served the management for a period of 5
years. No document such as salary slip or wage receipt or
any record or order issued by the management was brought
over the record to substantiate the factum of continuous
service of 240 days in a calendar year, not to talk of
continuous service of ten years, as claimed. Self-serving
words, detailed by the claimant, are not sufficient to
discharge the burden resting on him. Burden to prove that
he had rendered continuous service of 240 days in a
calendar year lies on the claimant. To discharge that burden,
he had to lead cogent evidence to show that he had in fact
worked for 240 days in a year preceding his termination.
Mere filing of affidavit or by giving his own statement, was
found not to be enough by the Apex Court, to prove
factum that he had worked with the management for 240
days, in Rajasthan Sate Ganganagar Mills Ltd [2004 (103)
FLR 192] and Essen Deinki [2003 SC (L&S) 113]. Also see
Municipal Corporation, Faridabad [2004 (8) SCC 195] and
Reserve Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a calendar
year. No proof of receipt of salary or wages or any record
or order in that regard was produced to establish that he
had rendered continuous service for a period of 240 days
in a calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F
of the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of section
25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 24.10.2013
Dr. R. K. YADAV, Presiding Officer
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710
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
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[lañ ,y&14012@58@98&vkbZvkj¼Mh;w½]
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New Delhi, the 31st December, 2013
S.O. 271.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 80/1999)
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 Officer Commanding, Delhi
Cantt, New Delhi and their workman, which was received
by the Central Government on 26/12/13.
[No. L-14012/58/98-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. 80/1999
Shri Kailash Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Kailash Yadav, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/58/98/IR(DU), New
Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Kailash Yadav, is legal and justified?
If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Kailash Yadav,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of June 1987. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 10 years. He rendered
duties from 8 a. m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the management, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
¹Hkkx II—[k.M 3(ii)º
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711
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
712
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vochers
of Regiment from 01.01.1998 to 31.12.1998, Payment
Voucher Regiment Fund Account from 12.08.1970 to
30.07.2001, Black Cheque Regiment Fund account from
01.04.1976 to 31.03.1992, Red Cheque from 01.04.1973 to
31.03.1992, Payment Voucher CSE from 01.04.1990 to
31.03.2001, Receipt Voucher CSD Canteen from 01.04.1997
to 31.03.2001, CSD Canteen Account Columnar Cash Book
from 01.08.1971 to 31.05.1984, Red Cheque from 01.04.1969
to 31.03.1992, FD Imprest Account 01.09.1984 to 31.08.2001,
Payment Voucher File FD Imprest from 01.01.1984 to
31.03.1992, Payment Voucher Public Fund Accounts from
01.08.1990 to 31.03.1998, Payment Voucher JCO Mess
01.04.1994 to 31.03.1999, Receipt Voucher JCO Mess from
01.04.1995 to 31.03.2001, Receipt Voucher LPG Account
from 01.07.1990 to 31.03.1998, Payment Voucher Soda Water
Account from 01.06.1997 to 31.12.2001, Receipt Voucher
Soda Water account from 01.04.1989 to 31.03.1994.
Payment Voucher RIS Accounts from 01.03.1993 to
01.03.2001, Payment Voucher LPG Payment Accounts from
01.02.1999 to 30.04.2001, Quarterly Surprise Check
Correspondence from 01.10.1988 to 30.06.1989, Postage
Service Level Correspondence from 01.04.1975 to
31.07.1989, Correspondence Files from 01.03.1991 to
31.05.1992, 90% payment—M/s. MS Oberoi & Bros from
01.02.1980 to 15.05.1987, Handling/Taking Over
Correspondence from 15.09.1983 to 30.06.1989, Pay and
Allowance JCOs Correspondence from 21.08.1990 to
15.04.1992, ETG Correspondence from 01.04.1975 to
05.09.1989 IAFA 175 Receipt for cash/Cheque Regiment
Account from 01.01.1962 to 30.03.1977, IAFA 175 Receipt
of cash CSE canteen account from 01.07.1977 to 30.03.1992
IAFA 175 Receipt for Cash/Cheque Public Fund from
10.4.1963 to Novermber 1985, Labour Imprest accounts—
Cash Book from 01.12.1965 to 01.07.1970, Public Fund
Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheuqe from 01.04.1978 to 31.03.1991, IAFA—Red
Cehque 01.01. 1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imprest Account from 01.04.1972
to 31.03.1992, IAFA 176 Black Cheque Public Fund
Accounts from 01.04. 1971 to 31.03. 1992 and IAFA 177
(Red Cheque) Public Fund Accounts from 01.04.1971 to
31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is
concluded that above records were destroyed by the
management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it
is clear that the claimant has nothing to say on the count
of destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed
muster rolls in October 2011 and as such, rightly seeks
exemption from filing those documents for consideration
of this Tribunal. Mere non production of muster rolls for
a particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as
held by the Apex Court in Range Forest Officer (2002 (3)
SSC 25). Since non-production of muster rolls was on
account of destruction of the records, no case has been
shown to the effect that adverse inference may be drawn
against the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
contract of employment between the
¹Hkkx II—[k.M 3(ii)º
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713
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of
sub-section (1) of section 25B of the Act. Sub-section (2)
of the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in a
industry for not less than 240 days is to be deemed to
have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not less
than. 240 days during period of 12 calendar months
immediately preceding the retrenchment. These provisions
of law do not show that a workman after satisfying the
test under Section 25B has further to show that he has
worked during all the period he has been in the service of
the employer for 240 days in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
714
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
The Apex Court was confronted with such a proposition
in American Express Banking (1985 (2) LLJ 539), wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa (1981 (1) LJ 308) was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. (1986 (1) LLJ 34). Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 97 to September
96, August 96 to September 95, August 95 to Septembr
94, August 94 to September 93 and so on. On careful
examination of the attendance registers, it came to light
that Shri Kailash Yadav served for 46 days from August
1997 to September 1996, 79 days from August 1996 to
September 1995, 38 days from August 1995 to September
1994, 164 days from August 1994 to September 1993 and
152 days from August 1993 to September 1992, 99 days
from August 1992 to September 1991, 118 days from
August 1991 to September 1990, 172 from August 1990 to
September 1989, 121 days from August 1989 to September
1988, 110 days from August 1988 to September 1987 and
99 days from August 1987 to January 1987.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has not
been able to project that he rendered continuous service
of 240 days to avail benefit of provisions of section 25F
of the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 10 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded hat he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 10 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is settled proposition of law that facts admitted
by a party need not be proved. However, there is discretion
available to Courts/Tribunals to require a party to prove
facts admitted, otherwise than by such admission. While
using that discretion, the Tribunal called upon the claimant
to enter the witness box, to establish that he rendered
continous service for a period of 240 days in a calendar
year or every year in which he served the management.
During the course of testimony, the claimant made a bald
assertion to the effect that he continuously served the
management for a period of 10 years. No document such
as salary slip or wage receipt or any record or order issued
by the management was brought over the record to
substantiate the factum of continuous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calender year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
proeceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan State
Ganganagar Mills Ltd. (2004 (103) FLR 192) and Essen
Deinki (2003 SC (L&S) 113). Also see Municipal
¹Hkkx II—[k.M 3(ii)º
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715
Corporation, Faridabad (2004 (8) SCC 195) and Reserve
Bank of India (2005 (5) SCC 100).
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to protect that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated : 25.10.2013
Dr. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 272.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 79/1999)
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 Officer Commanding, Delhi Cantt,
New Delhi and their workman, which was received by the
Central Government on 26/12/13.
[No. L-14012/52/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 79/1999
Shri Ram Vilas Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Ram Vilas Yadav, engaged as
a casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-14012/52/98/IR/(DU),
New Delhi, dated 01.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Ram Vilas Yadav is legal and justified?
If not, to what relief the workman is entitled?"
716
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
2. Claim statement was filed by Shri Ram Vilas Yadav,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of June 1992. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 6 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the
parties. However, it has been claimed that the claimant
was engaged as a casual labour. Guidelines for recruitment
of persons on daily wage basis were issued by Central
Government vide office memorandum No. 49014/2/86-
Estt.(C) dated 07.06.1988, which are being followed.
Temporary status would be conferred on a casual labour
when he renders atleast 240 days (206 days in case of
offices observing five day week) continuous service in a
calendar year. Since the claimant had not rendered
continuous service of 240 days in any calendar year, he
was not entitled for grant of temporary status. It was
claimed that his claim statement may be dismissed, being
devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each ofthe 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they servved the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shal also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therin that
the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
¹Hkkx II—[k.M 3(ii)º
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717
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's procedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001, Black
Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Voucher LPG Account from 01.07.1990
to 31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soad Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment M/s. M/S Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt for cash CSE canteen
account from 01.07.1977 to 30.03.1992, IAFA 175 Receipt
for Cash/Cheque Public Fund from 10.04.1963 to November
1985, Labour Imprest accounts - Cash Book from 01.12.1965
to 01.07.1970, Public Fund Account Columnar Cash Book
from 01.03.1956 to 30.09.1984, Regiment Fund Account
Columnar Cash Book from 12.08.1970 to 18.01.1986, CSE
Canteen Account Columnar Cash Book 01.08.1971 to
31.05.1984, IAFA—Black Cheque from 01.04.1978
to31.03.1991, IAFA—Red Cheque 01.01.1977 to 31.03.1991,
IAFA 176 Black Cheque FD Imprest Account from 01.04.1972
to 31.03.1992, IAFA 177—Red Cheque FD Imp Account
from 01.04.1972 to 31.03.1992, IAFA 176 Black Cheque Public
Fund Accounts from 01.04.1971 to 31.03.1992 and IAFA
177 (Red Cheque) Public Fund Accounts from 01.04.1971
to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
718
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592-596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it
is clear that the claimant has nothing to say on the country
of destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed
muster rolls in October 2011 and as such, rightly seeks
exemption from filing those documents for consideration
of this Tribunal. Mere non production of muster rolls for
a particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as
held by the Apex Court in Range Forest Officer (2002 (3)
SSC 25). Since non-production of muster rolls was on
account of destruction of the records, no case has been
shown to the effect that adverse inference may be drawn
against the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. (1979 (I) LLJ 1) and
Mahabir (1979 (II) LLJ 363).
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
¹Hkkx II—[k.M 3(ii)º
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719
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath (1970 (2) LLJ 306), Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
a industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking (1985 (2) LLJ 539), wherein
it was ruled that the expression 'actually worked under
the employer', cannot mean those days only when the
workman worked with hammer, sickle or pen, but must
necessarily comprehend all those days during which he
was in the employment of the employer and for which he
had been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders etc. The Court ruled that Sundays and other
holidays, would be comprehended in the words 'actually
worked' and it countenanced the contention of the
employer that only days which are mentioned in the
explanation should be taken into account for the purpose
of calculating the number of days on which the workman
had actually worked though he had not so worked and
no other days. The Court observed that the explanation
is only clarificatory, as all explanations are, and cannot
be used to limit the expanse of the main provision.
Precedent in Lalappa Lingappa (1981 (1) LJ 308) was
distinguished by the Apex Court in the case referred
above. The precedent was followed in Standard Motor
Products of India Ltd. (1986 (1) LLJ 34). Thus, it is crystal
clear from the law laid above that Sundays and holidays
shall be included in computing continuous service under
section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in July 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from July 1997 to September
1996, July 1996 to July 1995, August 1995 to September
1994, August 1994 to July 1993 and so on. On careful
examination of the attendance registers, it came to light
that Ram Vilas Yadav served for 63 days from July 1997
to August 1996, 26 days from July 1996 to August 1995,
23 days from July 1995 to August 1994, 98 days from July
1994 to August 1993 and 34 days from July 1993 to April
1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none the year he reaches notional figure of 240 days,
to claim continuous service for a period of one year.
720
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Resultantly, it is obvious that the claimant has been able
to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 6 years,
with the management. At the outset the management denied
that the claimant was engaged at ll in service. But in the
subsequent breath, it was pleaded hat he was engaged as
a casucal emplopyee at intermittent periods. However, no
specific denial was made to the effect that the claimant had
not rendered continuous service for a period of 6 years as
claimed by him. Evasive reply given by the management
was not taken as admission of fact by the Tribunal.
22. It is settled proposition of law that facts admitted
by a party need not be proved. However, there is descretion
available to Court/Tribunals to require a party to prove
facts admitted, otherwise bthen by such admission. While
using that discretion, the Tribunal called upon the claimant
to enter the witness box, to establish that he rendered
continuous service for a period of 240 days in a calendar
year or every year in which he served the management.
During the course of testimony, the claimant made a bald
assertion to the effect that he continuously served the
management for a period of 6 years. No document such as
salary slip or wage receipt or any record or order issued
by the management was brought over the record to
substantiate the factum of continuous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calendar year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
preceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan Sate Ganganagar
Mills Ltd (2004 (103) FLR 192 and Essen Deinki (2003 SC
(L&S) 113). Also see municipal Corporation, Faridabad
(2004 (8) SCC 195) and Reserve Bank of India (2005 (5) SCC
100).
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a calendar
year. No proof of receipt of salary or wages or any record
or order in that regard was produced to establish that he
had rendered continuous service for a period of 240 days
in a calendar year. The claimant opted not to examine a co-
worker or to produce any document to contradict facts
recorded in the attendance registers, produced by the
management before the Tribunal. Therefore, it is crystal
clear that the claimant has not been able to prove that he
had rendered continuous service of 240 days in any
calendar year, to entitle him for protection of section 25F
of the Act.
24. Since case of the claimant does not fall within the
four corners of the provisions of section 25-F of the Act,
protection laid therein does not come for his rescue. He
cannot claim that one months' notice or pay in lieu thereof
would have been given before termination of his service.
Right to claim retrenchment compensation has also not
accrued in his favour. No evidence was brought forward
by the claimant to project that a person junior to him was
retained, when his services were dispensed with. He also
could not highlight that after termination of his service,
management employed some other person in the category
in which he was employed. Therefore, provisions of section
25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been brought
over the record. Claimant is not entitled to any relief. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 24.10.2013
Dr. R.K. YADAV, Presiding Officer
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New Delhi, the 31st December, 2013
S.O. 273.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 77/1999)
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 Officer Commanding, Delhi
Cantt, New Delhi and their workman, which was received
by the Central Government on 26/12/2013.
[No. L-42012/51/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
¹Hkkx II—[k.M 3(ii)º
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721
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 77 of 1999
Shri Shiv Kumar Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091.
....Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-110010.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C), dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Ashok Kumar Yadav, engaged
as a casual labour, he raised an industrial dispute before
the Conciliation Officer. Commanding Officer contested
his claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-42012/51/98/IR(DU),
New Delhi, dated 09.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri Shiv Kumar Yadav, S/o Shri Ram
Sakal Yadav is legal and justified? If not, to what
relief the workman is entitled?"
2. Claim statement was filed by Shri Shiv Kumar
Yadav, pleading therein that he was engaged as a casual
labour by Officer Commanding in the month of April 1992.
He had worked for the Officer Commanding in godown or
storage or as watchman for about 6 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C), dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross-examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1 as
evidence. He also faced rigors of cross-examination. No
other witness was examined by either of the parties.
5. After hearing the parties, an award dated 07.05.2004
was handed down by the Tribunal on the strength of
which dispute raised by the claimant, besides disputes of
39 other workmen of his category, was answered against
him. The award was assailed before the High Court of
Delhi by way of writ petition, which came to be disposed
off on 10.05.2013. The High Court remanded the matter
back to this Tribunal for adjudication on the issue as to
whether the claimant had rendered continuous service of
240 days in or any of the clendar years, when he worked
with the management. For sake of convenience, the order
passed by the High Court of is reproduced thus:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to CGIT concerned only for
the limited purpose of examining the records of the
respondent in respect of each of the 35 petitioners herein
to ascertain whether or not they or any of them had served
for 240 days either in the year preceding their termination,
or in any of the years during which they served the
respondent. The said computation shall be made in
accordance with section 25-B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shal also be entitled to inspection of the same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its findings
in respect of each of the 35 petitioners, proceed to pass
consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
722
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying therein
that the respondent may be directed to produce muster
rolls pertaining to the claimant. Notice of the application
is given to Shri Tyagi, who had replied the application
orally. I have gone through the order dated 10.05.2013
passed by the High Court of Delhi, wherein following
directions were issued:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to the CGIT concerned
only for the limited purpose of examining the records
of the respondent in respect of each of the 35
petitioners herein to ascertain whether, or not, they
or any of them had served for 240 days either in the
year preceding their termination, or in any of the
years during which they served the respondent. The
said computation shall be made in accordance with
Section 25B of the Act.
For the said purpose, the respondent shall produce
its records for scrutiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983—1998, claiming that the
same stood destroyed. The management projected that
the muster rolls are no more in their possession, since it
has been destroyed. On account of destruction of muster
rolls, it cannot be produced, pursuant to order dated
5.8.2013, pleads the management. Attendance registers
have been produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep Raj
Saini, authorised representative, advanced arguments on
behalf of the claimant. Shri Brij Bhushan Tyagi, authorized
representative, presented facts on behalf of the
management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the documents
were destroyed by way of burning. Certificate from
Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's procedings were not required as per
para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect form 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001,
Black Cheque Regiment Fund Account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Voucher LPG Account from 01.07.1990
to 31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soad Water
Account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 31.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment—M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for Cash/Cheque Regiment Account from
01.01.1962 to 30.03.1977, IAFA 175 Receipt of cash CSE
¹Hkkx II—[k.M 3(ii)º
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723
canteen account from 01.07.1977 to 30.03.1992, IAFA 175
Receipt for Cash/Cheque Public Fund from 10.04.1963 to
November 1985, Labour Imprest accounts - Cash Book
from 01.12.1965 to 01.07.1970, Public Fund Account
Columnar Cash Book from 01.03.1956 to 30.09.1984,
Regiment Fund Account Columnar Cash Book from
12.08.1970 to 18.01.1986, CSE Canteen Account Columnar
Cash Book 01.08.1971 to 31.05.1984, IAFA—Black Cheque
from 01.04.1978 to31.03.1991, IAFA—Red Cheque
01.01.1977 to 31.03.1991, IAFA 176 Black Cheque FD Imprest
Account from 01.04.1972 to 31.03.1992, IAFA 177—Red
Cheque FD Imp Account from 01.04.1972 to 31.03.1992,
IAFA 176 Black Cheque Public Fund Accounts from
01.04.1971 to 31.03.1992 and IAFA 177 (Red Cheque) Public
Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial documents,
are to be retained for a period of ten years only. Shri Tyagi
presents that muster rolls, for the periods for which the
claimant worked with the management, were more than ten
years old in October 2011, hence were destroyed as per
para 592—596 of Regulation for the Army. Shri Saini opted
not to raise an eyebrow on the proposition that the muster
rolls, kept as payment vouchers, were destroyed. Thus it
is clear that the claimant has nothing to say on the count
of destruction of muster rolls by the management. Therefore,
it is crystal clear that the management had destroyed
muster rolls in October 2011 and as such, rightly seeks
exemption from filing those documents for consideration
of this Tribunal. Mere non-production of muster rolls for
a particular period per se without any plea of suppression
by the claimant will not be a ground for the Tribunal to
draw an adverse inference against the management, as
held by the Apex Court in Range Forest Officer [2002 (3)
SSC 25]. Since non-production of muster rolls was on
account of destruction of the records, no case has been
shown to the effect that adverse inference may be drawn
against the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
(bb)
termination of the services of the workman as a
result of the non-renewal of the contract of
employment between the employer and the
workman concerned on its expiry or of such
contract being terminated under a stipulation in
that behalf contained therein; or
(c)
termination of the services of a workman on the
ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further excludes
(i) voluntary retirement of the workman, or (ii) retirement
of workman on reaching the age of superannuation, or (iii)
termination of the service of a workman as a result of non-
renewal of contract of employment, or (iv) termination of
contract of employment in terms of a stipulation contained
in the contract of employment in that behalf, or (v)
termination of service on the ground of continued ill health
of the workman. Reference can be made to the precedents
in Avon Services (Production Agencies) (Pvt.) Ltd. [1979
(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions pre-
requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
724
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to 15
days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout of
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in an
industry for not less than 240 days is to be deemed to
have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not less
than 240 days during period of 12 calendar months
immediately preceding the retrenchment. These provisions
of law do not show that a workman after satisfying the
test under Section 25B has further to show that he has
worked during all the period he has been in the service of
the employer for 240 days in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539], wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
¹Hkkx II—[k.M 3(ii)º
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725
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On examination of aforesaid
registers, it came to light that the claimant last served the
management in August 1997. Therefore, for reckoning
continuous service for the period of 240 days in preceding
12 months from the date when services of the claimant
were dispensed with, the Tribunal had to count service
rendered by the claimant from August 1997 to September
1996, August 1996 to September 1995, August 1995 to
August 1994, August 1994 to September 1993 and so on.
On careful examination of the attendance registers, it came
to light that Shri Shiv Kumar Yadav served for 110 days
from August 1997 to September 1996, 115 days from
August 1996 to September 1995, 43 days from August
1995 to September 1994, 150 days from August 1994 to
Setpember 1993, 133 days from August1993 to September
1992, 69 days from August 1992 to September 1991.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days, to claim continuous service for a period of one
year. Resultantly, it is obvious that the claimant has been
able to project that he rendered continuous service to
240 days to avail benefit of provisions of section 25F of
the Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 6 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded hat he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 6 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240
days in a calender year or every year in which he served
the management. During the couse of testimony, the
claimant made a bald assertion to the effect that he
countinously served the management for a period of
6 years. No document such as salary slip or wage receipt
or any record or order issued by the management was
brought over the record to substantiate the factum of
continuous service of 240 days in a calendar year, not to
talk of continuous service of ten years, as claimed. Self-
serving words, detailed by the claimant, are not sufficient
to discharge the burden resting on him. Burden to prove
that he had rendered continuous service of 240 days in a
calender year lies on the claimant. To discharge that
burden, he had to lead cogent evidence to show that he
had in fact worked for 240 days in a year preceding his
termination. Mere filing of affidavit or by giving his own
statement, was found not to be enough by the Apex Court,
to prove factum that he had worked with the management
for 240 days, in Rajasthan State Ganganagar Mills Ltd.
[2004 (103) FLR 192] and Essen Deinki [2003 SC (L&S)
113]. Also see Municipal Corporation, Faridabad [2004
(8) SCC 195] and Reserve Bank of India [2005 (5) SCC
100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months' notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person jurior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated : 24.10.2013
Dr. R.K. YADAV, Presiding Officer
726
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 31st December, 2013
S.O. 274.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 78/1999)
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 Officer Commanding, Delhi
Cantt, New Delhi and their workman, which was received
by the Central Government on 26/12/13.
[No. L-42012/50/98-IR(DU)]
P. K. VANUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 78/1999
Shri Suresh Yadav,
C/o Sh. M.A. Khan, 5/385,
Trilokpuri, Delhi-110091
...Workman
Versus
The Officer Commanding,
226, COY ASC (SUP) Type G,
Delhi Cantt., New Delhi-10.
...Management
AWARD
Casual labours were engaged by the Officer
Commanding, 226, COY, Army Supply Corps, Delhi Cantt.,
New Delhi, from time to time. Casual labour, who rendered
atleast 240 days (206 days in the case of offices observing
five day week), is to be granted temporary status in view
of office memorandum No. 49014/2/86-Estt(C) dated
07.06.1988. Subsequently, a scheme for grant of temporary
status was formulated, which is known as 'Casual
Labourers (Grant of Temporary Status and Regularization)
Scheme of Government of India, 1993'. When Officer
Commanding, instead of granting temporary status,
terminated services of Shri Suresh Yadav, engaged as a
casual labour, he raised an industrial dispute before the
Conciliation Officer. Commanding Officer contested his
claim, as such conciliation proceedings failed. On
submission of failure report, the appropriate Government
formed an opinion that an industrial dispute was in
existence and referred that dispute to this Tribunal for
adjudication, vide order No. L-42012/50/98/IR(DU),
New Delhi, dated 9.03.1999, with following terms:
"Whether action of Officer Commanding, 226, COY
ASC (Sup.), Type G, Delhi Cantt., in terminating
services of Shri SureshYadav is legal and justified?
If not, to what relief the workman is entitled?"
2. Claim statement was filed by Shri Suresh Yadav,
pleading therein that he was engaged as a casual labour
by Officer Commanding in the month of March 1993. He
had worked for the Officer Commanding in godown or
storage or as watchman for about 5 years. He rendered
duties from 8 a.m. to 5 p.m. He made a demand for
regularization of his services. Instead of regularizing his
services, his services were dispensed with on 31.10.1997
orally, without giving any notice or pay in lieu thereof
and retrenchment compensation. His wages for the month
of September and October 1997 were also not paid. He
claimed reinstatement in service of the mangement, with
continuity and full back wages.
3. Claim was demurred by and on behalf of the
Commanding Officer, pleading that there existed no
relationship of employer and employee between the parties.
However, it has been claimed that the claimant was engaged
as a casual labour. Guidelines for recruitment of persons
on daily wage basis were issued by Central Government
vide office memorandum No. 49014/2/86-Estt.(C) dated
07.06.1988, which are being followed. Temporary status
would be conferred on a casual labour when he renders
atleast 240 days (206 days in case of offices observing five
day week) continuous service in a calendar year. Since the
claimant had not rendered continuous service of 240 days
in any calendar year, he was not entitled for grant of
temporary status. It was claimed that his claim statement
may be dismissed, being devoid of merits.
4. Claimant tenders his affidavit Ex. WW 1/1 as
evidence. He faced rigors of cross examination also. Col.
Konical Satish Kumar tendered his affidavit Ex. MW 1/1
as evidence. He also faced rigors of cross examination.
No other witness was examined by either of the parties.
5. After hearing the parties, an award dated
07.05.2004 was handed down by the Tribunal on the
strength of which dispute raised by the claimant, besides
disputes of 39 other workmen of his category, was
answered against him. The award was assailed before
the High Court of Delhi by way of writ petition, which
came to be disposed off on 10.05.2013. The High Court
remanded the matter back to this Tribunal for adjudication
on the issue as to whether the claimant had rendered
continuous service of 240 days in or any of the calendar
years, when he worked with the management. For sake of
¹Hkkx II—[k.M 3(ii)º
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727
convenience, the order passed by the High Court of is
reproduced thus:
"In the light of the aforesaid dispute, I am inclined to
remand the reference back to CGIT concerned only
for the limited purpose of examining the records of
the respondent in respect of each of the 35 petitioner
herein to ascertain whether or not they or any of
them had served for 240 days either in the year
preceding their termination, or in any of the years
during which they served the respondent. The said
computation shall be made in accordance with section
25-B of the Act.
For the said purpose, the respondent shall produce
its records for scruitiny by the Labour Court and the
petitioner shall also be entitled to inspection of the
same.
It is made clear that no other issue shall be permitted
to be raised by either of the parties.
The impugned Award is set aside to the aforesaid
extent only and the CGIT shall, after recording its
findings in respect of each of the 35 petitioners,
proceed to pass consequential orders."
6. When matter was taken up for consideration by
the Tribunal, after its remittance by the High Court, an
application was moved by and on behalf of the claimant
seeking production of muster rolls. The application was
disposed off vide order dated 05.08.2013, directing the
management to produce muster rolls in respect of the
claimant before the Tribunal. For convenience, said order
is reproduced thus:
"Shri Saini moves an application praying there in
that the respondent may be directed to produce
muster rolls pertaining to the claimant. Notice of the
application is given to Shri Tyagi, who had replied
the application orally. I have gone through the order
dated 10.05.2013 passed by the High Court of Delhi,
wherein following directions were issued:
"In the light of the aforesaid dispute, I am inclined
to remand the reference back to the CGIT
concerned only for the limited purpose of
examining the records of the respondent in respect
of each of the 35 petitioners herein to ascertain
whether, or not, they or any of them had served
for 240 days either in the year preceding their
termination, or in any of the years during which
they served the respondent. The said computation
shall be made in accordance with Section 25B of
the Act.
For the said purpose, the respondent shall
produce its records for scrutiny by the Labour
Court and the petitioner shall also be entitled to
inspection of the same."
In the light of the above orders passed by the High
Court of Delhi, it is expedient to announce that the
management is under an obligation to produce
records relating to attendance of the claimants while
in service of the respondent, including muster rolls.
Resultantly, application is granted. Management shall
produce muster rolls in respect of the claimants on
the next date of hearing positively".
7. Instead of producing muster rolls, management
moved an application seeking exemption from filing the
muster rolls for the year 1983-1998, claiming that the same
stood destroyed. The management projected that the
muster rolls are no more in their possession, since it has
been destroyed. On account of destruction of muster rolls,
it cannot be produced, pursuant to order dated 5.8.2013,
pleads the management. Attendance registers have been
produced, claims the management.
8. Arguments were heard at the bar. Shri Sudeep
Raj Saini, authorised representative, advanced arguments
on behalf of the claimant. Shri Brij Bhushan Tyagi,
authorized representative, presented facts on behalf of
the management. 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:—
9. At the outset, Shri Tyagi argued that muster rolls
have been destroyed pursuant to decision taken by Board
of Officers in October 2011. In support of his contention,
he had filed photocopies of the documents relating to
meetings of Board of Officers, wherein decision for
destruction of the documents was taken and the
documents were destroyed by way of burning. Certificate
from Commandant, 226 Company ASC, has been annexed
wherein it has been certified that the documents/files
mentioned in Board's proceedings were not required as
per para 592 of Regulation for the Army, 1987 and were
recommended for destruction. A declaration to that effect
was issued by the Commandant wherein he has declared
that the documents, which were to be destroyed, do not
contain any paper on following subjects:
(a)
Papers containing decision on important matters
of departmental policy,
(b)
Maps and plans relating to operation,
(c)
Office Orders,
(d)
War diaries,
(e)
Financial documents (to be retained for 10
years),
(f)
Regiment long roll and
(g)
Documents of historical and archival value
10. Certificate issued by the Board of Officers,
counter signed by the Commandant, 226 Company ASC,
728
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
has also been annexed. It has been certified therein that
old records have been destroyed by way of burning with
effect from 15.10.2011 and subsequent dates. Records,
which have been burnt, pertain to Payment VR Supply &
Services from 01.02.1971 to 31.12.2000, Payment Vouchers
of Regiment from 01.01.1998 to 31.12.1998, Payment Voucher
Regiment Fund Account from 12.08.1970 to 30.07.2001,
Black Cheque Regiment Fund account from 01.04.1976 to
31.03.1992, Red Cheque from 01.04.1973 to 31.03.1992,
Payment Voucher CSE from 01.04.1990 to 31.03.2001, Receipt
Voucher CSD Canteen from 01.04.1997 to 31.03.2001, CSD
Canteen Account Columnar Cash Book from 01.08.1971 to
31.05.1984, Red Cheque from 01.04.1969 to 31.03.1992, FD
Imprest Account 01.09.1984 to 31.08.2001, Payment Voucher
File FD Imprest from 01.01.1984 to 31.03.1992, Payment
Voucher Public Fund Accounts from 01.08.1990 to
31.03.1998, Payment Voucher JCO Mess 01.04.1994 to
31.03.1999, Receipt Voucher JCO Mess from 01.04.1995 to
31.03.2001, Receipt Voucher LPG Account from 01.07.1990
to 31.03.1998, Payment Voucher Soda Water Account from
01.06.1997 to 31.12.2001, Receipt Voucher Soad Water
account from 01.04.1989 to 31.03.1994. Payment Voucher
RIS Accounts from 01.03.1993 to 01.03.2001, Payment
Voucher LPG Payment Accounts from 01.02.1999 to
30.04.2001, Quarterly Surprise Check Correspondence from
01.10.1988 to 30.06.1989, Postage Service Level
Correspondence from 01.04.1975 to 31.07.1989,
Correspondence Files from 01.03.1991 to 31.05.1992, 90%
payment M/s. MS Oberoi & Bros from 01.02.1980 to
15.05.1987, Handling/Taking Over Correspondence from
15.09.1983 to 30.06.1989, Pay and Allowance JCOs
Correspondence from 21.08.1990 to to 15.04.1992, ETG
Correspondence from 01.04.1975 to 05.09.1989 IAFA 175
Receipt for cash/Cheque Regiment Account from 01.01.1962
to 30.03.1977, IAFA 175 Receipt for Cash/Cheque Public
Fund from 10.04.1963 to November 1985, Labour Imprest
accounts - Cash Book from 01.12.1965 to 01.07.1970, Public
Fund Account Columnar Cash Book from 01.03.1956 to
30.09.1984, Regiment Fund Account Columnar Cash Book
from 12.08.1970 to 18.01.1986, CSE Canteen Account
Columnar Cash Book 01.08.1971 to 31.05.1984, IAFA—
Black Cheque from 01.04.1978 to31.03.1991, IAFA—Red
Cheque 01.01.1977 to 31.03.1991, IAFA 176 Black Cheque
FD Imprest Account from 01.04.1972 to 31.03.1992, IAFA
177—Red Cheque FD Imp Account from 01.04.1972 to
31.03.1992, IAFA 176 Black Cheque Public Fund Accounts
from 01.04.1971 to 31.03.1992 and IAFA 177 (red Cheque)
Public Fund Accounts from 01.04.1971 to 31.03.1992.
11. During the course of arguments Shri Saini opted
not to comment anything on the proposition as to whether
above records were destroyed or not. It came to light that
the claimant has nothing to say that the above records
were destroyed by the management. When claimant does
not question the fact that the above records stood
destroyed, facts emerging out of above certificate, issued
by the Board of Officers and counter signed by the
Commandant, are to be accepted. Resultantly, it is concluded
that above records were destroyed by the management.
12. A claim has been made by the management that
muster rolls were records of payment and hence kept as
payment vouchers. Muster rolls, being financial
documents, are to be retained for a period of ten years
only. Shri Tyagi presents that muster rolls, for the periods
for which the claimant worked with the management, were
more than ten years old in October 2011, hence were
destroyed as per para 592-596 of Regulation for the Army.
Shri Saini opted not to raise an eyebrow on the
proposition that the muster rolls, kept as payment
vouchers, were destroyed. Thus it is clear that the
claimant has nothing to say on the count of destruction
of muster rolls by the management. Therefore, it is crystal
clear that the management had destroyed muster rolls in
October 2011 and as such, rightly seeks exemption from
filing those documents for consideration of this Tribunal.
Mere non production of muster rolls for a particular period
per se without any plea of suppression by the claimant
will not be a ground for the Tribunal to draw an adverse
inference against the management, as held by the Apex
Court in Range Forest Officer (2002 (3) SSC 25). Since
non-production of muster rolls was on account of
destruction of the records, no case has been shown to
the effect that adverse inference may be drawn against
the management.
13. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Industrial Disputes
Act, 1947 (in short the Act) defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching the
age of superannuation if the contract of
employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the workman
as a result of the non-renewal of the
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729
contract of employment between the
employer and the workman concerned on
its expiry or of such contract being
terminated under a stipulation in that
behalf contained therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
14. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
15. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years' service
or any part thereof provided it exceeds six
months.
(v)
The notice is also given to the appropriate
Government.
16. For seeking protection under section 25-F of the
Act an employee should be in continuous service under
an employer for not less than one year. Continuous service
for a period of one year may include period of interruption
on account of sickness or authorized leave or accident or
strike, which is not illegal or lockout of cessation of work
which is not due to any fault on the part of the workmen,
as enacted by provisions of sub section (1) of section 25B
of the Act. Sub-section (2) of the said section introduces
a fiction to the effect that even if a workman is not in
"continuous service" within the meaning of clause (1) for
a period of one year or six months, he shall be deemed to
in continuous service for that period under an employer if
he has actually worked for the days specified in clauses
(a) and (b) thereof. In Vijay Kumar Majoo (1968 Lab. I.C.
1180) it was held that one year's period contemplated by
sub-section (2) furnished a unit of measure and if during
that unit of measure the period of service actually rendered
by the workman is 240 days, then he can be considered to
have rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of one
year a person had put in at least 240 days of service, then
he must get the benefit conferred by the Act. Consequently,
an enquiry has to be made to find out whether the workman
actually worked for not less than 240 days during the
period of 12 calendar months immediately preceding the
retrenchment.
17. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders
continuous service of not less than 240 days in 12 calendar
months, he is deemed to have completed one year's
service in the industry. It would be expedient to reproduce
observations made by the Apex Court in that regard, which
are extracted thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in a industry for not less than 240 days is to be
deemed to have completed One year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25B has further to show that he has worked
during all the period he has been in the service of
the employer for 240 days in the year".
18. Interruption of service occurred during the
course of job has to be included in uninterrupted services.
Fiction under section 25-B of the Act will operate if
workmen has actually worked for 240 days in a calendar
year. The explanation appended to section 25-B of the
Act specifically includes the days on which workman
was laid off under an agreement or he has been on leave
with full wages, or he has been absent due to temporary
disablement caused by accident arising out of and in the
course of his employment and in the case of a female,
maternity leave, under the expression 'actually worked'
used under sub-section (2) of section 25-B of the Act.
Question for consideration would be as to whether the
words 'actually worked' would not include holidays,
Sundays and Saturdays for which full wages are paid.
730
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
The Apex Court was confronted with such a proposition
in American Express Banking Corporation [1985 (2) LLJ
539]22, wherein it was ruled that the expression 'actually
worked under the employer', cannot mean those days
only when the workman worked with hammer, sickle or
pen, but must necessarily comprehend all those days
during which he was in the employment of the employer
and for which he had been paid wages either under
express or implied contract of service or by compulsion
of statute, standing orders etc. The Court ruled that
Sundays and other holidays, would be comprehended in
the words 'actually worked' and it countenanced the
contention of the employer that only days which are
mentioned in the explanation should be taken into account
for the purpose of calculating the number of days on
which the workman had actually worked though he had
not so worked and no other days. The Court observed
that the explanation is only clarificatory, as all explanations
are, and cannot be used to limit the expanse of the main
provision. Precedent in Lalappa Lingappa [1981 (1) LJ
308] was distinguished by the Apex Court in the case
referred above. The precedent was followed in Standard
Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is
crystal clear from the law laid above that Sundays and
holidays shall be included in computing continuous
service under section 25-B of the Act.
19. The Tribunal has been saddled with a
responsibility to scrutinize the records of the management
to ascertain as to whether the claimant had rendered
continuous service of 240 days in any calendar year.
Pursuant to the directions, the management had filed
attendance registers from May 1983 to December 1998,
wherein attendance of the claimant has been recorded.
Attendance recorded in the registers have been checked
and verified by the Officer Commanding, who had given
certificate that the attendance recorded in the registers
were verified with the muster rolls and thereafter payments
were released in favour of the casual workers. Registers,
so produced, are documents which the Tribunal is
supposed to examine in the light of missives given by
the High Court of Delhi. On careful examination of
aforesaid registers, it came to light that the claimant last
served the management in August 1997. Therefore, for
reckoning continuous service for the period of 240 days
in preceding 12 months from the date when services of
the claimant were dispensed with, the Tribunal had to
count service rendered by the claimant from August 97
to September 96, August, 96 to September 95 August 95
to September 94, August 94 to September 93 and so on.
On careful examination of the attendance registers, it came
to light that Shri Suresh Yadav, served for 112 days from
August 1997 to Septembr 1996, 43 days from August 1996
to September 1995, 43 days from August 1995 to
September 1994, 139 days from August 1994 to September
1993, 70 days from August 1993 to April, 1993.
20. Period of service rendered by the claimant, as
detailed above, nowhere includes Sundays and holidays.
In a year, an employee may get 52 weekly offs, besides
three national holidays. In case 52 weekly offs and three
national holidays are added to the periods referred above,
in none of the years, he reaches notional figure of 240
days to claim continuous service for a period of one year.
Resultantly, it is obvious that the claimant has been able
to project that he rendered continuous service to 240
days to avail benefit of provisions of section 25F of the
Act.
21. In the claim statement, it has been pleaded that
the claimant continuously worked for a period of 5 years,
with the management. At the outset the management
denied that the claimant was engaged at all in service.
But in the subsequent breath, it was pleaded that he was
engaged as a casual employee at intermittent periods.
However, no specific denial was made to the effect that
the claimant had not rendered continuous service for a
period of 5 years as claimed by him. Evasive reply given
by the management was not taken as admission of fact
by the Tribunal.
22. It is a settled proposition of law that facts
admitted by a party need not be proved. However, there
is discretion available to Courts/Tribunals to require a
party to prove facts admitted, otherwise than by such
admission. While using that discretion, the Tribunal called
upon the claimant to enter the witness box, to establish
that he rendered continous service for a period of 240 days
in a calendar year or every year in which he served the
management. During the course of testimony, the claimant
made a bald assertion to the effect that he continuously
served the management for a period of 5 years. No document
such as salary slip or wage receipt or any record or order
issued by the management was brought over the record to
substantiate the factum of continous service of 240 days
in a calendar year, not to talk of continuous service of ten
years, as claimed. Self-serving words, detailed by the
claimant, are not sufficient to discharge the burden resting
on him. Burden to prove that he had rendered continuous
service of 240 days in a calendar year lies on the claimant.
To discharge that burden, he had to lead cogent evidence
to show that he had in fact worked for 240 days in a year
preceding his termination. Mere filing of affidavit or by
giving his own statement, was found not to be enough by
the Apex Court, to prove factum that he had worked with
the management for 240 days, in Rajasthan State
Ganganagar Mills Ltd [2004 (103) FLR 192] and Essen
Deinki [2003 SC (L&S) 113]. Also see Municipal
Corporation, Faridabad [2004 (8) SCC 195] and reserve
Bank of India [2005 (5) SCC 100].
23. In such a situation, onus lies on the claimant to
prove that he worked for 240 days in a calendar with the
management. To discharge that onus, apart from oral
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
731
evidence, claimant had not produced any evidence to
prove the fact that he had worked for 240 days in a
calendar year. No proof of receipt of salary or wages or
any record or order in that regard was produced to
establish that he had rendered continuous service for a
period of 240 days in a calendar year. The claimant opted
not to examine a co-worker or to produce any document
to contradict facts recorded in the attendance registers,
produced by the management before the Tribunal.
Therefore, it is crystal clear that the claimant has not
been able to prove that he had rendered continuous
service of 240 days in any calendar year, to entitle him for
protection of section 25F of the Act.
24. Since case of the claimant does not fall within
the four corners of the provisions of section 25-F of the
Act, protection laid therein does not come for his rescue.
He cannot claim that one months notice or pay in lieu
thereof would have been given before termination of his
service. Right to claim retrenchment compensation has
also not accrued in his favour. No evidence was brought
forward by the claimant to project that a person junior to
him was retained, when his services were dispensed with.
He also could not highlight that after termination of his
service, management employed some other person in the
category in which he was employed. Therefore, provisions
of section 25-G and 25-H of the Act have no application.
25. In view of the reasons detailed above, it is
concluded that action of the management in terminating
services of the claimant is in consonance with provisions
of the Act. No illegality or unjustifiability has been
brought over the record. Claimant is not entitled to any
relief. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated : 25.10.2013
Dr. R.K. YADAV, Presiding Officer
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New Delhi, the 3rd January, 2014
S.O. 275.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 3/2011) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Chennai as shown in the Annexure in the industrial
dispute between the management of Indian Bank and their
workmen, received by the Central Government on
01/01/2014.
[No. L-12011/43/2010-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 19th November, 2013
Present: K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 3 of 2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947 (14 of
1947), between the Management of Indian Bank and their
workman)
BETWEEN
The General Secretary
:
1st Party/Petitioner Union
Indian Bank Employees'
Association
No. 17, Ameerjan Street
Choolaimedu,
Chennai-600094
AND
The General Manager/HR :
2nd Party/Respondent
Indian Bank Head Office
No. 66, Rajaji Salai,
Chennai-600001
Appearance:
For the 1st Party/Petitioner : M/s V. Ajoy Khose,
Union
S. Manogaran, Advocates
For the 2nd Party/
: M/s T.S. Gopalan &
Management
Co., Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/43/2010-IR
(B-II), dated 09.12.2010 referred the following Industrial
Dispute to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Indian
Bank, Chennai in imposing the punishment of
Compulsory Retirement from services upon Sri S.
Ezhumalai, an ex-Sub-Staff of the Thirupukuzhi
Branch, Kancheepuram Circle 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 3/2011 and issued notices
732
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
to both sides. The First Party has entered appearance
through its Authorized Representative and the Second
Party through its counsel and filed their claim and counter
statement respectively.
3. The averments in the Claim Petition in brief are
these:
The First Party is a Union registered under the Trade
Union Act and has substantial following among the
workmen in the Second Party Bank. It takes up
genuine grievances of its members who are working
in the Second Party Bank. Ezhumalai, a member of
the First Party was working as Sub-Staff in
Thiruppukuzhi branch of the Second Party. He was
honest and sincere in work. The Second Party had
issued Show Cause Notice to Ezhumalai on 20.11.2006.
In the Show Cause Notice it was alleged that he had
committed irregularity relating to withdrawal of
Rs. 5,700/- from the SB Account in the name of one
Janakiraman. A cheque dated 07.07.2006 favouring
one Kumar for Rs. 5,700/- was presented at the bank
on 07.07.2006 and payment was obtained. The Show
Cause Notice stated that Ezhumalai had issued token
to the payee and informed both the Cashier who
debited the cheque and the Passing Officer that the
payee was known to him and accordingly the
instrument was handled for debiting the SB Account
and for passing for cash payment. Subsequently, it
is said to have been noticed that the account holder
had not issued the cheque at all. Elumalai, the Sub-
Staff was alleged to have committed misconduct as
per the Memorandum of Settlement in between the
Second Party Bank and the Employees. In fact the
bearer of the cheque has presented it for payment.
Ezhumalai, the concerned worker has handed over
the cheque to the Cahsier for debiting the instrument.
The Passing Officer passed the instrument after
verifying the signature. The concerned worker has
not committed any misconduct. On the basis of
charge framed against the concerned worker, a
domestic enquiry was conducted. The Enquiry
Officer has found him guilty of the charge. The
Disciplinary Authority, by its letter dated 06.09.2007
has imposed the major punishment of Compulsory
Retirement on the concerned worker. The punishment
is not justified in the absence of any misconduct on
the part of the concerned worker. The Respondent
shall be directed to reinstate him with back wages
and other benefits.
4. The Respondent has filed Counter Statement
contending as follows:
The concerned workman, Ezhumalai was working as
Sub-Staff in Thiruppukuzhi Branch of the Second
Party Bank. On 07.07.2006 by 01.20 PM, one V. Kumar
had presented a cheque for Rs. 5,700/- drawn on the
account of Janakiraman. The concerned workman
had issued token to the person who presented the
cheque. He has told the counter clerk and the Cheque
Passing Officer that the payee was a mechanic. Based
on this identification the Counter Clerk has made
entry in the relevant account and the Passing Officer
has passed the instrument without verifying the
signature. The person who was identified by the
concerned workman collected the amount as per the
cheque. Sometime later, the Passing Officer grew
suspicious. On enquiry he found that a person as
named in the cheque did not exist. On further enquiry
it was found that the account holder had given the
cheque book renewal slip on 30.06.2006, that the
cheque book was taken from the staff by the SB
Officer on that day and was kept under his control.
The account holder had taken delivery of the book
only on 05.07.2006. The concerned workman was
found to have been in the house of the account holder
and asked him to collect the cheque book from the
branch. The account holder denied to have given
cheque for Rs. 5,700/- favouring V. Kumar. The
Vigilance Officer had enquired into the incident and
had submitted a report on 08.07.2006. A Show Cause
Notice has been issued to the concerned worker
regarding the incident. The reply given by him was
not satisfactory. Charge Sheet was issued to the
concerned workman and a domestic enquiry was
conducted into the charges framed against him. On
the basis of the enquiry report, the punishment of
Compulsory Retirement from service was imposed
on the concerned worker. The First Party is not
entitled to any relief.
5. After the Second Party has filed counter
statement, the First Party has filed rejoinder which is
mostly a repetition of the Claim Statement.
6. The evidence in the case consist of the
documents marked as Exs. W1 to Ex. W17 and Exs. M1 to
Ex. M33. No oral evidence was adduced by either side.
7. The Points for consideration are:
(i)
Whether the Second Party is justified in
imposing the punishment of compulsory
Retirement from service on Ezhumalai, the
concerned Sub-Staff?
(ii)
What is the relief if any to which the
workman is entitled?
The Points
8. Ezhumalai, the concerned worker was admittedly
working as Sub-Staff in Thiruppukuzhi branch of the
Second Party on 07.07.2006, the date of the alleged
incident resulting in the imposing of punishment of
Compulsory retirement on him. On this date, admittedly,
one V. Kumar had presented a cheque for Rs. 5,700/-
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
733
drawn on the SB Account of one S. Janakiraman.
Ezhumalai, the concerned worker had admittedly issued
token to the person who presented the cheque. The
Counter Clerk had debited the cheque and the Passing
Officer had passed the cheque for payment also. After
the payee had left the bank, the Counter Clerk felt
suspicious, informed the Passing Officer about the
suspicion on the cheque and made enquiry about the
payee. The payee could not be traced. On enquiry with
Janakiraman, the account holder, it was revealed that he
had not issued any cheque in favour of one Kumar at all.
According to the Second Party, the concerned worker is
the one who issued token to the person who presented
the cheque at the bank. More than this, the concerned
worker represented to the Counter Clerk and also the
Passing Officer that the payee is a mechanic and is
known to him. According to the Second Party it was on
the basis of this identification made by the concerned
workman the cheque happened to be passed and amount
happened to be paid to Kumar without verification of the
signature in the cheque. It is alleged that the appraiser
of the Bank had seen the concerned worker talking to the
payee outside the premises of the Bank also. This has
resulted in issuing a Show Cause Notice to the concerned
workman, framing a charge against him and holding an
enquiry the result of which went against him. The
concerned worker was made to retire from service
prematurely on the basis of the finding in the domestic
enquiry. The First Party had raised an Industrial Dispute
against this.
9. There is no contention for the parties that the
departmental enquiry was not conducted in a fair and
proper manner. Both sides are relying upon the enquiry
file mainly, to project their respective cases.
10. The enquiry proceedings is marked as Ex. M9.
The first witness in the enquiry proceedings is the
Vigilance Officer who had conducted a preliminary enquiry
regarding the incident. The report given by this witness
is marked as Ex. M21. The Vigilance Officer seems to
have questioned the Clerk who had debited the account,
the Asstt. Manager who had passed the cheque for
payment, the appraiser of the Bank, the Branch Manager
and also Janakiraman, the account holder. On the basis
of the enquiry, the Vigilance Officer had reported that the
needle of suspicion is directed at the concerned worker.
In his report he has stated that the account holder had
told him that he had not used any of the leaves of the
cheque book containing the cheque that was encashed
by Kumar. He has further reported that the involvement
of the concerned worker is seen in issuing of token and
telling the debiting staff and the Passing Official about
the payee being a mechanic and a known person. He had
also reported that the concerned worker is known to
have gone to the place of the account holder and informed
about the readiness of the new Cheque Book. He noticed
that the writings in the disputed cheque is different from
the two previous cheques encashed by the account
holder.
11. In spite of the above report given by the
Vigilance Officer on the basis of information said to have
been given by the witnesses, what is the evidence given
by the same witnesses before the Enquiry Officer? English
translation of the evidence of witnesses who had deposed
in Tamil had been made available to me. MW2 examined
in the enquiry proceedings is the Appraiser who had
allegedly noticed the concerned worker in conversation
with the payee of the disputed cheque. This witness has
stated that on 07.07.2006, when he was entering the
bank, he had found the concerned worker talking to a
person. He is said to have heard the concerned worker
telling the person that he will seem him at his residence.
But he does not know if the person to whom the
concerned worker was speaking was the payee of the
disputed cheque. On reaching inside the Bank, the
Manager is said to have asked him about the bearded
man who presented the false cheque. He then remembered
that the one who was found talking with the concerned
worker had a beard.
12. MW3 in the enquiry proceedings is the Assistant
Branch Manager. This witness has stated that the
concerned worker had told him while passing the referred
cheque that he knows the payee of the cheque in question.
He also deposed that he had seen the payee talking to
the concerned worker after receiving the money. He had
got suspicious and brought it to the notice of the Branch
Manager. The Branch Manager had called the account
holder and he had been told that he did not issue the
cheque in question. According to the MW3, he had
asked the concerned worker to help him to search for the
payee. But the concerned worker had not obliged. He
went in search of the payee but he did not succeed in
finding him. He further stated that after some 10 minutes
the concerned worker had approached him and had told
him that the payee will not be traceable, and had agreed
to make good the cheque amount himself. He had remitted
Rs. 2,000/- on the same day and had agreed to pay the
balance amount. On 11.07.2006, he is said to have remitted
the entire amount to the account of Sundry Deposit. He
stated during his cross-examination that since many
customers of the branch are illiterate the concerned
worker used to assist them in writing the challans. He
then stated that the difference in the signature of the
account holder was very minor and was not traceable at
the time of passing. He also stated that apart from the
cheque in question the concerned worker had taken other
4 or 5 instruments also to the Cashier for debiting on the
day. MW5, the Debiting Clerk also deposed that the
concerned worker told him that he is known to him.
13. The account holder from whose account the
amount was debited was examined as MW4. He stated
734
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
that he had given a letter to the Management regarding
the incident. This letter is marked as Ex. M18. He has
stated in his letter that on 05.07.2006 by 0300 PM he has
received the cheque book containing the cheque leaves
in which cheque favouring Kumar was drawn. He had
stated that he had kept the cheque book in the drawer
of his table. He had not used any cheque leaf from the
new cheque book. When the Manager had telephoned to
him on 07.07.2006, he had verified the cheque book and
had found that the third cheque leaf in the cheque book
was stolen by someone. During his examination he stated
that he was not in the habit of counting the cheque
leaves on receiving the cheque book. He had deposited
some money for purchase of land. He had withdrawn that
amount and had asked the concerned worker if he had
any money in the account and then he had withdrawn
Rs. 2,000/-.
14. On the basis of the above evidence of the
witnesses the Investigating Officer had concluded that
the charges against the concerned worker are proved.
What is the reasoning given by the Investigating Officer?
Referring to the Vigilance Officer he has stated that the
account holder had informed the Vigilance Officer that
the concerned worker had been to the house of the
account holder informing him about the readiness of the
cheque book and this is stated in the report of the
Vigilance Officer. The Enquiry Officer has reasoned that
though this fact is stated in the report of the Vigilance
Officer, neither the Vigilance Officer nor the account holder
was cross-examined on this aspect. The Enquiry Officer
seems to have assumed that the concerned worker had
gone to the house of the account holder. It is really
surprising that on such an evidence such a conclusion
was arrived at by the Enquiry Officer. The account holder
concerned was examined in the enquiry proceedings as
MW4. I have already referred to his evidence. During his
evidence, the account holder does not have a case at all
that the concerned worker had ever been to his house.
Even in the letter written by him and marked as Ex. M18,
there is no case for the account holder that the concerned
worker had been to his house. In that case there was no
question of the account holder being cross-examined on
that aspect. True the Vigilance Officer has stated in his
report that the account holder has told him about the
visit of the worker to his house. But what is stated in the
report of the Vigilance Officer cannot be treated as the
basis for the finding when the very account holder does
not have such a case before the Enquiry Officer.
15. The Enquiry Officer has stated in his report that
the cheque book was collected by the account holder on
05.07.2006. He has then proceeded to state that the
numbering of the cheque books are done by the Sub-
Staff only. The Enquiry Officer had then assumed that if
the concerned worker had not handled the cheque book
for numbering it is not possible that he would come to
know about the readiness of the cheque book before his
informing the account holder. For one thing, none of the
witnesses examined in the enquiry proceedings has stated
that the numbering of the cheque books are done by the
concerned worker. There is no case even that this work
is usually done by any of the Sub-Staff. None of the
witnesses has stated that the concerned worker had any
opportunity to deal with the cheque book that was kept
ready for the account holder before the account holder
obtained it on 05.07.2006. The Enquiry Officer had assumed
that the concerned worker might have numbered the
cheque book and had proceeded to assume that it must
have been on the basis of his knowledge he had gone
to the house of the account holder. As already stated
there is no evidence to show that the concerned worker
had been to the house of the account holder. The account
holder does not have such a case. It is only based on
unacceptable evidence and imagination, the Enquiry
Officer has arrived at such a conclusion.
16. The Enquiry Officer had then stated the account
holder had informed the Vigilance Officer that he had
enquired the concerned worker about the balance amount
in his account and then withdrawn Rs. 2,000/- from the
account on 06.07.2006. The Enquiry Officer has proceeded
to state that when the actual balance amount in the
account was more than Rs. 7,000/-, the concerned worker
informing him that it is only Rs. 2,000/- is odd. In this
respect also the evidence given by the account holder is
not in favour of the Management. In Ex.M18 there is no
case at all for him that any such enquiry was made by
him with the concerned worker. During his examination
what he has sated is that after taking the money intended
for purchase of land, he had asked the concerned worker
how much money is there in his account and had then
withdrawn Rs. 2,000/-. He does not have a case that the
concerned worker had told him that the balance amount
is a lesser amount than Rs. 7,671/- which was the real
balance. From his evidence what is to be assumed is that
the account holder had enquired with the concerned
worker about the balance only to ascertain if he has
sufficient amount in deposit to allow him to withdraw Rs.
2,000/-.
17. The Enquiry Officer had then proceeded to
state that the style of the signature would have become
available to the concerned worker on the previous day
when the account holder withdrew Rs. 2,000/- since
vouchers would have been handled by him for stitching.
According to the Enquiry Officer the concerned worker
might have got access to the signature style of the
account holder in this manner. The Enquiry Officer seems
to have gone beyond any limit in making such
assumptions. None of the witnesses have stated that the
concerned worker had done the job and had occasion to
have access to the signature of the account holder.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
735
18. The Enquiry Officer has then stated that the
presenter of the cheque was identified by the concerned
worker as a local mechanic and as a known person both
to the debiting clerk and to the passing official. The
worker was seen talking with a bearded man by the
Appraiser. The passing official also had seen the
concerned worker talking to the payee. According to the
Enquiry Officer if the concerned worker was innocent he
would have agreed to the request of the debiting clerk
to go in search of the presenter of the cheque. On the
other hand, the concerned worker has expressed his
readiness to remit the amount. The Enquiry Officer has
felt that this conduct of the concerned worker is highly
suspicious. According to the Enquiry Officer if actually
the concerned worker was innocent, rather than to
agreeing to remit the amount, he would have assisted the
debiting officer to search and find out the presenter of
the cheque. Remittance of the amount would not amount
to admission of the crime. At the most it was only an
attempt to get out of the unenviable position one is put
into.
19. It could be seen that the finding of the Enquiry
Officer is entirely based on surmises, assumptions and
imaginations. Even assuming the worst what actually is
the act done by he concerned worker? The only evidence
available against him is that he was found talking with
the presenter of the cheque after the presenter had
collected the money from the bank. The Appraiser does
not know if it was the presenter at all. He merely stated
that the concerned worker was found talking with a
bearded man. The passing official has stated that he had
found the presenter talking to the concerned worker after
he collected the amount. Merely on the basis of this can
it be assumed that the concerned worker has got anything
to do with presenting a cheque that was allegedly stolen
from the account holder? Even as admitted by the Officers
of the bank token in the case was issued by the concerned
worker. He used to help customers in filling the challans
and do other odd jobs, MW2 has stated. In that case,
what was the harm in the concerned worker talking to the
presenter of the cheque? The case of the concerned
worker is that the presenter of the cheque has represented
himself to be a mechanic. According to him he never
stated that he is a person known to him. The evidence
given by the debiting clerk and the passing Officer is not
very reliable. There is every probability that the
representation made by the concerned worker, if any was
on the basis of the representation made by the presenter
himself.
20. For encashing a bearer cheque identity of the
presenter is not relevant at all. What is relevant is the
signature in the cheque. Did the Debiting Clerk or the
Passing Officer verify the signature of the cheque and
compare it to the signature available in the specimen card
and other signatures of the account holder available in
the bank? They do not have even a case that they have
done so before passing the cheque for payment. Both
the Officers have behaved in an irresponsible manner. If
the evidence of these two witnesses are taken into
account they would pass a cheque based on the assertion
of a mere Sub-Staff, without ascertaining the genuineness
of the signature. This is not what is expected from the
responsible Officers of a banking institution. The very
subsistence of the concerned worker, a Sub-Staff who
gets meager amount as wages has been put to peril
because of the irresponsibility of the Officers. Just
because he was found to talk with the person who has
withdrawn money based on forged cheque, he is taken
to task by the Management. I find that there was no
acceptable evidence at all to enter a finding of guilt upon
the concerned worker. The finding on mere assumptions
and surmises will not stand. The concerned worker is
entitled to an order in his favour. The worker is entitled
to be reinstated in service.
21. There is no evidence to show that the worker
was not gainfully employed after the punishment was
imposed on him. I do not find it proper to allow him the
entire back wages on reinstatement, but confine it to
50%. The Second Party is directed to reinstate the
concerned worker in service within one month with 50%
back wages, continuity of service and other attendant
benefits.
22. 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 19th November, 2013).
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
07.07.2006
Letter from Sri Elumalai
Ex.W2
08.07.2006
Letter from Circle Officer,
Kancheepuram suspending Sri S.
Elumalai, Tiruppukuzhi branch
Ex.W3
08.07.2006
Preliminary Investigation Report
Ex.W4
24.08.2006
Reply letter of Sri S. Elumalai to
letter dated 24.07.2006 from Cricle
Office, Kancheepuaram
Ex.W5
20.11.2006
Show Cause Notice Ref: VIG/
DPAS/340/2006
736
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Ex.W6
02.12.2006
Reply from Sri S. Elumalai for the
above letter
Ex.W7
03.01.2007
Charge Sheet Ref: VIG/DPAS/340/
2006
Ex.W8
06.03.2007/
Enquiry Proceedings
30.04.2007
Ex.W9
28.06.2007
Defence brief by Sri L. Ramasamy,
Defence Representative
Ex.W10
04.07.2007
Enquiry Officer's report
Ex.W11
30.07.2007
Defence Representative's reply to
EO Report
Ex.W12
21.08.2007
Letter
from
Disciplinary
Authority/AGM
proposing
punishment
Ex.W13
06.09.2007
Reply from Sri Elumalai to the
above letter
Ex.W14
06.09.2007
Letter from the Disciplinary
Authority imposing punishment
Ex.W15
06.12.2008
Letter from the Union IBEA/GEN/
48/2008-10 to the Assistant
Labour Commissioner raising
industrial Dispute on the above
issue
Ex.W16
20.02.2009
Reply from the Management of
Indian Bank to the above issue
Ex/W17
23.04.2009
Rejoinder IBEA/GEN/88/2008-10
by Indian Bank Èmployees
Association
On the Management's side
Ex.No.
Date
Description
Ex.M1
24.07.2006
Letter by AGM, CO/Kan. Calling
for explanation from Sri S.
Elumalai
Ex.M2
24.08.2006
Sri S. Elumalai's reply to letter
dated 24.07.2006
Ex.M3
20.11.2006
Show Cause Notice by AGM/DA
to Sri S. Elumalai
Ex.M4
02.12.2006
Reply to Show Cause Notice by
Sri S. Elumalai
Ex.M5
03.01.2007
Charge Sheet No. Vig/DPAS/340/
06 issued by AGM/DA to Sri
Elumalai
Ex.M6
20.02.2007
Letter by A. Karunakaran, EO
addressed to Sri S. Elumalai—
Posting Enquiry on 06.03.2007
Ex.M7
06.03.2007
Enquiry proceedings Page 1&2—
Proceedings of Preliminary
Enquiry
Ex.M8
06.03.2007
Letter by Sri S. Elumalai
addressed to the EO to post the
enquiry to some other date
Ex.M9
30.04.2007
Enquiry Proceedings
Ex.M10
18.07.2002
SB Specimen Card for SB No.
10727 of S. Janakiraman
Ex.M11
03.01.2005 to Statement of SB Account No.
10727
07.07.2006
of S. Janakiraman
Ex.M12
06.07.2006
Cheque Nos. 195978 & 195977,
both dated 06.07.2006
Ex.M13
07.07.2006
Cheque No. 938803 dated
07.07.2006
Ex.M14
-
Statement by Sri K. Nagarajan,
Jewel Appraiser
Ex.M15
07.07.2006
Statement by Sri S. Elumalai
Ex.M16
-
Statement by Sri T.R. Seshadri
Ex.M17
07.07.2006
Statement by Sri M.V. Satyakumar
Ex.M18
07.07.2006
Statement by Sri S. Janakiraman
Ex.M19
11.07.2006
Letter of Tiruppuluzhi Branch
addressed to CO
Ex.M20
07.07.2006
Letter of Tiruppukuzhi Branch to
CO
Ex.21
08.07.2006
Investigation report by Mr.
Valmikinathan
Ex.22
-
Cheque Book issued register
Ex.M23
July 2006
Attendance Register July 2006
Ex.M24
30.04.2007
Statement by Sri S. Elumalai
Ex.M25
02.12.2006
Reply by Sri S. Elumalai—
Annexure to DEX-1-2
Ex.M26
12.05.2007
Presenting Officer's brief
Ex.M27
28.06.2007
Defence brief
Ex.M28
04.07.2007
Enquiry Offier's findings
Ex.M29
30.07.2007
Comments by CSE on the Enquiry
Officer's findings
Ex.M30
21.08.2007
Second Show Cause Notice by
AGM/DA to Mr. Elumalai—
Proposing Punishment
Ex.M31
06.09.2007
Reply by Sri Elumalai to the
Second Show Cause Notice
Ex.M32
06.09.2007
Personnel hearing proceedings
Ex.M33
06.09.2007
Punishment Order by AGM/DA
to S. Elumalai.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
737
ubZ fnYyh] 3 tuojh] 2014
dkñvkñ 276.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj pSUubZ iksVZ VªLV
ds izcU/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; pSUubZ ds iapkV ¼ 35@2013½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 01@01@2014 dks izkIr gqvk FkkA
[lañ ,y&33011@4@2012&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 3rd January, 2014
S.O. 276.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 35/2013) of
the Central Government Industrial Tribunal -cum- Labour
Court Chennai as shown in the Annexure in the Industrial
dispute between the management of Chennai Port Trust
and their workman, received by the Central Government
on 01/01/2014.
[No. L-33011/4/2012-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Frdiay, the 13th November, 2013
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 35/2013
(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 Chennai Port Trust
and their workman)
BETWEEN
The General Secretary,
:
1st Party/Petitioner
The Madras Port Trust
Railwaymen's Union
Bhagat House, New
No. 47, Old No. 204
Prakasam Salai
Chennai-600001
AND
The Chairman-cum-
:
2nd Party/Respondent
Managing Director M/s.
Tamil Nadu Minerals Ltd.
Chennai-600005
Appearance
For the 1st Party/Petitioner : M/s. Shanmuga
Sundarababu, Advocate
For the 2nd Party/
: M/s S.P. Patel, Advocate
Management
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-33011/4/2012-IR(B-II)
dated 27.02.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Chennai
Port Trust in terminating Sri S. Sivasankaran, an ex-
Shunting Master from service is legal and justified?
What reflief the workman is entitled to?
2. After the receipt of the Industrial Dispute this
Tribunal has numberd it as ID 35/2013 and issued notice
to both sides. Both sides entered appearance through
their respective counsel.
3. The case was being posted for filing Claim
Statement repeatedly. In spite of this, the petitioner has
not cared to file the Claim Statement. The petitioner as
well as his counsel has been absent today also. There
was no representation of any kind on his side as well.
There is no material for this Tribunal to give a finding in
favour of petitioner in the absence of any statement or
supporting documents. In the result the reference is
answered against the petitioner.
(Dictated to the P.A. transcribed and typed by him,
corrected and pronounced by me in the open court on
this day the 13th December, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For th 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] 3 tuojh] 2014
dkñvkñ 277.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u cSad ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; pSUubZ ds iapkV ¼37@2011½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 01@01@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@74@2010&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
738
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 3rd January, 2014
S.O. 277.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 37/2011) of
the Central Government Industrial Tribunal-cum-Labour
Court Chennai as shown in the Annexure in the Industrial
Dispute between management of Indian Bank and their
workman, received by the Central Government on 01/01/14.
[No. L-12012/74/2010-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Frdiay, the 22nd November, 2013
Present: K.P. PRASANNA KUMARI
Presiding Officer
Industrial Dispute No. 37/2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947 (14 of
1947), between the Management of Indian Bank and their
workman)
BETWEEN
Sri. S. Mathuranayagam
: 1st Party/Petitioner
AND
The Asstt. General Manager
: 2nd Party/Respondent
(Circle Head)
Indian Bank, Circle Office,
M.K.M. Complex
210C/1, S.N. High Road
Tiruchendur-628206
Appearance:
For the 1st Party/
: Sri J. Thomas Jeyaprabhakaran,
Petitioner
Authorized Representative
For the 1st Party/
: M/s T.S. Gopalan &
Respondent
Co. Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order NO. L. 12012/74/2010-IR(B-II)
dated 18.04.2011 refrred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of
Indian Bank in imposing the punishment of
compulsory retirement with superannuation benefits
from the bank's services w.e.f. 12.11.2008 upon
Sri Mathuranayagam, Ex- Chief Cashier is just and
proper? What relief the concerned workman is
entitled?"
2. On receipt of the Industial Dispute this Tribunal
has numbered it as ID 37/2011 and issued notice to both
sides. The petitioner appeared through authorized
representative and the respondent through its counsel
and filed their claim and counter statement respectively.
3. The averments in the Claim Statement in brief are
as below:
The petitioner has joined the service of the
Respondent Bank as Sub-Staff. He was
subsequently promoted to the Clerical Cadre. He
was working at Tirunelveli junction of the branch
at the time when disciplinary proceedings were
initiated against him. The petitioner was allotted
the Chief Cashier post by Office Order dated
31.05.2003. The order was to take effect from
01.06.2003 which happened to be a holiday. On
02.06.2003 the petitioner was on leave. Hanifa who
is immediately below the petitioner in seniority has
discharged the function of Chief Cashier on this
day. The closing cash balance as per the records
was Rs. 20.31,597.10 on 02.06.2003. On 03.06.2003
the petitioner had availed permission for 1 hour
from 10.00 AM to 11.00 AM. Hanifa had started the
duties as Chief Cashier by the time the petitioner
reached office. He had brought from the safe
Rs. 4.6 lakhs for the day's operations. He had
handed over Rs. 2.6 lakhs out of this to the Cash
Payment Soff. The peititoner arrived at the office
by 11.00 AM. Hanifa handed over Rs. 2,92,795/- to
him. The ptitioner has accepted this on verification
and had occupied the seat of Chief Cashier. But he
had not verified the cash in the safe. At the end of
the day, while incorporating the details of bundles
and sections in the Cash Movement Register and
arriving at the closing position the petitioner
noticed some difference in the number of bundles
as shown in the Cash Movement Register and the
system. Several alterations were found in the Cash
Movement Register. On verification of the Cash
Balance Book the petitioner found discrepancies in
the number of bundles found in the Cash Balance
Book and the Movement Register as on the close
of 02.06.2003. With a view to tally the cash position
and to make entries in the Movement Register
legible, the petitioner scrored the entire closing
entry in the Cash Movement Register and
incorporated the final figures in tune with the
figures found in the system. This was done in good
faith. The petitioner had then taken the cash to
cash safe alongwith the Asstt. Branch Manager.
While lodging the cash in the safe, the Assistant
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
739
Branch Manager noticed shortage of two bundles
in the denomination of Rs. 100/- amounting to Rs.
2.00 lakhs. Instead of 27 bundles, only 25 bundles
were available. The Asstt. Branch Manager
submitted a report to the Circle Office. A Poice
complaint was preferred against the petitioner
alleging that he had stolen cash worth Rs. 2.00
lakhs. A departmental enquiry was conducted
against the petitioner. The petitioner was found
guilty of the charges alleged. The Disciplinary
Authority imposed a punishment of dismissal from
service on the petitioner. On appeal filed by the
petitioner the Appellate Authority modified the
punishment to Compulsory Retirement with
superannuation benefits. The peitioner has not
committed the offence alleged. The Criminal Court
has acquitted the petitioner of the charges made
against him. The Respondent is not justified in
imposing the punishment of Compulsory Retirement
on the petitioner on the basis of a wrong finding
made by the Enquiry Officer. The petitioner is
entitled to be reinstated into service with back
wages and other attendant benefits.
4. The Respondent has filed Counter Statement
contending as follows:
The petitioner had acquiesced to the punishment of
Compulsory Retirement imposed on him by
communting a part of the pension and receiving the
amount. The peittioner was working in Tirunelveli
junction branch of the Respondent Bank. It is a large
branch and there used to be 3 or 4 Cashiers in the
branch. One of them will be Chief Cashier and will be
responsible for accouting the cash handled. At the
closing of the branch the Chief Cashier is to account
the physcial cash to the Assistant Branch Manager.
They together will keep the physical cash inside the
currency safe. The Chief Cashier is to receive the
cash from the other Cashiers. He is to physcially
verify the cash received from others. He is to prepare
a manual Cash Balance Book mentioning the
particulars of bundles, sections and pieces of
currency notes. 100 pieces will make one section and
10 sections will make one bundle. If there is any
shortage or excess at the time of verification of the
physical cash, the same should be brought to the
notce of the Assistant Branch Manager. If no excess
or shortage is reported by the Cashier before
accoutning the available cash for closing and any
shortage or excess is noticed thereafter the Chief
Cashier will be responsbile for the same. On 03.06.2003
the petitioner who was the Cheif Cashier, on receipt
of cash from, other cashiers had made entries about
the cash handed over by them in the computer and
the amounts so received was Rs. 3,99,717/-. He
reported the cash available as Rs. 46,63,820/- Then
he prepared a manual Cash Balance Book giving
particulars of denominations. Then he called
Assistant Branch Manager for verification before
placing the cash in the safe. When the Asstt. Branch
Manager physcially verified the cash he found it
short of two bundles of Rs. 100/- denomination
amounting to Rs. 2.00 lakhs. In the Cash Movement
Register, the peititioner had entered the cash
available as 7 bundles of Rs. 100 denomination apart
from other denominations but had corrected it as 9
bundles. He made the correction to make it appear
that physcial cash available at the time of closing
was 27 bundles of Rs. 100 denomination though
only 25 bundles of this denomination were available.
The matter was reported to the Circule Office,
Tirunelveli immediately. A Vigilance Officer
investigated the matter on the same day and
submitted a preliminary report. The petitioner was
aware of shortage of two bundles of Rs. 100
denomination, but still he showed it as 9 bundles as
if this much bundles were available. A Show Cause
Notice was issued to the petitioner calling upon him
to state why disciplinary action shall not be taken
against him. Since his reply was found unsatisfactory,
charge sheet was issued charging him with the
misconduct of having stolen Rs. 2.00 lakhs. The
Enquiry Officer who enquired into the matter gave
a report holding that the charges against the
petitioner are proved. The punishment of dismissal
was imposed on the petitioner after hearing the
petitioner. In appeal the punishment was modified to
one of Compulsory Retirement. The petitioner is not
entitled to any relief.
5. The evidence in the cash consists of oral
evidence of the petitioner examined as WW1 and the
documents marked as Exs. W1 to Ex. W14 and Ex. M1 to
Ex. M36.
6. The points for consideration are:
(i)
Whether the Respondent is justified in
imposing the punishment of Compulsory
Retirement on the petitioner?
(ii)
Whether the petitioner is entitled to be
reinstated in service?
The Points
7. The petitioner who had enttered the services of
Respondent Bank as Sub-Staff and subsequently promoted
as Clerk was working in the Tirunelveli junction of the
branch at the time of the incident which led to the
punishment of compulsory retirement on the petitioner. By
Office Order dated 31.05.2003 the petitioner was given the
responsibility of Chief Cashier of the branch. 01.06.2003,
on which date the order was to take effect was a holiday
and the petitioner was on leave on 02.06.2003, the next day.
740
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
He reached the office late on 03.06.2003. By the time he
reached the office, Hanifa who is his immediate junior and
was one of the Cashiers and had worked as Chief Cashier
on the previous day in the absence of the petitioner, had
occupied the seat of Chief Cashier with the permission of
the superior officer. After the petitioner reached office, he
had taken charge from Hanifa and had started to work as
Chief Cashier. In the evening, on the closoure of the
busniess, the petitioner who had received the cash from
the other cashiers, on making necessary entries in the
computer system and also manual entries in certain records
had taken the cash to the Assistant Branch Manager to be
lodged in the Cash Safe. The Asstt. Branch Manager had
noticed a shortage of Rs. 2.00 lakhs. It was accordingly the
petitioner was proceeded against and the punishment
imposed on him .
8. There is no dispute regarding the fairness of the
domestic enquiry that is held against the petitioner. Both
sides are relying upon the enquiry proceedings, the
evidence let in and the documents, that were marked in
the enquiry in support of their respective contentions.
The Enquiry Officer who had examined the relevant
withnesses including the Asstt. Branch Manager, the
Branch Manager and Hanifa from who the petitioner had
taken charge had arrived at the conclusion that there was
shortage of Rs. 2.00 lakhs when the petitioner approached
the Asstt Branch Manager for lodging the cash in the
cash safe, that he had not been able to account for the
deficit and had found the petitioner guilty of the charges.
9. The charge framed against the petitioner in the
enquiry proceedings is that on 03.06.2003, when he was
acting as the Chief Cashier, he had stolen Rs. 2.00 lakhs
and thus there was shortage of Rs. 2.00 lakhs, that he
had not reported the cash shortage to the checking official
before handing over the cash for checking that he had
entered in the Cash Balance Book the final cash balance
figure shown in the computer without actual physcial
possession of the cash to that extent, that he had altered
in the Cash Movement Register the number of bundles
without actual possession of the given number of bundles
and thus the bank had incurred a loss of Rs. 2.00 lakhs.
10. MW1 in the enquiry proceedings was the
Senior Manager ot Tirunelveli junction branch during the
period in question. This witness had no direct knowledge
of the incident. The relevant documents pertaining to the
incident are marked through this witness. He came to
know about the incident on 03.06.2003, the date of the
incident itself by 06.15 PM when the Asstt. Branch
Manager approached him at his cabin and reported to
him about the cash shortage of Rs. 2.00 lakhs. MW2 was
working as Cash Receipt Clerk at that time. She has
deposed as to what was the amount received by her on
that day and how much amount she has handed over to
the petitioner, the Chief Cashier after end of business of
the day. She knew about the shortage of cash only later
at night on the basis of telephonic information given to
her. MW3 was in SB Payment Section on that day. She
too had deposed about the amount received by her and
the amount she had handed over to the petitioner at the
end of the day. MW4 is the Vigilance Officer who had
visited the branch and enquired into the alleged shortage
of cash. Hainfa who had started on the day as Chief
Cashier is examined as MW5. He having been the Chief
Cashier on the previous day he had deposed based on
the relevant documents that the closed reserve balance
on 02.06.2003 was 14 bundles of Rs. 500/- denominations,
8 bundles of Rs. 100/- denomination, 3 bundles of Rs. 50
denomination and 5 bundles of Rs. 10/- denomination.
According to him, on 03.06.2003, he had drawn 4 bundles
of Rs. 100/- denomination, 1 bundle of Rs. 50/-
denomination and 1 bundle of Rs. 10 denomination from
the reserve cash. So what was left as reserve cash at the
safe was Rs. 14 bundles of Rs. 500/- denomination, 4
bundles of Rs. 100/- denomination, 2 bundles of Rs. 50/-
denomination and 4 bundles of Rs. 10/- denomination
when brought to his notice that there was difference in
the Cash Balance Register and Cash Movement Register
so far as the entries in respect of 02.06.2003 was
concerned, he has stated that this was because one section
of Rs. 500/- denomination was kept in till cash in view of
unsorted notes. The difference of 1 bundle in the
denomination of Rs. 100/- was because issuable and non-
issuable notes were kept in the till cash. This witness has
deposed that on 03.06.2003 he had handed over Rs.
17,71,597.10 to the petitioner at 10.21 AM. He stated that
the petitioner has physically verified and acknowledged
the cash. However, he stated during his cross-examination
that the petitioner did not physically verify the cash in
the safe but this was taken over on the basis of statement
in the computer. The Assistant Branch Manager who is
examined as MW6 has stated how he happened to detect
the shortage. According to him, the petitioner called him
by 06.15 PM for checking the cash and for keeping the
same inside the safe. He did not inform that there is any
shortae in cash. He verified the cash balance through the
computer with the cash balance signed by the petitioner
and this tallied. He verified the till cash from there itself
and it was also found correct. Then both of them took
the till cash alongwith the bundles to the safe room. He
kept the till cash box inside and verified the reserve cash
kept inside with the Cash Movement Register and found
it correct. However, on verifying the bundles brought by
the petitioner he found shortage of two bundles of Rs.
100/- denomination amounting to Rs. 2.00 lakhs. When
he enquired with the petitioner about this, he was unable
to explain. Search was made at the Cash Counters to
ascertain if any bundles were left out. On ascertaining
that there is a shortage of Rs. 2.00 lakhs, MW6 had
reported the matter to the Branch Manager.
¹Hkkx II—[k.M 3(ii)º
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741
11. The initial argument that has been advanced by
the Authroized Representative of the petitioner has been
that deficit of Rs. 1.5 lakhs has occurred on the previous
day itself. The argument is based on some discrepancy
found in the balance sheet and the Cash Balance Book of
02.06.2003. The cash balance sheet of 02.06.2003 shows
the closing balance as Rs. 20,31,597.10. In this the number
of bundles of Rs. 500/- denomination put in the reserve
cash are shown as Rs. 1,500/- and that of Rs. 100/-
denomination as Rs. 9,000/- However, above the No. 5 in
Rs. 1,500/-, No. 4 is written and above the No. 9 in Rs.
9,000/-, No. 8 is written. In the Cash Movement Register
which is marked as Ex.M9, with reference to 02.06.2003,
No. 15 which is shown as the number of bundles of Rs.
500/- denomination, correction is made and 14 is
overwritten. So also in the column for number of notes of
Rs. 100/- denomination 9 is scored and corrected to 8. It
is with reference to this discrepancy, Hanifa has deposed
that since one bundle is kept in till cash in view of unsorted
notes, this difference has occurred. According to the
Authorized Representative actually only 14 sections of
Rs. 500/- denomination and 8 bundles of Rs. 100/- were
there on 02.06.2003 even though it is shown as 15 and 9
respectively. According to him, if it is only 14 and 8
respectively the closing balance would not have been
Rs. 20,31,597.10 but 1.5 lakhs less than that. The Enquiry
Officer has given an annexure to the enquiry report and
has stated with reference to this that such a deficit would
not have been possible. Certainly, he has accepted the
evidence given by Hanifa that a difference is because
one bundles was kept among the till cash and there were
unissued notes also.
12. When the circumstances are taken into account
the arguments advanced by the Authorized
Representative could not be accepted. The Asstt. Branch
Manager who had counted the balance before putting
the cash in the Cash Safe had done the checking on the
previous day also. It is unlikely that the Manager who
had dutifully done the over-checking on closure of
business on 03.06.2003 had not done so on 02.06.2003 in
which case he would certainly have found out the deficit
of Rs. 1.5 lakhs, if there was any. True, Hanifa himself has
stated during his cross-examination that the petitioner
has not physically verified the reserve cash kept in the
safe but only the amount that was brought by him to the
counter and the amount in the safe was verified with
reference to the balance shown in the computer. As
pointed out by the Enquiry Officer, it is upon the petitioner
who was taking charge as the Chief Cashier to do the
verification if he wanted to. His having reached late to
the office on the day was not an excuse for him not to do
the verification. In any case the argument of the
Authorized Representative that there was deficit on the
previous day itself cannot be accepted.
13. During his argument as well as in the argument
notes submitted on behalf of the petitioner it is repeatedly
stated that even if there is any deficit it is only of Rs.
50,000/- since the deficit of Rs. 1.5 lakhs is of the previous
day. Even assuming for the sake of argument that deficit
of Rs. 1.5 lakhs has occurred on the previous day itself
what was that was expected of the petitioner? Has he
reported the matter to his Superior Officer? The evidence
given by the petitioner himself is indicative of what he
has done. During his examination he has stated that after
getting cash from all the three cashiers, while he was
closing he has found difference of Rs. 2.00 lakhs. From
this version of the petitioner himself it is very much clear
that at the time of closure he has noticed difference of
Rs. 2.00 lakhs, even if part of it has occurred on the
previous day and only a portion, on the date on which
he was in-charge. According to him, on verification he
found alteration in the Cash Movement Register regarding
entries on the previous day and he was not able to
conclude whether the cash drawn in hundreds on
02.06.2003 was 4 bundles or 5 bundles. He had confusion
whether it was 8 or 9 due to overwriting. He had found
alteration in the number of sections of Rs. 500/-
denomination also. According to him, he verified the cash
balance and there it was found mentioned as 15 sections
in Rs. 500/- and 9 bundles in Rs. 100/- denomination at
the close of 02.06.2003. In the Cash Movement Register,
as per the figures available for 03.06.2003, after taking
cash in the morning, as noted by Hanifa, was 14 in Rs.
500/- denomination and 4 in Rs. 100 denomination.
According to the petitioner, from this he assumed that
difference of Rs. 1.5 lakhs was located as per the Cash
Balance Book. There was another entry for Rs. 53,000/-
as soiled and cut notes also in the Cash Balance Book.
So he understood that the mistake was with reference to
the figures noted in the Cash Movement Register on the
previous day. So he scored all the four entries earlier
made by him against columns of Rs. 500/-, Rs. 100/-, Rs.
20/- and Rs. 10/-. He wrote the number of bundles afresh
as seen from the computer. Then he had informed the
Asstt. Branch Manager for lodging the cash. When the
Asstt. Branch Manager verified the cash it was found
that against the total of 27 bundles, there were only 25
bundles.
14. Even assuming that the petitioner had felt that
the deficit was that of the previous day what was
expected of him was to inform the superior officer
immediately. He himself has stated that because of the
discrepancy in the entries in the Cash Balance Register
and the difference in the entries between the Cash Balance
Register and Cash Movement Register, he was confused.
In that case, rather than making the alteration based on
assumption he should have informed the Asstt. Branch
Manager and verified the reserve cash in the safe at least
at that time. On the other hand without stating anything
about this he has asked the Asstt. Branch Manager to
lodge the cash.
742
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
15. In any case it is admitted on behalf of the
petitioner that there is a deficit of Rs. 50,000/-. How did
this deficit occur? What the petitioner has stated in the
examination in the enquiry proceeding is that Rs. 53,000/-
was shown separately as soiled and cut notes and he
had felt that if this also is added the deficit would be
made good. But if this is the case there would be an
excess of Rs. 3,000/-. As Chief Cashier he is bound to
report the excess cash, if any also. During the argument
this case in respect of Rs. 53,000/- has not been advanced
at all. On the other hand it is very much admitted that
there is a deficit of Rs. 50,000/-. How did this deficit
happen? The petitioner has not explained. More than
anything is the fact that the petitioner kept mum about
the deficit and asked the Asstt. Branch Manager to lodge
the cash in the safe without doing this. This is very much
against him.
16. An attempt has been made by the Authorized
Representative to make out that the petitioner is a very
honest, sincere employee. DW1 has been brought in to
state that on a previous occasion MW2, one of the
cashiers had inadvertently left Rs. 20,000/- in her cash
counter and this was found out by petitioner and was
handed over to then Chief Cashier. MW2 herself has
stated that she had no direct knowledge of such an
incident but she was told that a bundle of notes was
recovered from her Cash Counter and handed over to the
Chief Cashier. Even if this incident is true it could not
help the petitioner in view of the fact that there was a
deficit on the day and yet this was not reported to the
superior officer.
17. The Authorized Representative has also referred
to the judgment in the criminal case that was registered
against the petitioner regarding the incident. As seen from
the judgment the charge against the petitioner was one
of theft. The Court had found that the charge is not
established and had acquitted him of the charges.
Certainly acquittal in the criminal cae itself if not sufficient
to give a finding in favour of the petitioner in the
departmental proceedings. It is a case where there was a
deficit which was not accounted for by the petitioner.
Attempt has been made by the Authroized Representative
to make out that proper measures were not taken for
security inside the branch and there was probability of
outsiders reaching the Cash Counter. As pointed out by
the Enquiry Officer, the branch was working under the
same circumstances and same condition for some time
and the petitioner was also very much aware of the
drawbacks, if any in the arrangements in the bank. He
could not rely upon such drawbacks, if any and could
not fall upon them as a defence. Even though the Criminal
Court has stated that the offence of theft charged against
the petitioner is not established, it is an admitted fact
that there was deficit for which he was accountable, but
did not. The Enquiry Officer has justly found the
petitioner guilty of the charge.
18. The punishment of removal from service
imposed by the Disciplinary Authority was modified by
the Appellate Authority as Compulsory Retirement with
superannuation benefits. This punishment could not be
said to be disproportionate to the gravity of the offence
committed by the petitioner. So I do not find any
necessity of interference in the punishment also. The
petitioner is not entitled to any relief.
19. In the result, the reference is answered against
the petitioner.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on
this day the 22nd November, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/
:
WW1, S. Mathuranayagam
Petitioner
For the 2nd Party/
:
None
Management
Documents Marked
On the petitioner's side
Ex. No.
Date
Description
Ex.W1
11.09.2009
Petition under Section 2(A) of ID
Act over the punishment
imposed
Ex.W2
08.02.2010
First Rejoinder to the reply to the
management for the ID raised
Ex.W3
25.05.2010
Second Rejoinder to the reply of
the management
Ex.W4
17.12.2003
Defence summing up by defence
representative
Ex.W5
01.01.2004
Letter ref. CO: TNY: VG: 493:2004
by Disciplinary Authority
enclosing the findings dated
30.12.2003 of the enquiry officer
Ex.W6
19.01.2004
Sri
S.
Mathuranayagam's
comments over the enquiry
officer's findings
Ex.W7
22.03.2007
Letter ref. IBEU:502:2004-06 from
Indian Bank employees Union,
addressed to General Manager/
HRM, Chennai
Ex.W8
26.08.2008
Letter ref. CO:TNY:VG:93: 2008-09
proposing the punishment of
"Dismissal without notice"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
743
Ex.W9
21.10.2008
Reply by Sri S. Mathuranayagam
to the second Show Cause Notice
Ex.W10
12.11.2008
Letter ref. CO:TNY:VG:110:2008-09
enclosing the speaking orders of
the Disciplinary Authority dated
12.11.2008
Ex.W11
27.12.2008
Appeal submitted by Sri S.
Mathuranayagam to the Appellate
Authority against the punishment
of "Dismissal without notice"
Ex.W12
20.08.2009
Letter ref. no HRM/DPC/429/2009
enclosing the orders of the
Appellate Authority
Ex.W13
11.10.2008
Judgment order of Judicial
Magistrate No. 1, Tirunelveli
acquitting Sri S. Mathuranayagam
Ex.W14
05.06.2003
First Information Report by City
Crime Branch, Tirunelveli City
On the Management's side
Ex.No.
Date
Description
Ex.M1
—
Extract of Cash Handling
Manual—Clause-21
Ex.M2
07.07.2003
Show Cause Notice issued to
petitioner by the Bank
Ex.M3
29.07.2003
Petitioner's reply to Show Cause
Notice dated 07.07.2003
Ex.M4
10.09.2003
Charge Sheet issued to the
petitioner
Ex.M5
15.10.2003
04.11.2003
Enquiry
05.11.2003
Proceedings
11.11.2003
Ex.M6
19.11.2003
Written
submissions
of
Presenting Officer
—
Attendance Register for the
month of June—2003
Ex.M7
—
Work allocation for clerical staff
w.e.f. 01.06.2003
Ex.M8
—
Cash Balance Book as on
02.06.2003 and 03.06.2003
Ex.M9
—
Cash Movement Register—2
pages
Ex.M10
—
Key Movement Register
Ex.M11
—
Debit voucher for Rs. 4.00 lacs
towards funds in transit to
Ukkirankotai branch alongwith a
requisition slip for withdrawal of
cash—both dated 03.06.2003
Ex.M12
—
Credit voucher for Rs. 17.00 lacs
towards cash received from
Veeraraghavapuram
dated
03.06.2003
Ex.M13
—
Debit voucher for Rs. 2.00 lacs
towards funds in transit to
Kanganankulam
branch
alongwith a requisition slip for
withdrawal of cash both dated
03.06.2003
Ex.M14
—
Credit voucher for Rs. 14.00 lacs
towards cash received from
Palayamkottai branch alongwith
their claim form for cash
remittance—both
dated
03.06.2003
Ex.M15
—
Debit voucher (SR 11) for Rs. 2.00
lacs dated 03.06.2003 for cash
shortage
signed
by
S.
Mathuranayagam
Ex.M16
—
Two letters addressed to Branch
Manager, Tirunvelveli junction by
S. Mathuranayagam both dated
03.06.2003
Ex.M17
—
Letter dated 04.06.2003 by Sri S.
Mathuranayagam addressed to
Branch Manager, Tirunelveli
Junction
Ex.M18
—
Letter dated 03.06.2003 by Mr. K.
Selvakumar to the Senior
Manager, Tirunelveli Junction
branch
Ex.M19
—
E-mail dated 03.06.2003 by
Tirunelveli Junction to AGM/CO/
TNY
Ex.M20
—
E-mail dated 04.06.2003 from CI
Branch, Tirunelveli to AGM/CO/
TNY
Ex.M21
—
CI brach letter dated 3rd/4th June
2003 to the Superitendent of
Police, Tirunelveli
Ex.M22
—
Report of Mr. S. Thirunavakarasu,
Vigilance Officer dated 05.06.2003
addressed to AGM/CO/TNY with
six enclosures
Ex.M23
—
Palayamkottai branch letter dated
04.05.2003 to Tirunelveli Junction
branch alongwith one letter dated
04.06.2003 by Mr. P. Krishnan CI/
Sh and Mr. S.S. Jeyaraj
744
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Ex.M24
—
Ukkrankottai branch letter dated
04.06.2003 addressed to AGM/
CO/TNY with two enclosres from
Mr. Vallimuthukumarasamy, AM
and Kalaiselvan CI/Sh
Ex.M25
—
Letter dated 04.06.2003 from
Cheranmahadevi
branch
regarding cash verification at
Kanganankulam branch and letter
dated 04.06.2003—both are
addressed to CO/TNY with one
annexure to Kanganankulam
branch letter
Ex.M26
—
Letter dated 04.06.2003 from Sri
K. Selvam AM and Sri R.
Kadarkari CI/Sh
Ex.M27
—
List of active users current day
run dated 03.06.2003
Ex.M28
—
Correspondence/record with
regard to return of one cheque
no. 375500 dated 27.05.2003 for
Rs. 50,000/-
Ex.M29
—
Cashier's receipt scroll dated
03.06.2003 with eight pages
Ex.M30
—
Cashier's payment scroll dated
03.06.2003
Ex.M31
—
Day book for 03.06.2003 in four
pages
Ex.M32
—
Copy of computer statement
showing entries of cash handed
over to the petitioner (Chief
Cashier) by M/s A. Muthammal,
Stanislaus Lydia and RSA
Haneefa of Rs. 3,99,537/- with
annexures A1 to A14
Ex.M33
02.03.2010
Letter from Tirunelveli junction
branch to C.O., T. Veli regarding
Gratuity amount of Rs. 1,98,150/-
recovered towards the loss
Ex.M34
—
Receipt for payment of commuted
value of pension Rs. 1,98,363/-
(vide A/c Statement dated
28.05.2011
Ex.M35
30.01.2011
Receipt of PF and VPF
Contribution Rs. 2,57,060.62 less
loans etc.—
27.06.2012
Received Rs. 1,45,638/- vide A/c
statement dated 28.04.2011
Ex.M36
—
Application for Pension (For
Receipt of Pension periodically
vide A/c Statement—30.01.2011
to 27.06.2012
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New Delhi, the 3rd January, 2014
S.O. 278.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 157/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, New Delhi as shown in the Annexure, in the industrial
dispute between the management of M/s Royal Airways
and their workmen, received by the Central Government
on 03/01/2014.
[No. L-11012/50/2003-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 157/2011
Shri Subhash Singh,
S/o Sh. Jai Singh,
R/o C-B-280, Ring Road,
Narayana, New Delh-28
...Workman
Versus
M/s. Royal Airways,
Cargo Complex,
IGI Airport, Terminal No. 1,
Palam, New Delhi.
...Management
AWARD
A security guard was employed by Royal Airways
Ltd. (herein after referred to as the management) in the
year 1994. He worked for the management continuously
till 19.12.2002. The security guard claimed that his services
were illegally dispensed with by the management on
21.12.2002. Contra to it, the management took a stand the
he left his duties in an unauthorized manner on 19.12.2002
and since then he absented himself from duties. Charge
sheet was served and domestic enquiry was constituted.
The Enquiry Officer submitted his report against the
security guard and show cause notice of proposed
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
745
punishment of dismissal from service was sent to the
latter. Since no response was received, the management
treated absence of the security guard as abandonment of
service. Denying this stand, the security guard raised a
dispute before the Conciliation Officer where he claimed
reinstatement in service. Since his claim was contested
by the management, 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-11012/50/2003-IR(C 1), New Delhi dated
17.12.2003, with following terms:
"Whether action of the management of Royal
Airways Ltd. in dismissing Shri Subhash Singh from
service with effect from 20.12.2012 is just fair and
legal? If not, to what relief is the concerned workman
entitled to?"
2. Claim statement was filed by the security guard,
namely, Shri Subash Singh, pleading therein that he was
working as such with the management since 1994. His last
drawn wages were Rs. 4183.00 per month. He worked
honestly and diligently, without giving any chance of
complaint to his superiors. He was deputed to work at 15,
Mercantile House, Kasturba Gandhi Marg, New Delhi. The
management had neither provided him with legal facilities
nor his service record was prepared. He raised oral demands
in that regard, which annoyed the management. He
performed his night duties on 19.12.2002. 20.12.2002
happened to be his off day. He reported for his duties on
21.12.2002. He was not allowed to join his duties. His
services were terminated without disclosing any reason
and payment of his wages. His dues towards leaves, bonus,
and overtime work were not paid. No notice pay and
retrenchment compensation was given to him. His services
were dispensed with without any charge sheet or enquiry
in that regard. He raised a demand vide letter dated
02.01.2003 seeking reinstatement in service, but to no avail.
He is unemployed since the date of termination of his
service and facing starvation. He claims reinstatement in
service with continuity and full back wages.
3. Claim was demurred by the management pleading
that the claimant has been guilty of gross negligence and
misconduct for which an enquiry was conducted. It has
been projected that on 19.12.2002, the claimant was deputed
to perfrom night duties at Cargo Complex, IGI Airport, New
Delhi. His duty hours commenced from 5.30 p.m. At about
6.15 p.m. he was found standing at bus stand in front of
Sanatan Dharam Mandir, Mehram Nagar, New Delhi by
Shri Dinesh Singh, Manager (Security), who questioned
him about his presence there. Claimant offered no
explanation and thereafter stopped reporting for his duties.
Letter dated 20.12.2012 was sent to the claimant calling his
explanation for his gross act of indiscipline and negligence
of leaving his duty place on 19.12.2002. Claimant opted not
to submit any reply to that letter.
4. The management narrates that on 02.01.2003, Shri
Dinesh Singh wrote letter of Col. I.P. Singh, Head (Admn.
& Security) apprising him of the facts, with a request to
initiate necessary action in the matter. Vide letter dated
10.01.2013, Col. Singh enquired from Shri Dinesh Singh as
to whether the claimant had joined his duties or offered
any application for his absence. Shri Dinesh Singh informed
Col. I.P. Singh, vide his letter dated 19.01.2013. that the
claimant continues to remain absent from duties and no
response has been received from him. After waiting for a
long time, charge sheet dated 20.01.2013 was drafted,
wherein charges of leaving place of duty without any
permission and unauthorized absence from duty were
levelled on the claimant. Charge sheet was sent to the
claimant by registered post, but it was returned undelivered.
Again letter dated 11.02.2003 was sent wherein copy of
charge sheet was enclosed, calling upon the claimant to
offer his explanation within three days. The said letter was
delivered to the claimant by the postal authorities on
17.02.2003. Claimant opted not to send any response to
that letter. Another letter dated 28.02.2003 was sent to the
claimant wherein he was informed that enquiry would be
conducted against him by Shri B.B. Murgai, Supplies
Manager. Claimant replied to that letter, wherein he levelled
allegations to this effect that his services were illegally
dispensed with on 21.12.2002. He informed initiation of
conciliation proceedings also. Letter dated 06.03.2003 was
sent calling upon the claimant to attend the enquiry
proceedings on 17.03.2003, but to no avail. Another letter
dated 17.03.2003 was sent informing the claimant that the
enquiry proceedings were scheduled for 26.03.2003.
Claimant opted not to attend the enquiry proceedings,
which facts constrained the Enquiry Officer to proceed
against him ex-parte. The Enquiry Officer conducted the
enquiry in a fair manner and submitted his report dated
28.04.2003, concluding therein that charges stood
established against the claimant.
5. The management announces that on receipt of
report of the Enquiry Officer, it decided to impose
punishment on the calimant. Vide letter dated 29.04.2003,
all the documents relating to the enquiry were sent to the
claimant and he was called upon to explain as to why
punishment of dismissal from service should not be
imposed upon him. At that juncture, the management took
a decision not to terminate his services since he had
abandoned his job. Claim has been made that the cause
projected by the claimant has no substance, hence it may
be dismissed.
6. On pleadings of the parties, following issues were
settled by my learned predecessor:
(i)
Whether workman has been guilty of negligence
and misconduct as alleged? It so, its effect?
(ii)
Whether enquiry conducted by the respondent
is fair and proper?
746
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
(iii)
As per terms of reference.
7. Vide order No. Z-22019/61/2007-IR(C-II), New Delhi
dated 11.02.2008, case was transferred for adjudication to
the Central Government Industrial Tribunal No. II, New
Delhi, by the appropriate Government. It was re-transferred
to this Tribunal for adjudication, vide order No. L-11012/
50/2003-IR(C-I), New Delhi dated 30.03.2011, by the
appropriate Government.
8. When case was being adjudicated, the Central
Government Industrial Tribunal, No. II, New Delhi, vide its
order dated 05.04.2011, treated issue No. 2 as preliminary
issue.
9. Claimant entered the witness box to establish his
case on the preliminary issue. Shri Sanjay Sharma and Shri
B.B. Murgai were examined by the management to establish
that the enquiry conducted against the claimant was in
consonance with principles of natural justice and fair play.
No other witness was examined by either of the parties.
10. During the course of arguments on the preliminary
issue, authorized representative of the claimant presented
that as per case of the management no punishment was
awarded to the calimant. Shri Abhinav Chaturvedi,
authorized representative for the management, took time
to seek advice and made a statement on 17.04.2013 that
though notice of proposed punishment was sent to the
claimant vide letter dated 29.04.2003, yet no punishment
was awarded to him. In view of the above facts, arguments
were heard on whole of the case instead of the preliminary
issue. Shri Rakesh Kumar, authorised representative,
advanced arguments on behalf of the claimant. Shri Abhinav
Agnihotri, authorised representative, raised his submissions
on behalf of the management. I have given my careful
considerations to the arguments advanced at the bar and
cautiously perused the record. My findings on issues
involved in the controversy are as follows:—
Issue No. 1 & 2.
11. Charge-sheet Ex. MW1/1 highlights that on
19.12.02 the claimant reported for his duties at cargo office
at 5.30 pm. He left his duty place unauthorisely and was
found standing at bus stand in front of Sanatan Dharam
Mandir (Mehram Nagar) to board a bus for his home, by
Shri Dinesh Singh at about 6.15 pm. When he was
questioned for his irresponsible action, he did not reply
properly. It has also been reported therein that thereafter
the claimant has not attended his duties from 20.12.2002
and onwards thereby he resorted to unauthorized absence.
Charges of leaving place of duty without any permission
of Manager Security and unauthorized absence without
any permission or authority or sanction of any leave were
levelled against him.
12. In letter dated 07.03.2003, proved as Ex. WW1/2,
the claimant denied allegations levelled against him and
claimed that he performed his duties till 8.00 a.m. on
20.12.2002. Since 20.12.2002 was his off day, hence he
reported for his duties on 21.12.2002. He was not taken on
job and his services were orally terminated. Thus it is
evident that the claimant denied all allegations levelled
against him, in the charge-sheet.
13. The management claims that it is not covered
under the Industrial Employment (Standing Orders) Act,
1946 and model standing orders are not applicable to it.
The claimant could not show that it is a case where model
standing orders should be made applicable. In such a
situation, the general law governing employer employee
relationship would be applicable to the present controversy.
To note the misconducts, known in the sphere of master
and servant relationship, efforts would be made to traverse
legal developments. The concept of misconduct in
employer and employee relationship is based upon the
nature and relationship itself and implied and express
conditions of service. These conditions would include the
conditions that the servant would be trustwrothy, that his
acts would justify the confidence of the employer, that the
employee will not so act as to prejudice or damage the
interests of the employer, that the employee will not act or
conduct or behave himself in a way inconsistent or
incompatible with the faithful discharge of his duties to the
employer, that he would not behave in an insulting manner,
that he would not be habitually negligent. Reference can
be made to the precedent in S.O. Tiwari [1960)(I) LLJ 167].
14. In Smith's Law of Master and Servant (8th Edition,
Pp. 79) following misconducts are detailed which may
justify discharge of a servant from service:
(i)
willful disobedience of any lawful order of his
master.
(ii)
gross moral misconduct, whether pecuniary or
otherwise, which is inconsistent with the
fulfillment of his conditions of service.
(iii)
negligence in business or conduct calculated
seriously to injure his master's business......."
15. In Jagmohan Das Jagjivan Das Modi [1962 (2)
LLJ 507] it was ruled by Gujrat High Court that a master is
entitled to dismiss his servant for various reasons and
some of them are as follows:
(i)
Where the act or conduct of the servant is
prejudicial or likely to be prejudicial to the
interests of the master or to the reputation of
the master.
(ii)
Where the act or conduct of the servant is
inconsistent or incompatible with the due or
peaceful discharge of his duty to his master.
(iii)
Where the act or conduct of a servant makes it
unsafe for the employer to retain him in service.
(iv)
Where the act or conduct of a servant is so
grossly immoral that all reasonable men will say
that the employee cannot be trusted.
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747
(v)
Where the act or conduct of the employee is
such that the master cannot rely on the
faithfulness of his employee;
(vi)
Where the act or conduct or employee is such
as to open before him temptations for not
discharging his duties properly;
(vii)
Where the servant is abusive or if he disturbs
the peace at the place of his employment;
(viii)
Where the servant is insulting and insubordinate
to such a degree as to be incompatible with the
continuance of the relation of master and servant;
(ix)
Where the neglect of the servant, though
isolated, tends to cause serious consequences.
16. The law of master and servant has now been
developed and various acts which were previously
misconducts are not so considered unless they are in
aggravated form while certain other acts have taken their
place. The rights and duties of employers and employees
have undergone transformation on account of sociological
factors and new conceptions of social justice. The broad
categories of "misconduct" on the part of an employee will
not be the following:
(i)
The first category will be non-performance of
duties on the part of an employee or any
defective performance of duties. This will include
negligence, absence without leave, loitering
during office hours, sleeping while on duty, go
slow and similar other defect in work.
(ii)
The next category is intentional disobedience
of any lawful or reasonable order of the employer
as well as any act of insubordination to the
employer or any superior officer.
(iii)
The next category of misconduct is an act of
bad faith or dishonesty or any act which is likely
to injure the interest of the employer.
(iv)
Another category or misconduct is of
undesirable activities which are inconsistent
with the faithful discharge of duties on the part
of an employee and which will be styled as "acts
subversive of discipline". This will include any
other immoral or criminal act of such a nature
that it makes the employee unfit for discharge of
his duties.
(v)
The next category of misconduct is undesirable
acts arising out of union or collective activities
such as strikes, picketing, holding meetings
inside the premises, collecting subscription in
the premises contrary to rules.
17. In Ram Singh (1992 Lab. IC 2391) the Apex Court
observed that though the expression 'misconduct' is 'not
capable of precise definition, its reflection receives its
connotation from the context, the delinquency in its
performance and its effect on the discipline and the nature
of duty. It may involve moral turpitude, it must be improper
or wrong behaviour, unlawful behaviour, willful in character,
forbidden act, a transgression of established and definite
rule of action, code of conduct but not mere error of
judgement, carelessness or negligence in performance of
duty, the act complained of bears forbidden quality of
character. Its ambit has to be construed with reference to
the subject matter and the context wherein the term occurs,
regard being had to the scope of the statute and the public
purpose it seeks to serve."
18. Generally speaking, misconduct is a transgression
of some established and definite rule of action where no
discretion is left except what necessity may demand, it is
violation of definite law, a forbidden act. Misconduct means
intentional wrong doing and would include unlawful
behaviour. A conduct which is blameworthy would be
misconduct, if by the commission or omission of acts of
the employee, the employer suffers loss or it generates an
atmosphere destructive of discipline. In any case, the action
of misconduct must have some relation with the employee's
duty to his employer. If the act complained of is found to
have some relationship to the affairs of the employer's
business, having a tendency to affect or disturb the peace
and good order of the establishment where the employee
works or be subversive of discipline in any direct or
proximate sense, such act would amount to misconduct.
19. In absence of standing orders, it would be open
to the employer to consider reasonably as to what conduct
can be properly treated as misconduct. It would be difficult
to lay down any general rule in that regard. Acts which are
subversive of discipline amongst the employee would
constitute misconduct, rowdy conduct in the course of
working hours would constitute misconduct, misbehavior
committed even outside working hours but with the
employees of the said concern may in some cases,
constitute misconduct, if the same is of such a character
that he would not be regarded as worthy of employment
and may, in certain circumstances, be liable to be called
misconduct, but his will naturally depend upon the
circumstances of each case. Reference can be made to the
precedent in Agnani [1963(I) LLJ 690].
20. Any conduct which is inconsistent with due and
faithfully discharge of duties of service would justify an
employer to initiate domestic action again the employee.
As alleged in the charge-sheet, the claimant left his place
of duty without any permission on 19.12.2002 and when he
was questioned by Shri Dinesh Singh he could not offer
any reasonable explanation in that regard. The charge-sheet
further proceeds that the claimant unauthorisely absented
himself from his duties since 20.12.2002. These conducts
are inconsistent with due and faithful discharge of duties
by the claimant and hence rightly treated as misconduct
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[PART II—SEC. 3(ii)]
by the management. Unauthorized absence from duty by a
security guard would leave his employer hay and dry and
make the employee unworthy of credence. Therefore I do
find nothing wrong on the part of the management, when a
decision was taken to serve charge-sheet on the claimant.
21. After service of charge-sheet Ex.MW1/1, the
Disciplinary Authority constituted a domestic enquiry
against the claimant. Shri B.B. Murgai was appointed as
Enquiry Officer, who sent notices to the claimant calling
upon him to join the inquiry proceedings. Letter Ex.WW1/2
was sent by the claimant to the management wherein he
denied allegation levelled on him, vide charge-sheet
Ex.MW1/1. This letter was written by him in response to
communication dated 28.2.2003, which has been proved as
Ex.WW1/M3. Contents of Ex. WW1/M3 makes it clear that
along with this letter a copy of charge-sheet was sent to
the claimant. In his reply Ex. WW1/2 he doesn't dispute
receipt of copy of charge-sheet. Thus it is evidence that
charge-sheet Ex. MW1/1 was served by the management
on the claimant.
22. In his testimony the claimant concedes that letter
dated 17.02.2013, copy of which has been proved as
ExWW1/M9, was received by him. When contents of Ex.
WW1/M9 are perused it came to light that Shri B.B. Murgai
informed the claimant that he failed to participate in the
inquiry on 17.3.2003. The claimant was informed that
proceedings of the inquiry would be conducted at 11.00
A.M. on 26.3.2003 at the office of the management, located
at cargo complex, Indra Gandhi International Airport, New
Delhi. The claimant was also informed that he can have
assistance of a friend, who should be an employee of the
management, to defend himself in the inquiry. Thus it is
evident that the claimant was informed of the date of inquiry,
in order to enable him to participate in the inquiry
proceedings. Letter dated 26.3.2003, proved as Ex.WW1/
M10, was sent to the claimant at his correct residential
address. It was sent to the claimant by registered post, but
he refused to accept it. Postal article Ex.WW1/M11 was
returned undelivered, with the remarks "refused" Correct
residential address of the claimant was written on the above
said letter. These facts make me to comment that when this
letter was tendered to him the claimant refused to accept it.
Consequently it is concluded that despite notices sent to
the claimant by the Enquiry Officer, calling upon him to
join the inquiry proceedings, he opted not to join the inquiry
at all.
23. When the workman did not avail the opportunity
then subsequently he cannot challenge the enquiry which
was continued in his absence, claiming it to be violative of
principles of natural justice. If a workman intentionally
refused to participate in the enquiry he cannot complain
that his dismissal is against principles of natural justice.
Law to this effect was laid in Sadul Textiles Mills Limited
[1957(1)LLJ 572], Bagchi (P.N.) & Co. Private Limited [1959(1)
LLJ 605], Muir Mills Company Limited (24 FJR 123), Major
U. R. Bhatnagar [1962(1) LLJ 656], Ghansham Dass
Srivastava [1968(2) LLJ 246] and Laxmi Devi Sugar Mills
[1957 (1) LLJ 17].
24. Normally in a judicial proceedings, a party is not
to be heard who absents himself from the hearing and if the
quasi judicial authority holds proceedings exparte in such
a case, then it will not amount to misconduct on his part.
Law to this effect was laid in S. Govinda Menon [1973 (2)
LLJ 369]. In view of these proposition of law, it is crystal
clear that the Enquiry Officer cannot be held guilty of
violating the principles of natural justice. Under these
circumstances, the management may argue that it was
beyond the competence of Shri Murgai to accord an
opportunity of being heard to the claimant.
25. When an employee abstains from the enquiry,
the Enquiry Officer would be constrained to proceed him
exparte and generally his report cannot be questioned
claiming that principles of natural justice were violated.
However, one of the fundamental principles of natural
justice, applicable to quasi judicial proceedings, is that the
authority empowered to decide must be one without bias
towards one side or the other. Bias means an operative
prejudice whether conscious and unconscious in relation
to a party or issue. Hence bias may improperly influence a
judge in arriving at a decision to any particular case. Rule
against bias strikes against those factors and requires that
the judge must be impartial and must decide the case
objectively on the basis of the evidence on record. Bias
may be defined as "anything which tends or may be
regarded as tending to cause such a person to decide a
case otherwise on evidence" and in case judge acts in that
fashion he must be held to be biased. If a person, for
whatever reasons, cannot take an objective decision on
the basis of evidence on record, he shall be said to be
biased. A person cannot take an objective decision in a
case in which he has an interest for, as the psychologists
tell us, very rarely can people take decision against their
own interest. Therefore, the maxim that a person cannot be
made a Judge in his own cause, rules as one of the guiding
factors of the principles of natural justice. This rule of
disqualification is applied not only to avoid possibility of a
wrong decision but also to ensure to be confident in the
impartiality of the administrative adjudication process.
Minimum requirement of natural justice is that the authority
must be composed of impartial persons acting fairly, without
prejudice and bias. A decision which is result of bias is
nullity and the trial is "Coram non judice." Reference can
be made to the precedent in Ranjeet Thakur [1987 (4) SCC
611].
26. Inference of bias, therefore, can be drawn only
on the basis of factual matrix and not merely on the basis of
insinuation, conjectures and surmises. Bias manifests in
variform and may affect the decision in variety of ways.
Personal bias arises from a certain relationship equation
between the deciding authority and the parties which incline
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749
him unfavourably or otherwise on the side of one of the
parties before him. Such equations may develop out of
varied combinations of personnel or professional hostility
or friendship. In order to challenge administrative action
successfully on the ground of personal bias, it is essential
to prove that there is a "reasonable suspicion of bias" or a
"real likelihood of bias." "Reasonable suspicion" test looks
mainly to outword appearances while "real likelihood" test
relates to the course of evaluation of possibilities, but in
practice the tests have much in common with one another
and in the vast majority of cases may lead to the same
result. For this area of bias the real question is not whether
a person was biased. It is difficult to prove the state of
mind of a person. Therefore, what the courts see is whether
there is a reasonable ground for believing that the deciding
officer was likely to have been biased. In deciding the
question of bias, the judge have to take into consideration
the human possibilities and the ordinary course of human
conduct. But there must be real likelihood of bias and not
mere suspicion of bias before the proceedings can be
quashed on the ground that the person conducting the
proceedings is disqualified by bias. The apprehension must
be judged from a healthy, reasonable and average point of
view and not on mere apprehension and vague suspicion
of whimsical, capracious and unreasonable people.
Reference can be made to the precedents in Metropolitan
Properties Ltd. [1968 (3) All G.R. 304] S.N. Jodhawat [I.L.R.
(1981) 31 Raj. 137] and B.B Rajvanshi [1988 (2) SCC 415].
27. In Jiwan K. Lohia [1992 (1) SCC 56], upholding
the decision of the High Court while removing an arbitrator
appointed by the court on the ground of bias, the Apex
Court observed that with regard to the bias the test to be
applied is not whether in fact bias has affected the
judgement but whether a litigant could reasonably
apprehend that a bias attributable might have operated
against him in final decision. The test of bias is whether a
reasonable man is best of relevant opinion, would have
thought that the bias was likely and whether the persons
concerned, "was likely to be disposed of to decide the
matter only in a particular way." Therefore, the real test of
"real likelihood of bias" is whether a reasonable man in
possession of relevant information would have thought
that bias was likely and whether the authority concerned
was likely to be disposed to decide the matter in a particular
way. What is relevant is the reasonable apprehension in
that regard in the mind of the party. As the proper approach
in case of bias for the court, is not to look into his own
mind and ask "Am I biased?" but to look into mind of the
party before it. The court must look at the impression which
would be given to the other party. Even if the deciding
officer was an impartial as could be, nevertheless if right
minded person would think that, in the circumstances, there
is a real likelihood of bias, the deciding officer is disqualified.
Therefore, the court would not enquire whether there was
bias in fact. It would suffice if reasonable people might
think that there was a bias. The reason is plain enough,'
write "Lord Denning," justice must be rooted in confidence
and confidence is destroyed when right minded people go
away thinking: "the judge was biased." See the Discipline
of Law (1982) at Pp 87. On this count in Municipal Properties
Ltd. (Supra) it was ruled that Mr. Lannon was disqualified
from sitting as Chairman of a Rent Assessment Committee,
becuase his father was a tenant and had a case pending
against that committee. Even though it was acknowledged
that there was no actual bias and want of good faith on the
part of Mr. Lannon."
28. To note bias on the part of the Enquiry Officer,
the record is scanned. As emerge out of the charge-sheet
Ex. MW1/1 the claimant was called upon to show cause
within a period of 3 days as to why an action should not be
initiated against him. The claimant opted not to accept the
letter and it was returned undelivered . Thereafter letter
dated 11.02.2003, proved as Ex.WW1/M6, was sent calling
upon the claimant to submit his reply to the charge-sheet
within a period of 3 days. This letter was delivered to the
claimant and acknowledgement card Ex. WW1/M4 was
transmitted to the management by the postal authorities.
However, the claimant opted not to file any reply to the
charge-sheet. Letter dated 28.2.2003, proved as Ex.WW1/
M3, was trasmitted to the claimant, delivery of which has
been admitted by him. He was informed that Shri B.B. Murgai
has been appointed as an Enquiry Officer, who was
supposed to intimate date, time and venture of inquiry to
him. Till receipt of Ex.WW1/M3 by the claimant, the Enquiry
Officer has not initiated inquiry proceedings in the matter.
29. Record tells that the Enquiry Officer wrote first
letter to the claimant on 6.3.2003, calling upon him to join
the inquiry proceedings on 17.3.2003. The Enquiry Officer
was supposed to the record proceedings of the inquiry on
17.3.2003. However no proceedings of that date were
recorded by the Enquiry Officer, as testified by Shri Sanjay
Sharma. Enquiry Officer wrote letter Ex.WW1/M9, calling
upon the claimant to joint the inquiry proceedings on
26.3.2003. Dispite receipt of that letter the claimant remained
absent. However the Enquiry Officer opted not to record
any proceedings of that date too. Letter Ex. WW1/M10
was written to the claimant informing him that inquiry has
been scheduled for 10.4.2003. Proceedings dated 10.4.2003,
purported to have been recorded by the Enquiry Officer,
are placed before the Tribunal. Those proceedings being it
to light that statement of the Dinesh Singh was recorded
by the Enquiry Officer. However it has not been mentioned
at all as to whether the presenting officer was present or
not or the Enquiry Offficer recorded his decision to proceed
the claimant ex-parte. Statement of Shri Dinesh Singh bears
signature of the witness as well as the Enquiry Officer.
However the Enquiry Officer makes a candid admission
that neither Shri Dinesh Singh was examined by him nor
the latter produced any document before the former. The
Enquiry Officer also explains that no witness was exmined
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[PART II—SEC. 3(ii)]
before him by the management. This testimony of the
Enquiry Officer is in contradiction to the record, in the form
of examination of Shri Dinesh Singh. When attempts are
made to reconcile the facts it emerges over the record that
the Enquiry Officer opted not to record any inquiry
proceedings or examine Shri Dinesh Singh during the course
of inquiry.
30. Report, purporting to be recorded by the Enquiry
Officer, speaks that Shri Dinesh Singh was examined and
documents were also proved by him before the Enquiry
Officer. Above facts would persuade an ordinary prudent
man to believe that this report was drafted by someone
else and the Enquiry Officer signed it, besides the
statement purporting to have been made by Shri Dinesh
Singh. Above inference gets support out of the facts that
on 28.4.2003 the Enquiry Officer allegedly recorded his
report, which was placed before the Disciplinary Authority
on 29.4.2003, who in turn placed it before the Chairman
on that very date and the Chairman passed the dismissal
order. After passing the dismissal order, the Chairman
purportedly issued a show cause notice to the claimant
calling upon him to explain within a period of 7 days as
to why he should not be dismissed from the service of
the management. All these facts leave a room to believe
that when the claimant approached the Conciliation Officer,
at that juncture record relating to testimony of Shri Dinesh
Singh, enquiry report, order of the Disciplinary Authority,
punishment order passed by the Chairman and notice on
the proposed punishment were drafted and got signed
from the concerned authorities. When the Enquiry Officer
fabricates statement of Shri Dinesh Singh and report
Ex.WW1/M14, his real likelihood of bias against the
claimant emerges over the record. Bias of the Enquiry
Officer disqualifies him do act as such and makes his
report unacceptable.
31. However there is other facet of the coin. Though
charge-sheet was served upon the claimant, decision was
taken to constitute a domestic inquiry, Enquiry Officer
was appointed, who wrote letters to the claimant to join
the inquiry proceedings and on his non-participation the
claimant was allegedly proceeded ex-parte, yet the
management took stand in its written statement as well
as during course of adjudication that services of the
claimant were not terminated since he had abandoned
the job. During the course of arguments Shri Agnihotri
was called upon to explain as to whether the management
presents it to be a case of no inquiry or a defective inquiry.
He boldly explains that after receipt of report of the
Enquiry Officer notice of proposed punishment was sent
to the claimant but no order of any sort was passed
against him. He refuted that order Ex.MW1/W2, which
imposes punishment of dismissal from service on the
claimant, was signed by the Chairman of the management.
Signature, which appears at the end of the said order, on
comparison from signature appearing on notice of the
proposed punishment, proved as Ex.WW1/M2, is found
to be of the Chairman of the management. However the
management disapproves of act of awarding punishment
of dismissal to the claimant. Since the management claims
that no punishment was awarded to the claimant, under
these circumstances the Tribunal cannot coin a case for
the management to the effect that punishment of dismissal
was awarded to the claimant. As per the case projected
by the management, no punishment was awarded to the
claimant despite the fact that an inquiry was conducted
and findings were recorded against him.
32. An employer may exercise his discretion to
punish his employee when the latter commits a
misconduct. For exercise of this discretion, the employer
had to serve a charge-sheet to offer an opportunity to
the employee to make a statement of defence. When
charges are refuted by the employee, the employer may
exercise his discretion to punish the former. The Punishing
Authority may conduct the inquiry himself or deligate
his authority to a subordinate officer. When Punishing
Authority appoints an Enquiry Officer, the latter conducts
the inquiry and submits his report to the Disciplinary
Authority. On concurrence with the report of the Enquiry
Officer, the Disciplinary Authority may award punishment
to the delinquent employee. Thus an inquiry culminate
either into exoneration of the employee or his punishment.
When the employee is awarded punishment of dismissal
or some lessor punishment, he may assail the same before
the industrial adjudicator. In case the Disciplinary
Authority opts not to award any punishment to the
delinquent employee, issues relating to commission of
misconduct and virus of the inquiry become redundant.
Considering these propositions it was announced by the
Tribunal that the issues relating to the commission of the
misconduct and virus of the inquiry became redundant,
vide order dated 17.4.2012. As such the aforesaid issueds
are answered accordingly.
Issue No. 3
33. Shri Agnihotri argued that the claimant had
abandoned the job. According to him, in such a situation
the claimant is deemed to have ceased to be an employee
of the management. Shri Rakesh Kumar, authorized
representative, disputes the said proposition of facts. In
order to adjudicate the controversy, it would be expedient
to know as to what words "abandon" and "abandonment"
mean. Ordinarily, the word 'abandon' does not mean 'merely
leave, 'but'leaving completely and finally.' Word
"abandonment" would indicate that it has a connotation
of finality, which would mean relinquishment or
extinguishment of a right, giving up of something
absolutely, giving up with an intent of never claiming a
right or interest, to renounce or forsake utterly. In order
to constitute on "abandonment" there must be a total or
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751
complete giving up of duties, so as to indicate an intention
not to resume the same. Abandonment must be total and
under circumstances which clearly indicate an absolute
relinquishment. A failure to perform duties pertaining to
an office must be with an actual or imputed intention on
the part of the officer to abandon and relinquish the
office.
34. Abandonment is a voluntary positive Act. A
man must expressly say that he gives up his right. If he
remains quiet, it cannot be said that he is forsaking his
title to property or his interest therein. An office is
abandoned by ceasing to perform its duties. A temporary
absence is not, ordinarily sufficient to constitute an
abandonment of an office. A mere absence of a workman
from duty can not be treated as an abandonment of
service. Abandonment or relinquishment of service is
always a question of intention and normally, such an
intention can not be attributed to an employee without
adquate evidence is that behalf. However, the "intention"
may be inferred from the acts and conduct of the party.
The question as to whether the job, in fact has been
abandoned or not, is a question of fact which is to be
determined in the light of the surrounding circumstances
of each case.
35. On turning to facts it came to light that show
cause notice Ex.WW1/M1 was served on the claimant by
the management. When this document was put to the
claimant during the course of his cross examination, he
admitted receipt of this notice. When this document is
scanned, it came to light that it was received by the
claimant on 27.12.2002. As per the case projected by the
management, the claimant abandoned his job w.e.f.
20.12.2002. No explanation is offered as to how this notice
was received by the claimant on 27.12.2002 personally. It
seems that this memo was handed over to claimant on
27.12.2002. When he visited the office of the management.
The claimant explains that he made a reply to this memo,
which reply is Ex. WW1/12. During the course of his
cross-examination the management had not made any
attempt to dispute genuineness of Ex. WW1/12. When
contents of Ex. WW1/12 as perused, it came to light that
the claimant detailed therein that he had been attending
his duties since 20.12.2002 but had not been allowed to
resume the same. I have no hesitation to conclude that
till 27.12.2002 the claimant had been visiting the office of
the management to resume his duties.
36. On receipt of letter Ex. WW1/M3 the claimant
wrote Ex. WW1/2 to the management on 7.3.2003. This
document makes it apparent that the claimant disputes
allegations of leaving duty without permission on
19.12.2002 and remaining absent from duty since 20.12.2002
till the date of issue of the charge-sheet on 20.1.2003. He
highlights therein that he reported for his duties on
21.12.2002 but was not allowed to resume the same. In
respect of initiation of domestic inquiry, he clarified that
conciliation proceedings were going on and the inquiry
proceedings have been initiated to take revenge. Thus
these two documents make it clear that the claimant made
his intention known to the management to the effect that
he wants to resume his duties, but was not allowed to do
so. It nowhere emerge out that the claimant abandoned
the job and his intention to do so reflects out of his
continued long absence.
37. Abandonment of job by the employee is
comprehended in the expression "voluntary retirement"
used in the definition of term retrenchment, enacted by
section 2(oo) of the Industrial Disputes Act, 1947 (in short
the Act). In such cases, the determination of the contract
of employment must have been brought about voluntary
abandonment of job. An inference that an employee had
abandoned or relinquished his job is not easily drawn
unless from the length of absence and from surrounding
circumstances an inference to that effect can be
legitimately drawn and it can be assumed that the
employee intended to abandon his service. Reference can
be made to the precedents in Bachinghum and Carntic
Co. Ltd. (1963 (2) LLJ 638) and G.T. Lad (1979 Lab. I.C.
290).
38. Question for consideration would be as to
whether the management could establish that the claimant
intended to abandon his job? As emerge out of Ex. WW1/
12, the claimant had been approaching the management
daily but was not allowed to resume his duites. Same
proposition emerge out of the letter dated 7.3.2003, proved
as Ex. WW1/12. When this letter was written by the
claimant by that time the management had served a
charge-sheet on the claimant and the latter had
approached the Conciliation Officer claiming that by not
allowing him to resume his duties his services were
terminated by the management. Thus two different stands
were taken by the parties on alleged absence of the
claimant from service w.e.f. 20.12.2002. On that date the
management alleged that the claimant was absent from
duties in an unauthorized manner and served him with a
charge-sheet. The management may punish an employee
for his misconduct but cannot punish an ex-employee.
Evidently on the date of service of charge-sheet the
claimant was treated to be an employee by the
management. It was not claimed that he had abandoned
his service, on being absent in an unauthorized manner.
Thus it is evident that till service of charge-sheet and
appointment of Enquiry Officer the claimant was treated
to be an employee by the management.
39. Ex. WW1/12 projects the misconduct committed
by the claimant on 19.12.2002. As emerge out of the contents
of that letter the claimant was found standing at Mehram
Nagar market by Shri Dinesh Singh at 6.45 P.M. that day.
Claimant explains that he had gone there to have his pack
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[PART II—SEC. 3(ii)]
of dinner. According to him, he was to report for his duties
at hanger at 7.15 P.M. He admits to be on duty at cargo
terminal from 5.30 P.M. to 7.00 P.M. and was supposed to
report for duty at 7.15 P.M. at hanger that night. Thus it
is evident that the claimant left his duties and went to
Mehram Nagar market without any permission. For that
misconduct Shri Dinesh Singh has taken his pass and
memo Ex. WW1/M1 was served upon him. For this
misconduct he was not allowed to resume his duties,
which action partakes character of termination of his
services. I am constrained to conclude that the claimant
never intended to abandon his service. The management
cannot claim that by way of abandonment the claimant had
voluntarily resigned from services.
40. Claimant left his duty place and reached bus
stand near Mehram Nagar to board a bus for his residence
on 19.12.2002. He was found there by Shri Dinesh Singh.
He could not explain as to why he was present there,
when he was supposed to be on duty at hanger, Indira
Gandhi International Airport, New Delhi. Taking into
consideration the misconduct referred above the
management has not allowed him to resume his duties.
41. An employer may discharge a portion of his
labour force as surplusage in a running or continuing
business for variety of reasons, e.g., for economy,
convenience, rationalization in industry, installation of a
new labour saving machinery etc. The Act defines
"termination by the employer of the service of a workman
for any reasons whatsover", except the categories
exempted in sub-section 2(oo), to be retrenchment. The
definition of the term "retrenchment", as enacted by the
Act, is extracted thus:
"(oo)
"retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action, but does not include:—
(a)
voluntary retirement of the workman; or
(b)
retirement of the workman on reaching
the age of superannuation if the contract
of employment between the employer and
the workman concerned contains a
stipulation in that behalf; or
(bb)
termination of the services of the
workman as a result of the non-renewal
of the contract of employment between
the employer and the workman
concerned on its expiry or of such
contract being terminated under a
stipulation in that behalf contained
therein; or
(c)
termination of the services of a workman
on the ground of continued ill-health".
42. Definition of retrenchment is very wide and in
two parts. The first part is exhaustive, which lays down
that retrenchment means the termination of the service of
a workman by the employer "for any reason whatsoever"
otherwise then as a punishment inflicted by way of
disciplinary action. Thus main part of the definition itself
excludes the termination of service, as a measure of
punishment inflicted by way of disciplinary action from
the ambit of retrenchment. The second part further
excludes" (i) voluntary retirement of the workman, or (ii)
retirement of workman on reaching the age of
superannuation, or (iii) termination of the service of a
workman as a result of non-renewal of contract of
employment, or (iv) termination of contract of employment
in terms of a stipulation contained in the contract of
employment in that behalf, or (v) termination of service
on the ground of continued ill-health of the workman.
Reference can be made to the precedents in Avon Services
(Production Agencies) (Pvt.) Ltd. [1979 (I) LLJ 1] and
Mahabir [1979 (II) LLJ 363].
43. Section 25F of the Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i)
There should be one month's notice in writing
to the workman concerned.
(ii)
The notice should specify the reasons for
retrenchment.
(iii)
The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice
the wages for the period.
(iv)
The workman has been paid retrenchment
compensation which should be equivalent to
15 days' average pay for every one years'
service or any part thereof provided it exceeds
six months.
(v)
The notice is also given to the appropriate
Government.
44. For seeking protection under section 25-F of
the Act an employee should be in continuous service
under an employer for not less than one year. Continuous
service for a period of one year may include period of
interruption on account of sickness or authorized leave
or accident or strike, which is not illegal or lockout or
cessation of work which is not due to any fault on the
part of the workmen, as enacted by provisions of sub-
section (1) of section 25B of the Act. Sub-section (2) of
the said section introduces a fiction to the effect that
even if a workman is not in "continuous service" within
the meaning of clause (1) for a period of one year or six
months, he shall be deemed to in continuous service for
that period under an employer if he has actually worked
for the days specified in clauses (a) and (b) thereof. In
Vijay Kumar Majoo (1968 Lab. I.C. 1180) it was held that
¹Hkkx II—[k.M 3(ii)º
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753
one year's period contemplated by sub-section (2)
furnished a unit of measure and if during that unit of
measure the period of service actually rendered by the
workman is 240 days, then he can be considered to have
rendered one year's continuous service for the purpose
of the section. The idea is that if within a unit period of
one year a person had put in at least 240 days of service,
then he must get the benefit conferred by the Act.
Consequently, an enquiry has to be made to find out
whether the workman actually worked for not less than
240 days during the period of 12 calendar months
immediately preceding the retrenchment.
45. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continous
service of not less than 240 days in 12 calendar months,
he is deemed to have completed one years' service in the
industry. It would be expedient to reproduce observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked
in an industry for not less than 240 days is to be
deemed to have completed one year's service in
the industry. Consequently an enquiry has to be
made to find out whether the workman had actually
worked for not less than 240 days during period of
12 calendar months immediately preceding the
retrenchment. These provisions of law do not show
that a workman after satisfying the test under
Section 25-B has further to show that he has worked
during all the period he has been in the service of
employer for 240 days in the year".
46. There is no dispute that the claimant was in
continuous service of the management since 1994. He
rendered continuous service of one year, ancontemplated
by the provisions of section 25-B of the Act, in every
calendar year. No notice or pay in lieu thereof and
retrenchment compensation was given to him. As projected
by the claimant his earned wagees till 19.12.2002, were not
paid. By not allowing him to join his duty his services were
terminated by the management in violation of the provision
of section 25-F of the Act. When services of an employee
is terminated in contravention of the section 25-F of the
Act, the normal rule is to order reinstatement of such an
employee in service.
47. Since notice pay or pay in lieu thereof
specifying reasons for retrenchment compensation was
not paid to the claimant, his retrenchment is in violation
of provisions of section 25-F of the Act. When order of
termination of service is illegal or wrongful, the industrial
adjudicator has to make a specific order of reinstatement
of a workman. The problem confronting the industrial
adjudicator is to promote its two objectives, security of
an employee and protection against wrongful discharge
or dismissal on the one hand and industrial peace and
harmony on the other, fully leading ultimately to the goal
of maximum possible production. In dealing with these
problems, an industrial adjudicator is to balance relevant
factors without adopting legalistic and doctrinaire
approach. The Tribunal has to examine through
circumstances of each case to see whether reinstatement
of dismissed employee is not inexpedient or improper. It
has to take a decision in a spirit of fairness and justice
following rules of justice and reason and after carefully
examination of the facts and circumstances of the case.
Past record of the employee, nature of his alleged present
lapse and the grounds on which order of the management
is set aside are also relevant factors for consideration.
Normally, where a workman cannot said to be a type of
person whose presence as an employee is undesirable
and not conducive to maintenance of industrial peace, it
will not be fit case for depriving him relief of reinstatement
and grant him compensation in lieu thereof. Law to this
effect was laid by the Apex Court in Ruby General
Insurance Company Ltd. [1970(1) LLJ 63] and
Management of Monghyr Factory of ITC Ltd., Monghyr
[1978 Lab. I.C. 1256). Reference can also be made to
Western Indian Plywood Ltd. [1982(1) LLJ 113] and Delhi
Cloth and General Mills Co. Ltd. (1989 Lab. I.C. 490).
48. As projected above, termination of service of
the claimant is violative of provisions of section 25F of
the Act. However, it emerged over the record that the
claimant left his duty on 19.12.2002 in an unauthorized
manner and reached bus stand at Mehram Nagar to board
a bus for his residence, where he was noticed by Shri
Dinesh Singh at 6.45 P.M. that day. Since the claimant left
his place of duty, which was at a strategic point, it
emerged over the record that the claimant is a type of
person whose presence as an employee is undesirable
and not conducive to maintaining industrial peace.
Therefore, I am of the considered opinion that relief of
reinstatement in service is found not to be justified.
Section 11A of the Act vests the industrial adjudicator
with discretionary powers to give 'such other relief to the
workman' in lieu of dismissal as circumstances of the case
may require, where for some valid reasons, it considers
that reinstatement with our without conditions will not
be fair or proper.
49. When relief of reinstatement is not granted, in
the alternative, the Tribunal may award compensation to
the claimant in lieu of his reinstatement. No definite
yardstick for measuring the quantum of compensation is
available. In S.S. Shetty [1957 (11) LLJ 696] the Apex Court
indicated some relevant factors which an adjudicator has
to take into account in computing compensation in lieu
of reinstatement, in the following words:
"The Industrial Tribunal would have to take into
account the terms and conditions of employment,
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the employer himself ceasing to exist or of the
workman being awarded various benefits including
reinstatement under the terms of future awards by
Industrial Tribunal in the event of industrial disputes
arising between the parties in future ... In computing
the money value of the bebnefits of reinstatement,
the industrial adjudicator would also have to take
into account the present value of what his salary,
benefits etc. would be till he attained the age of
superannuation and the value of such benefits would
have to be computed as from the date when such
reinstatement was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be to make as correct as estimate as is
possible bearing, of course in mind all the relevant
factors pro and con".
50. A Divisional Bench of the Patna High Court in
B. Choudhary Vs. Presiding Officer, labour Court,
Jamshedpur (1983) Lab. I. 1755 (1758) deduced certain
guidelines which have to be borne in mind in determining
the quantum of compensation viz (i) the back wages
receivable; (ii) compensation for deprivation of the job
with future prospect and obtainability of alternative
employment; (iii) employee's age (iv) Length of service in
the establishment; (v) capacity of the employer to pay
and the nature of the employer's business; (vi) gainful
employment in mitigation of damages; and; (vii)
circumstances leading to the disengagement and the past
conduct. These factors are only illustrative and not
exhaustive. In addition to the amount of compensation, it
is also within the jurisdiction of the Tribunal to award
interest on the amount determined as compensation.
Furthermore, the rate of such interest is also in the
discretion of the Tribunal. Reference can be made to
Tabesh Process, Shivakashi (1989 Lab. I.C. 1887).
51. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the
Apex Court took into account countervailing facts that
the employer had paid certain sums to the workmen and
her own earning in the alternative employment and
ordered that "it would be fair and just to direct the
appellant a substantial sum as compensation to her". In
Utkal Machinery Ltd. [1966 (1) LLJ 398] the amount of
compensation equivalent to two year salary of the
employee awarded by the Industrial Tribunal was reduced
by the Supreme Court to an amount equivalent to one
year salary of the employee in view of the fact that she
had been in service with the employer only for 5 months
and also took into consideration the unusual manner of
her appointment at the instance of the Chief Minister of
the State in A.K. Roy [1970 (1) LLJ 228] compensation
equivalent to two years salary last drawn by the workmen
was held to be fair and proper to meet the ends of justice.
In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count
converted the award of reinstatement into compensation
of a sum of Rs. 50000/- as just and fair compensation in
full satisfaction of all his claims for wrongful dismissal
from service. In O.P. Bhandari [1986 (II) LLJ 509], the
Apex Court observed that it was a fit case for grant of
compensation in view of reinstatement. The Court
awarded compensation equivalent to 3.33 years salary as
reasonable. In M.K. Aggarwal (1988 Lab. I.C. 380), the
Apex Court though confirmed the order of reinstatement
yet restricted the back salary to 50% of what would
otherwise be payable to the employee. In Yashveer Singh
(1993 Lab., I.C. 44) the court directed payment of Rs.
75000/- in view of reinstatement with back wages. In Naval
Kishor [1984 (II) LLJ 473] the Apex Court observed that
in view of the special circumstances of the case adequate
compensation would be in the interest of the appellant. A
sum of Rs. 2 lac was awarded as compensation in lieu of
reinstatement. In Sant Raj [1985 (II) LLJ 19] a sum of Rs.
2 lac was awarded as compensation in lieu of
reinstatement. In Chandu Lal (1985 Lab. I.C. 1225) a
compensation of Rs. 2 lac by way of back wages in leiu
of reinstatement was awarded. In Ras Bihari (1988 Lab.
I.C. 107) a compensation of Rs. 65000/- was granted in
lieu of reinstatement, since the employee was gainfully
employed elsewhere. In V.V. Rao (1991 Lab I.C. 1650) a
compensation of Rs. 2.50 lac was awarded in lieu of
reinstatement.
52. Claimant was serving as a security guard on
19.12.2002. He left his duty place and was found standing
at the bus stand near Mehram Nagar to board a bus for
his residence. He left the hanger unattended without any
permission. It is evident that the claimant left the property
of the management unattended, which act may cause loss
to the property, besides reputation of the management.
Such an employee looses confidence of his employer. An
employee on whom confidence cannot be reposed is not
found worth retention in service. All these facts persuade
me to conclude that the claimant is not worthy for grant
of an order of reinstatement in service. However
considering his length of service and the fact that the
management had terminated his service in an illegal
manner and that he had to contest the case for about a
decade, a compensation of Rs. 4 lacs is awarded to the
claimant in lieu of reinstatement in service. An award is,
accordingly, passed. It be sent to the appropriate Govt.
for publication.
Dated : 02.12.2013
Dr. R.K. YADAV, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
755
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vfèdj.k@Je U;k;ky; vgenkckn ds iapkV ¼lanHkZ la[;k 101 dk
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dks izkIr gqvk FkkA
[lañ ,y&30012@104@1997&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 3rd January, 2014
S.O. 279.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 101/
2004) of the Cent. Govt. Indus. Tribunal-cum-Labour Court
Ahmedabad as shown in the Annexure, in the industrial
dispute between the management of ONGC and their
workmen, received by the Central Government on
03/01/2014.
[No. L-30012/104/1997- IR (C-I)]
M. K. SINGH, 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: 14th October, 2013
Reference (CGITA) No. 101/2004
Reference (ITC) No. 74/98 (Old)
1.
The Chairman-cum-Managing Director,
ONGC Ltd., Dehradun
2.
The Group General Manager (Project)
ONGC Ltd., HLoy Road, Mehsana.
3.
The Regional Director,
ONGC Ltd., WRBC,
Makarpura Road, Vadodara-9
...First Party
And
Their Workman
Shri Pinakinchandralal Bhatia
Through the General Secretary,
Gujarat Petrolium Employees Union,
434/46, Gandhi Vas, Koba Road,
Sabarmati, Ahmedabad (Gujarat)
...Second Party
For the First Party
: Shri K.V. Gadhia, Advocate
For the Second Party (Union) :
None
AWARD
The Central Government/Ministry of Labour,
New Delhi vide order no. L-30012/104/97-IR (C-I) dated
27.08.1998 under clause (d) of sub-section (1) and sub-
section (2A) of section 10 of the I.D. Act, 1947, referred
the dispute to the Tribunal for adjudication on the terms
of reference in the Schedule:
SCHEDULE
"Whether the action of the ONGC Ltd., Mehsana
Project, Mehsana in terminating the services of Shri
P.C. Bhatia, Asst. Technician (Electrical) OBG with
effect from 01.08.1994 in the guise of voluntarily
resignation by the employee under rule 14 (5) of
ONGC leave rules, 1968 is legal and justified? If
not, to what relief the concerned workman is entitled
to?"
2. Upon notices the Union (S.P.) and the
management (F.P.) appeared and submitted pleadings.
3. The 2nd Party (Union) as per statement of claim
(Ext. 5) pleaded that the order of termination of Shri P.C.
Bhatia is illegal and against the principles of natural justice
and that services of workman was terminated on the
ground of abandonment of service which is by way of
victimising the workman P.C. Bhatia and is also against
the ONGC's own rules and regulations. ONGC kept new
persons at his post and even his juniors are retained.
Relief was sought for declaring the termination of P.C.
Bhatia illegal and unjustified and for reinstating him at
his original place with full back wages and all other
benefits with continuity of service.
4. The contention of the 1st party (ONGC Ltd.) as
per written statement (Ext.8) is that the reference is not
maintainable and the averments in para of S/c are denied.
The case of the 1st party is that Shri P.C. Bhatia, Ex Asst.
Technician (Electrical) was habitual absentee since joining
the ONGC Ltd. and he used to remain absent so many
times without permission/intimation or leave application
and as per regulation of 14 (5) of ONGC Rules, and office
order dated 18.05.1995 was issued treating Shri P.C. Bhatia
as deemed to have resigned from his post of Asst.
Technician (Electrical) with ONGC w.e.f. 01.08.1994 (AN)
after expiry of 180 days of unauthorised absence. The
2nd Party is not entitled to any relief and the reference is
liable to be dismissed with cost.
5. The 2nd Party (Union) submitted statement of
claim on 07.10.1999 and the 1st party (ONGC) submitted
written statement on 04.10.2000. Thereafter the case was
running for leading evidence by the 2nd Party failed to
lead evidence in spite of pendency of the case for evidence
for more than a decade. The 2nd party executed Vakilpatra
in favour of Shri Hitesh D. Kathrotia, Advocate on
756
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
12.12.2005 but even then no oral or documentary evidence
adduced to support the statement of claim. The 1st Party
files a pursis (Ext. 14) on 03.10.2013 for closing the case
of the 2nd Party and it was seen also by Shri Hitesh D.
Kathrotia, Advocate for the S.P. but all efforts went in
vain. The 2nd Party P.C. Bhatia or the Union or the retained
Lawyer did not take step to lead evidence.
6. So to my considered view, the 2nd Party has no
interest to make contest in this case. Therefore, the terms
of reference is answered in the affirmative in favour of
the 1st Party (ONGC Ltd.). This reference is, therefore,
dismissed. No order as to cost.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 tuojh] 2014
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FkkA
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,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 3rd January, 2014
S.O. 280.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 578/
2004) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad as shown in the Annexure, in the industrial
dispute between the management of Travel Corporation
(India) Ltd. and their workmen, received by the Central
Government on 03/01/2014.
[No. L-11012/40/2002- IR (C-I)]
M.K. SINGH, 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: 4th September, 2013
Reference (C.G.I.T.A) No. 578 of 2004
Reference I.T.C. No. 52 of 2003 (old)
1.
Travel Corporation (India) Ltd.
Ushadeep Building,
Near Navrangpura Rly Crossing,
Navrangpura, Ahmedabad
2.
M/s. Thomas Kook India Ltd.
Sakar-2, 2nd Floor,
Near Income Tax Circle,
Navrangpura, Ahmedabad.
......First Party
And
Their Workmen
Harishbhai Krishanlal Shah,
A-1/8 Oshan Park,
Near Nehrunagar char rasta,
S.M. Road,
Ahmedabad-380015
......Second Party
For the 1st Party :
Shri Nalin U. Bhatt, Advocate
For the 2nd Party :
Shri Amrish Patel, Advocate
AWARD
The Central Government/Ministry of Labour, New Delhi
by its order No. L-11012/40/2002 I.R. (C-1) dated
07.11.2003, referred the dispute under Cl.(d) sub-section
(1) and sub-section (2A) of section 10 of the Industrial
Dispute Act, 1947 for adjudication to Industrial Tribunal,
Ahmedabad as per terms of reference in the Schedule:
SCHEDULE
"Whether the action of Travel Corporation (India)
Ltd. in terminating the service of the workman Shri
Harishbhai K. Shah w.e.f. 15.05.2000 is legal, justified
and proper? If not, then to what relief the concerned
workman is entitled to"
2. The parties appeared and filed pleadings—
statement of claim (Ext.4) by the workmen 2nd Party and
written statement (Ext.6) by the 1st Party.
3. The case of the workman Harishbhai K. Shah as
per statement of claim is that he worked in the 1st party
company for 15 years with clean service record and no
any notice memo or warning letter was issued to him
except the notice dated 06.12.1999 by which he was put
under suspension by show cause notice cum suspension
order. The allegation against him was false and concocted
and created by the officers of the company. His brother
in law Shri Shrikantbhai Shah was working as area
Manager and after his retirement Nayan Shah
(complainant), Ratilal Shah and Adil Bajirao started making
false and absurd allegation of taking commission. He was
protesting against such action of the above officials. He
filed complain to the Managing Director of the company.
But thereafter instead of taking any action against those
officials, false allegations were created and illegal
departmental enquiry was held against him. The E.O. &
¹Hkkx II—[k.M 3(ii)º
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757
P.O. all were biased the E.O. on false and fabricated
charges held him guilty to the charges levelled and
enquiry held against the laid down principles of natural
Justice. No opportunity was given to him and the
Disciplinary Authority by its punishment order dismissed
him w.e.f. 15.05.2000 and he was victimised since he had
filed complaint against above officials. Due to illegal
action of the company he and his family has suffered
much and remained unemployed. The action of his
dismissal for services is unjust, unfair and also acts of
unfair labour practice. On these scores prayer is for
declaring his order of dismissal illegal and to set aside
the order of his dismissal and for reinstatement with full
back wages with interest and cost of Rs. 10,000/- and to
grant any other relief to which he is found entitled.
4. As against this the case of the 1st Party T.C.
(India) Ltd. as per W.s is that the workman Harishbhai
was involved in serious misconduct which was
detrimental to the rule and regulations of the company
and so he was suspended through show cause notice
cum suspension order and charges were served on him
and domestic enquiry was conducted following laid down
principles of natural Justice and sufficient opportunity
was granted to the 2nd Party workman to defend himself
in enquiry proceeding and the allegation under the charges
were proved in enquiry and E.O. submitted enquiry report
and the Disciplinary Authority rightly dismissed him from
the service of the company. So the 2nd Party workman is
not entitled to any relief and the reference is fit to be
dismissed.
5. The workman (2nd Party) by filling a pursis at
Ext. 11 challenged the validity, correctness and propriety
of the domestic enquiry held against him and prayed to
decide the preliminary issue of propriety of the domestic
enquiry. Thereafter the preliminary point of validity or
otherwise of the domestic enquiry held against the
delinquent workmen Harishbhai was taken up and
evidence were adduced by both parties and examining
witness and a detailed order was passed at Ext. 13 by
then Central Industrial Tribunal, Ahmedabad who was in
session of this case holding that the departmental enquiry
held against the charge sheeted workmen Shri Harishbhai
K. Shah from 17.01.2000 to 17.04.2000 are held totally
against the laid down principles of natural Justice and no
reasonable opportunity was granted to the workman to
defend himself and so the domestic enquiry is illegal,
improper against the principles of natural Justice and thus
enquiry vitiated.
6. It is also pertinent to mention that opportunity
was given to the 1st Party company to justify its action
so taken against the workman by conducting fresh
enquiry and leading evidence before the tribunal by grant
of permission on 23.07.2010. but the 1st Party company
failed to conduct enquiry before the Tribunal for justifying
its action taken against the delinquent and has not proved
the charge against the workman.
7. Now the following points are taken for
determination in this case:
POINTS
(i)
Whether the reference is maintainable?
(ii)
Has the 2nd party (workman) valid cause of
action?
(iii)
Whether the 1st Party company has justified its
action as to dismissal of the workman w.e.f.
15.05.2000 from the services of the company.
(iv)
What reliefs the workman is entitled to?
(v)
What orders are to be passed?
FINDINGS
8. Points No. (iii):—Since after vitiating of the
enquiry held by the 1st Party against delinquent workman
as per order of the Tribunal dated 23.07.2010 (at Ext.13)
the 1st Party sought for permission for adducing the
evidence of the witnesses to prove the charge levelled
against the delinquent (2nd Party) but the 1st Party could
not conduct enquiry before the Tribunal in spite of
sufficient opportunity granted to the 1st Party. Eventually
a pursis at Ext. 16 was filed by the 2nd Party workman
dated 12.03.2012 for closing the stage of oral evidence of
the 1st Party company and its copy was given to Shri
N.U. Bhatt, Advocate of the 1st Party company and it
was endorsed on Ext. 16 by Shri N.U. Bhatt, Advocate—
"As there is no witness available to depose I have no
objection if 1st party's evidence is closed". Then order
was passed below Ext.16 the right of the 1st Party's
evidence is closed. Thereafter the 2nd Party workman
Harish K. Shah filed his affidavit examination in chief at
Ext. 17 staling therein that action of dismissal is completely
on false and fabricated charges and he has been
victimised and that 1st party's action of his dismissal is
unjust, unfair and an act of unfair labour practice and
that since now he has completed aged of sixty year on
02.12.2007 and he remained unemployed, so he is entitled
for back wages with all allowances till his completing age
of sixty years. The workmen Harishbhai was cross
examined on his affidavited statement by 1st Party's lawyer
Shri Nalin U. Bhatt. It has come that 1st Party No. 1
Travel Corporation (India) Ltd. has now merged with
Thomas Cook (India) Ltd. (1st Paty No. 2). He denied
that he has established his own travel agency and is
earning. It has come that he remained unemployed and
his brother is maintaining him and his family. It has also
come that he is suffering from lever disease and so he be
compensated in this case.
9. On behalf of the 2nd Party workman it has been
argued by Shri Amrish Patel, advocate that dismissal of the
758
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
workman Harish K. Shah is unjustified and improper and
a false and fabricated charge were created against him by
the 1st Party company and as per colourable exercises of
power and unfair labour practice on part of the 1st Party
company the workman was victimised to loose bread
earning from the service whereas service carrier of the
workman was unblemished and since workman crossed
the age of retirement so he is entitled for full back wages
and consequential benefit till the age he completed sixty.
10. On the other hand, Shri N.U. Bhatt, advocate
for the 1st Party company argued that charges against
the workman is of very serious nature as he assaulted to
officials as co-worker of the company and also gave out
thereats with dire consequences and Naren Shah and
other co-worker filed written complaint against Harishbhai
K. Shah. He further pointed out that Harishbhai completed
age of retirements in December, 2007 and so there is no
question of reinstatement. He further argued that question
of payment of full back wages till his retirement will be
justified or not this aspect has to be examined.
11. Upon consideration of the facts and
circumstances of the case I am of the view that the 1st
party company has not able to justify its action in
awarding punishment of dismissal from the services. Since
after vitiating of the domestic enquiry and the 1st Party
company failing in conducting fresh enquiry before the
Tribunal there remain no fresh materials on the record to
rely for justifying the action of the 1st Party company.
There is no other alternative other than to set aside the
order of dismissal dated 15.05.2000 of the workman
Harishbhai K. Shah. So, the point No. iii is decided against
the 1st Party company.
12. Issue No. iv :—Shri N.U. Bhatt, advocate for
the 1st Party has cited six case laws in support of his
arguments that charge was serious against the workman
and even if the 1st Party failed to justify the action as to
dismissal of workman on the charges. He (the workman)
cannot claim back wages and consequential benefits. He
has cited case law—(1) 2001 LLR 1171 Bombay H.C.
(Breach Candy Hospital vs. Babulal Pardesi, (2) 1990 1CLR
875 SC. (workman of Fritz Werner (P) Ltd. vs. Bharat Fritz
Werner (P) Ltd., (3) 2000 (84) F.L.R. 157 Bombay H.C.
(Bajaj Auto Ltd. Vs. Devisan), 4. 2000(1) LLJ 424 S.C.
(Mehendra Nissan Ltd. Vs. M.P. Siddappaa (5) 2000 CLR
380 Madras H.C. (Vanmalika Vs. Sundaram Textile, and (6)
1988(2) CLR 146 M.P. High Court (Central India Floor
Mills Bhopal Vs. Mohd. Ishag Sagir). Those case Laws
are good laws on proof of misconduct under the charge
levelled. But in the instant case since the domestic
enquiry has vitiated, there remain no material to rely on
the record and the 1st Party employer also failed to
conduct fresh enquiry before the Tribunal for justifying
its action so taken. So, without having any material on
the record the misconducts under the charge has not
been proved and so the case laws relied upon by Shri
N.U. Bhatt (Supra) are not applicable in the instant case.
More so no police complaint filed against the workman
regarding the alleged occurrence of assault, abuse etc.
So I find that the 2nd Party workman has suffered lot for
the unproved charges levelled against him. However,
considering the maxim of no work no pay I find that it
would not been proper to allow full wages to the 2nd
Party workman. Payment as to 60% of back wages to the
workman (2nd Party with consequential benefits of
increment if any had he been served till reaching the age
of superannuation are allowed. This point is accordingly
answered in favour of the 2nd Party workman.
13. Issue No. i, ii:—In view of the findings in the
foregoing paras as to point No. iii and iv I further find
and hold that the reference is maintainable and the 2nd
Party workman has valid cause of action.
14. Issue No. v:—As per above findings, the
reference is allowed. The dismissal order of the 1st Party
w.e.f. 15.05.2000 is set aside. The 1st Party No. 2 Thomas
Cook (India) Ltd. who has taken all assets and liability of
the 1st Party No. 1 T.C. (I) Ltd. since after its merger with
1st Party No. 2 is directed to pay back wages of 60%
w.e.f. 15.05.2000 till retirement age of the workman
Harishbhai K. Shah with consequential benefits. The 1st
Party No. 2 is also directed to pay Rs. 10,000/- towards
cost to the 2nd Party workman.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 tuojh] 2014
dkñvkñ 281.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dsujk cSad ds
izcUèra= 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;] caxyksj ds iapkV ¼31@2009½ izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 01@01@2014 dks izkIr gqvk FkkA
[lañ ,y&12011@31@2009&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 3rd January, 2014
S.O. 281.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 31/
2009) of the Central Government Industrial Tribunal-cum-
Labour Court, Bangalore as shown in the Annexure in
the Industrial Dispute between the management of Canara
Bank and their workman, received by the Central
Government on 01/01/2014.
[No. L-12011/31/2009-IR(B-II)]
RAVI KUMAR, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
759
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
10th April, 2013
Present :
SHRI S.N. NAVALGUND,
Presiding Officer
CR No. 31/2009
I Party
II Party
The Assistant Secretary,
The Dy. General Manager,
Canara Bank Staff Union,
Canara Bank, Circle Office,
Santhrupthi, Near
IMA Building,
Adharsha High School,
Bailappannavaranagar,
Karmar, PO Padil,
Hubli-580029.
Mangalore-575007.
Appearances
I Party
:
Shri K.V. Sathyanaranaya
Advocate
II Party
:
Shri T.R. K. Prasad
Advocate
AWARD
1. The Central Government by exercising the powers
conferred by clause (d) of Sub-section (1) of Sub-section
2A of the Section 10 of the Industrial Disputes Act, 1947
has referred this dispute vide Order No. L-12011/31/2009-
IR(B-II) dated 18.06.2009 for adjudication on the following
schedule:
SCHEDULE
"Whether the action of the management of Canara
Bank, Hubli in imposing the penalty of 'Bringing
down to lower stage in the scale of pay by two stages
for a period of four years with cumulative effect' on
Shri Mehboob Pasha (72399) is legal and justified.
What relief the concerned workman is entitled to?"
2. On receipt of the reference registering it in CR
31/2009 when notices were issued to both the sides they
entered their appearance through their respective
advocate and I party filed the claim statement and II Party
its counter statement.
After completion of pleadings when the matter was
at the stage of Evidence on Preliminary Issue touching
the fairness of the Domestic Enquiry on 10.04.2013 a Joint
Memo of Settlement signed by the General Secretary of
the I Party Union, workman covered in the reference and
the Assistant General Manager of the II Party came to be
filed. The same was read over and explained to the General
Secretary of the I Party Union, workman covered in the
reference and Shri Bipin, Law Officer of the II Party who
was authorised by the Assistant General Manager to
represent him and to affirm the contents and execution of
the Joint Memo all of them admitted the same as True
and Correct. Accordingly, the said Joint Memo came to
be accepted and the proceedings closed. In view of the
Joint Memo by the parties, I pass the following Order:
ORDER
In terms of the settlement arrived at by the parties
the Punishment imposed by the Disciplinary Authority
against Shri Mehboob Pasha Bringing Down to Lower
Stage in the Scale of Pay by two Stages for a period of
four years with cumulative effect is now modified by
Bringing Down to Lower Stage in the Scale of Pay by
two Stages from the date of punishment order dated
29.11.2007.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 10th April, 2013).
S.N. NAVALGUND, Presiding Officer
ubZ fnYyh] 3 tuojh] 2014
dkñvkñ 282.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u cSad ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; pSUubZ ds iapkV ¼98@2011½ izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 01@01@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@57@2011&vkbZvkj¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 3rd January, 2014
S.O. 282.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 98/
2009) of the Central Government Industrial Tribunal-cum-
Labour Court, Chennai as shown in the Annexure in the
Industrial Dispute between the management of Indian Bank
and their workman, received by the Central Government
on 01/01/2014.
[No. L-12012/57/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 19th November, 2013
Present :
K.P. PRASANNA KUMARI,
Presiding Officer
760
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Industrial Dispute No. 98/2011
(In the matter of the dispute for adjudication under
clause (d) of the sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Dispute Act, 1947(14 of 1947),
between the Management of Indian Bank and their
workman)
BETWEEN
Shri M. Kalaiarasan
: 1st Party/Petitioner
AND
The General Manager/
: 2nd Party/Respondent
Circle Head
Indian Bank Circle Office
No. 359, Najappa Road,
Coimbatore-641018
Appearance:
For the 1st Pary/
:
Shri J. Thomas Jeyaprabhakaran,
Petioner Union
Authorized Representative
For the 2nd Party/ :
M/s T.S. Gopalan & Co. Advocates
Management
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12012/57/2011-IR(B-II)
dated 23.11.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the Indian Bank
management, Coimbatore in imposing the
punishment on Sri M. Kalaiarasan, Sub-Staff of
Erode, "Be Compulsorily Retired" vide order
dated 05.12.2008 is justified? If not, what relief
the workman is entitled to?"
2. After the receipt of the Industial Dispute this
Tribunal has numbered it as ID 98/2011 and issued notice
to both sides. The petitioner appeared through authorized
representative and the respondent through its counsel
and filed their claim and counter statement respectively.
After Counter Statement was filed the petitioner has filed
a rejoinder also.
3. The case of the petitioner in brief is as below:
The petitioner was working as Sub-Staff with the
Respondent in its Erode Branch. The Respondent
has alleged that on 25.10.2007, while inspection of
the currency chest was going on, the petitioner
who was helping the inspection had removed
Rs. 1,00,000 bundle of the denomination of Rs. 100
and managed to put it into the corner of the vault
in between the wall and the currency bins. An
enquiry was conducted against the petitioner. It
was found in the enquiry that the petitioner had
admitted that he had kicked the bundle of currency
notes towards the corner. The Enquiry Officer had
found that the petitioner had made a confession of
his dishonest conduct to the Inspector in the
presence of other Officers and on the basis of this
finding the punishment of Compulsory Retirement
was imposed on the petitioner. The petitioner did
not commit the misconduct alleged against him. The
punishment imposed on the petitioner is without
any justification. The Respondent is to be directed
to reinstate the petitioner in service with continuity
of service with back wages and other attendant
benefits.
4. The respondent has filed Counter Statement
contending as follows:
The Respondent Bank is authorized by the Reserve
Bank to notify certain branches to set up Currency
Chest on behalf of it. The Erode Branch is one
where the currency chest has been set up. It is
controlled by the officials of the Respondent Bank.
The Inspectors of the Bank used to carry out
periodical inspection of the currency chest. On
25.10.2007 Mahendran, the Manager of the
Inspection Centre, Coimbatore had been to the
currency chest attached to Erode Branch for
inspection. While verifying the bins containing the
currency bundles, in the afternoon there was a power
failure. At that time the counting of Bin No. 232
was completed. After 10 minutes power supply was
resumed and the counting operations were
continued. Mahendran noticed that the petitioner
who was helping the inspection was behaving in
an unusual manner and was looking at the gap
between the bin and the wall. On looking at the
gap he noticed a 100 Rs. Bundle lying between the
bin and the wall. He directed the petitioner to pick
up the bundle. On questioning the petitioner he
stated that the bundle might have fallen from the
bin. On search of the bins it was noticed that one
bundle in the second row of Bin No. 232 was
missing. The bundle could have been removed only.
The bundle was placed back in Bin No. 232. After
completion of the counting of the remaining bins,
by 06.30 PM when the petitioner was persistently
questioned he admitted that he had removed the
bundle and kicked it to the gap between the wall
and the bins. A report regarding the incident was
given by Mahendran on 27.10.2007. The Manager
of the Erode Branch of the Bank also gave a report
to the Circle Office, Coimbatore. A Show Cause
Notice was issued to the petitioner regarding the
incident. Later a Charge Memo was issued to him.
Since his reply was not satisfactory enquiry was
conducted against the petitioner. The Enquiry
¹Hkkx II—[k.M 3(ii)º
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761
Officer found that the first charge was proved while
the second charge was not proved. The Disciplinary
Authority held that both charges are proved. After
issuing a Show Cause Notice to the petitioner and
on hearing him personally the punishment of
Compulsory Retirement was imposed on the
petitioner. The petitioner had done the act with
malice and guilty intention. The punishment of
Compulsory Retirement was imposed becuase of
the serious misconduct of the petitioner. The
petitioner is not entitled to any relief.
5. The petitioner had filed a rejoinder reiterating the
case in the petition.
6. The evidence in the case consists of oral evidence
of the petitioner examined as WW1 and the documents
marked as Exs. W1 to Exs. W18 and Exs. M1 to Exs. M3.
No oral evidence was adduced on the side of the
Respondent.
7. The Points for consideration are:
(i)
Whether there is any justification for the
Respondent in terminating the service of the
petitioner by imposing the punishment of
Compulsory Retirement?
(ii)
Whether the petitioner is entitled to the relief of
reinstatement in service?
The points
8. The petitioner was working as Sub-Staff under the
Respondent Bank. On 25.10.2007 the date on which the
incident which led to the termination of the services of the
petitioner by imposing punishment of Compulsory
Retirement had occurred he was working at the Erode
Branch of the Respondent Bank.
9. At the Erode Branch of the Reserve Bank of India,
a currency chest has been set up on behalf of the Reserve
Bank. The chest will be under the control of a Bank Officer.
On 25.10.2007 Mahendran, Manager, Inspection Centre of
Coimbatore had been to the currency chest attached to the
Branch for inspection. It seems, while inspections was
going on by 03.15 PM, there was a power failure by which
time counting of cash Bin No. 232 was completed. Power
supply was resumed after 10 minutes and counting
operations were continued. The Inspector noticed a bundle
of currency in between the gap between the wall and the
bin. According to the Respondent the Inspector had looked
at the gap since the petitioner who was assisting him was
behaving in an unusual manner and was looking at the
gap. It is an admitted fact that a bundle of currency of
Rs. 1,00,000/- of the denominations of Rs. 100/- was
retrieved from the gap. The case of the Respondent is that
even though the petitioner had not immediately admitted
that the has got anything to do with the currency bundle
found at the gap, he has subsequently, on the same evening,
on persistent questioning, had admitted that he himself
had managed to kick the bundle to the gap. The petitioner
was departmentally proceeded, was found guilty and
punishment was imposed on him.
10. There is no case for the petitioner that the
enquiry was not conducted in a fair and proper manner.
The petitioner as well as the Respondent are relying upon
the evidence adduced at the time of the enquiry to
substantiate their respective cases.
11. The attempt of the authorized representative of
the petitioner has been to make out that the case of the
Respondent that the petitioner has confessed to having
kicked the bundle to the gap in between the wall and the
currency bins in not at all believable. In this respect he
has referred to the various documents and the depositions
of the witnesses before the Enquiry Officer. Before
adverting to these aspects referred to by the authorized
representative the nature of the charge that was framed
against the petitioner in the departmental enquiry is to be
seen. The charges are as below:
(i)
On 25.10.2007, while inspection of the currency
chest was going on, by about 03.15 PM there
was a total power failure for about 10 minutes.
When the power supply resumed the inspector
of branches and the Officer-in-Charge of the
Currency Chest Erode notice Rs. 100/-
denomination currency bundle (10 sections
amounting to Rs. 1,00,000/-) on the floor inside
the gap between the wall and the bin cabin. On
enquiry by the Officer-in-charge, Currency
Chest, Erode in the presence of inspecting
official from the Inspection Centre, the Assistant
Manager and other staff members present in the
Currency Chest you have admitted having
intentionally taken the currency bundle from the
bin and pushed the currency bundle between
the wall and the bin and requested to apologize
for the act.
(ii)
You have done the act of removing one Rs. 100/-
denomination currency bundle valued
Rs. 1,00,000/- from Bin No. 232 and kept it inside
the gap between the wall and the Bin Cabin with
fraudulent intention and knowing that the CCTV
camera would not cover the area where you have
done the act and kept the currency bundle.
The Enquiry Officer found that Charge No. 1 is
proved Regarding Charge No. 2 he found that
"though the intention of CSE for removing the
bundle of Rs. 100/- denomination from Bin No.
232 and throwing it in between the wall and Bin
Cabin is proved, that CSE has removed the bundle
762
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
of Rs. 100/- denomination from Bin No. 232
knowingly that CCTV would not cover bin 232 is
not proved."
12. Page-47 typed set of documents filed by the
petitioner and is part of Ex.W6, the copy of the enquiry
proceedings against the petitioner is a copy of the report
given by the Inspector of the inspection centre who have
been deputed to count the cash balance in the Currency
Chest of the Reserve Bank of India attached to Erode
branch of the Indian Bank. As seen from this there was a
cash balance of Rs. 460/- crores in the chest on 25.10.2007
on which date the inspection was made. There are 300
bins in the chest. As seen from the report, two Officers,
six clerks and two sub-staffs have been assisting the
Inspector on the day. Apart from counting of the cash
itself, counting of soiled notes kept apart also seem to
have taken place on the same day. The report marked as
MEX-1 in the enquiry proceedings seems to have been
given by the Inspector in the wake of the fact that a
bundle of Rs. 1.00 lakh of Rs. 100/- denomination was
found at a corner of the currency chest in the gap between
the wall and the cash bins.
13. The authorized representative of the petitioner
has been pointing out that in spite of crores of rupees
having been retained in the currency chest, the chest
was managed, maintained and operated in a very
negligent manner. It is the case of the Respondent itself
that though a CC Camera is installed in the currency
chest, the eyes of the camera will not reach the entire
portion of the chest. Admittedly, no alternate arrangements
have been made inside the chest in case of a power failure.
The very case of the Respondent is that on 25.10.2007,
while inspection was going on after lunch a power failure
had occurred and the inspection team had to stop the
work and come out. They have to wait till the power
supply was resumed for starting the work. The emergency
light installed inside the chest was not in working
condition. On 30.10.2007, a preliminary report was given
regarding the incident after conducting the enquiry. This
ia also available in the file of the enquiry proceedings
(Page 51-53 of typed set of the petitioner's documents).
At the conclusion part of the report the Investigation
Officer has found fault with the Officer-in-charge for the
improprieties and irregularities of the chest. He has
reported that the Officer has not kept the emergency lights
in working condition at the Chest, he has not learnt the
operations of and retrieval of information of recordings
of CCTV, he was not aware of the coverage of the CCTV
Cameras till the alleged incident occurred and was not
having proper control on the Currency Chest as the staff
were found not marking in the Attendance Register. He
has of course reported about the alleged incident also
which will be referred to later. It is rather surprising that
in spite of Rs. 460/- crore rupees having been kept in the
Currency Chest such was the attitude of the officials who
are supposed to guard this money.
14. It is being pointed by the representative of the
petitioner that in spite of these latches, a person, even if
thinks of taking some amount of money in the currency
chest to outside un-noticed this would not have been
possible. He has referred to the method of operation of
the currency chest. The chest is having dual lock and
key and the two keys are in the custody of two officers
who are to operate it jointly. Each and every bin in which
currencies are kept in the chest also will be having dual
lock and key. The currency chest is guarded 24 hours by
the police and anyone who will be going inside and coming
out of the chest will be frisked by the police. According
to him a person who is inside the chest could not even
dream of taking out a portion of the currency out from
inside the chest. These details regarding the operation of
the chest given by the authorized representative are not
controverted by the respondent also.
15. There is no case for the respondent that
anybody inside the currency chest who was helping Sri
Mahendran, the inspector had seen the petitioner doing
the act of removing the currency bundle, putting it down
or pushing it to the gap, as is the case. The charge itself
is that Mahendran noticed the behaviour of the petitioner
to be unusual in nature, that he found the petitioner
looking towards the gap frequently, he too looked at the
gap and found the currency bundle and retrieve it. The
case is that on subsequent questioning the petitioner
has admitted to have pushed the bundle towards the
gap. The very finding of the enquiring authority is mainly
based on the fact that there was an admission on the part
of the petitioner that he has pushede the bundle. He has
reasoned that Mahendran, the Inspector has no reason
to be inimical towards the petitioner and so there was no
reason for him to give false evidence against the petitioner,
to the detriment of the petitioner. Before coming to the
question of admission said to have been made by the
petitioner, the facts that have come out regarding the
circumstances under which the bundle was retrieved
should be referred to. It has been pointed out by the
Authorized Representative this very evidence is filled with
contradictions. He has argued that in the position in which
the petitioner was at the time when the power failed it
would not have been possible for him to do the alleged
act, that is the act of pushing the bundle. It has also
been pointed out by him that there was every possibility
of the bundle having fallen out of the bin, slided through
the gap in between the wall and the bin cabinet without
the notice of anyone. The Disciplinary Authority seems
to have taken into consideration, the argument advanced
on behalf of the management that the gap between the
wall and the bin is just 6.5 metres and a bundle of
Rs. 1.00 lakh of Rs. 100/- denomination falling down in
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763
the normal course of handling, reaching upto the gap is
remote. However, the Authorized Representative has
demonstrated before me with a Rs. 1.00 lakh bundle of
Rs. 100/- denomination that the width and breadth of the
bundle is such that there will be no difficulty for the
bundle to slide down through such a gap.
16. It is clear from the evidence tendered before the
enquiry authority that the incident occurred at the time
when Bin No. 232 containing bundles of Rs. 100/-
denominations were being verified. Sri Mahendran has
deposed before the enquiring authority that by 3.15 PM
power failed and immeidately the Bin was locked and
they have all come out of the vault room. After 10 minutes
power resumed and verification work was continued. It
was after verification of 5-6 bins, on resumption of work,
he has noticed the unusual behavior of the petitioner. It
was subsequently he has noticed the bundle lying at the
floor in the gap. He has stated during his cross-
examination that when the power failed verification of
Bin No. 232 was going on and the peititoner who was
assisting him was standing on the ladder. He was standing
at a height of 5 ft. on a ladder of 10 ft. height. He has
stated that the Officer-in-Charge, Sri Mathiazhagan, Asstt.
manager, Sri Mohammad Iqbal and Clerk, Alagesan were
present in the vault room within a radius of 5 ft. and they
were attending the soiled notes. He has stated that
Mohammad Iqual was at his side at the time when power
failed and the work was resumed after power supply was
resumed. However, this evidence regarding the presence
of Sri Mohammad Iqbal close by to him at the time of the
verification is contrary to the letter given by him in writing.
The letter is found along with the enquiry proceedings
(page 47 and 48 of typed set of the petitioner). Regarding
the incident he has written in the letter that immediately
after the bundle was found out, he has requested the
Officer-in-Charge to look into it. He has further stated
that Alagesan who was verifying the soiled notes in the
wooden case in the Strong Room also had come by that
time. The claim of the presence of Mohammad Iqbal at
the time of the incident has been very much attacked by
the Authorized Representative. Suspicion regarding his
claim of his presence at that time screeps in from his very
evidence itself. He has been examined as MW 5 in the
enquiry proceedings. MEX-5 (Page 55 of petitioner's typed
set) is the letter given by Mohammad Iqbal regarding the
incident. In the letter he has stated that it was Mr.
Alagesan who has retrieved the bundle from the gap.
During his cross-examination he has stated that both
Alagesan and the Inspector had looked into the gap
simultaneuously and he did not see who took out the
bundle. He then stated that subsequently Alagesan had
told him that he took out the bundle. In the letter he has
stated that the gap inside Bin No. 232 consequent to the
missing of one bundle was found out by Alagesan. During
cross-examination he has stated that it was found out by
the petitioner. Regarding the retrieving of the bundle
Mahendran, the Inspector has got a different case. He
has stated during his cross-examination that the bundle
was taken out by the petitioner. On the basis of these
contradictions it has been argued by the Authorized
Representative that Mr. Mohammad Iqbal was not present
at the time of verification at all, though he was supposed
to be there. According to him it is to cover up this
irregularity Mohammad Iqbal has been giving false
version and creating stories. In this respect the Authorized
Representative has referred to the evidence of other
witnesses also. Only the Inspector and Mathiazhagan
the Officer-in-Charge examined at MW 4 in the enquiry
proceedings have stated about the presence of
Mohammad Iqbal at that time. Referring to the letters
given by the witnesses and the preliminary enquiry report
given by the MW 3, it has been argued by the Defence
Representative that there is no possibility of Mohammad
Iqbal having been present at that time at all. I have already
referred to the report of the Inspector in this respect. The
Senior Manager of the Erode Branch of the Indian bank
to which the Currency Chest is attached has given a
report regarding the incident (Page 49 of the typed set of
the petitioner). This report is given on the next day of the
incident and is the earliest report available regarding the
same. Though, it is a report given on the basis of
information gathered from others, it assumes importance
for the reason that it is the earliest one given after the
incident. In this what is stated regarding the incident is
that the Inspector was in the process of verifying the
cash in the bins and Sri Kalaiarasan, the petitioner was
with the inspecting official and assisting him in opening
the bins and showing the bundles for verification. There
is no reference to the presence of Mohammad Iqbal or
any other official at the place of verification inside the
chest. The preliminary report given by MW 3 in the
enquiry proceedings (Page 51 to 53 of the typed set) also
fortifies the suspicion regarding the presence of
Mohammad Iqbal. It is to be borne in mind that the report
was given on 30.10.2007, after getting report from all those
involved, gathering all the information. In this report he
has stated that Mohammad Inqbal had told him that
himself, Mathiazhagan, Alagesan and Nagarajan were
involved in the packing of soiled notes to be remitted to
the RBI, on the day. Mathiazhagan who was questioned
by him also has stated that Mahendran, the Inspector
duly assisted by the petitioner was doing the verification.
He has stated that on power failure all of the have come
out and that when power was restored after 10 minutes
Mohammad Iqbal, Alagesan, Nagarajan and himself
continued the work of packing soiled notes and
Mehendran, the Inspector and the petitioner had
continued the cash balance verification. The evidence
given by Mohammad Iqbal itself gives support to the
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[PART II—SEC. 3(ii)]
idea that he was not there. During cross-examination in
the enquiry proceedings his claim is that normally, during
inspection he attended the Counting Hall Supervision
Work though on the particular day he was simultaneously
attending the counting and inspection work. All the other
witnesses other than Mahendran, Mathiazhagan and
Mohammad Iqbal himself have stated that Mohammad
Iqbal was not there at all. These variations in the evidence
certainly affects the credence of the witness.
17. There is also the aspect that though CCTV was
working the visual regarding the same was not made
available at the time of the enquiry proceedings. The case
of the Respondent is that the particular area at which the
incident had happened was not covered by the camera
and the incident itself would not be seen in the visual.
The very case is that the petitioner was very much aware
of this situation and this is what prompted him to resort
to the act of removing the bundle and thrusting it to the
corner by a kick. It is seen from the proceedings that the
Defence Representative had made a request to make the
visual available. However, it was not done stating that it
could not be retrieved. If it could not be retreived the
very purpose of the istallation of the camera would be
defeated. The CC Camera is intended for contingencies
including incidents of such kind and there was no
justification in not making it available. What is claimed
by Mohammad Iqbal is that a threat was made to the
petitioner regarding making the visual of his alleged act
available and it was accordingly he has made a confession
of the incident but in his preliminary report Sri Thomas
examined at MW3 has stated that even the Officer-in-
Charge was not aware of the actual nature of the
operations of the camera, that the camera will not reach
the entire currency chest. Certainly, the monitor part of
the CCTV will not be inside the curency chest but in the
Manager's cabin and it is unlikely that the petitioner had
knowledge of the details of the operation of the camera.
The evidence in the enquiry proceedings reveal that some
of the witnesses have seen the visuals of the CCTV on
the particular day. What is stated is that people coming
and going inside the valt can be seen but not the alleged
act itself but if the visual was made available who all
were present at the time of currency verification inside
the chest could have been verified definitely.
18. As already stated nobody has seen the petitioner
taking out the bundle, dropping it to the floor or kicking
it towards the gap. No one has any knolwedge as to how
the bundle has reached the gap. It has been pointed out
by the Defence Representative that there was every
possibility of the bundle having slided down through the
gap. It is clear from the evidence that Bin No. 232 from
which the bundle was missing is the one close to the
wall. The bin cabinet containing bins 229 to 234 is on the
left side close to the wall. Between this cabinet and the
wall is the gap. Bin No. 232 is the fourth from the bottom
and is at a height of 5 ft. As admitted by the witnesses,
this bin cannot be reached from the floor. The petitioner
was on a ladder assisting the verification of Bin No. 232
at that time when power failed. The gap in the Bin was at
the back side and not in the front. As pointed out by the
Authorized Representative the bundles from the back side
of each bin will be taken out, verified and replaced. There
is all likelihood that when power failed during such
verification, a bundle which was being replaced was
mistakenly placed at the area of the gap causing it to fall
donw. It is possible that on power failure in the vault
nobody noticed the sliding down of the bundle in the
hurry to come out of the dark and lock the vault.
19. The finding against the petitioner is on the basis
of the admission that was allegedly made by him. The
Enquiry Officer has found that the evidence given by the
witnesses regarding the admission has to be accepted,
and it is on the basis of admission allegedly made by the
petitioner that the charge in this respect was found against
him.
20. Before considering whether an admission was
made by the petitioner or not, the argument advanced by
the counsel for the Respondent that this Tribunal has no
power to consider the question since the Enquiry Officer
has already found that an admission was made has to be
considered. Initially the counsel has referred to the
decision of the Apex Court in Commissioner of Police,
New Delhi Vs. Narendra Singh reported in 2006 3 LLN 104
where it was held that the bar against the admissibility of
a confession contained in section 25 and 26 of the
Evidence Act and 162 of the Code of Criminal Procedure
is not applicable to departmental enquiry. Certainly, there
can be no dispute about this dictum laid down by the
Apex Court. The counsel has referred to the decision
Kuldeep Singh Vs. State of Punjab and others Reported
in 1996 10 SCC 659 in support of his argument that this
Court cannot go into the question whether a confession
was made by the peittioner or not. In this respect the
counsel has referred to the observation of the Apex Court
that "It is not permissible for us to go into the question
whether the confession made by the appellant is
voluntary or not, once it has been accepted as voluntary
by the Disciplinary Authority and the Appellate
Authority".
21. In the above case the Apex Court was considering
the case of a Head Constable of Police in the service of the
Punjab Government who was dismissed from service
without holding an enquiry. It was alleged that the Head
Constable has been indulging in activities prejudicial to
the efficient functioning of the Police force, was mixing up
with the extremists and had been supplying information
relating to the Police Department to the extremists. The
Disciplinary Authority invoked the Second Proviso of
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765
Clause-2 of Article-311 of the Constitution of India and
dispensed with the enquiry on the ground, that it is not
practical to conduct an enquiry. The Disciplinary Authority
and the Appellate Authority had found that during
interrogation the Head Constable had admitted to have
links with the extremists. The Disciplinary Authority, the
Appellate Authority as well as the High Court had found
that an admission was made by the Head Constable. It was
in this context the Apex Court has held that it is not
permissible to go the question whether the confession
made was voluntary or not. On going through the above
judgement it could be seen that the dictum laid down by
the Apex Court was only that a confession made with the
Police is admissible in departmental enquiries. Even then,
as held by the Apex Court, the enquiring authority is to
decide whether the confession was voluntary or not. The
Apex Court has stated in this respect that "in a
departmental enquiry it would perhaps be permissible
for the authorities to prove that the appellant did make
such a confession/admission during the course of
interrogation and it would be for the disciplinary authority
to decide whether it is a voluntary confession/admission
or not". In fact that main aspect that was considered in the
above decision was whether dispensing with enquiry was
proper or not.
22. A distinction is to be drawn between the present
case and the case of Kuldeep Singh referred to above. The
appellant Kuldeep Singh in the above case was a Police
official and will not come under the definition of workman
as defined in the Industrial Disputes Act Section 2(s) (ii)
of the Industrial Disputes Act states that a person who is
employed in the police service is not a workman. So in the
above case, the Apex Court was not considering a dispute
raised under the Industrial Disputes Act. Under the
Industrial Disputes Act power is conferred on the Tribunal
under Section-11A of the Act to re-appraise the evidence
in the domestic enquiry and satisfy itself whether the said
evidence relied on by an employer establishes the
misconduct alleged against a workman, as held by the
Apex Court in the decision Firestone Tyre and Rubber Co.
of India Pvt. Ltd. Vs. Management and others and other
cases reported in 1973 1 SCC 813. When the Tribunal is
having such a power based on Section-11A of the Act it
would be idle for the counsel for the Respondent to contend
that once the enquiring authority has entered a finding
regarding the alleged admission made by the petitioner it
cannot be considered by this Tribunal at all. If so, it would
be against the very spirit of Section-11A of the Act. It
would be against the dictum laid down by the Apex Court
in the Firestone case also. This Tribunal is competent to
consider whether an admission was actually made and
whether the admission is regarding the alleged act. Of
course, if this Tribunal finds that there was an admission
it will not be of consequence whether the admission was
made before the Police or anyone else. The argument
advanced by the counsel in this respect is only to be
rejected.
23. Now the question to be considered is whether
the evidence given in the enquiry regarding the admission
allegedly made by the petitioner can be accepted. The
Inspector who was examined as MW1 in the enquiry
proceedings has deposed that he has enquired the peitioner
in the presence of the Officer-in-Charge and Mr. Mohammad
Iqbal and the petitioner has admitted that he has pushed
the bundle inside the gap with his leg when the power
went off, that something happened beyond his control,
that it is the first incident in his career and he may be
foregiven. The same Inspector has stated during his cross-
examination that the petitioner was standing on the ladder
at a height of 5 ft. when the power went off. During
examination he has stated that he has interrogated the
petitioner by 06.30 PM on the same day after the counting
was over and that it was in the presence of Mathiazhagan
who was examined as MW4 and Mohammad Iqbal who
was examined as MW5 in the enquiry proceddings. During
his cross-examination he has reproduced the exact words
said to have been stated by the petitioner by way of
admission. The wording is "this is the first time this has
happened beyond my control. This type will never occur
again so considering my family circumstances, please
save me".
24. Mathiazhagan examined as MW4 also has stated
the petitioner has admitted that he has done the act. The
written statement given by this witness in the course of
the enquiry has been marked and is available at Page-54
of the typed set of documents of the petitioner. In this
statement he has stated that initially the petitoner had
stated that when power went off, while closing the bin
door the bundle might have fallen down but subsequently
himself, Mohammad Iqbal and Inspector Mahendran had
crossed the petitioner and he has stated that the bundle
had fallen down and he had kicked it into the gap.
25. Mohammad Iqbal who was examined as MW5
has stated during his examination that by around 06.30 PM
the petitioner was questioned in the presence of himself,
Mathiazhagan, Alagesan and Nagarajan and the petitioner
has admitted that due to mental aberration he had committed
it and it is for the first time in his life.
26. The Enquiry Officer has depended entirely upon
the evidence of three witnesses to come to a finding that
the petitioner has given an admission of his guilt. The
Enquiry Officer has especially referred to the fact that so
far as Inspector Mahendran was concerned there was no
reason for him to be on inimical terms with the petitioner
and naturally there was no reason for him to give false
evidence against the petitioner. However, the Enquiry
Officer seems to have failed to find out the contradictions
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[PART II—SEC. 3(ii)]
in the evidence regarding the alleged admission made by
the petitioner. As could be seen, the case of MW5
Mohammad Iqbal is that at that time when the petitioner
allegedly made the admission, apart from himself, Inspector
Mahendran, Mathiazhagan, Alagesan and Nagarajan also
were present. Alagesan was examined as MW6 and
Nagarajan was examined as MW7. However, these two
witnesses examined by the Management did not support
the case that an admission was made by the petitioner.
During the enquiry proceedings three witnesses were
examined on the part of the petitioner as defence witnesses.
On going through their evidence it could be seen that
these witnesses also were in the premises at the time of the
incident and subsequently. Their evidence is totally against
the case of admission put forth by the Management.
27. There is contradiction in the evidence given by
Mahendran, Mathiazagan and Mohammad Iqbal even
regarding the persons who were present at the time of the
alleged admission. According to Mahendran and
Mathiazhagan, these two and Mohammad Iqbal only were
present at that time. However Mohammad Iqbal belies this
case and states that Alagesan and Nagarajan also were
present at that time.
28. Apart from the above are the facts brought forth
through the evidence and the report given by the Branch
Manager. The Branch Manager was not in the presmises
at the time of the incident or at the time of alleged admission,
he having been on duty elsewhere. However, he has
received telephonic information regarding the incident even
before he came back to the branch. He was appraised of
the incident also on his return. He has been examined as
MW2. The report given by him regarding the incident was
marked in the enquiry proceedings and is available in
Page-49 of the typed set of documents of the petitioner. In
his report to the Deputy General Manager given on the
next day he has stated regarding the questioning of the
petitioner regarding the incident.
What he has stated is that it was reported that the
sub-staff was questioned immediately by the Inspector
and the Officer-in-Charge and he has not accepted his
responsibility for the incident, but on the other hand he
has stated that the bundle might have fallen in the normal
course of handling. He has further stated that he was at
Circle Office on the day when the incident occurred and
that on the date of giving his report he had questioned the
petitioner and the petitioner had maintained his earlier
version of innocence. The Branch Manager had felt that
the explanation given by the petitioner is not satisfactory.
During his examination as MW2, this witness has stated
that the entire information gathered by him regarding the
incident had been incorporated in the report. He asserted
that he has questioned the petitioner from his chamber
regarding the incident before sending his report.
29. It is to be borne in mind that the report given
by the Branch Manager is the first written version of the
incident. The incident had happened on 25.10.2007 and
the alleged questioning of the petitioner had taken place
on the same day at 06.30 PM. The Branch Manager had
sent his report on 26.10.2007. The Inspector who is
involved in the incident had given a report regarding the
incident only on the next day, on 27.10.2007. Thus, the
report given by the Branch Manager has its own
importance as the untarnished version regarding the
incident, though on the basis of information gathered.
The evidence given by MW1, the Inspector regarding
the information conveyed to the Branch Manager is
relevant in this respect. He has stated that information
regarding the incident including the admission of mistake
by the petitioner was given to the Branch Manager on
the next day itself by him in person. Mathiazhagan also
has stated during his cross-examination that he was
appraised that Manager with the entire happenings
starting from finding the bundle out from the gap to the
acceptance of mistake by the petitioner. The Branch
Manager called him around 07.00 PM from the Circle
Office, Coimbatore. He has added that on the next day he
had appraised that Branch Manager about the incident in
person. He was again asked if he was sure if the petitioner
had admitted and he had properly appraised the Manager
about the happening over phone on 25.10.2007 and
personally on 26.10.2007 and he had answered in the
affirmative. However, in spite of the Inspector and
Mathiazhagan confirming that they have informed the
Branch Manager about the acceptance of guilt by the
petitioner, this does not find a place in the report given
by the Branch Manager on the next day. On the other
hand, this report is to the effect that the Officers who
were involved in the incident are reported to have
questioned the petitioner but he has not accepted his
responsibility for the incident. He himself has questioned
the petitioner and he has maintained that he is innocent.
If actually, an admission of guilt was made by the
petitioner on the same day, in the presence of Inspector
Mathiazhagan and Mohammad Iqbal and others and
information regarding the same was given to the Branch
Manager definitely this would have found a place in the
report given by the Branch Manager on the next day.
The Branch Manager has asserted during his examination
that what all information gathered by him are narrated in
the report. This creates suspicion regarding the case of
admission of guilt by the petitioner put forth for the first
time through the report given by the Inspector on the
next day.
30. Even assuming that an admission was made by
the petitioner, what exactly is the admission that was
actually made? While referring to the evidence of
Mahendran I have extracted the actual words said to have
¹Hkkx II—[k.M 3(ii)º
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767
been stated by the petitioner by way of admission. What
he has allegadly stated is that it is the first time and it has
happened beyond his control and it will not occur again.
What exactly has happened? This never seems to have
been considered by the Enquiry Officer. The Inspector
himself has stated that the petitioner was standing on
the ladder when power failed. The version of the petitioner
is that while closing the bin after power failure the bundle
might have came out of the bin and fallen down. It will be
pitch dark inside the vault, once power supply is gone. It
is a room without any windows or any other openings
and does not admit light in the absence of electricity. The
poor man, a Class-IV employee who was put in the midst
of several higher officials probably was probably terrified
by the recovery of a bundle of notes from the floor and
might have taken it upon him that it is because of his
own fault the bundle has fallen down. If the wording of
admission allegedly made by the petitioner as given by
the Inspector is taken into account this is the only
interpretation that would be given to the same. According
to the Inspector and Mathiazhagan, the petitioner has
stated that he would commit suicide in case action is
taken against him. He certainly might have realized the
possibility of some action against him from the conduct
of the higher officials surrounding him and this must have
been the reason for such a statement by him. It could be
seen from the initial report given by MW3 in the enquiry
proceedings on 30.10.2007 also that the petitioner's version
was that the bundle could have fallen down while he was
closing the bin. What he has stated in his report is that
Mahendran, Mohammad Iqbal and Mathiazhagan
enquired in detail how the bundle could have gone into
the gap and then the petitioner had admitted the act.
When such different versions regarding the alleged
admission made by the petitioner are there, the petitioner
is certainly entitled to the benefit of doubt. One is also to
bear in mind the fact that it would have been humanly
impossible for the petitioner to carry out the bundle
outside and use it for his own purposes since he was
among several Officers and also because the vault was
being zealously guarded by Police Officials.
31. Certainly in a departmental enquriy
preponderance of probability is what matters and the kind
the evidence that is required in a criminal proceedings is
not required. But when the nature of the incident in
question is taken into account it could be seen that the
finding against the petitioner tells at his very conduct
and character, apart from it being a threat to his survival
also because of the probability of his losing his only
means of livelihood. This being the case, certainly the
evidence is to be appreciated in a very rigorous manner.
When a scanning of the evidence and filtering of the
evidence is made as above it could be seen that it is not
established beyond doubt that the petitioner has
committed the misdeed alleged against him. The degree
of evidence required in the case is more than
preponderance of probability and almost of a degree as
in a criminal case. When such consideration is made I
can say without doubt that the Enquiry Officer was not
justified in entering a finding against the petitioner. There
was no justification in the Disciplinary Authority further
worsening the position of the petitioner by going one
step forward in stating that the finding of the Enquiry
Officer that Charge No. 2 is not fully established is not
correct and entering a finding against the petitioner in
this respect also. There was no justification in sending
out the petitioner from service by giving the punishment
of Compulsory Voluntary Retirement also. The petitioner
is entitled to an order in his favour.
32. Accordingly, the Respondent is directed to
reinstate the petitioner in service within a month with
continuity of service with back wages limited to 50% and
other attendant benefits.
33. 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 19th November, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
WW1, Sri M. Kalaiarasan
For the 2nd Party/Management :
None
Documents Market:
On the petitioner's side
Ex. No.
Date
Description
Ex. W1
17.11.2007
Explanation letter issued by Asstt.
General
Manager/Disciplinary
Authority
Ex. W2
08.12.2007
Reply submitted by the petitioner
for the explanation letter
Ex. W3
03.03.2008
Show
Cause
letter
CO:
CBE:625:2007-08
issued
by
Assistant
General
Manager/
Disciplinary Authority
Ex. W4
31.03.2008
Reply to the Show Cause Notice by
the petitioner
Ex. W5
05.04.2008
Charge Sheet CO:CBE:VG:07:2008-
09 issued by Assistant General
Manager/Disciplinary Authority
Ex. W6
09.05.2008
03.06.2008
Enquiry proceedings conducted
against the petitioner
18.06.2008
alongwith both management and
26.06.2008
defence exhibits
Ex. W7
12.07.2008
Presenting Officer brief
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Ex. W8
-
Defence Summing up
Ex. W9
15.09.2008
Enquiry Officer's findings
Ex. W10
24.09.2008
Employee's comments on Enquiry
Officer's findings
Ex. W11
03.11.2008
Proposed punishment communicated
vide CO:CBE:VG:367:2008-09
Ex. W12
05.12.2008
Punishment order CO:CBE:VG:
429:2008-09
Ex. 13
05.01.2009
Appeal against the punishment
imposed by the Disciplinary
Authority
Ex. W14
02.03.2009
Disposal of appeal preferred by the
petitioner
Ex. W15
14.07.2009
Petition under Section-2A of ID Act
Ex. W16
28-09.2010
Counter by the management to the
petition under Section-2A
Ex. W17
20.10.2010
Rejoinder of the employee to the
counter
Ex. W18
08.03.2011
Reply by the management to the
rejoinder.
On the Management's side
Ex.No.
Date
Description
Ex. M1
04.07.2008
Covering letter of Presenting Officer
enclosing
his
summing
up
(PRESENTING
OFFICER'S
SUMMING
UP
FILED
BY
PETITIONER)
Ex. M2
22.07.2008
Covering
letter
of
Defence
Representative enclosing his summing
up (DEFENCE SUMMIING UP
FILED BY PETITIONER)
Ex. M3
02.12.2008
Proceedings of personal hearing hled
on 22.12.2009
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New Delhi, the 3rd January, 2014
S.O. 283.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 41/
2011) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Chennai 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 01.01.2014.
[No. L-12012/64/2010-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, CHENNAI
Friday, the 6th December, 2013
PRESENT :
K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 41/2011
(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 Union Bank of India
and their workman)
BETWEEN
Ms. M.A. Vijayalakshmi : 1st Party/Petitioner
AND
1.
The Branch Manager : 2nd Party/1st Respondent
Union Bank of India
Vilachery Branch
Madurai-6
2.
The Deputy General
: 2nd Party/2nd Respondent
Manager
Union Bank of India,
Regional Office
72, P.T. Rajan Road
Bibikulam
Madurai-2
Appearance:
For the 1st Party/
:
M/s. Balan Haridas,
Petitioner
Advocates
For the 2nd Party/1st &
:
M/s. T.S. Gopalan &
2nd Respondent
Co., Advocates
A W A R D
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-12012/64/2010-IR(B-II)
dated 09.05.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Union
Bank of India, Madurai in terminating the services
w.e.f. 17.08.2009 of Ms. M.A. Vijayalakshmi is justified
or not? What relief the workmen is entitled to?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
769
On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 41/2011 and issued notice to both
sides. Both sides have entered appearances through their
counsel and have filed Claim and Counter Statement as the
case may be.
3. The averments of the petitioner in the Claim
Statement are these:
The petitioner had joined the services of the
Respondent Bank in July 2008. She had been
assisting the staff of the Respondent Bank and the
customers of the bank. She was paid @ Rs. 80/- a
day on weekly basis. She had worked for more than
240 days in a period of 12 calendar months. Though
the petitioner was termed to be a temporary employee
she was discharging the work of a permanent
employee. She was assured that in due course her
services will be made permanent. However, on
17.08.2009 the Respondent denied work to the
petitioner. No reason was assigned for terminating
the services of the petitioner in this manner. She was
not given any notice of termination also. The
termination would amount to retrenchment, the
petitioner having worked for more than 240 days
within a period of 12 calendar months. However, the
Respondent has not complied with Section-25F of
the Industrial Disputes Act before terminating the
services of the petitioner. The petitioner had served
the Respondent honestly and efficiently. The illegal
termination has caused hardship and loss to the
petitioner. The petitioner is without any employment.
The Respondent has engaged a new person after
terminating the services of the petitioner. The
termination is in violation of Section-25H of the ID
Act also. The Respondent shall be directed to
reinstate the petitioner in service with full back wages
and other attendant benefits.
4. The Respondents have filed Counter Statement
contending as follows:
The Union Bank has clearly laid down procedure for
recruitment. However, depending on contingencies,
the Branch Managers used to engage casual workers
on temporary basis. The Manager of Vilachery Branch
of the Bank has engaged the petitioner from 6th July,
2008 without any permission from the Regional
Office. The petitioner was paid @ Rs. 80/- per day
until her last engagement in August 2009. The
marriage of the petitioner having been fixed for
September, 2009 she did not attend the job after 1st
week of August 2009. On 01.09.2009, one Pandi
having SB A/c in the branch came to the bank for
updating the entries in his Pass Book. He informed
the Bank that he had not made withdrawal of Rs.
5,000/- on 21.07.2009 as shown in the Pass Book. On
verifying the accounts, it was noticed that while
crediting SB A/c of the account holder Pandi with
the proceeds of the closed deposit, instread of
crediting Rs. 72,153/- the petitioner credited only Rs.
67,153/- and credited the balance amount of Rs. 5,000/
- to the SB A/c of her sister, it was revealed that
petitioner had come to know of the Pass words of
the Branch Manager and other officials of the Bank.
The petitioner had gained access to computerized
personal ledger account of certain customers and
made debit entries of the accounts and made
corresponding credit entries to the accounts of
herself, her relatives and her friends. Thus the
petitioner had embezzled various amounts by
falsification of accounts. She had encashed pay
orders of more than Rs. 4,60,000/- payable to various
beneficiaries. She had transferred Rs. 66,390/- from
the accounts of various SB A/c holders to the SB A/c
of herself, her family members and friends. Thus the
petitioner had misappropriated Rs. 6,25,762.89. The
Branch Manager reported her fraudulent transactions
to the Regional Office. The petitioner herself was
called and questioned by him. On 05.09.2009, the
petitioner came to the Bank alongwith her father, one
Mohammad Moideen and Sikander Basha. She
informed that her father had executed an agreement
of sale in favour of Mohammad Moideen in respect
of his house. Mohammad Moideen remitted Rs. 5.00
lakhs in cash to the credit of petitioner's father SB A/c.
This amount was transferred to the Sundry Debtors
A/c as requested by petitioner and her father. The
Petitioner represented that she had given some
money to the Jewel Appraiser of the Bank and that
he had agreed to remit Rs. 1,25,752/- and this also
could be adjusted towards the money
misappropriated by her. Subsequently, it was revealed
that the Sale Agreement in favour of Mohammad
Moideen was executed without disclosing the
agreement that was executed in favour of another
one in respect of the same property. Later the
petitioner's father sent notice to the officials of the
Bank Mohammad Moideen, etc. alleging that they
had conspited and forced him to part with Rs. 5.00
lakhs and had obtained the signatures in the
aggreement of sale. The First Respondent had filed a
Police complaint against the petitioner. The officials
of the Bank who had revealed the ID numbers to the
petitioner were proceeded against and punished. The
employment of the petitioner in the Bank was as a
casual labourer the bank did not stop her engagement.
She stopped attending work due to her marriage.
The petitioner is not entitled to any relief.
5. The petitioner has filed a rejoinder denying the
allegations of misappropriation raised against her in the
Counter Statement.
770
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
6. The evidence in the case consists of oral evidence
of WW1 and MW1 and documents marked as Exs. W1 and
Ex. W2 and Ex. M1 to Ex. M15.
7. The points for consideration in the case are:
(i)
Whether the action of the management in
terminating the services of the petitioner is
justified?
(ii)
What is the relief to which the petitioner is
entitled?
The Points
8. The petitioner who is a BBA Degree Holder had
joined the services of the Respondent Bank on 07.07.2008.
In her Claim Statement itself she has stated that she was
termed to be a temporary employee though she was
discharging the work of a permanent employee. The
petitioner had continued with the employment of the
Respondent till 17.08.2009. The case of the petitioner is
that after this the Branch Manger had orally denied work
to her. What is stated in the Counter Statement is that the
marriage of the petitioner having been fixed she has, on her
own, stopped working in the Bank.
9. During her cross-examination the petitioner has
put forth a case that she was engaged by the Bank to do
sweeping, cleaning the toilet, bringing the water, etc.
However, in her Claim Statement she does not have a
definite case regarding the nature of work that was assigned
to her at the Bank. In any case she has no case in the Claim
Statement that she was doing sweeping. cleaning, etc. But
what she has stated is that she was assigned with the work
of assisting the staff of the bank and also the customers
of the branch. So it is very much clear that her engagement
was of the nature of a higher status than what she has
claimed during her cross-examination.
10. Until the petitioner has left the services of the
Bank on 17.08.2009, there seems to have been no complaint
of any sort against her. The case of the Bank is that the
malpractices resorted to by the petitioner were detected
subsequently. It is alleged in the Counter Statement that
this was noticed after a customer Pandi having SB account
in the Bank came and claimed that he had not debited Rs.
5,000/- in his account on 21.07.2009. On verification it was
revealed that while crediting the proceeds of a closed
deposit to the SB Account of Pandi, Rs. 5,000/- out of this
was debited and credited to the account of the sister of the
petitioner. On further verification other falsification of
accounts are also said to have been revealed. She is said
to have transferred money to her account and also the
accounts of her mother, brother, sister and others closely
acquainted with her.
11. While terminating the services of the petitioner
the Respondent Bank had not conducted any enquiry. In
fact, according to the Bank she had stopped working at the
Bank on her own and it was not a case of termination by
the Bank. However, on account of the claim of the petitioner
that she is entitled to be reinstated in service, she having
been terminated illegally, the Bank has wanted to prove the
allegations made against the petitioner. The Manager of
the Vilachery Branch where the petitioner was working had
been examined as MW1. He has stated that the petitioner
was engaged as a casual clerk. He had reiterated the case
of the Respondent regarding the fraudulent transactions
allegedly committed by the petitioner. The statement of
account of Pandi, the account holder of the Bank, his Pass
Book and also the statements of account of the petitioner
herself, her sister, brother and mother are also produced
and marked through this witness. The copy of the sale
agreement said to have been executed between the father
of the petitioner and Mohammad Moideen is also produced.
Then there is also a statemet of account of Murugesan, the
Appraiser of the Bank to whom the petitioner had allegedly
entrusted the task of making some ornaments for her. The
case is that the petitioner had dubiously credited some
amount to the account of this Appraiser by fraudulently
debiting amount from other accounts also. The letter said
to have been given by the petitioner and her father
permitting Moideen to remit Rs. 5,00 lakhs towards the
misappropriated amount also is produced.
12. Ex.M9 is the copy of the Audit Report prepared
by the Zonal Manager on detection of the alleged fraud.
In his report he has referred to the account of the petitioner,
her mother, brother, sister and also the Gold Appraiser
apart from two others. The report is to the effect that the
petitioner has changed the names of some of the SB
Account holders by making alterations in Customer IDs
and managed to embezzle amounts. He has given the total
amount defrauded as Rs. 6.25,762.89.
13. Referring to the Account Holder, Pandi, the
counsel for the Respondent has pointed out that Rs. 5,000/-
out of his account has been siphoned to the account of
Anitasri, the sister of the petitioner. Ex.M1 is the statement
of account of Pandi. Ex M2 is the extract of his Pass Book.
Ex.M3 is the statement of account of Anitasree. On going
Through these documents, it could be seen on 21.07.2009,
Rs. 72,153/- has been credited to the account of the
petitioner and on the same day Rs. 5,000/- has been credited
to the account of Anitasree by transfer. Ex.M2, the extract
of the Pass Book also shows this. Ex M6 is the statement
of account of the petitioner. This would show that a number
of transactions were carried out in this account for the
period from 04.08.2008 to 17.08.2009. Amounts are seen
transferred to the account of her mother, brother, sister etc.
14. The evidence given by MW1 is that on detection
of the fraud, the petitioner was called to the Bank, that
herself and her father came to the bank alongwith one
Moideen and another and Moideen remitted Rs. 5.00 lakhs
to the account of her father which was transferred to the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
771
Sundry account of the Bank to make good the loss, as
permitted by the petitioner and her father. Subsequently
the father seems to have issued notice to the Bank and
also to Moideen alleging that he was made to put signature
in a Sale Agreement by force and so also himself and his
daughter were made to put signature in a letter amounting
to confession of the misconduct alleged. The petitioner
who was examined as WW1 has denied the allegations in
her Proof Affidavit. During her cross-examination she has
stated that Ex.M15(a) contains the signature of herself and
her father. She has also stated that on 13.09.2009 Mohd.
Moideen and another had gone to the house and
represented that her father had executed an agreement of
sale in favour of Mohammad Moideen from whom he had
taken an advance of Rs. 5.00 lakhs. She admitted that title
deed of the father and the agreement are with Mohammad
Moideen Ex.M10 the copy of the Sale Agreement was put
to her and she admitted that it contains the signatures of
her father.
15. A translation of Ex.M15(a) which is in Tamil has
been furnished to me. This is in the form of a letter written
by he petitioner and her father to the then Branch Manager
of Vilachery Branch. It will be appropriate to refer to the
fact that MW1 was the Manager of the Branch at this time.
The letter is to the effect that while working on a temporary
basis in the bank the petitioner has committed mistakes
and had misappropriated amount of above Rs. 6.00 lakhs.
It further states that the father of the petitioner had sold
his house and remitted Rs. 5.00 lakhs to the Bank on
05.09.2009. It is aslo stated that the appraiser of the Bank
has agreed to remit Rs. 1.08,700/-.
16. The counsel for the petitioner has vehemently
argued that the case of misappropriation advanced by the
Respondent is not at all established. He has pointed out
that the Respondent has not specified what actually is the
charge against the petitioner. In answer to this contention
it is to be stated that since the petitioner has claimed
reinstatement in the service of the Bank the attempt of the
Bank has been to establish that the petitioner is not a
person who could be relied upon, that she had engaged
in such dubious transactions even while she was engaged
as a casual employee and she is not entitled to be reinstated
in service because of the shady transaction alleged
committed by her.
17. With reference to Ex.M15(a). the counsel for the
petitioner has argued that is is a document which is not
proved in accordance with law. He has referred to the
dictum had down by the Apex Court that mere filing or
exhibiting a document in Court does not amount to proof
of its contents, that it may amount to admission of its
contents and not the truth (2010 4 SCC 491). No doubt the
petitioner has denied to have anything to do with the
contents of Ex.M15(a). What she has stated by way of re-
examination while giving evidence as WW1 is that herself
and her father were made to put their signature in a blank
paper. She has further stated that a complaint was given
to the Police regarding this. The attempt for the aounsel
for the petitioner, referring to Ex.M15(a) was that a very
examination of the document would show that the contents
of the document were written on a subsequent time.
According to him, the signature of the father of the
petitioner in Ex.M15(a) is too close to the last line in the
document and this would show that the signatures were
put first and the contents were incorporated subsequently.
The same is the contention seen raised by Ex.M13, the
notice that was sent by the father of the petitioner to the
Branch Manager, Mohammad Moideen, etc. in this respect,
it will not be inappropriate to state that MW1 had joined
the Bank as Manager only in May 2009. The petitioner had
worked in the Branch only for a very short period after
that. In the normal course, there is no reason for this
witness to give false evidence against the petitioner, to
have drastic consequences. The counsel for the petitioner
has referred to 2009 12 SCC 78 to advance his argument
that charges for bribery should be specific and that proof
and suspicion are distinct. Regarding charge, I have already
stated that the attempt is to show that the petitioner is not
entitled to be considered for resinstatement in the light of
the allegations against her. The Counter Statement does
refer to the charge against her and states that she had
embezzled various amounts by falsification of account and
fabircation of accounting entries. The counself for the
petitioner has referred to the decision 2009 2 SCC 570 and
argued that confession itself is not sufficient and some
evidence ought to have been brought on record regarding
the misconduct.
18. Even assuming that the allegation raised by the
Respondent against the petitioner is not established. I do
not think, in the circumstances brought out in evidence,
the Respondents could be said to be unjustified in taking
the stand that she is not entitled to be reinstated in service.
There is sufficient evidence to show that after the petitioner
has started to work in the Bank accounts were opened in
the name of all her close relatives. Several transactions of
suspicious nature has taken place with reference to these
accounts. Of course, it has been argued by the counsel for
the petitioner that the petitioner has nothing to do with the
entries in the statement of accounts, she having been a
casual employee. It was brought out during the cross-
examination of MW1 that the Password assigned to a
particular employee is not intended to be revealed. It was
also brought out that the petitioner had no training in
banking transactions. What MW1 has stated is that she
was guided to take pass book printout and to do some
fundamental transactions. According to him, she was
allowed to operate the systems after they were opened. It
is a fact that on the basis of the Sale Agreement though
disputed by the father of the petitioner, Rs. 5.00 lakhs has
been deposited by Moideen in his account and this was
772
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
transferred to Sundry Account to make good the loss.
There is also the admission by the petitioner that the Title
Deed of her father is with Moideen. All these put the
petitioner under strong suspicion regarding the allegations
made by the Bank against her. An employee who is carrying
out banking transactions is expected to be above suspicion,
of the utmost integrity and sincerity. The petitioner, even
as admittedly was only a casual employee, working for
wages @ Rs. 80 a day. Certainly in the wake of the
allegations the Bank has all justification in resisting her
claim for reinstatement. I am not inclined to accept the plea
for reinstatment by the petitioner.
19. The malpractices allegedly done by the petitioner
were revealed only after she has stopped working in the
Bank. It is clear from the admission of the Respondent
itself that she has worked in the Bank from July, 2008 to
the middle of August 2009. So definitely she must have
completed more than 240 days. Though the present case
of the Respondent is that the petitioner has stopped
coming to the Bank because of her marriage, Ex.M5, the
letter by the Branch Manager to the Head Office states
that she was stopped from work during 1st week of
August, 2009. There is no case for the Respondent that
any compensation was paid to her under Section-25F of
the Act. The petitioner would have been entitled to an
amount equal to her 15 days average pay for 1 completed
year of service. The Responsdent is liable to pay this
amount by way of compensation.
20. The Respondent is directed to pay amount equal
to 15 days average pay for the completed year of service
to the petitioner towards compensation.
21. 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 6th December, 2013)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/
: WW1, Ms. M.A. Vijayalakshmi
Petitioner
For the 2nd Party/
: MW1, Sri S. Muniratnam
Management
Documents Marked on the side of the Petitioner :
Ex. No.
Date
Description
Ex. W1
06.07.2010
FIR
Ex.W2
22.12.2011
Final Report
Documents marked on the side of the Management :
Ex. No.
Date
Description
Ex. M1
01.06.2008
Statement of Account of V. Pandi SB
17.08.2009
A/c. No. 783
Ex. M2
-
Pass Book - Extract of V. Pandi - SB
A/c No. 783
Ex. M3
24.07.2011
Statement of Account of Ms. M.A.
06.08.2011
Anithasree
Ex. M4
17.08.2009
Withdrawal slip by Ms. M.A.
Anithasree for Rs. 5,000 and Credit
Slip to the account of V. Pandi SB
A/c No. 783 - (issued by
Vijayalakshmi - Petitioner)
Ex. M5
01.09.2009
Email - Report from Branch Manager
- Vilachery to Regional Head -
Madurai - regarding mala fide
transactions by the petitioner
Ex. M6
04.08.2008
Statement of account of M.A.
05.02.2013
Vijayalakshmi - SB A/c No. 5975
(Petitioner)
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New Delhi, the 3rd January, 2014
S.O. 284.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 100/
2004) of the Central Government Industrial Tribunal-cum-
Labour Court, Ahmedabad as shown in the Annexure, in
the Industrial Dispute between the management of Bharat
Petroleum Ltd. and their workmen, received by the Central
Government on 03/01/2014.
[No. L-30012/82/1997-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
Present :
Binay Kumar Sinha,
Presiding Officer, CGIT cum-Labour-Court,
Ahmedabad Dated 31st July, 2013
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
773
Reference (C.G.I.T.A.) No. 100 of 2004
Reference ITC 73 of 1998 (old)
The Dy. General Manager (P)
Bharat Petroleum Ltd.
Western Region, 1st Floor,
Golden Triangle — Stadium Road,
Ahmedabad-14
...First Party (Management)
AND
Their Workman
Shri Vinayak Himmatlal Rawal,
A/1, Lalbhai Apartment,
Near Kiran Par, Nawa Wadaj,
Ahmedabad-380013
At Present c/o Himmatlal C. Rawal
88, Giriwar Bunglows,
Ramwadi, Isanpur,
Ahmedabad-382443
Gujarat
...Second Party (Workman)
For the First Party
: Shri M.J. Seth, Advocate,
Smt. Meenaben Shah, Advocate
For the Second Party : Shri Azad Parihar, Advocate
AWARD
Considering an Industrial Dispute exist between the
employers in relation to the management of M/s. Bharat
Petroleum and their workman, the Government of India,
Ministry of Labour, New Delhi by its Order No. L-30012/
82/97-IR-C-1, dated 27.08.1998, in exercise of power
conferred by cl. (d) of sub-section (1) and Sub-section
2A of section 10 of the Industrial Disputes Act, 1947,
referred the dispute for adjudication to the Central
Government Industrial Tribunal, Ahmedabad as per terms
of reference as per the Schedule:—
SCHEDULE
"Whether the action of the management of Bharat
Petroleum Corporation Ltd., Ahmedabad in
dismissing Shri V.H. Rawal, Engg. Asst., w.e.f.
18.11.1996 is legal and justified? If not to what relief
the concerned workman is entitled to."
2. The parties appeared and submitted pleadings
— statement of claim at Ext-5 by the 2nd party workman
and the written statement at Ex-7 by the 1st party (Bharat
Petroleum Corporation Ltd.).
3. The case of the 2nd party workman as per
statement of claim, shortly stated, is that he joined as
Engg. Assistant on 18.12.1978 in the service of the
corporation and was performing his duty faithfully and
diligently but in spite of that officers of the corporation
were harassing him and that he was never issued any
notice or warning in the past. But a show cause notice
dated 25.04.1995 was wrongly issued to him containing
false allegation and was served upon him and he replied
to show cause notice but even then wrong charge sheet
was issued to victimise him, he was not provided with
documents as demanded. He was not given fair chance
to defend at the enquiry by not allowing Advocate as
defence counsel in the enquiry. The corporation had taken
one sided attitude with a view to award punishment.
Sufficient opportunity was not granted and illegal enquiry
was conducted, enquiry officer was in collusion with
management and there was preplanned conspiracy against
him. The finding of enquiry officer is baseless and
perversed. Even after dismissal he (2nd party) has not
been given his dues. On these scores prayer is made to
set aside the order of dismissal date 18.11.1996 and to
reinstate him with full back wages and with litigation cost
of Rs. 5000 and any other relief to which he is found
entitled.
4. As against this case of corporation (1st party) is
that the 2nd party Shri V.H. Rawal, joined the service of
the corporation as an Engineering Assistant on 18.12.1978
at its Kandla installation and he subsequently sought for
transfer to Ahmedabad Divisional Office and then at the
relevant time he was working as an Engg. Asst. at
Ahmedabad Divisional Office. The 2nd Party was issued
a charge sheet dated 08.06.1995 for the charges —
"Engaging in unauthorised private trade, or doing private
or personal work within the premises of the establishment
during working hours with or without tools or materials
belonging to the establishment without the prior
permission of the competent Authority. A fair enquiry
was conducted and principles of natural Justice was
followed and on the basis of evidences led and documents
produced charge was proved as per enquiry report. The
misconduct committed by the workman V.H. Rawal was
of serious nature. Before taking disciplinary action 2nd
show cause notice dated 22.04.1996 was given to the
delinquent workman alongwith copy of enquiry report
and the 2nd party workman submitted his representation
to 2nd show cause on 05.07.1996. The proved allegation
to the charge levelled was to disregards to the
corporation's rule and discipline and that goes to the
root of the integrity of the delinquent and so dismissal
order dated 05.11.1996 was issued. The corporation (1st
party) has denied the allegation made as para 1 to 9 of
the statement of claim. Alternative plea has also been
taken at para 15 by the corporation that if the Tribunal
comes to the conclusion that the enquiry held against
the 2nd party workman was not in according to laid down
principles of natural Justice, then the charges levelled
against the workman will be proved by the 1st party by
leading proper evidence before this Tribunal. The
contention of the 1st party is that the 2nd party workman
is not entitled to get any relief in this case and the
reference is fit to be rejected.
774
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
5. The 1st party submitted the relevant documents
of domestic enquiry held against the delinquent workman
through a list Ext-8. The document have been marked
Ext.-12 to 23. The 2nd party submitted a pursis at Ex. 10
dated 20.08.2001 as to not challenging domestic enquiry
held against him. The 2nd party workman Shri V.H. Rawal
deposed at Ex. 29 only on his unemployment since after
dismissal and also on the point that order of punishment
of the Disciplinary Authority is hard and excessive and
that his father being pension holder is supporting him
and that his date of superannuation is 31.10.2010 which
has expired. He deposed on 12.10.2011. The 1st party did
not lead oral evidence and so closed its evidence and
have relied upon the enquiry documents on Ext. 12 to 23.
6. In view of the pleadings of the parties and the
evidences adduced the following issue are taken upon
for determination in this case:—
ISSUES
(i)
Is the reference maintainable?
(ii)
Has 2nd party workman V.H. Rawal valid cause
of action to raise the dispute?
(iii)
Whether the domestic enquiry held against the
2nd party workman is valid as per laid down
principles of natural Justice?
(iv)
Whether the findings to report of the enquiry
office dated 10.04.1996 (Ext. 20) is valid and
proper? Whether the 2nd party has legal right
to challenge the perversity of enquiry report
even after submitting pursis Ext. 10 as to
admitting the domestic enquiry held against him
and not challenging its propriety?
(v)
Whether the order of punishment of dismissal
from the services awarded by the Disciplinary
Authority against the 2nd party is shockingly
disproportionate to the gravity of charges
levelled against the 2nd party workman?
(vi)
Whether the 2nd party workman is entitled to
get relief if any?
(vii)
Whether the action of the management of the
1st party (corporation) in dismissing Shri V.H.
Rawal (workman) w.e.f. 18/11/1995 is legal and
justified?
(viii)
What orders are to be passed?
FINDINGS
7. Issue No. (iii) and (iv) :- Ext. 12 is copy of the
show cause notice dated 25.11.1995. Ext. 13 is reply of
2nd party workman to show cause notice dated 08.05.1995.
Ext. 14 is copy of the charge sheet dated 08.06.1995.
Ext-15 is Hindi version of the charge sheet dated
08.06.1995. Ext. 16 is explanation of workman V.H. Rawal
to the charge sheet dated 27.06.1995. Ext. 17 is order
appointing Inquiry officer dated 08.06.1995. Ext. 18 is order
appointing presenting officer dated 08.06.1995. Ext. 19 is
enquiry proceedings dated 29.06.1995 and onwards. Ext.
20 is report of the Inquiry officer dated 10.04.1996. Ext. 21
is 2nd show cause notice dated 22.04.1996 given to the
delinquent workman V.H. Rawal. Ext. 22 is written
explanation in pursuance to the 2nd show cause notice
dated 05.07.1996. Ext. 23 is order of dismissal dated
05.11.1995 of the Disciplinary Authority alongwith covering
letter dated 18.11.1996.
8. By filling Ext. 10 the 2nd party workman V.H.
Rawal has not challenged the propriety of domestic
enquiry held against him. Charge sheet dated 08.06.1995
levelled against V.H. Rawal (delinquent) is at Annexure
(IV). From perusal of Ext-16, it appears that the written
explanation dated 27.06.1995 (Annexure II) asking for
engaging Advocate as defence representative was not at
all acceptable in domestic enquiry as per rules and
condition of certified standing order and memorandum of
settlement. Ext. 19 is the entire inquiry file commenced on
29.06.1995 where in the letter dated 27.06.1995 was taken
and the workman attended and signed the inquiry
proceedings. By letrer dated 13.07.1995, the inquiry officer
gave a detailed reply regarding objection raised by the
workman in his letter dated 27.06.1995 and 05.07.1995. As
regards documents, in para 2, it has been stated that all
documents will be placed before you for inspection during
the course of inquiry and that necessary time will also be
given to you for preparation of defence. It was also
clarified that the action initiated is in pursuance of certified
standing orders. Its copy has been submitted by the 1st
party. Cl. 29.4 provides permitting the assistance of a co-
employee but not permitting to engage advocate was
rightly not granted. In the inquiry held on 02.08.1995, the
workman was present and signed the proceedings. In the
inquiry held on 05.09.1995, the workman was present and
signed the proceedings. The inquiry officer stated that
relevant documents will be submitted and at page 8,
inquiry proceedings dated 10.09.1995 (P. 10) workman was
present and produced letter 19.09.1995 marked Annexure
XII mention about documents, statement of M.W. 1 Neren
N. Shah is at page 10 of inquiry file who has distributorship
of L.P.G. Bharat Petroleum Cop., Kubernagar, Ahmedabad.
The workman who was present did not cross examine
this M.W. 1 though remained present did not sign the
proceedings inquiry proceedings dated 27.09.1995 (page
14) go to show that copy of these proceedings alongwith
letter to workman dated 27.09.1995 (Annexure XIII) by
hand delivery. In the inquiry proceedings dated 28.09.1995
(page 15) workman was present. He stated that I have
received copy of proceedings and letter stated that if
documents are not given in advance, I will not participate
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
775
in the proceedings. In the inquiry proceedings datted
28.09.1995 (page 15) workman remain present but did not
cross-examine the management witness and the presenting
officer proceed further in inquiry proceedings. From
perusal of the enquiry proceedings it clearly reveals that
documents were produced by the presenting officers
during the statements of management witnesses
T. Suryavanshi (M.W. 2) letter No. P2 Design/cp. dated
12.09.1995 (Annexure XV) copy of letter issued by Dy.
Chief Controller of Explosives Bombay to Bhadra Seva
Sahari Mandli Ltd. dt. 27.03.1995 (Annexure XVI. M.W. 3
on 09.10.1995 (page 23) who was Sr. Manager, Ahmedabad
Division. Statement of M.W. 4 N.R. Joshi, Manager
Bhdran Seva Sahkari Mandli Ltd. was taken on 12.10.1995
(page 25) Annexure XIX Statement of R.C. Patel (M.W. 5)
clerk Bhadran Seva Sahkari Mandli Ltd. was taken on
12.10.1995 (page 28) Annexure XX and statement of T.S.
Ramkrishnan (M.W. 6) Dy. Manager Eng. Ahmedabad
Division was also taken on 12.10.1995 (P. 31) vide
Annexure-XVIII, Annexure-XIV, Annexure-XV.
9. Now coming to examine the evidence of the
management witness in the inquiry proceedings. M.W. 2
is T. Suryavanshi, He proved letter dated 12.09.1995 where
name of workman V.H. Rawal appears at Sl. No. 4. As per
Annexure XVI licence granted in favour of Bhadran Sevan
Sahkari Mandli dated 22.03.1995 and signature of workman
was identified. In the evidence of MW. 4 N.R. Joshi letter
written by Mr. Joshi, visiting card of workman (V.H. Rawal)
and photo copy of licence were proved. In the evidence
of Shri Ram Krishna (M.W. 6) leave application of
workman (V.H. Rawal) was proved and visiting card of
workman Rawal was produced. The workman V.H. Rawal
duly acknowledged the letters written by the inquiry officer
dated 04.10.1995, 09.10.1995 (proceedings with Annexure)
letter dated 12.10.1995 (inquiry proceedings with
Annexures, letter dated 13.10.1995, letter dated 18.10.1995,
letter dated 14.10.1995 (P.O.) intimated closed evidence
requested to attend on 14.10.1995, letters dated 17.11.1995,
letter dated 04.12.1995 and letter dated 16.01.1996.
10. It has been argued by the learned counsels for
the 1st party corporation that in absence of any challenge
to the correctness, legality or validity of the inquiry
conduced, the Tribunal cannot go into findings recorded
by the enquiry officer regarding the misconduct committed
by the delinquent workman (2nd party) and also pointing
towards Ext. 10 of the workman regarding not challenging
the domestic enquiry held against him. Such arguments
of the 1st party clearly finds support from the case law of
UP State Road Transport Corporation vs. Vinod Kumar
(2008, CLR 847 S.C.) and also from the case of Muljibhai
Patel Urological Hospital vrs. Arunaben I. Joshi (2009,
CLR. 403), Gujarat High Court). On the other hand Shri
Azad Singh Parihar, the learned counsel appearing for
the 2nd party could not file any befitting case law to
support the stand that even after filing pursis (Ext. 10)
regarding not challenging the validity, correctness of
domestic enquiry, the workman can taken plea and
challenge the perversity of findings of the enquiry officer
as per report Ext. 20. So it is manifestly clear that the
workman as per Ext. 10 accepted the validity, correctness
of domestic inquiry held against him and so he cannot
blo hot and cold simultaneously in choosing purversity
of findings of Enquiry Officer as per Ext. 20 in view of
two case laws relied upon by the 1st party-2008, CLR 84
and 2009, CLR 403 (Supra).
11. In view of discussion made above issue No. (iii)
and (iv) are decided in favour of the 1st party (corporation)
holding that domestic enquiry held against the delinquent.
V.H. Rawal 2nd Party is valid as per laid down principles
of natural Justice and that the report of Enquiry Officer
and its findings are treated to be valid and proper in view
of Ext. 10 and that the 2nd party has no any right to
challenge its purversity.
12. Issue No. (v):- On behalf of the 2nd party one
document (Annexure C) Annexure to the directors Report
-2010-11 and some case laws have been filed vide list
Ext-33. Ext-33/1 is two page Annual report for the year
2010-11, containing the names of 103 employees of Bharat
Petroleum. On the basis of this Ext. 33/1, the learned
counsel for the workman argued that had the workman
not been dismissed he would have served the corporation
for 32 years date of joining 18.12.1978 and date of
superannuation 31.10.2010 and might have been promoted
to the post of Manager/Sr. Manager and giving example
of employee at Sl. No. 97, 92 and from Sl. No. 14, 58 who
joined together with equal qualification are enjoying
promotions. On the other hand Ms. Meenaben Shah,
Advocate for the 1st party (corporation) submitted written
aruguments with respect to Ex. 33/1 of the 2nd party.
Ext. 36 is the written arguments of the 1st party to the
effect that the present reference pertains to termination
of the services of the 2nd party and so the detail regarding
promotion granted by the 1st party in Annexure to the
Director's report is legally not maintainable and is
extraneous. It has been submitted further in the written
argument (Ext. 36) that w.e.f. 1995 as per memorandum of
settlement on promotion policy between the corporation
and its workman promotion is granted from time to time
based on eligibility criteria and other relevant selection
parameters, Cadre is based on eligibility criteria mentioned
therein. The promotion to the management cadre is solely
based on selection on merit and not solely on 'seniority',
as alleged. It has been sumbitted that the 2nd party
workman (V.H. Rawal) had applied for promotion to the
management cadre in the year 1980, 1983 and 1985 but he
was not selected in merit for the promotion to
management cadre. More so, as per example of employees
Sr. No. 14 of Ext. 33/1 he did not apply for promotion to
management cadre was in workman cadre till his retirement,
776
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Sl. No. 58 is still in non-managerial staff. Sl. No. 92 was a
management staff since recruitment and Sl. No. 97 got
promotion in the management cadre after selection on
merit.
13. The 2nd party has relied upon the case laws of
(1) Novartis Indis Ltd. and State of West Bengal (2009-
11- LLJ-9 SC) on point of burden of proving no alternative
employment of workman shifted on employer after initial
discharge by the workman (2) Reetu Marbles and
Prabhakant Shukla (2010-1-LLJ-305) (SC)- award of back
wages upon termination of service is not automatic and
cannot be granted mechanically. (3) Mahindra and
Mahindra Ltd. and N.B. Narawada and others (2003-1-
LLJ Bombay 520) power under section 11-A to be
exercised by Labour Court only when satisfied that order
of discharge or dismissal of workmen not justified as being
hars....(4) Gujarat State Road Transport Corporation Vs.
D.B. Chauhan [2006(2) G.L.H. 64] regarding power of
Labour Court under section 11-A of the ID Act.
14. On the other hand, the 1st party has relied upon
a case law of Central Bank of India Vs. Mavji C. Lakum
[2003(3) G.L.R. 2116] that section 11-A does not confer
upon Labour Court, Tribunal to examine the punishment
awarded to workman in order to make interference
invariably rather such power u/s 11-A can be exercised
only when the decision of employer is perverse or
punishment is so disproportionate that it would shock
the Judicial conscience.
15. I have gone through the entire documentary
evidence of the 1st party Ext. 12 to 23. In view of the
charge sheet as per Ext. 14 and 15 (English and Hindi
version), the misconduct that was proved in domestic
enquiry and as per findings to the inquiry report (Ext. 20)
was of a serious nature as he (delinquent) had misused
his office as an Engineering Assistant for private and
personal trade of obtaining explosive licences for the
customers of the corporation for his personal illegal gains.
The workman V.H. Rawal in order to run the business
registered his name with the Chief Controller of Explosives
as a competent person in spite of remaining in corporation
service as Engg. Assistant and he engaged himself in his
personal trade/business activities during working hours,
and used to approach the corporation clients in their office
for his personal business which totally subversive of the
discipline of the corporation I have gone through the
punishment order of the Disciplinary Authority at Ext. 23
and I find that the D.A. had rightly considered that the
misconduct committed by the delinquent is very serious
in nature and so the punishment of dismissal with
immediate effect under 29. 1(g) of the certified standing
order of the Bharat Petroleum Corp. Ltd. does not appear
to be harsh or disproportionate to the gravity of proved
misconduct of the delinquent under the charge sheet Ext.
14. English version, Ext. 15 Hindi version. So I do not
find any reason to interfere in the order of punishment
by invoking the power under seciton 11-A of the I.D.
Act. More so, the evidence of the workman that he
remained unemployed after dismissal does not hold good
for making interference in the punishment awarded to
him by the D.A. and to substitute any lesser punishment
to him. More so, as per oral deposition of workman vide
Ext. 29 vide para 6 he has already crossed the age of
superannuation on 31.10.2010 much before his evidence.
The case laws relied upon by the 2nd party are not
applicable in the instant case.
16. In such view of the matter this issue is decided
accordingly that the order of punishment of dismissal of
the 2nd party from the services is not excessive or
shockingly disproportionate to the gravity of misconduct.
17. Issue No. (vi):- In view of findings given in the
forgoings, I further find and hold that the 2nd party
workman is not entitled to get any relief.
18. Issue No. (i) and (ii):- The reference is not
maintainable since the 2nd party workman has no valid
cause of action.
19. Issue No. (vii):- The action of the management
of Bharat Petroleum Corporation Ltd., Ahmedabad in
dismising Shri V.H. Rawal, Engg. Assistant w.e.f. 18.11.1996
is quite legal and justified.
20. Issue No. (viii):- This reference is dismissed on
contest. No order as to any cost.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 285.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 1] èuckn ds iapkV ¼lanHkZ lañ 166@2001½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@189@2001&vkbZvkj¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 7th January, 2014
S.O. 285.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award Ref. 166/2001 of
the Central Government Industrial Tribunal-cum-Labour
Court No 1, Dhanbad as shown in the Annexure, in the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
777
Industrial Dispute between the management of M/s BCCL
and their workman, received by the Central Government
on 07/01/2014.
[No. L-20012/189/2001-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (No. 1), DHANBAD
IN THE MATTER OF A REFERENCE u/s 10(1) (D) (2A)
OF I.D. ACT, 1947
Ref. No. 166 of 2001
Employers in relation to the management of Bastacolla
Area M/s. BCCL
AND
Their workmen
PRESENT: Sri Ranjan Kumar Saran,
Presiding Officer
Appearances:
For the Employers. : Sri U.N. Lall, Advocate
For the workman.
" Sri N.G. Arun.Rep.
State: Jharkhand.
Industry-Coal
Dated 2/12/2013
AWARD
By Order No. L-20012/189/2001-IR(C-I), dated
11/07/2001, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal
SCHEDULE
"Kaya M/S Bharat Coking Coal Limited ke
prabandhan dawara Miritak Karmkar Tribhuwan
Mistri's ke aashrit putra satyanarayan vishwakarma
ko NCWA ke 9.4.0 ke tahat Anukampa ke adhar per
sewa yojna nahi dena nayatik, bidhik, samajik awing
tark ki dristi se uchit hai? Yadi nahi to ukt Ahrit kin
labho ke hakdar hai?"
2. The case is received from the Ministry of Labour
on 09.08.2001. After receipt of reference. The Sponsoring
Union files their written statement on 13.11.2009. And the
management also files their written statement- cum -
rejoinder on 28.04.2010 thereafter both parties adduced
their respective evidence.
3. The short point involved in the reference is that
the son of the deceased workman filed an application for
compassionate appointment after his father's death during
his service tenure.
4. The deceased workman's son applied for job three
years after the death of his father and submitted the
compliance. Thereafter his application was forwarded to
head office and the same was not approved. Hence this
dispute.
5. The plea taken by the management as there is
delay the application of the workman is rejected. Usually
there is no legal awareness amongst the factory workers,
No one making them educated either the management or
the Union or legal services Authority of State.
6. After the death of the workman while on duty
what usually happen in a family is untold. The same should
have been felt by the management in proper perspective.
7. Therefore considering all the above factors. it is
felt the recommendation by the management should have
been accepted. This Tribunal terefore directs the
management to take him in the service after observing
the minimum formalities.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 286.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 1] èuckn ds iapkV ¼lanHkZ lañ 39@1992½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@36@1992&vkbZvkj¼lh&I½]
,eñdsñ flag] vuqHkkx vfèdkjh
New Delhi, the 7th January, 2014
S.O. 286.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 39/
1992) of the Central Government Industrial Tribunal-cum-
Labour Court No. 1, Dhanbad as shown in the Annexure,
in the Industrial Dispute between the management of M/
s BCCL and their workman, received by the Central
Government on 07/01/2014.
[No. L-20012/36/1992-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL No. 1, DHANBAD
Reference No. 39/1992
778
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
In the matter of reference u/s 10 (1) (d) (2A)
of I.D. Act, 1947
Parties Employer in relation to the management of
BCCL Koyla Bhawan
AND
Their workmen
Present:
Sri R.K. Saran,
Presiding Officer
Appearances:
For the Employers
:
None
For the workman
:
None
State: Jharkhand.
Industry-Coal
Dated 17/12/2013
AWARD
By order No. L-20012/36/92-IR (C-I) dated 19.05.92,
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section (2A) of section 10 of the
Industrial Disputes Act, 1947 referred the following dispute
for adjudication to this Tribunal.
SCHEDULE
"Whether the action of the management of M/S
Bharat Coking Coal Ltd. Koyla Bhwan P.O. Koyla
nagar, Distt- Dhanbad in denying the regularization
of Shri Gulam Rabbani as Compounder is justified?
If not, to what relief the workman is entitled and
from which date."
2. After receipt of the reference both parties are
noticed. But appearing for certain dates, none appears
subsequently. Case remain pending. It is felt that the
disputes between the parties have been resolved in the
meantime. Hence pass a No disputed Award is passed.
Communicate to the Ministry.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 287.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|kfsxd vfèdj.k@Je
U;k;ky; uañ&1] èuckn ds iapkV ¼lanHkZ la[;k 15@2011½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@44@2010&vkbZvkj¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 7th January, 2014
S.O. 287.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 15/
2011) of the Central Government Industrial Tribunal-cum-
Labour Court No. 1, Dhanbad as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of P.B. Area of M/s BCCL, and their
workman, which was received by the Central Government
on 07/01/2014.
[No. L-20012/44/2010-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. I, DHANBAD
In the matter of reference U/S 10(1) (d) (2A)
of I.D. Act, 1947.
Reference No. 15 of 2011
Employer in relation to the management of
P.B. Area of M/s BCCL
AND
Their workman
Present : Sri R.K. Saran,
Presiding Officer
Appearance :
For the employers : Sri S.K. Behra, Asstt. Manager
For the Workman : Sri Sachidanand Singh, Rep.
State : Jharkhand
Industry : Coal
Dated 4/12/2013
AWARD
By order No. L-20012/44/2010-IR(CM-I) dated
10.03.2011 the Central Government in the Ministry of
Labour has, in exercise of power conferred by clause (d)
of Sub-Section (1) and Sub-Section (2A) of Section 10 of
the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of
Kenduadih Colliery of M/s BCCL in not providing
employment to the dependent of Late Ram Briksh
Dusadh, Ex-Security Guard on compassionate
ground to the provision of NCWA is fair and
justified? To what relief the dependent of late Ram
Briksh Dusadh is entitled to?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
779
2. The case is received from the Ministry of Labour
on 08.04.2011. After receipt of reference, both parties are
noticed. They appeared through representative. The
Sponsoring Union files their written statement on
17.9.2012. Thereafter the management also files their
written statement-cum-rejoinder.
3. Heard the case on preliminary point. It is the
case of dependent employment. The workman submitted
that after the death of his father on duty, he is not taken
in job as the family is in harness.
4. On the other hand the management representative
submitted, that the claimant for the job was sent for
medical examination as he is found unfit, then he is denied
the job. It is submitted by the Union leader of the workman
that another son of the deceased workman has applied
for the job, but he is not referred to medical board.
5. After hearing the contentions from both sides,
and Considering the facts and circumstances of this case,
it is directed to the management, that the management of
Kenduadih Colliery of M/s BCCL in not providing
employment to the dependent of Late Ram Briksh Dusadh,
Ex-Security Guard on compassionate ground to the
provision of NCWA is not fair and justified. It is also
directed to the management to refer the second son of
the deceased workman for medical examination. If he is
found fit, he be taken to job. If not, the widow of the
deceased be given monetary compensation as per norms.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 288.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ&2] èuckn ds iapkV ¼lanHkZ la[;k 136@1996½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@356@1995&vkbZvkj¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 7th January, 2014
S.O. 288.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 136/1996 of
the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanbad as shown in the Annexure, in the
Industrial Dispute between the management of M/s. BCCL,
and their workman, which was received by the Central
Government on 07/01/2014.
[No. L-20012/356/1995-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD
Present: Shri Kishori Ram,
Presiding Officer.
In the matter of an Industrial Dispute under
Section 10(1)(d) of the I.D. Act, 1947.
REFERENCE NO. 136 OF 1996.
PARTIES :
Joint General Secretary,
Rastriya Colliery Mazdoor Sangh, Dhanbad
Vs General Manager, Sudamdih Area of
M/s BCCL, Dhanbad
APPEARANCES:
On behalf of the
:
Mr. N.G. Arun, Rep.
workman/Union
of the workmen
On behalf of the
:
Mr. D.K. Verma, Ld.
Management
Advocate
State : JHARKHAND
Industry : Coal
Dhanbad, the 20th May, 2013.
AWARD
The Government of India, Ministry of Labour, in
exercise of power conferred on them under Sec. 10(1)(d)
of the I.D. Act, 1947 has referred the following disputes
to this Tribunal for adjudication vide their Order No.
L-20012/356/95-IR(Coal-1) dt. 20.11.1996.
SCHEDULE
"Whether the demand of the Union for promotion
of Shri Mumtaj Ahmed & 16 others (as per list but
not enclosed) as Fitter-cum-Operator in Cat. V is
legal and justified. If so, to what relief are these
workmen entitled."
2. The case of the Rastriya Colliery Mazdoor Sangh
for the workmen Sl. No. 1 Mumtaz Ahmed & 16 others
namely Sl. Nos. 2. Ayodhya Paswan, 3. Bara Ramashray
Paswan, 4. Ganpat Dusadh, 5. Ram Das Ram, 6. Ram Jatan
Singh, 7. Indradeo Paswan, 8. Haldar Marandi, 9. Nandlal
Prasad, 10. Satish Rawani, 11. Lal Keshwar Nonia,
12. Ram Chandra Paswan, 13. Janardhan Shekhar, 14.
Narayan Yadav, 15. Biswanath Kumar Bouri, 16. Janardan
Gond and 17. Ram Shankar Prasad (as per list enclosed)
is that Sudamdih Coal Washery is one of the
Establishments of M/s Bharat Coking Coal India Ltd., at
Sudamdih, P.O. Same (Dhanbad) engaging a large number
of workmen in various works. Those 17 workmen have
been engaged on different dates from 1.8.1982 to 2.1.1990.
They were initially engaged as helpers Category II except
Ganpath Dusadh who was placed in Cat. III. They have
been working as the Fitter-cum-operator during the course
780
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
of their employment, but they are not being placed
properly as evident from the facts that the Management
has upgraded S/Shri Mumtaz Ahmed, Ayodhya Paswan,
Bara Rameshwar Paswan, Satish Rewaani and Lal Keshwar
Nonia (Sl. No. 1,2,3,10 and 11 respectively) in Cat III and
Sri Ganpat Dusadh (Sl. No. 4) in Cat IV, w.e.f. 1.7.1993. But
the Management has voilated the provision of N.C.W.A.
as to the payment of their wages as prescribed therein.
Whereas in all fairness and the circumstances, all the
workmen must have been placed in Cat V w.e.f. 1.7.1993,
but the management by not doing it has deprived them
of their legitimate grade consisting financial loss and
consequential effects in their career.
3. Further alleged in behalf of the Union that
Sudamdih coal Washery is a sophistical installation of
mechanical & Electrical component requiring constant
handling by experienced hands so as to properly function
of the plant and machinaries round the clock. In view of
highly mechanization of the installation in the Coal Mining
Industry in general and Coal Washing Plants in particular,
the workman engaged for such job should be paid as per
the fixation of pay of scale skilled, semi skilled and highly
skilled personnel as projected in the NCWA in accordance
with the direction/implementation Instruction of the JBCCI
as per mandatory agreement. The Management as one of
the largest Public Sector Undertakings in the Central
should comply with Implementation Instruction of
J.B.C.C.I. to which both are parties and the workman in a
Public Sector Undertaking like BCCL should not be denied
their legitimate pay scale/grade and other benefits for
nature of their done job for benefit of it. The Union raised
the issue several times before the management, and lastly
raised the matter before the ALC©, Dhanbad as per letter
dt. 5. 9.94, but the failure in its concillation proceeding
resulted in the reference for an adjudication. Thus the
demand of the Union for promotion/placement of Shri
Mumtaj Ahmed & 16 others in Cat. V of NCWA, w.e.f.
1.7.93 alleged to the justified for upgradation above Cat.
V, on completion of four years of service theirin, for
placement in Seniority List as their service effective dates
of their joining between 1.8.82 and 2.1.90, for differences
of wages thereof and for other benefits and consequential
benefits with due cost of the procedure is justified.
4. The Union in its rejoinder specificially denying
the allegations of the O.P./Management has stated that
the subject matter is not of promotion, but for fixation in
the promotion grade and scale of pay. The two concerned
workmen have been performing the duties of Lamp
Mazdoor which is a semi skilled job and to be paid in
Cat. I rate of wages in terms in NCWA. Both the workmen
concerned though designated as Lamp Mazdoor have
been regularly performing the duties of Lamp Issuer since
the year 1967, but were regularized in Clerical Grade III in
the year 1979 in place of the said year when they had
started working at the Lamp Issuer and in respect of the
some other workmen, their comparison as Junior to both
the workmen is illegal. In that regard, the Management
malafide acted by quietly shifting the other workman to
old Incline as M.T.K./Attendance Clerk and favourably
placing them as junior to the two concerned workmen.
The job of the M.T.K./Attendance Clerk is different from
that of Lamp Issuer who also maintains records and
registers. The formula of pay fixation depends in the
nature of the job performed by individual workmen and
their seniority in services, but the regularization of Clerk
Gr. II in regard to S/Shri P.N. Sheel, K.D. Singh, Ram
Nagina Yadav and Hari Ram in Clerical Gr. II in the year
1984 has been illegally done, bye-passing the claim of
the two workmen, and the favourtism clearly stands out
in posting the two workmen in Clerk Gr. II in the year
1991 as contrasted with the regularization of their juniors
in Clerk Gr. II in the year 1984. The Union though regularly
represented about it to the management, they raised the
dispute earlier than 1994. The Management has done both
concerned workmen Fulchand Paswan and Ratan Napit
in regularization in Clerk Gr. II and they are entitled to
their placements in that grade with rate of wages w.e.f.
1.3.1984 after their appropriate position in Seniority List,
to payment of differences of between Clerk Gr. III and Gr.
II between 1.3.1984 and 13.8.1991.
5. Whereas the contra pleaded case of the Opp./
Management with categorical denials is that the present
industrial dispute is unmaintainable in law and facts, as
the demand of the Union is for promotion of certain
workers, whereas the promotion is managerial function of
the Employer, and it cannot be claimed as a right of any
employee. The promotion is effected as per Cadre Scheme
against available vacancy formulated by JBCCI.
Accordingly the management of Sudamdih Coal Washery
already promoted 26 employees from Cat. II to Cat. V on
the recommendation of the Departmental Promotion
Committee (DPC), and according to the Presidential
Direction for Scheduled Caste and Scheduled Tribe. It is
also alleged all the workmen and all others were given
opportunity to appear before the Departmental Promotion
Committee (DPC) all of them appeared before the D.P.C.,
but only the names of eight employees S/Shri Nandalal
Prasad (2) Satish Rewani (3) Bara Ramashray Paswan (4)
Haldhar Marandi (5) Mumtaz Ahmad (6) Ayodhya Paswan
(7) Indradeo Paswan and (8) Nandlal Prasad were
recommended by the D.P.C. and accordingly they were
promoted, but other employees being failure in securing
qualifying marks fixed by the D.P.C. failed to get position
in order of merit. Further alleged that the Union has no
locus standi to raise the I.D. on behalf of the workmen
S/Shri Nandlal Prasad, Haldhar Marandi, Indradeo Paswan,
Bara Ramashray Paswan and Satish Rewani, they had
not authorized the Union for the demand for their
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
781
promotion. Hence the workmen concerned are not entitled
to any relief.
6. The O.P..../Management in its rejoinder
specifically denying the allegations of the Unions, has
stated that the implementation Instructions is only
directive, not mandatory. The J.B.C.C.I. is not permitted
to involve in the Managerial function of the Employer.
The Management is performing its duty as per the
guidelines, rules, regulations and directives of the
Competent Authority. Thus, the demand of the Union is
not justified.
FINDING WITH REASONS
7. In the instant reference WWI Biswanath Kr. Bauri,
of the workmen, WW2 Sheoji Prasad, the Branch Secretary
for the Union concerned, and WW1 Sri N.R. Chatterjee,
Dy. Manager (Pers.), Sudamdih Washery for the O.P./
Management have been examined respectively.
WW1 Biswanath Kr. Bauri (Sl. No. 15) states to
have been working as Fitter Helper for 16 years at
Sudamdih Washery, and drawing wages under Cat. III as
per his Service Linked Upgradation (SLU), but have not
got his promotion to Higher Category; out of 17 workmen
as referred, Sl. No. 6 Ram Jatan Singh already
superannuated from service, and some workmen rendering
their service equal to his service have got their promotion
in Cat V. But his clear cut admission is that promotion is
effected as per Cadre Scheme. There is no channel to get
promotion to Cat. III from Cat. II Fitter Helper; as per
NCWA there is no scope for giving direct promotion to
Cat. IV or Cat. V Fitter Helper from Cat. II, and it is
indisputable that their promotion in the category is done
through D.P.C. (Departmental Promotion Committee). He
(WW1) denies to have been directed by the Management
to face the D.P.C. for his promotion from Cat. II Fitter
Helper.
8. In support of the Reference case, WW2 Sheoji
Prasad, as the Branch Secretary of the Union as well as
the Fitter-cum-Welder of the aforesaid Sudamdih Washery
has stated that their Union had raised the reference for
the claim of the workmen concerned. According to him,
out of 17 workmen Ram Jatan Singh Sl. No. 6 already
retired from service, but barring five workmen Sl. Nos. 13
to 17 (S/Shri Janaardan Sekhar, Narayan Yadav, Biswanath
Kumar Bouri, Janardan Gond and Ram Shankar Prasad
respectively) whose cases were not considered; the
management gave promotion to the rest eleven workmen
as per list in Cat. V Fitter Operator as per Office Order dt.
20.6.2000 (its photogopy marked as Ext. W. 1). So the
said workmen are legally entitled to their promotion in
that category. But the witness (WW2) has also admitted
the promotion of the said eleven workmen as per reference
Sl. No. 1 to 12 (excluding Sl. No. 6 being retired) on the
recommendation of the D.P.C. which which did not do so
in respect of five workmen Sl. No. 13 to 17, so the claim
of the Union exists only concerning the five workmen
only.
9. It is remarkable to note the Office Order dt.
20.6.2000 (Ext. W.1) proved by W.W.2 Sheoji Pd., the
Branch Secretary of the Union, has no mention of the
workmen except Lal Keshwar Nonia (Sl. No. 11). However,
in view of the admission of MWI N.R. Chatterjee, Dy.
Manager (Pers) of Sudamdih Washery for the
Management that "during the pendency of the case all
these workmen on the recommendation of the D.P.C. have
been promoted as Fitter cum Operator in Cat. V w.e.f.
different relevant dates by the management and some of
them as pleaded about eight workmen namely (1) S/Shri
Nandlal Prasad, 2. Satish Rewani, 3. Bara Ramashray
Paswan, 4. Haldhar Marandi, 5. Mumtaz Ahmad, 6.
Ayodhya Paswan, 7. Indradeo Paswan and 8. Nand Lal
Prasad as under Para 6 of the written statement—rejoinder
of the Management have already got their promotion in
Cat. V in course of time, so claim of the Union for
promotion of the workmen in Cat. V w.e.f. 1.7.1993 is not
justified.
10. On due consideration of the materials and
admissions of the management, I came to conclusion that
since during the pendency of the reference all these
workmen on the recommendation of the D.P.C. have been
promoted as Fitter cum Operator in Cat. V w.e.f. different
relevant dates, and some of them (eight ones as pleaded
under Para 6 of the management's written statement—
rejoinder) have already been promoted in Category V in
course of time.
In result, it is hereby in terms of the Reference,
ORDERED
That the demand of the Union for promotion of
Sri Mumtaz Ahmad and 16 others as Fitter-cum-Operator
in Cat V as legal and justified is no longer existent,all the
17 workmen concerned have been promoted to Cat. V on
the recommendation of the D.P.C. in due course of time
but not w.e.f. 01.07.1993 as claimed by the Union, as none
of them was qualified earlier by the D.P.C. for their
ineligibility. The workmen concerned are not entitled to
any relief as demanded by the Union concerned. Let the
copies—one soft and one hard of the Award be sent to
the Ministry of Labour & Employment, Government of
India for information and needful.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 289.—vkS|ksfxd fookn vfèfu;e[ 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Vh ,l ,y ds
izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
782
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ&1] èuckn ds iapkV ¼lanHkZ la[;k 29 of 2007½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@65@2007&vkbZvkj¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 7th January, 2014
S.O. 289.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 29/2007 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 1,
Dhanbad as shown in the Annexure, in the Industrial
dispute between the management of M/s. TSL and their
workmen, received by the Central Government on
07/01/2014.
[No. L-20012/65/2007-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD
IN THE MATTER OF REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT., 1947
Ref. No. 29 of 2007
Employers in relation to the management of
Bhelatand "A" Colliery of Tata Steel Ltd.
AND
Their workmen
Present: Sri Ranjan Kumar Saran,
Presiding Officer
Appearances:
For the Employers :
Sri D.K. Verma, Advocate
For the workman
:
Sri Niraj Kumar Singh, Advocate
State : Jharkhand
Industry: Coal
Dated 9/12/2013
AWARD
By Order No. L-20012/65/2007-IR (CM-I), dated
15/31.05.2007, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of
Bhelatand "A" Colliery of M/S Tata Steel Limited
in dismissing the services of Shri Ishwar Prasad
Rajak, Haulage Engine Operator, w.e.f. 27.09.2003 is
justified and legal? If not, to what relief is the
concerned workman entitled?"
2. The case is received from the Ministry of Labour
on 03.07.2007. After receipt of reference, both parties are
noticed, the workman files their written statement on
10.07.2007. The management files their written statement
on 23.07.2008. Rejoinder and documents are also filed by
the parties.
3. The short point involved in this reference is the
workman was not performing his duty fully and was
cheating at the workplace. The workman was a time rated
workman without working he was getting his salary for
which the management dismissed him.
4. On the other, the workman submitted that he is a
dutiful workman and has been performing his duty
sincerely. If it is the case of the parties, it is felt by this
tribunal, the workman be engaged as a piece rated
workman, in the similar job.
5. Therefore whatever work he will perform will get
his wage accordingly. To that effect the workman has
also filed an undertaking to work as piece rated. Workman
in the similar capacity. Hence the workman be reinstated
in service without any back wages, whatsoever as a piece
rated workman.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 290.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y
ds izcUèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ&1] èuckn ds iapkV ¼lanHkZ la[;k 10 dk 1992½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@201@1991&vkbZvkj¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 7th January, 2014
S.O. 290.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 10/1992 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 1,
Dhanbad as shown in the Annexure, in the Industrial
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
783
dispute between the management of M/s BCCL and their
workmen, received by the Central Government on
07/01/2014.
[No. L-20012/201/1991-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
Ref. No. 10/1992
In the matter of reference U/S 10 (1) (d) (2A)
of I.D. Act, 1947
Employer in relation to the management of
New Laikdih OCP, C.V. Area M/S BCCL
AND
Their workmen
Present: Sri R.K. Saran, P.O.
Appearances:
For the Employers
:
Sri S.N. Ghosh, Advocate
For the workman
:
None.
State : Jharkhand
Industry: Coal
Dated 12th Nov. 2013
AWARD
By Order No. L-20012/201/1991/IR (C-I), dated Nil,
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section (2A) of Section 10 of the
Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of M/S
BCCL, in paying wages for the period from 27.10.88
to 30.12.88 to Shri Gopinath Mondal foreman
Incharge, New Laikdih O.C.P. is justified? If not to
what relief the workman is entitled?"
2. After receipt of the reference, both parties are
noticed. But appearing for certain dates none appears
subsequently. Case remain pending. It is felt that disputes
between the parties have been resolved in the meantime.
Hence No Dispute Award is passed. Communicate.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 291.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y ds
izcU/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ&1] /kuckn ds iapkV ¼lanHkZ la[;k 255@2000½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@80@2000&vkbZvkj¼lh&I½]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 7th January, 2014
S.O. 291.—In pursuance of Section 17 of the Indus-
trial Disputes Act, 1947 (14 of 1947), the Central Govern-
ment hereby publishes the Award Ref. 255/2000 of the Cent.
Govt. Indus. Tribunal-cum-Labour Court No. 1, Dhanbad
as shown in the Annexure, in the Industrial dispute be-
tween the management of M/s BCCL and their workmen,
received by the Central Government on 07/01/2014.
[No. L-20012/80/2000-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUS-
TRIAL TRIBUNAL (NO. 1), DHANBAD
IN THE MATTER OF REFERENCE U/S 10(1) (D) (2A) OF
I.D. ACT., 1947
Ref. No. 255 of 2000
Employers in relation to the management of East
Katras Colliery of M/S BCCL
AND
Their workmen
Present : Sri Ranjan Kumar Saran,
Presiding Officer
Appearances:
For the Employers
: Shri D.K. Verma, Advocate
For the workmen
: Shri R. Ranjan Prasad, Advocate
State
: Jharkhand
Industry: Coal
Dated 18/10/2013
AWARD
By Order No. L-20012/80/2000-(C-I), dated 07.09.2000,
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-sec-
tion (1) and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947, referred the following disputes for ad-
judication to this Tribunal:
SCHEDULE
"Whether the action of the management of East
Katras Colliery of M/S BCCL in dismissing Sri Ram
Swaroop Nonia from the services of the company
w.e.f. 25.12.97 is justified? If not, to what relief is
concerned workman entitled?"
784
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
2. The case is received from the Ministry of Labour
on 25.09.2000. After receipt of reference both parties are
noticed. The workman files their written statement on
20.07.2009. This is a case of dismissal of the workman.
3. Before receipt of the reference the workman has
died. The ground taken by the workman's wife that due to
long illness the workman succumbed to the ailments. Ill
health may come for any person, while on job or outside.
Stringent action like dismissal is uncalled for. The dismissal
of workman Ram Swaroop Nonia is therefore set aside.
4. The workman is to be taken in job. But since the
workman died, it is not at all possible. Therefore it is or-
dered, when the dismissal is set-aside, the death benefits
be given to the workman.
5. The widow of the workman has also filed an appli-
cation, she be given monetary compensation, in lieu of
dependant employment.
6. Considering the facts and circumstances of this
case, I hold that the action of the management of East
Katras Colliery of M/S BCCL in dismissing Sri Ram Swaroop
Nonia from the service of the company w.e.f. 25.12.97 is not
justified? Hence death benefit alongwith monetary ben-
efits if any be given the net kith of the workman.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 292.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
izcUè ra= 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;] èuckn ds iapkV lanHkZ la[;k 117@01 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@487@2000&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 8th January, 2014
S.O. 292.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 117/01) 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 State Bank of India
and their workmen, received by the Central Government
on 07/01/2014.
[No. L-12012/487/2000-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
NO. 1, DHANBAD
In the matter of reference U/S 10(1)(d) (2A)
of I.D. Act, 1947
Ref. No. 117 of 2001
Employer in relation to the management of
State Bank of India, Patna
AND
Their workmen.
Present: Sri Ranjan Kumar Saran,
Presiding Officer.
APPEARANCES
For the Employers
: Sri S.N. Goswami, Advocate
For the Workman
: Sri D.K. Jha, Advocate
State : Jharkhand.
Industry: Banking
Dated 19/04/2013
AWARD
By Order No. L-12012/487/2000-IR (B-I), dated
16/05/2001, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"whether the action of the management of State
Bank of India, Patna is not considering the workman
Shri Mukesh Pandey for re-employment, while
making appointment of fresh hand i.e. S/Sh. Rabindra
Kr., Koushal Kr., Sujit Kr., Dr. Awadesh Kr. Singh,
Mahendra Roy, Kumar Murlidhar, Bindeshwar
Paswan, Sanjal Pandit & Jai Prakash Ojha, is
justified?, If not what relief the workman is entitled?"
2. The case is received from the Ministry of Labour
on 04.06.2001. After receipt of reference, both parties are
noticed, the workman files their written statement and
document. And the management files their written
statement-cum-rejoinder on 13-02-2002. The point
involved in the reference is to workman has been
terminated from his services without due process of Law,
whereas the claim of the management is the workman
was not the regular workman as such the action of the
Bank management was justified.
3. The case of the workman that he was given
employment in the bank from 16.07.91 to 14.08.91 and
again from 02.05.92 to 30.07.92. Subsequently from 30.07.92
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
785
to 30.07.93. The workman has filed the photo copy of the
appointment order of first posting Ext. M-2 Second phase
of appointment order filed by the workman Ext. M-3 for
90 days. So far as the 3rd phase of appointment letter is
concerned, it has been stated by the workman, he was
not given any appointment letter. The management in his
counter submitted at paragraph 3&4.
4. Parawise reply that the remuneration was paid to
the workman from the petty cash through staff welfare
fund, but it is the case of workman that, since there was
exigency bank appointed the workman. Subsequently the
workman was removed or not allowed to work as he did
not come within the purview of the bank circulars. But
the learned counsel for the workman submitted that the
last phase of the work i.e. from 03.07.92 to 30.07.93 more
than 240 days. Since the workman has worked for more
than 240 days, the Industrial Disputes Act is applicable
to the workman. The Bank circulars whatsoever can never
over ride the I.D. Act.
5. The Preliminary objection raised by the bank,
that since one earlier dispute between the workman and
the management ended, in a no dispute award, the present
dispute is not maintainable, is not the correct position of
Law because, in a no dispute award, the dispute neither
heard and finally decided. Moreover there is no application
of res-judicata.
6. The MW-1, the Officer of the Bank, has not stated
in his examination in chief that, the workman did not work
from 03.07.92 to 30.07.93. On that aspect there is no
evidence at all, as to whether the workman was getting
monthly salary or daily wages. But in cross examination,
he has stated that the workman was terminated sometimes
in the year 1993. Therefore claim that the workman was
working continuously for a period of 240 days is accepted.
7. Since the workman has been terminated after 240
days of working in an organization, Section 25(h) of I.D.
Act applicable. The Apex Court decision reported in 2011
SCW 3455 is clearly applicable in this case. The placitum
of which is quoted below:—
The Source of employment, the method of
recruitment, the terms and conditions of employment/
contract of service, the quantum of wages/pay and the
mode of payment are not at all relevant for deciding
whether or not a person is a workman within the meaning
of section 2(s) of the Act. The definition of the workman
also does not make any distinction between full-time and
part-time employee or a person appointed on contract
basis. There is nothing in the plain language of Section
2(s) from which it can be inferred that only a person
employed on regular basis or a person employed for doing
whole time job is a workman and the one employed on
temporary, part-time or contract basis on fixed wages or
as a casual employee or for doing duty for fixed hours is
not a workman (Para 13,14).
8. Moreover in this case Sec 25 F and I.D. Central
Rules 77 & 78, has not been complied i.e. 7 days prior
notice of termination was not given. Therefore termination
of the workman is illegal. Since termination is illegal he is
to be absorbed in the bank management.
9. Considering the fact and circumstance, I hold
that the action of the management of State Bank of India,
Patna is not considering the workman Sri Mukesh Pandey
for re- employment, while making appointment of fresh
hand is not justified. Hence the workman be absorbed in
the bank but without back wages, within 10 days after
the award is notified in the gazette.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 293.—vkSn~;ksfxd fookn vfèfu;e] 1947 1947
dk 14 dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkSn~;ksfxd fookn esa dsUnzh; ljdkj vkSn~;ksfxd vfèdj.k
,oa Je U;k;ky;] èuckn ds iapkV lanHkZ la[;k 209@1999 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 07@01@2014 dks izkIr gqvk FkkA
[la- ,y&12012@288@99&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 8th January, 2014
S.O. 293.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 209/1999)
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 State Bank of India
and their workmen, received by the Central Government
on 07/01/2014.
[No. L-12012/288/99-IR(B-I)]
SUMATI SAKLANI, 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. 209 of 1999
Employers in relation to the management of
State Bank of India, Daltagunj;
AND
786
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
Their workmen.
Present: Sri Ranjan Kumar Saran,
Presiding Officer
Appearances:
For the Employers
:
Sri S.N. Goswami, Advocate
For the Workman
:
Sri D.K. Verma, Advocate
State : Jharkhand.
Industry: Banking
Dated 19/04/2013
AWARD
By Order No. L-12012/288/99-IR-(B-I), dt. 08/12/99,
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section (2A) of Section 10 of the
Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether Shri Ajay Kumar, Messenger worked for
more than 240 days with the State Bank of India,
Daltangunj? If so whether the action of management
of Bank in terminating the service of Sri Ajay Kumar
w.e.f. 15.10.97 is justified? If not to what relief the
workman is entitled to?"
After receipt of the reference, both parties are
noticed. They submitted Written statement and rejoinder.
The case fixed for evidence by the workman but workman
did not turn up. Therefore it is felt that there is not dispute
between the parties. Hence a "No Dispute" award is
passed.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 294.—vkSn~;ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,vjiksVZ
vFkkWfjVh vkWQ bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaè esa fufnZ"V vkSn~;ksfxd fookn esa dsUnzh;
ljdkj vkSn~;ksfxd vfèdj.k ,oa Je U;k;ky; 2 fnYyh ds iapkV
¼lanHkZ la[;k 59@2006½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 06@01@2014 dks izkIr gqvk FkkA
[la- ,y&11012@8@2004&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 294.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government publishes the Award (Ref. No. 59/2006) of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, No. 2,
Delhi now as shown in the Annexure, in the Industrial
Dispute between the employers in relation to the
management of Airport Authority of India and their
workman, which was received by the Central Government
on 6/1/2014.
[No. L-11012/8/2004-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, DELHI
Present :- Shri Harbansh Kumar Saxena
ID No. 59/2006
Sh. K.N. Pandey & 84 others
Versus
Airport Authority of India
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-11012/8/2004-IR(M) dated 27/07/
2006 referred and modified on 10.10.2006 the following
industrial Dispute to this tribunal for the adjudication:—
"Whether the Industrial dispute raised by K.N.
Pandey and 84 others (List attached against the
management of Airport authority of India over re-
engagement in service with fullback wages and
regularization of their services is justified and fair?
If so, what relief they are entitled to?"
On 31/07/2006 reference was received in this
tribunal. Which was register as I.D. No. 59/2006 and
claimant were called upon to file claim statement with in
fifteen days from date of service of notice. Which was
required to be accompanied with relevant documents and
list of witnesses.
After service of notice workmen/Claimants appeard
and filed claim statement on 06/12/06. Wherein they
submitted as follows:-
1. That the present industrial dispute is being raised
by the workmen above named as specified in the memo
of parties against the management above named for
reengagement of their services with the management
directly or through its agents with full back wages and
regularization in service with the management above
named.
2. That the present industrial dispute is pending
adjudication before this Hon'ble Tribunal pursuant to
reference order dated 10.10.2006 passed by the appropriate
government on the following terms of reference:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
787
"Whether the industrial dispute raised by Sh. K.N.
Pandey and 84 others (List Attached) against the
management of Airport Authority of India over re-
engagement in service with full back wages and
regularization of their services is justified and fair?
If so, what relief they are entitled to?"
3. That the workmen herein are all ex-servicemen
and were firstly engaged with the management no. 1 and
2 above named w.e.f. 15.01.1994 as Security services at
the Cargo Complex, Indira Gandhi International Airport,
Delhi. That the workmen herein were appointed after due
ascertainment of their eligibility and fitness for the job
and in accordance with the rules and regulations prevalent
at the time for appointment of security guards.
4. That the workmen above named were discharging
the duties of securiting the cargo complex with their
specialized services and experience while in employment
of management no. 1 and 2. That the workmen herein
were appointed against vacancy sanctioned posts
available with the management but instead of direct
appointment the workmen herein were employed after the
artificial introduction of the contractor.
5. That vide notification dated 9th December 1976,
issued under the Contract Labour (Regulation and
Abolition) Act, 1970, the central government had
prohibited the employment of contract labour in the
management establishment in the job/process/employment
of 'watching the buildings'. That in terms of the said
notification, the security guards employed by the
management above named at its establishments/airports
in Chennai and Kolkata were regularized in service. Even
the workmen above named were asked to fill up the
prescribed forms and file required affidavits for the
regularization of their services with the management above
named.
6. That, however, on account of the reluctance of
the management to regularize the services of the workmen
above named for extraneous reasons, the workmen
approached the Delhi High Court vide CWP No. 4211/
1997 for regularization of their services. The said writ
petition was dismissed vide orders dated 15.03.2000 on
the grounds that the workmen herein are not covered
under the clause 'watching the building. In LPA No. 203/
2000 filed against the judgment/order dated 15.03.2000 in
CWP 4211/1997 liberty was given to the workmen herein
to raise and Industrial dispute in accordance with the law
as laid down in Steel Authority of India Vs. National Union
Waterfront Workers 2001 (7) SCC 1. The said liberty was
further upheld in SLP No. 196/2000 disposed off by the
Hon'ble Apex Court on 18.01.2002. Further in WP(C) 1705/
2000 the High Court of Delhi had directed as under:
"....The question as to whether or not the contract
is only a mere ruse or camouflage to evade
compliance with various beneficial legislations or
as to whether or not the petitioners are entitled to
be regularized in service with the principal employer
as, in my opinion, a disputed question of fact and
cannot be appropriately dealt with in this petition
and the petition, therefore, cannot be entertained.
However, the petitioners will be at liberty to raise
an Industrial dispute about the regularization of the
services of the petitioners and as and when such a
dispute is raised the industrial court will enquire
into the question as to whether or not the contract
entered into between the principle employer and
the contractor is not genuine or is mere ruse or
camouflage."
9. That subsequently the workmen herein had
issued a legal/demand notice dated 3.04.2003 to the
management above named for the reengagement of their
services with the management as regular employees with
the back wages. However, the management herein did
not respond to the same and the workman above named
raised an Industrial dispute before the conciliation Officer
which has resulted in the instant reference.
10. That the workmen above named discharges their
duties to the full satisfaction of the management above
named during the course of their employment and gave
no cause of complaint from any corner whatsoever during
their employment.
11. That during the course of their employment the
workmen above named worked under the direct
supervision and control of the management no. 1 and 2
above named and its designated officers. The day to day
deployment of the workmen above named and the duties
to be performed by them were issued by the regular
employees of the management above working under the
Deputy General Manager (Security), IGI Airport.
12. That the very nature of contract between the
management above named and the contractor was such
that the said contract was not for the production of any
desired result but for the supply of labour. Infact, in the
said contract itself the no. of labour to be employed and
duty hours were specified by the management itself.
13. That infact, the contractor was introduced in
between by the management above name with the sole
motive of depriving the workmen herein the status of
regular employees of the management. By introduction
of the contractor an artificial veil was created so as to
depict as if the workmen herein were employees of the
contractor whereas the management directly extracted the
788
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
work of a regular nature from the workmen herein as its
regular employee.
14. That the work doen/duties discharged by the
workmen herein were perennial in nature and sufficient
work is available with the management for employment of
the workmen herein. Infact, in other establishments
belonging to the management itself the said job is
performed by regular employees of the management who
were absorbed after being initially employed as contract
labour.
15. That however, with a mala fide motive of
punishing the workmen herein for dragging the
management of court with their demand for regularization
of services, the management arbitrarily and without any
reason terminated the services of the workmen herein in
the garb of engaging a fresh contractor w.e.f. 11.03.2002.
16. That prior to their disengagement/termination
from service the workmen herein had been in continuous
employment with the management above named since
15.01.1994.
17. That the repeated opposition of the workmen to
the unfair labour practice of the management of depriving
them of the status of regular workmen had irked the
management which with a mala fide motive of frustrating
the claim of the workmen engaged a fresh contractor to
discharge the duties hitherto performed by the workmen
herein without any reason. Infact, even the contract
between the management above named and the contractor
had not expired on 11.03.2002 when the services of the
workmen herein were substituted for a fresh set of contract
workmen.
18. That the introduction of the new contractor w.e.f.
11.03.2000 was a mala fide act on the part of the
management to frustrate the claim of the workmen herein.
Even if a new contractor was to be introduced the
workmen herein being in continous service of the
managemnt since 1994 was entitled to preference in
employment even with the new contractor. The
disengagement of the workmen herein under the garb of
engagement of a new contractor amounts to mala fide
termination of the services of the workmen herein.
19. That he workmen herein are entitled to be re-
engaged in service with the management above named
and further are entitled to be regularized in service with
the management above named from the date of their initial
appointment.
20. That during the pre reference stage when the
matter was sub judice in WP(C) 15721-56 before Delhi
High Court management no. 3 has been appointed by
management no. 1 as its agent.
21. That no legal dues whatsoever, including
retrenchment compensation, notice wages etc. was paid
to the workmen herein consequent upon their
disengagement/termination.
22. That consequent upon the lineament/termination
of their services the workmen herein have been unable to
secure any alternate source of employment despite their
best efforts and are dependent upon their ex-servicemen
pension for their survival.
23. That without prejudice to the submission that
the workmen herein constitute a substantial no. of
workmen in themselves to give the character of an
'industrial dispute' to the instant dispute, the present
industrial dispute is duly sponsored by the AICPWD
(MRM) KS (Regd.), 4823, Balbir Nagar Extn., Gali No. 13,
Shahdara, Delhi 110032 vide its resolution dated 27.05.2003
and the said is a Union connected with the management
establishment.
On the basis of contents mentioned in aforesaid
paragraphs Labour/Chaimant prayed as follows:—
1. Re-engage the workmen herein in service with
full back wages and consequent reliefs.
2. Regularize the workmen herein in service from
the date of their initial appointment with full back wages
and all consequent reliefs.
3. Award costs of this litigation to the workman
herein. Pass such other order as this Hon'ble Court may
deem fit and proper in the interests of justice.
In reply to claim statement management filed
Written Statement. Wherein it is submitted as follows:—
PRELIMINARY SUBMISSIONS:—
1. That there is no master-servant relationship
between the Claimants and the Opposite Party, however
despite the above, the Claimants have been approaching
before the Hon'ble Industrial Tribunal for seeking
regularization of their services with the Opposite Party.
2. That the petition of the claimants is an abuse of
the process of law and the petition prima facie merits
dismissal in the light of Hon'ble Supreme Court judgment
in Steel Authority of India case. The Claimant are
repeatedly misusing the process though all the cases
relating to security personnel have been dismissed. It is
further submitted that the claimants initially filed two writ
Petitions Nos. 4211/97 & 4292/97 titled Deo Sunder Jha
Vs. UOI & Ors and B.I.L Mandal & ORs. Vs. UOI & Ors.
which were dismissed by the Hon'ble Mr. Justice A.K.
Sikri of the High Court of Delhi after examining all the
aspects/factors related to the case and subsequently LPAs
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
789
Nos. 136/2000 & 203/97 filed against the above referred
judgments were also been dismissed on merit by the
Division Bench of High Court of Delhi. Another petition
No. 1705/2000 was filed by the claimants titled K.N. Pandy
& Ors. Vs. UOI & Ors. which was also dismissed by the
Hon'ble High court of Delhi. The claimants again filed as
SLP No. 196/2002 titled B.I.L Mandal & other Vs. UOI &
Ors. which was dismissed by the Division Bench of the
Hon'ble supreme Court of India in view of Supreme Court
judgment in Steel Authority of India case. The claimants
against approached the Hon'ble High Court of Delhi under
CWP No. 772/2002 titled A.S. Bisht & Anr Vs. UOI & Ors.
which was also dismissed as withdrawn. All the above
Writs, Appeals and SLP were dismissed after consideration
of all the aspects by the Hon'ble Courts, therefore the
petition deserves dismissal on the above grounds. Further,
the security personnel are engaged by the agency (ies)
sponsored by the Directorate General of Resettlement,
Ministry of Defence, Govt. of India under a resettlement
scheme/measure for ex-servicemen. This Hon'ble Court in
CWP Nos. 4292/97 & 4211/97 has held that the very
purpose will be defeated for which the Directorate General
of Resettlement, Ministry of Defence was formed &
rehabilitation scheme framed by the Govt. in case the
plea of the Claimant is accepted.
3. Further, M/s. UPBSKN Ltd., is no more in the
Cargo Terminal. The contract awarded to M/s R-4 security
services who had taken over the Security Contract w.e.f.
March, 2002 has also expired on 14.11.2004. A new
security agency namely M/s. Ex-servicemen Airlink
Transport Services has been awarded the Security
services contract w.e.f. 14.11.2004 (midnight) after being
sponsored by the Directorate General of Resettlement,
Ministry of Defence, Govt. of India. It is also pertinent to
mention herein that almost all the claimants are not working
in Cargo Terminal.
4. That the Claimants are not entitled to any relief
being the employees of the U.P. Bhutpurva Sainik Kalyan
Nigam Ltd., a State Govt. Undertaking sponsored by the
Directorate General of Resettlement, Ministry of Defence,
Govt. of India. In this regard, the order of the Hon'ble
High Court is relevant wherein the Hon'ble Court has
held that the very purpose of the Resettlement Schemes
of Ex-servicemen would be defeated, if their contention is
acceded to.
5. That the Claimants have not approached this
Hon'ble Tribunal with clean hands and have concealed
the material facts intentionally. Even otherwise, the alleged
cause of the Claimants fall under Section 2(k) of Industrial
Disputes Act, 1947 instead of section 2-A of Industrial
Disputes Act, 1947. The Claimant cause had not been
espoused by any Trade Union nor by any substantial
number of workmen of Opposite Party hence even
otherwise was liable to be rejected only on this ground
alone.
6. That the claimants did not serve any demand
upon the Opposite Party prior raising the dispute before
appropriate Government/Opposite Party, hence the present
claim is liable to be dismissed qua to the said claimants
on this ground alone.
PRELIMINARY OBJECTIONS:—
1. That the statement of claim has not been filed
within prescribed time as fixed in the order of reference
issued by the Government of India, further no request for
condonation of delay has been sought for or condoned
suo-moto by the Hon'ble Tribunal as such the statement
of claim is liable to be rejected.
2. That the statement of claim in the captioned matter
is not properly verified or supported by any affidavit of
the Claimant. Keeping in view of the circumstances, the
present statement of claim of the Claimants is liable to be
rejected in the interest of justice.
3. That no employer and employee, master and
servant relationship ever existed between the claimants
and Airports Authority of India during the alleged period
of employment. As such, there is no industrial dispute
exist between the parties.
4. That the Hon'ble Tribunal has no jurisdiction to
entertain the matter which falls under contract labour
(Regulation and Abolition) Act, 1971, Only the authority
constituted under the CLRA is only the competent
authority to adjudicate the present matter, as such the
present claim statement may be returned with advice to
approach the appropriate forum for redressal of their
grievances or reject the claim statement in the interest of
justice.
5. That the claimants have not served any demand
in writing prior filing the statement of claim before the
appropriate government upon the management and no
trade union registered under the Trade Union Act or
substantial number of the workman supported the cause
of the present claimants, so the present dispute does not
fall under Section 2(k) of the Industrial disputes Act, 1947.
6. That the Airport Authority of India is a
government statutory body and duly notified by the
Government of India, it does not fall within the definition
of Industry as defined in Industrial Disputes Act 1947
under Section 2(j), as such, the provisions of Industrial
Disputes Act 1947 does ot apply in the present matter,
790
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
keeping in view the above facts and circumstances the
claim statement of the claimants are liable to be rejected.
However, the parawise reply to the statement of
claim is given hereunder which is without prejudice to
the preliminary objections stated above and which is
without prejudice to each other.
Reply on Merits
1. Reply in para No. 1 of the statement of claim
(hereinafter referred to as SC for brevity) it is submitted
that the Claimants are not entitled any back wages or re-
engagement or reinstatement in the employment of
Airports Authority of India as they never worked on the
roll of AAI and no claim of reinstatement or back wages
or any other relief against AAI arises.
2. The contents of para 2 of SC are matter of record,
however the reference order is made mechanically without
application of mind as such the present reference order is
liable to be quashed.
3. In reply to para No. 3 the claimants were never
engaged as security guard with effect from 15.01.1994 or
any other date. In fact the security services at Cargo
Complex, Indira Gandhi International Airports, Delhi were
provided by the different Agencies which were sponsored
by the Directorate General of Resettlement, Ministry of
Defence, Govt. of India under a resettlement scheme
measure for ex-servicemen. The Ld. Single Judge, Hon'ble
High Court of Delhi in CWP No. 4292/97 and 4211/97 in
one of the observation held that the very purpose will be
defeated for which the Directorate General of Resettlement,
Ministry of Defence was formed and rehabilitation scheme
framed by Government in case the plea of the claimants
is accepted. Moreover, the management of Airports
Authority have not recruited or appointed or engaged or
reengaged any security guard. Airports Authority has
not been asked for the eligibility criteria or fitness for the
job by any of the Security Agency, before the appointment
or recruitment of security guards.
4. In reply para No. 4 of Statement of Claim, the
claimants were never engaged by AAI for discharing the
duties of securing the cargo complex and no claimant
was appointed against the vacant sanctioned posts. It is
absolutely incorrect to say that management of Airport
Authority of India recruited or appointed claimants after
the artificial introduction of the contractor. In fact, the
AAI provided the work of security to the Agencies which
were sponsored by the Directorate General of Resettlement,
Ministry of Defence was formed and rehabilitation scheme
framed by the Govt. of India.
5. That the contents of the para 5 of Claim Statement
are not relevant in view of the fact that the job performed
by the claimants was not the job of watching the buildings.
In fact, the said issue has been duly adjudicated in Civil
Writ Petition Nos. 4292/97 and 4211/97 in favour of the
Airports Authority of India. Moreover, the Government
notification dated 09.12.1976 issued under CLRA 1970 has
already been quashed by the Hon'ble Supreme Court of
India in the Judgment of Steel Authority of India Vs.
National Waterfront workers Union & Ors. (2001)7 SCC 1
wherein reversing its earlier judgment in the matter of Air
India Statutory Corporation Vs. United Labour Union.
Moreover, the claimants were not covered by the
Government notification dated 09/12/1976 and the
judgment passed by the Humble Supreme Court of India
in the matter of Air India Statutory Corporation being the
Employees of the U.P. State Government Undertaking/
Statutory Body, it is submitted that an employee of the
State Government Undertaking cannot claim and are not
entitled to for regularization in another public sector
undertaking. The Petitioners were the employees of M/s
UPBSKB a U.P. State Government Undertaking, the said
agency was sponsored by the Director General of
Resettlement, Ministry of Defence, Government of India
under the Resettlement Scheme. It is respectfully
submitted that the dispute of the Claimants is totally
different from the persons engaged in Chennai and
Kolkata.
6. That the contents of the para 6 of Claim Statement
are irrelevant. It is respectfully submitted that the disputes
of the Claimants is totally different from the persons
engaged in Chennai and Kolkata. It is submitted that the
claimants already have availed the opportunities before
the Hon'ble High Court and Supreme Court, but they did
not succeed, as such they have no right to claim as afresh
the same dispute before this Hon'ble Industrial Tribunal.
7-8. That there are no paras numbered as 7&8 in
the copy of Statement of Claim served upon the
Respondent.
9. That the contents of the para 9 of Claim Statement
are wrong and denied. The claimant did not serve any
demand and legal notice dated 03.04.2003 upon the
Management of Airports Authority of India before filing
the present Statement of Claim before the Hon'ble Court
or Concilitation Officer, so the question of reply to the
said notice does not arise.
10. That the contents of the para 10 of Claim
Statement are incorrect, wrong and vague, hence denied.
The Claimants neither worked on the roll of the AAI nor
supervised by any official of the AAI as such the question
of satisfaction of the job during the course of employment
or cause of complaints from any corner does not arise at
all. It is submitted that the Claimants were working under
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the agency sponsored by the Ministry of Defence under
resettlement scheme.
11. That the contents of the para 11 of Claim
Statement are absolutely, incorrect, wrong, hence denied.
It is absolutely wrong that the Claimants were directly
supervised and controlled by its designated officers, no
regular employees of AAI directed or deployed any
employee of the agency/contractor.
12. That the contents of the para 12 of the Claim
Statement are misconceived and irrelevant, hence denied.
It is incorrect that the nature of contract between AAI
and the Contractor was only for the supply of labour and
it is further denied that the duty hours of the employees
of the agency were specified by the managementof AAI.
13. That he contents of the para 13 &b 14 of Claim
Statement are very vague, wrong hence denied. It is
submitted that appropriate government neither prohibited
the job of security and safety at AAI, IGI Cargo, Delhi
nor declared the job of Security and Safety as perennial
in nature under section 10 of the CLRA in the
establishment. The Labour Court or Industrial
Adjudicature has no jurisdiction to prohibit the job of
security and safety at Cargo or declare as perennial nature
of job in the establishment under section 10 of the CLRA
for the purpose of engagement of the contract workers.
Rest of the contents and allegations as alleged in the
para is denied.
14. That the contents of para 15 & 16 of Claim
Statement are incorrect, wrong and false hence denied.
The management of Airport Authority of India has no ill
will against these claimants or any other employee
engaged by any security agency, in case, any fresh
contractor or security agency is awarded after expiring
the period of previous contract, would not amount illegal
termination of service of the claimants as there is no nexus
of employment of claiments between the AAI and the
Security Agency. It is submitted that agreement for
providing security services at the premises of the AAI
are awarded to agencies sponsored by the Directorate
General of Re-settlement, Ministry of Defence, Govt. of
India. The contention of the claimants that they were
discharged with effect from 11.03.2002 is devoid of
substance and contrary to the factual and legal position.
It is submitted that the AAI has entered into a service
contract and the claimants admittedly, were the employees
of the said contractor which is an independent body
established for very purpose of the benefit of the
claimants. It is further submitted that claimants never
worked on the roll of the AAI. It is absolutely incorrect
that the claimants had been working continuously since
15.01.1994.
15. That the contents of para 17 of Claim Statement
are absolutely incorrect and wrong hence denied. It is
submitted that AAI never committed any unfair labour
practice or indulging in practice with intent to deprive
the worker from the permanent status.
16. That the contents of para 18 & 19 of Claim
Statement are incorrect, wrong and misconceived, hence
denied. It is absolutely wrong to say that the AAI had
introduced the new contractor w.e.f. 11.03.2000 with intent
to frustrate the claim of the claimant. IT is further incorrect
to say that introduction of new contract amounts to
malafide termination of the services of the claimants. In
case, the fresh contractor due to any reasons whatsoever,
the AAI has no right to intervene in administrative affairs
of the two contractors. In case, the claimants were
aggrieved with any administrative decisions of the
contractor, they were supposed to approach the new
contractor and demand for reinstatement, but they did
not do so probably they were not in the employment of
erstwhile contractors. It is admitted case that the claimants
were the employees of the contractors and were deployed
at the premises of the AAI for providing security services
under contract, the claimants have no right to demand
for regularizing on reinstatement in service etc. with the
AAI.
17. That the contents of para 20 of the claim
statement are matter of record. It is duty of the claimants
to prove the same as onus of proof on them.
18. In reply to para no. 21, the claimants were never
worked on the roll of the AAI and there were no employer
and employee relationship between the claimants and
AAI, as such question of payment of retrenchment
compensation, notice wages etc. to the claimants does
not arise at all.
19. That the claimants again mentioned para 20 after
para 21. The claimants are intentionally concealing their
gainfully employment record after the alleged date of
termination form services due to ill motive. However, the
onus of proof of unemployment is on the claimants, it is
the duty of the claimants to prove the same before the
Hon'ble Industrial Tribunal.
20. In reply to para again 21, the claimants have not
produced any material on which it can be relied upon
that the cause of the claimants has been supported or
espoused by any trade union registered under the Trade
Union Act or any substantial number of employee of the
establishment. The claimants have not produced any
substantial material on which it can be relied upon that
the claimants are member of any trade union, as such it is
apprehended that the claimants are not member of trade
792
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
union and no union has espoused the cause of the
claimants.
On the basis of aforesaid contents management
prayed that statement of claim be dismissed & also prayed
to reject the prayer of Claimants.
Workmen/claimants in reply to aforesaid written
statement filed rejoinder wherein they stated as
follows:—
Reply to Preliminary Submissions:
1. That the contents of para 1 of the preliminary
submissions raised by the management are denied
specifically as false and frivolous. Contents of the
statement of claim are reiterated herein in toto.
2. That the contents of para 2 of the preliminary
submissions raised by the management are denied
specifically as false and frivolous except what is matter
of record. Contents of the statement of claim are reiterated
herein in toto. It is further submitted that the judgment of
the Hon'ble Supreme Court referred to is infact supporting
the case of the workmen herein. It is denied that the
present ID is an abuse of process of law.
3. That the contents of para 3 of the preliminary
submissions raised by the management are denied
specifically as false and frivolous except what is matter
of record. Contents of the statement of claim are reiterated
herein in toto.
4. That the contents of para 4 of the preliminary
submissions raised by the management are denied
specifically as false and frivolous. Contents of the
statement of claim are reiterated herein in toto the
judgment of the Hon'ble High Court is to be read in its
context.
5. That the contents of para 5 of the preliminary
submissions raised by the management are denied
specifically as false and frivolous. Contents of the
statement of claim are reiterated herein in toto.
6. That the contents of para 6 of the preliminary
submissions raised by the management are denied
specifically as false and frivolous. Contents of the
statement of claim are reiterated herein in toto.
Reply to Preliminary Objections:
1. That the contents of para 1 of the preliminary
objections raised by the management are denied
specifically as false and frivolous. Contents of the
statement of claim are reiterated herein in toto. The
contention of the management is of no relevance in the
adjudications of the instant dispute as the claim was filed
within the time granted by this Hon'ble Tribunal in the
exercise of its discretion.
2. That the contents of para 2 of the preliminary
objections raised by the management are denied
specifically as false and frivolous. It is submitted that the
statement of claim is properly verified.
3. That the contents of para 3 of the preliminary
objections raised by the management are denied
specifically as false and frivolous. Contents of the
statement of claim are reiterated herein toto.
4. That the contents of para 4 of the preliminary
objections raised by the management are denied
specifically as false and frivolous. This Hon'ble tribunal
is well within its jurisdiction to decide the instant dispute
on merits as held by the Hon'ble Supreme Court in the
Steel Authority Case 2001(7) SSC1.
5. That the contents of para 5 of the preliminary
objection raised by the management are denied
specifically as false and frivolous. A proper demand notice
was served prior to the raising of the instant industrial
dispute without prejudice to the fact that no written
demand notice is infact required in a case such as the
instant dispute.
6. That the contents of para 6 of the preliminary
objections raised by the management are denied
specifically as false and frivolous. That the answering
respondent is an 'Industry' is no longer res integra.
REJOINDER ON MERITS:
1. That the content of para 1 of the reply on merits
are denied specifically as false and frivolous and the
contents of corresponding para of the statement of claim
are hereby reiterated and reaffirmed.
2. That the contents of para 2 of the reply on merits
by the management are denied specifically as false and
frivolous. Contents of corresponding para of statement
of claim are hereby reiterated and reaffirmed.
3. That the contents of para 3 of the reply on merits
by the management are denied specifically as false and
frivolous. Contents of corresponding para of the statement
of claim are hereby reiterated and reaffirmed.
4. That the contents of para 4 of the reply on merits
by the management are denied specifically as false and
frivolous. Contents of corresponding para of the statement
of claim are hereby reiterated and reaffirmed.
5. That the contents of para 5 of the reply on merits
by the management are denied specifically as false and
frivolous except what is matter of record. Contents of
corresponding para of the statement of claim are hereby
reiterated and reaffirmed. The judgments are to be read in
their true context.
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793
6. That the contents of para 6 of the reply on merits
by the management are denied specifically as false and
frivolous. Contents of corresponding para of the statement
of claim are hereby reiterated and reaffirmed.
7. That the contents of para 7 and 8 of the reply on
merits by the management are denied specifically as false
and frivolous. Contents of corresponding para of the
statement of claim are hereby reiterated and reaffirmed.
9. That the contents of para 9 of the reply on merits
by the management are denied specifically as false and
frivolous. Contents of corresponding para of the statement
of claim are hereby reiterated and reaffirmed. Reply in
preceding paras may be read as reply herein also and the
same are not being repeated for the sake of brevity.
10. That the contents of para 10 of the reply on
merits by the management are denied specifically as false
and frivolous. Contents of corresponding para of the
statement of claim are hereby reiterated and reaffirmed.
11. That the contents of para 11 of the reply on
merits by the management are denied specifically as false
and frivolous. Contents of corresponding para of the
statement of claim are hereby reiterated and reaffirmed.
13. That the contents of para 13 and 14 of the reply
on merits by the management are denied specifically as
false and frivolous. Contents of corresponding para of
the statement of claim are hereby reiterated and reaffirmed.
Reply in preceding paras may be read as reply herein
also and the same are not being repeated for the sake of
brevity.
14. That the contents of para 15 and 16 of the reply
on merits by the management are denied specifically as
false and frivolous. Contents of corresponding para of
the statement of claim are hereby reiterated and reaffirmed.
Reply in preceding paras may be read as reply herein
also and the same are not being repeated for the sake of
brevity.
15. That the contents of para 17 of the reply on
merits by the management are denied specifically as false
and frivolous. Contents of corresponding para of the
statement of claim are hereby reiterated and reaffirmed.
16. That the contents of para 18 and 19 of the reply
on merits by the management are denied specifically as
false and frivolous. Contents of corresponding para of
the statement of claim are hereby reiterated and reaffirmed.
17. That the contents of para 20 of the statement of
claim need no rejoinder.
18. That the contents of para 21 of the reply on
merits by the management are denied specifically as false
and frivolous. Contents of corresponding para of the
statement of claim are hereby reiterated and reaffirmed.
19. That the contents of para 13 and 14 of the reply
on merits by the management are denied specifically as
false and frivolous. Contents of corresponding para of
the statement of claim are hereby reiterated and reaffirmed.
Reply in preceding paras may be read as reply herein
also and the same are not being repeated for the sake of
brevity.
20. That the contents of para 20 of the reply on
merits by the management are denied specifically as false
and frivolous. Contents of corresponding para of the
statement of claim are hereby reiterated and reaffirmed.
On the basis of contents mentioned in aforesaid
Workmen/Claimants prayed that this Hon'ble Tribunal be
pleased to pass an award in favour of the workmen herein.
My Ld. predecessors has not framed any issue but
proceed to adjudicate the present reference on the basis
of schedule wherein questions of determination were as
follows:—
"Whether the Industrial dispute raised by Sh. K.N.
Pandey and 84 others (List attached) against the
management of Airport Authority of India over re-
engagement in service with fullback wages and
regularization of their services is justified and fair?
If so, what relief they are entitled to?"
In support of their case workmen filed affidavit of
following witnesses:—
1.
WW1
Shri Anand Singh Bisht.
2.
WW2
Shri G.P. Yadav
3.
WW3
Shri Satvinder Singh
4.
WW4
Shri Durlab Singh
5.
WW5
Shri Jabar Singh
6.
WW6
Shri Ram Lubhaya
7.
WW7
Shri Rajender Singh Dalal
8.
WW8
Shri Amar Singh Rana
9.
WW9
Shri N.B. Pathak
10. WW10
Shri Ram Phool
11. WW12
Shri Rewati Raman Mishra
12. WW13
Shri Suresh Kumar Swami
13. WW14
Shri T.K. Das
14. WW16
Shri Virender Kumar
15. WW18
Shri Mohd. I. Ansari
16. WW19
Shri Tara Chand
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
17. WW20
Shri Mahavir Prasad
18. WW21
Shri Om Prakash
19. WW22
Shri Rajbir Singh
20. WW23
Shri Balbir
21. WW24
Shri Mohinder Singh
22. WW25
Shri Pareshwar Prasad Kuriyal
23. WW26
Shri Manbir Singh
24. WW27
Shri Krishan Singh
25. WW28
Shri Kedar Singh Rawat
26. WW29
Shri Desh Raj
27. WW30
Shri Surender Prasad
28. WW31
Shri Dhirender Singh
29. WW32
Shri Vijay Kumar
30. WW33
Shri Jagdish Chander
31. WW33
Shri Kamlesh Pandey
32. WW34
Shri Tek Chand
33. WW35
Shri M.M. Pandey
34. WW36
Shri Ram Kumar
They were cross-examined at Length by Shri V.P.
Gaur A/R for the management.
Cross-examination are as follows:—
It is correct that the management AAI never issued
any appointment letter to me and other workmen of this
case. Likewise, no termination letter was given by the
management to me and other workmen. No identity card
has been issued to me and other workmen by AAI. No.
ESI benefits or PF benefit used to be given to me and
other workmen by AAI. I do not know who was providing
security guards to the management. It is incorrect that
myself and other workmen did not use to sign the
attendance register in the management. It is correct that
we used to receive salary in the bank which the contractor
used to deposit. It is incorrect to suggest that no notice
was given by me and other workmen to AAI before
coming to the court. It is correct that I have not placed
the copy of the resolution dated 27.05.2003 but it is not
correct to say that the said resolution was not passed. It
is incorrect to suggest that there is no relationship of
employer and employee between the parties or that we
have filed a wrong and false case against the management.
In support of its case management filed affidavit of
MW1 Captain Sudhir Malik. Wherein he stated as
follows:—
1. I say that the deponent is working as Dy. General
Manager (Security), with the Airports Authority of India,
Terminal-I, New Delhi, and as such is well conversant
with the facts of the case and fully competent and
authorize to depose the present Affidavit.
2. I say that the Claimants initially filed two Writ
Petitions Nos. 4211/97 & 4292/97 titled Deo Sunder Jah
Vs. UOI & Ors and B.I. Mandal & Ors. Vs. UOI & Ors.
which were dismissed by the Hon'ble High Court of Delhi
after examining all the aspects/factors related to the case
and subsequently LPAs Nos. 136/2000 & 203/97 filed
against the above referred judgments were also been
dismissed on merit by the Division Bench of High Court
of Delhi. Another petition No. 1705/2000 was filed by the
Claimants titled K.N. Pandey & Ors. Vs. UOI & Ors., and
same was also dismissed by the Hon'ble High Court of
Delhi, thereafter claimants preferred SLP No. 196/2002 titled
B.I. Mandal & Ors. Vs UOI & Ors. which was dismissed
by the Division Bench of the Hon'ble Supreme Court of
India in view of Supreme Court Judgment in Steel
Authority of India case. The Claimants again approached
the Hon'ble Court of Delhi under CWP No. 772/2002 titled
A.S. Bisht & Anr. Vs. UOI & Ors. which was also dismissed
as withdrawn. All the above Writs, Appeals and SLP were
dismissed after consideration of all the aspects by the
Hon'ble Courts, therefore the petition deserves dismissal
on the above grounds. Further, the security personnel
are engaged by the agency (ies) sponsored by the
Directorate General of Resettlement, Ministry of Defence,
Govt. of India under a resettlement scheme/measure for
ex-servicemen. This Hon'ble Court in CWP No. 4292/97 &
4211/97 has filed that the very purpose will be defeated
for which the Directorate General of Resettlement,
Ministry of Defence was formed & rehabilitation scheme
framed by the Govt. in case the plea of the claimants is
accepted.
3. I say that the contract of security work, awarded
to M/s R-4 security Services for two years from March,
2002 to 14.11.2004, thereafter, another security agency
namely M/s. Ex-servicemen Airlink Transport Services was
awarded contract of Security services from 14.11.2004 after
being sponsored by the Directorate General of
Resettlement, Ministry of Defence, Govt. of India.
4. I say that the Claimants are not entitled to any
relief being the employees of the U.P Bhutpurva Sainik
Kalyan Nigam Ltd., a State Govt., undertaking sponsored
by the Directorate General of Resettlement, Ministry of
Defence. Govt. of India. In this regard, the holding of this
Hon'ble Court is relevant wherein this Hon'ble Court has
held that the very purpose of the Resettlement Schemes
of Ex-Servicemen would be defeated, if their contention
is acceded to.
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795
5. I say that no legal demand notice has been
received from the claimants hence it is assumed that no
demand has been served upon before raising the present
dispute.
6. I say that Management of Airport Authority of
India did not issue any appointment letter to any
claimants and no salary has been paid as there was no
employer and employee relationship was existed with the
claimants.
7. I say that as per available record for the relevant
years to claimant was engaged as Security Guard with
effective from 15.1.1994 or any other date. In fact the
contractor provides security services to the Cargo
Complex, Indra Gandhi International Airport, Delhi.
8. I say that Airport Authority of India used to take
security services through different agencies which were
sponsored by the Directorate General of Resettlement,
Ministry of Defence, Govt. of India under a resettlement
scheme measure for ex-servicemen.
9. I say that the management of Airport Authority
neither recruited or appointed any claimant as security
guard for Airport Authority of India nor suggested or
recommended any claimant to be appointed for Airport
Authority of India.
10. I say that claimants were not engaged by AAI
for discharging the duties of securing the cargo complex
and no claimant was appointed againnst the vacant
sanctioned posts.
11. I say that Management of Airport Authority of
India did not introudce any claimant to the contractor, in
fact the AAI was provided security services by the
Security Agencies/Contractors which were sponsored by
the Directorate General of Resettlement, Ministry of
Defence was formed and rehabilitation scheme framed by
the Govt. of India.
12. I say that the management of AAI did not
depute or assign any work to any employee of the security
agency and also did not interfere in internal function of
security agencies/contractors as such there was no nexus
of employment of contract labours between AAI and
Security Contractor.
13. I say Airports Authority of India, IGI Airport
(hereinafter referred to as the "Authority") executed an
agreement on 4.4.2006 with M/s Delhi International Airport
Pvt. Ltd. for operation, management and development of
IGI Airport. By virtue of the said Agreement, the
management of the IGI Airport, Delhi was transferred w.e.f.
3.5.2006 by issuing a letter dated 2.5.2006 by the Authority
as defined in the said Agreement.
14. I say in view of the above, the present claim
statement of the Claimants may be rejected for the reason
mentioned above against the Authority. It is prayed that
no order may be passed against the Authority for the
aforesaid reasons.
His affidavit was tender on 7/5/2013. He was partly cross-
examined on 7/5/2013.
His cross-examination is as follows:—
It is correct that SLP was dismissed was withdrawn
by the Apex Court. Contract of Security work was awarded
for two years to M/s R-4 Security Services. I can produce
the said contract agreement on the next date. Further
cross-examination of the witness is deferred with direction
to bring the contract agreements on the next date.
He was partly cross-examined on 24.06.2006.
His corss-examination is as follows:—
I produce copy of contract agreements, which are
Ex. MW1/W1 to Ex. MW1/W3. Sponsorship letter issued
by Director General of Resettlement, Ministry of Defence,
Government of India, New Delhi in favour of ex-servicemen
Air Link Transport Service and UP Bhutpoorv Sainik
Kalayan Nigam Ltd. would be produced on the next date,
if so directed. I was promoted as Deputy General Manager
(Security) in September, 2010, Vol. piror to that I was
working as Assistant General Manager (Security). The
contractor used to pay salary to its employees by way of
transfer to their respective bank accounts. We availed
services of the security guards through the contractors
referred above. Security guards used to provide protection
services to the cargo. Initially we availed services of 392
security guards. Contractors used to appoint security
guards. Facts of this controversy are within my knowledge
since 1994, the date when I joined services with the
management. On 14.3.2002, contract of UP Bhutpoorv
Sainik Kalyan Nigam was terminated by the management.
On that very day, contract was awarded to M/s. R-4
Security Services. Writ Petition No. 1705/2000 was filed
before High Court of Delhi wherein management was a
party. It is correct that on 14.3.2002, a notice was issued
by the High Court to the management in the aforesaid
writ petition. Vol. the said writ petition was dismissed by
the High Court and SLP was also dismissed as withdrawn
by the Apex Court. I have filed copy of the orders passed
by High Court as well as the Apex Court, which have
been proved as Ex. MW1/1 to Ex. MW 1/3. Those order
are self-explanatory.
It is incorrect that facts stated in para 12 of my
affidavit are wrong. I would file the copy of OMDA before
the Tribunal on the next date. Further cross-examination
of the witness is deferred with directions to bring the
above documents on the next date.
796
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
He was further cross-examind by Shri M.L. Chawla on
12.8.2013.
His cross-examination is as follows :—
The management of IGI Airport has been transfrred
to a Joint Venture company known as Daily International
Airport Limited. Airport Authority has no control after
2.5.2006. It is incorrect to suggest that News Published in
the Hindustan dated 8th July, 2005 copy of paper shown
to witness, and he replied aforesaid Published News in
Newspaper is wrong.
Observation
Learned Counsel for workmen not corss-examined.
He wants to argue at this stage which is not possible.
Put up on next date Learned Counsel is Liberty to show
Law that he can argue during cross-examination. Put on
next date.
Written Submissions on Behalf of the 33 workmen
1. That the above said Industrial Dispute raised the
issue for re-engagement with the management directly or
otherwise with full back wages and regularization in
service with other consequential benefits.
2. That the reference order dated 10.10.2006 passed
by the appropriate authority on the following terms:—
"Whether the Industrial dispute raised by Sh. K.N.
Pandey and 84 others (List attached against the
management of Airport Authority of India over re-
engagement in service with full back wages and
regularization of their services is justified and fair?
If so, what relief they are entitled to?''
The entire dispute revolved an related to the
grievance of the workmen so terminated illegally on
14.03.2002 for which each and every member of workmen
have had to attend court on several occasions but the
procedure and the practice followed in such like cases
came in the way of geeting timely justice coupled the
delaying tactics adopted by the Mgt., hence the workmen
has been suffering continuously without any source of
livelihood, thus a case of denial of right to life as
guaranteed under Article 21 of the Constitution of India.
The workmen were subjected to wanton harassment ever
since the case was put on cross-examination from 2008,
which took away the time of 5 precious years.
3. That the workmen who were entrusted and were
discharging the duties of securing the Cargo Complex
who were appointed against vacancies sanctioned for
the purpose and are still available with the Mgt.
That during the period under reference some of the
workmen were regularized at Chennai and Kolkata and
they are continuing in services under the same contractor
who is one of the respondent i.e. UPSKN Ltd. Therefore a
case of clear cut hostile discrimination and total
arbitrariness with full throated mala fide.
It may not be out of place to mention that the entire
cross-examination of the whole lot of workmen was
conducted out of context to which objections were raised
the then Presiding Officer did not care to record the
objections raised by the workmen.
As per Ex. MW1/W1, the contractor who assumed
the charge of the contract in 15.01.1994 and was extended
time to time till 11.03.2002 when the office note circulated.
The workmen took no time in moving the Hon'ble High
Court on 14.03.2002 pursuant to which notices were issued
by the High Court. It is a petty that the respondent/
management instead of adhering to the notice schedule
of the Court terminated the services of the workmen on
the same day and date, as such the management was
quite obviously hell bent to subject the workmen to
miseries, harassment, humiliation and loss in status, rank
and position as such then the workmen are trying their
best to secure justice from this Hon'ble Tribunal.
Simultaneously it may be observed that the
Management with a clever motive resort to actually and
factually implementation of contractor with the R-4
Security Services Pvt. Ltd. Whose name as per press
clipping of 08.07.2005 (on record) are neck deep involved
in a fraud of more than 2 crores involving the name of
Capt. Sudhir Malik and R.K. Malik. In this respect press
clipping is once again enclosed and marked as SNY-1.
This obviously reveals a crystal clear picture that the
whole contract was sham and not a real one introduced
between the management and their employees.
(i)
In the view of the above said submissions
regarding synopsis the workmen are basing their
claim and reliance on CWP 15721-56 of 2004.
(ii)
Complete text of judgement of Constitution
Bench in the matter of Steel Authority of India
V/s National Union Water Front Workers & Ors.
etc. A copy each of the foregoing judgement
have already been placed on the court file for
perusal of the court with regard to various
definitions and the issues and the settled by the
Apex Court (CLRA).
That the entire case file of the Hon'ble Court after
perusal of which would be observed that no more details
are necessary for further elucidation in support of the
case of claim of the workmen.
In view of the above the workmen pray for justice
even though a far too belated yet it will give the workmen
a sigh of relief if they are blessed with justice.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
797
WRITTEN SUBMISSIONS ON BEHALF OF AIRPORT
AUTHORITY OF INDIA
1. That the captioned matter is pending for
adjudication before this Hon'ble Court and the same is
listed on 02/12/2013 for further argument.
2. That Government of India, Ministry of Labour &
Employment referred the following dispute vide order No.
L-11012/8/2004-IR(M) dated 27.07.2006 for adjudication
before the Hon'ble Industrial Tribunal:—
"Whether the industrial dispute raised by Sh. K.N.
Pandey and Anand Singh Bisht against the management
of Airport Authority of India over re-engagement in
service with full back wages and regularization of their
services justified and fair? If so, what relief they are
entitled to?
After above reference, Government of India issued
a Corrigendum on 10.10.2006 vide Order No.-L-11012/8/
2004-IR(M) with the following terms of reference:—
"Whether the industrial dispute raised by Sh. K.N.
Pandey and Anand Singh Bisht against the management
of Airport Authority of India over re-engagement in
service with full back wages and regularization of their
services justified and fair? If so, what relief they are
entitled to?"
3. It is pertinent to mention here that Govt. of India
had sent only order of corrigendum without list of
claimants, the said fact was informed to the Hon'ble
Industrial Tribunal. After coming to know this defect, the
Hon'ble Presiding Officer wrote a letter to the government
informing the defect of corrigendum, then Under Secretary
of Govt. of India, Ministry of Labour and Employment
vide letter dated 22.8.2012 sent a list of claimants with
intend to cure the said defect.
4. In the present matter only 35 claimants have filed
the statement of claim out of 85 claimants on 6.12.2006,
hence rest of the claimants have no claim before the
Hon'ble Tribunal. It is pertinent to mentioned here that
out of 35 claimants Mr. K.N. Pandey has been substituted
vide order dated 16.12.2010 and amended memo of parties
has been placed on 6.1.2011.
5. Further, the Claimant had impleaded following
parties as Opposite parties in their statement of claim:—
1.
Chairman-cum-Managing Director
Airport Authority of India,
Rajiv Gandhi Bhawan,
New Delhi.
2.
General Manager (Cargo)
International Airport Division,
IGI Airport Cargo Complex,
New Delhi-110037
3.
M/s. Delhi International Airport Limited
IGI Airport, New Delhi-110037
4.
M/s. UP Purva Sainik Kalyan Nigam Limited,
Through its Regional Project Manager,
B-62, Jal Vaya Vihar, Sector-30,
Gurgoan-122001.
6. That Airport Authority of India appeared before
the Hon'ble Tribunal and categorically denied the
contentions of the claimants in the Written Statement.
7. The claimant also filed an application on 6.12.2006
praying for issuing summon to Delhi Interntional Airport
Limited i.e. Opposite Party No. 3. the Hon'ble Tribunal
was pleased to serve a show cause notice upon Opposite
Party No. 3 but during the proceeding on 6.1.2011, the
Authorized Representative of claimants prayed to
withdraw the said application, on the request of claimants
of Hon'ble Presiding Officer dismissed the application as
withdrawn. But the claimants has not taken any step to
serve any notice or summon upon UP Purva Sainik Kalyan
Nigam Limited i.e. Oppositive Party No. 4 and no adverse
proceeding has been passed so far against opposite party
No. 4.
8. It is submitted that claimants have not taken any
step to summon any record from Opposite Party No. 4
Contractor with intend to concealment of material fact
and terms of employment. As such, adverse inferences
must be drawn against the claimants.
9. In the present matter, only 35 claimants out of
85 claimants had filed their claims and evidence by way
of affidavit without any document or any other cogent
evidence in support of their claim.
10. In such circumstance, it is settled law laid down
by the Hon'ble Supreme Court of India in the matter of
Range Forest Officer Vs. S.T. Hadimani 2002(3) SCC 25
that burden of proof lies on claimants that he was in
employment and bare filing evidence by way of affidavit
is not sufficient evidence. The relevant portion of
judgement is reproduced hereunder:—
"......3...... In our opinion the Tribunal was not right
in placing the onus on the management without
first determining on the basis of cogent evidecne
that the respondent had worked for more than
240 days in the year preceding his termination. It
was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that
cannot be regarded as sufficiant evidence for any
court or Tribunal to come to the conclusion that a
798
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
workman had, in fact, worked for 240 days in a
year. No proof of receipt of salary or wages for
240 days or order or record of appointment or
engagement for this period was produced by the
workman. On this ground alone, the award is liable
to be set aside".
11. In another similar circumstances the Hon'ble SC
in the matter of Bank of Baroda Vs. Ghemarbhai
Harjibhahai Rabari 2005 (10) SCC 792, the Hon'ble Supreme
Court held that onus of proof that a claimant was in
employment of management primarily lies on person who
claims to be a workman. The relevant portion is
reproduced hereunder:—
12.".....6..... Before the Division Bench of the High
Court the Bank had relied on a judgment of this Court in
the case of Range Forest Officer Vs. S.T. Hadimani which
judgement was distinguished by the High Court in the
impugned order by holding that unlike in that case, in the
present case the employee had by cogent evidence
establishment that he had worked as a driver of the car of
the Bank for the period from July 1994 to October
1995.".......
13. .....8..... there is no doubt in la that the burden of
proof that a claimant was in the employment of a
management, primarily lies on the workman who claims to
be a workman, he degree of such proof so required, would
vary from case to case. In the instant case the workman
has established the fact which, of course, has not been
denied by the Bank, that he did work as a Driver of the
car belonging to the Bank, during the relevant period
which showed that he had been paid certain sums of
money towards his wages and the said amount has been
debited to the account of the Bank.
14. As such, in above referred matter of Bank of
Baroda, claimant had produced receipts for the period
from July 1994 to October 1995 which were issued against
salary, apart from his own statement as evidence, further
the said amount was debited from the account of Bank
but in this matter, claimants have not produced any
document in support of his lenght of service except bare
statement of affidavit as evidence. In such, circumstances
the Judgement of Range Forest Officer applies in this
matter instead of Bank of Baroda citation.
15. Similar view has been taken by the Hon'ble
Supreme Court of India in the matter of Reserve Bank of
India Vs. S. Mani 2005(5) 100 and followed view of Range
Forest Officer case relevant portion is reproduced
hereunder:—
....."Filing of an affidavit is only his own statement
in his favour be registered as sufficient evidence
for any court or tribunal to come to the conclusion
that a workman had, worked for 240 days in a year.
(Para Nos. 30 and 31).
....The purported circumstantial evidence relied on
by the Tribunal to hold that the workmen had
completed 240 days of work is wholly irrelevant for
the purpose of considering as to whether the
respondents have completed 240 days of services
or not; a party to the its may or may not succeed in
its defence. (Paras 34, 35 and 36)...."
16. In the matter of R.M. Yellati Vs. Asst. Executive
Engineer 2006 (1) SCC 106, SC observed (Para 18a) that
this is not a case where allegation of the workman are
founded merely on an affidavit. He had produced cognent
evidence in support of his case. The workman was
working in SD-1, Athani and Ext. W-1 was issued by the
former Assistant Executive Engineer, Hipparagi Dam
Construction Division No. 1, Athani 591 304. In that case
defence of the management was that although Ext. W-1
refers to the period 22.11.1988 to 20.06.1994, the workman
had not worked as a daily-wager on all days during that
period. If so, the management was duty bound to produce
before the labour court the nominal muster rolls for the
relevant period, particularly when it was summoned to do
so. We are not placing this Judgment on the shifting of
the burden. We are not placing this case on drawing of
adverse inference. In the present case we are of the view
that he had worked for 240 days in a given year was
supported by the certificate (Ex. W-1). In the
Circumstances, the Division Bench of the High Court had
erred in interfering with the concurrent findings of fact."
It is clear that in R.M. Yellatti case, claimant had
produced cogent evidence of Ext. W-1 (Certificate of
employment issued by Executive Engineer) with the
affidavit of statement but in the present case claimants
have not produced any single piece of paper except bare
statement of their affidavit. Therefore Range Forest Officer
case applies in this matter instead of R.M. Yellatti case.
17. Although at the time of argument following
serven claimants produced photocopies of their pass
book:—
Sl. No.
Name of Claimant
Bank A/c No.
1.
Mohd. Israil Ansar
10376691201
2.
Durlab Singh
10376691586
3.
Genda Pd. Yadav
01190008019
4.
Suresh Kumar
01190008149
5.
Amar Singh Rana
01190008670
6.
Virender Kumar
00190008304
7.
Desh Raj Sharma
Illegible
18. It is pertinent to mention here that no amount
has been debited from the account of AAI to the account
of any claimant.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
799
19. Moreover, salary column in passbooks refers
"RERDPN", REFKCM" "RFRRBA"RFRHSS" as such it
seems that no amount even has been paid even by
Contractor UP BSKNL through Bank.
20. Further, the claimants have not produced the
original pass book before the Hon'ble Tribunal nor
produced any evidence to prove the passbook and no
entry has been proved from the bank.
21. The Airport Authority of India has categorically
denied the claim of the claimants in the Written Statement
and also placed agreement entered between the
Contractors during the evidence of the Management and
same are Ex. MW1/W1, MW1/W2 and MW1/M3.
However, the management produced certain other
documents such printed copy of OMDA, letter dated
2.03.1990, 11.11.1994, 23.02.2004 and 27.12.2001 and prayed
for allowing the management to prove the same by
producing the evidence but the Hon'ble Tribunal declined
the same on 21.11.2013.
22. That Airport Authority of India has clearly
establishment the genuine relationship with the Contractor
by producing the written agreement with the Contractor,
however, there is no specific allegation has been alleged
by the claimants that how there is sham contract between
AAI and Contractor. It is pertinent to mention here that
no terms of the agreement has been violated by AAI and
there is no direct master and servant relationship with
the claimants.
23. The claimants have not produced any cogent
evidence showing that they had worked ever with any
contractor or AAI and also have failed to establish that
there was sham contract between the principal and
contractor employer.
In such, circumstances it is therefore prayed that
claim of the claimants are not tenable in the eyes of law
and liable to be rejected with exemplary cost.
In support of aforesaid contentions Ld. A/R for the
workman cited following rulings:—
1. Hussainbhai Petitioner V. The Factory Tezhilall
Union and other, pondents. AIR 1978 Supreme Court 14.
2. Steel Authority of India Ltd. and Ors. etc.
Versus
National Union Water Front Workers and Ors. etc.
S.C. SERVICES LAW JUDGEMENTS 2001 (2) 281
I have heard the Ld. A/Rs for the parties and
perused the pleadings mentioned in Claim statement,
Written Statement and rejoinder and evidence of parties
as well as principles laid down in the cited rulings as well
as settled law on the relevant points including the relevant
provisions of concerned law.
Perusal of reference dated 27.7.2006 shows that it
was in reference of two workmen Shri K.N. Pandey and
Sh. Anand Singh and its corrigendum dated 10.10.2006
shows that it is in respect of workman Shri. K. N. Pandey
and 84 other workman were sent to this Tribunal for
adjudication.
When reference received in this Tribunal on
31.7.2006. It was registered as ID. No. 59/2006. Thereafter
all workmen/claimants were called upon through notices
to file their claim statement within fifteen days alongwith
list of witnesses and relevant documents.
In response of which only following 34 workmen
filed their Claim Statement on 6.12.2006:—
1.
Shri K.N. Pandey
2.
Shri Anand Singh Bisht
3.
Shri Ram Lubhaya
4.
Shri Rajender Singh
5.
Shri Amar Singh
6.
Shri Satvinder Singh
7.
Shri N.B Pathak
8.
Shri Ram Phool
9.
Shri Suresh Kumar Swami
10.
Shri Ram Kumar
11.
Shri Rewati Raman Mishra
12.
Shri T.K. Das
13.
Shri Tek Chand
14.
Shri Virender Kumar
15.
Shri Durlabh Singh
16.
Shri M.M. Pandey
17.
Shri Mohd. I. Ansari
18.
Shri Tara Chand
19.
Shri Mahavir Prasad
20.
Shri Om Prakash
21.
Shri Rajiv Singh
22.
Shri Balbir Singh
23.
Shri Mahendra Singh
24.
Shri Parehwar Prasad
25.
Shri Manvir Singh
26.
Shri G.P. Yadav
27.
Shri Krishna Singh
800
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
28.
Shri Kedar Singh Rawat
29.
Shri Desh Raj
30.
Shri Surender Prasad
31.
Shri Dhirender Singh
32.
Shri Jagbir Singh
33.
Shri Vijai Kumar
34.
Shri Jagbir Chandra
First of all I am dealing with the case of workmen
who have not filed statement of claim.
It is relevant to mention here that instant case is of
civil nature. Wherein evidence is given on the basis of
pleadings and case is decided on the basis of
preponderance of evidence. Rest of them i.e. 51 workmen
have not filed their claim statement because of non-filing
of claim statement by them. There is no pleadings of
them.
On the basis of which their case could be proceeded
with. So their case is not being proceeded in want of
their pleadings. Due to which they are entitled to no relief.
Now I am dealing with the case of 34 workmen who
filed their statement of claim in this Tribunal.
Pending adjudication of reference workmen
Shri K.N. Pandey died. Whose son Shri Kamlesh Pandey
was substituted as his L.R. in his place in the instant I.D.
on 16.12.2010.
Perusal of Credible and unrebulted evidence of
workmen on record shows that all the aforesaid 33
workmen and Late workmen Shri K.N. Pandey were
Security guards since 15.1.1994 and they continued as
such upto 2002.
They were engaged through the contractor by
Respondent No. 1. Their engagement was merely a
comouflage. On account of continued engagement for
long periods they may be regularised if they have been
in service but admittedly either their service have already
been terminated or retrenched. But they have not been
paid notice pay and retrenchment compensation by their
employer i.e. Respondent No. 1. As they were direct
employees of Respondent No. 1 as per settled law. So
they are entitled for benefit of S. 25-F I.D. Act because
their termination is in Contravention of S. 25-F I.D. Act.
In the light of contentions and counter contentions
I perused the settled law of Hon'ble Supreme Court on
the point of reinstatement and grant of back wages. Which
shows that reinstatement is not a necessary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be
awarded. In Assistant Engineer, Rajasthan Dev.
Corporation and Anr Vs.Gitam Singh, (2013) II LLJ 141
Hon'ble Supreme Court has held that reinstatement of
workman with continuity of service and 25% back wages
was not proper in the facts and circumstances of the
case and the compensation of Rs. 50,000 (Rs. Fifty
Thousand Only) shall meet the ends of justice. In Jagbir
Singh Vs. Haryana State Agriculture Marketing Board &
Anr AIR 2009 Supreme Court 3004, Hon'ble Supreme Court
held thus "the award of reinstatement with full back wages
in a case where the workman has completed 240 days of
work in a year preceding the date of termination
particularly, daily wagers has not been found to be proper
by this Court and instead compensation has been
awarded." In catena of Judgments, Hon'ble Supreme Court
has taken a view that reinstatement is not automatic,
merely because the termination is illegal or in
contravention of S-25-F of the Industrial Dispute Act. In
Talwara Co-operative Credit and Service Society Limited
Vs. Sushil Kumar (2008) 9 SCC 486, Hon'ble Supreme
Court held thus,"grant of relief of reinstatement, it is trite,
is not automatic. Grant of back wages is also not
automatic."
Aforesaid 33 workmen mentioned at S. No. 2 to 34
and Late workman Sri K.N. Pandey were not appointed
by following due procedure and as per rules. They had
rendered service with the Respondent No. 1 as a Casual
Worker. Thus compensation of Rs. 50,000 (Rs. Fifty
thousand only) to each workman by way of damages by
Management i.e. Respondent No. 1 after expiry of period
of limitation of available remedy against award.
Shri Kamlesh Pandey L.R. of Late workman
Shri K.N. Pandey shall be entitled to get share of amount
of compensation of his Late father. That will meet the
ends of justice.
Thus Reference is decided in favour of workmen
and against Management.
Award is accordingly passed.
Dated : 26.12.2013
HARBANSH KUMAR SAXENA, Presiding Officer
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801
New Delhi, the 8th January, 2014
S.O. 295.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 86/
2001) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation
to the management of Airport Authority of India, Jabalpur
and their workman, which was received by the Central
Government on 6.1.2014.
[No. L-11012/6/2001-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/86/2001
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Sunil Kumar Khare,
Ex. Traffic Hand,
House No. 500/1,
Ram Nagar, Rampur,
Jabalpur
...Workman
Versus
Aerodrome Officer,
Airport Authority of India,
National Airports Division,
Civil Aerodrome, Jabalpur
...Management
AWARD
(Passed on this 2nd day of December 2013)
1. As per letter dated 14-5-2001 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-
11012/6/2001-IR(M). The dispute under reference relates
to:
"Whether the action of the management of Airports
Authority of India, National Airports Division,
Office of the Aerodrome Officer, Dumna, Jabalpur
in dismissing the services of Shri Sunil Kumar
Khare, Ex.Traffic Hand w.e.f. 4-5-2000 in view of
chargesheet dated 27-12-99 is legal and justified? If
not, to what relief the concerned workman is entitled
for?"
2. After receiving reference, notices were issued to
the parties. Ist Party workman filed his statement of claim
at Page 2/1 to 2/6. Case of Ist Party workman is that he
was working as Traffic Hand with Airport Authority of
India, office of the Aerodrome Officer, Dumna, Jabalpur.
That his service record was excellent. That he was raising
the illegalities committed by the department. That
Smt. Manju Shree Sarkar was shown favour in the matter
of leave. Workman was not granted leave on his
application. That Shri A.K. Sharma and V.K. Tiwari clerks
were granted overtime unduly. That they were attending
office at 9.30 AM instead of 8.30 AM. They were leaving
office by 5.30 PM but they were granted overtime for
working till 7.30 to 8.30 PM. That Mr. Patel and A.K.
Deshmukh were visiting home without availing leave.
Workman was raising such issues of illegalities committed
by those persons. That he had applied for 20 days EL in
advance. His application was not granted. It is alleged
that management was looking chance to take revenge on
him. The chargesheet was issued to him on 27.12.99
(wrongly typed as 79). The charges against him were of
passing sexually coloured remarks on Smt. Manju Shree
Sarkar, negligence in duty and abusing Shri A.K. Sharma
and V.K. Tiwari, Najeeb Khan and threatening to kill Shri
M.K. Deshmukh. Workman has pleaded that enquiry was
not conducted properly. He was not given opportunity
to explain charges principles of natural justice were not
followed by the Enquiry Officer the entire action of
issuing chargesheet and conducting enquiry is illegal,
arbitrary. He was not supplied documents. Chargesheet
was highly belated. He was not supplied complaints of
Manjushree Sarkar, Deshmukh. As enquiry held against
workman is found vitiated, I am not inclined to narrate
the pleadings exhaustively.
3. Ist party workman further submits that findings
of Enquiry Officer are perverse. Charges against him are
not proved from material on record. Enquiry Officer failed
to give reasons for disbelieving evidence on defence.
That there is no evidence to support findings of Enquiry
Officer. Exercise of management is shod and fabricated.
On such contentions workman prays for setting aside
order of his termination and he be reinstated in service
with consequential benefits.
4. IInd Party management filed Written Statement
at Page 7/1 to 7/5. The claim of workman is totally denied.
It is submitted that workman was appointed as Traffic
Hand. It is denied that his service record was excellent.
The allegation of workman about illegalities committed in
the office or favour shown to the other employees are
denied. That the charges against workman are supported
by evidence. Allegations of workman that he was not
supplied documents nor given opportunity of his defence
are denied. It is denied that principles of natural justice
were not followed by Enquiry Officer. That Enquiry Officer
submitted his findings, the charges proved against
workman. Showcause notice was issued to the workman.
Considering gravity of the charges proved, workman was
dismissed from service vide order dated 4-5-2000. The
appeal was preferred by workman was dismissed. The
802
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
punishment was confirmed. It is submitted that the
dismissal of workman is justified. Relief prayed by
workman be rejected.
5. Management filed rejoinder at Page 11/1 to 11/3
submitting that the enquiry was properly conducted,
principles of natural justice were followed.
6. Vide order dated 27-10-10, my predecessor found
enquiry conducted against workman is not proper and
legal. The management was given opportunity to prove
misconduct in Court.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the misconduct
Chargesheet is issued
alleged against workmkan
by incompetent
is proper and legal?
authority, as such
illegal.
(ii) Whether the punishment
Punishment imposed by
of dismissal imposed by
Incompetent Authority
management of IInd
is illegal.
Party is legal and proper?
(iii) To what relief the workman As per final order.
is entitled to?"
REASONS
8. After enquiry against workman is found vitiated,
management of IInd Party was permitted to prove
misconduct in Court. Management adduced evidence of
5 witnesses. Management's witness Shri M.K. Deshmukh
in his evidence on affidavit has stated that he had
submitted complaint on 22-11-99 against workman. That
on 20-11-99 workman alleged that he was instigating
Shri S.M. Patil, fire foreman against him. That on the day
of incident, alongwith S.P. Patel were returning home. The
workman came from behind he threatened. He abused
using indecent language. Workman had threatened to kill
him. In his cross-examination. Shri M.K. Deshmukh says
he has submitted FIR of said incident to the police station
Gomti Thana. If his evidence is carefully considered, it
shows that incident occurred beyond Municipal
Corporation Building while he and M.S. Patel were
returning home. The place for said incident cannot be
said part of the establishment of Airport at Dumna.
9. Other witness Kamlesh Kumar Sharma in his
affidavit of evidence has stated that on 26-11-98, workman
had come to submit leave application. The workman was
told that application cannot be received directly.
Application will be submitted to Aerodrome Officer. On
that, workman had used indecent words. The words used
by workman are not stated in the affidavit. In his cross-
examination, Kamlesh Sharma says that he had no
authority to grant leave but he was receiving leave
applications. He was placing those applications before
Aerodrome Officer. He had not submitted complaint in
writing to Aerodrome Officer. FIR was not lodged.
10. Najeeb Khan Management witness has stated
that on 26-11-98, while he was returning from duty and
arrived near Municipal Corporation to park the jeep, staff
bus has reached there. At that time, workman said that he
may carry his wife to the Aerodrome Officer. He also
threatened to kill him. That workman had beaten him and
abused indecent language. In his cross-examination Najib
Khan admits that he has no enmity with workman. They
were working together. Workman beaten him at Municipal
Corporation premises. There is absolutely no argument
when incident occurred outside the Aerodrome premises.
Chargesheet was issued to the workman.
11. Manju Shree Sarkar in her affidavit of evidence
has stated that workman was making indecent gestures
to her on 25-6-99. In her cross-examination, she says she
had not submitted report to police, she was unable to
say any reason for it. She narrated incident to Shri
Kamlesh Sharma. The evidence of Kamlesh Sharma is
silent about the same.
12. Management's witness Rakesh R. Sahay,
Aerodrome Officer in his evidence says that he was incharge
at Dumna Airport Jabalpur from 1998 to 2000. He had issued
chargesheet to workman on 27-12-94. That on 26-11-98,
workman had applied for Casual Leave. On that day,
workman was present on Airport Premises on being asked.
Workman stated that he had come for some personal work
in the office. The witness is further stated that around
12'o clock, workman was found in an inebriated condition
and was seen abusing Shri Kamlesh Sharma, Vineet Tiwari,
Najeeb Khan and S.K. Gautam. He was using filthy language
shouting that — "you all are stooge of Aerodrome officer.
That I can get the Aerodrome Officer transferred any
moment". Shri Kamlesh orally complained on 26-11-98.
That workman was told to submit application to the
Aerodrome Officer directly. That on same day, upon
alighting from the staff bus at Nagar Nigam, Shri Najeeb
Khan was verbally abused and threatened by workman
that he will be killed. Entire affidavit of Shri Rakesh R. Sahay
is devoted about different incidents occurred in respect of
other employees Kamlesh Sharma, Najeeb Khan, Vineet
Tiwari and S.K. Gauram. That the workman was called for
operational duty on 25-7-99 but he did not come for duty
on Sunday. On31-10-99 workman was informed for
operational duty but he did not report for duty. Rakesh R.
Sahay in his cross-examination says chargesheet issued
by him included3 charges. The charges were for violation
of conduct rules. The facts were not stated as to what was
the misconduct. Charge No. 2 was in respect of violation of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
803
provision of Regulation 4 (ii) 6(6) 5(7) 5(9) and 5(18) of
Regulation Act 1998. 3rd charge was of habit of threatening
to kill and verbally/physically abusing co-workers. He did
not referred allegation of sexual harassment to the
Committee, no FIR was lodged against workman. That he
himself prepared his affidavit that he readover documents.
He had discussed with Union Office bearers. The
memorandum of negligence of duties was issued. In his re-
examination, Rakesh R. Sahay says he issued chargesheet,
chargsheet bears his signature. In his cross-examination,
Rakesh R. Sahay says that Appointing Authority of
workman is Regional Executive Director, Mumbai. It is clear
from above that Rakesh R.Sahay was not Appointing
Authority, he was not competent to issue chargesheet.
There is no absolute explanation that he was authorized by
the Appointing Authority to issue chargesheet.
13. Document Exhibit M-2 notification in respect of
prohibition of sexual harassment of working women.
Exhibit M-2(a) is memorandum dated 13-11-99 in the matter
of sexual harassment of working women as per directions
issued by the Director. Exhibit M-3 is copy of C.D.A
Rules. Exhibit M-4 is complaint submitted by Najeeb Khan.
Exhibit 4(a) is complaint submitted by Shri M.K.
Deshmukh alleging that the workman had given threats.
Document Exhibit M-5 shows Rakesh R.Sahay issued
memorandum to the workman on 27-11-98. That workman
had requested for leave and how he was found at
Aerodrome. That he requested leave on false ground.
Said memorandum does not refer to any of the allegations
of indecent behaviour with Manju Shree Sarkar, threats
given to M.K. Deshmuch, Najeeb Khan and abuses given
to Shri Kamlesh Sharma and others.
14. Manju Shree Sarkar in her report Exhibit M-1
has alleged indecent gestures made by workman against
her. Workman had submitted explanation to memorandum
issued by Aerodrome Officer. Letter Exhibit M-7 was issue
by Shri Rakesh Sahay to Executive Director Mumbai
requesting appointment of Enquiry Officer. Exhibit M-9 is
memorandum issued by Aerodrome Officer himself. It is
accompanied with Articles of charges, I, II and III. The
details of incident are not narrated.
15. There is some evidence stated by the
management's witness that workman was abusing and
threatening the witnesses, their evidence is not shattered
to disbelieve. However the chargesheet is issued by
Incompetent Authority Rakesh Sahay, Aerodrome Officer.
As per evidence in cross-examination of management's
witness Rakesh Sahay, the appointing authority of
workman is Regional Executive Director, Mumbai.
Therefore Ist Party workman could not be dismissed from
service by lower authority than his Appointing Authority.
Therefore the order of dismissal of workman issued is
illegal. For above reasons, I record my finding in Point
No. 1, 2 accordingly.
16. Point No. 3- In view of my finding in Point No.
1, 2 the order of dismissal issued by incompetent authority
is illegal, the question arises whether the workman is
entitled to reinstatement with back wages. The order of
dismissal is illegal. Therefore workman cannot be denied
reinstatement in service. With respect to back wages,
learned counsel of management has placed reliance in:
"Case of J.K. Synthetics Ltd., versus K.P. Agrawal
and another reported in 2007(2) Supreme Court Cases
433. Their Lordship dealing with back wages entitlement
on misconduct reinstatement back wages do not follow
as a natural or necessary consequence of such
reinstatement. Award of back wages for period when
employee has not worked may amount to rewarding
delinquent employee and punishing employer for taking
action for the proved misconduct committed by the
employee. That should be avoided. However in case
employee is exonerated of the misconduct or it is found
that employee was being victimized etc. then the principles
applicable would be as those in case of illegal
termination."
In present case, there is some evidence supporting
the misconduct alleged against workman, abusing and
threatening co-employees. However the order of dismissal
is issued by incompetent authority i.e. Aerodrome Officer
who is not Appointing Authority is illegal. Workman has
not stated in his affidavit of evidence how he is
maintaining his family after dismissal from service. He
has not adduced evidence on other issues after enquiry
was found vitiated. Considering above aspects, in my
considered view, reinstatement of Ist party workman with
40% back wages would be appropriate. Accordingly I
hold my finding on Point No. 3.
17. In the result, award is passed as under:—
(1) Action of the IInd party management dismissing
Ist party workman by order dated 4-5-2000 is not proper
and legal.
(2) IInd party is directed to reinstate workman Shri
Sunil Kumar Khare with continuity of service and 40%
back wages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 296.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dSeksj lhesaV oDlZ
tcyiqj 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; tcyiqj ds iapkV ¼lanHkZ la[;k 168@91½
804
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 6@1@2014 dks izkIr gqvk
FkkA
[lañ ,y&29012@26@91&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 296.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 168/
91) of the Cent. Govt. Industrial Tribunal-cum-Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of Kymore Cement Works, Jabalpur and
their workman, which was received by the Central
Government on 6/1/2014.
[No. L-29012/26/91-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/168/91
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Bharat Prasad Shukla,
Secretary, Kymore Cement Mazdoor Congress,
Shramdham, Kymore,
Distt. Jabalpur (MP)
...........Workman/Union
Versus
General Manager,
Kymore Cement works,
Kymore and Bahmangaon Mines,
PO Kymore,
Distt. Jabalpur
.............Management
AWARD
(Passed on this 11th day of December 2013)
1. As per letter dated 26-9-91/3-10-91 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-29012/26/91-IR(Misc.) The dispute
under reference relates to:
"Whether the action of the management of Kymore
Cement Works, Kymore in terminating the services
of Shri Bundu Khan Ex. Electrician T.No. 2/232 by
order dated 9-1-89 is justified? If not, to what relief
the concerned workman is entitled to?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed Statement of Claim at
Page 4/1 to 4/8. Claim of Ist party workman through Union
is that IInd party are running Cement Factory at various
places throughout the country and they have owned
various mines at various places. That Shri Bundu Khan
was active Trade Union worker of Kymore Cement
Mazdoor Congress. He used to take part in Union
activities time to time. That he is falsely implicated for
theft of Five Numbers English Electric Make Fuses and
victimized management of SECL wanted to get rid of
Bundu Khan and conspired to implicate him in theft case.
That on 13-7-88, Bundu Khan was on duty. He used to
attend duties in Company's bus. He had not come on
duty on his motorcycle.
3. It is further contended that on 15-7-88, prevelous
and vague chargesheet was issued to Bundu Khan that
on 13-7-88, Five Numbers English Electric Make Fuses
were found in dicky of his motorcycle around 4.30 PM. It
is submitted that the charges are concocted. The charges
were denied by the workman. Dy. General Manager was
appointed as Enquiry Officer. Management's
Representative was not appointed. The enquiry was not
conducted properly. The General manager was sitting in
Enquiry Proceedings. Statement of witnesses were
recorded, principles of natural justice were not followed.
Enquiry Officer himself cross-examined witness of the
management therefore enquiry is vitiated. The findings
on Enquiry officer are perverse. Provision under Section
33 (B) of I.D. Act was not obtained before dismissal of
service. Punishment of dismissal imposed on him on
9-1-89. That the punishment is illegal. Workman prayed
for his reinstatement with back wages.
4. IInd party filed Written Statement at Page 9/1 to
9/17. The relief prayed by workman is denied. IInd party
submits that Kymore Cement Mazdoor Congress
represents majority employees of Lime stone mines. The
mine has Union named A.C.C. Quarry Mazdoor Sangh.
Said Union has been approved. That the M.P. Industrial
Relations Act does not apply to the mines. There is no
question of Kymore Cement Mazdoor Congress being
representative of recognized Union. Katni Refractory
Works is under the supervision and control of the General
Manager of Kymore Cement Works. Shri Bharat Prasad
Shukla is not Secretary of the Mazdoor congress. He has
no right to file proceeding on behalf of Bundu Khan. The
proceeding is not tenable. IInd party denied allegations
that the chargesheet was issued to workman because of
his Union activities. The allegation of dismissal by
victimization has been denied. It is denied that
management of IInd party wanted to get rid of Bundu
Khan. IInd party submits that Shri D.P. Khare caught red
handed while trying to take away Five Numbers English
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
805
Electric Make Fuses. It is denied that the management
with his help falsely implicated Bundu khan for theft.
IInd party denies that Bundu Khan had come for his
duty on 13-7-88 by company bus. It is reiterated that
Bundu Khan has come on Motor cycle and Five Numbers
English electric Make Fuses were found in dicky of his
motorcycle and chargesheet was issued.
5. IInd party denies that Enquiry Officer was biased
and acted as prosecutor, cross-examined witnesses of
the management. It is denied that General Manager was
present during Enquiry Proceeding. Statements of
management witnesses were recorded. However, IInd party
did not dispute that Management Representative was not
appointed. The contentions of Ist party workman that he
was not on duty on 13-7-88 is after thought. The IInd
party reiterates that enquiry was conducted as per Rules
following principles of natural justice. Charges against
workman were framed of theft that he committed theft of
Five Numbers English Electric Make Fuses. Considering
serious misconduct proved against workman, punishment
of dismissal from service is imposed. The allegation of
Union Activities are denied. On such ground, IInd party
prays for rejection of claim of workman.
6. My predecessor vide order dated 27-2-2012 held
Departmental Enquiry conducted by management is not
legal, proper and justified. Management was given
opportunity to prove misconduct in Court.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
"(i) Whether the Ist party
In Negative
workman committed theft
of Five Numbers English
Electric Make Fuses on
13-7-88 is proper?
(ii) Whether the punishment
In Negative
of dismissal from service
imposed against workman
is legal and proper?
(iii) If not, what relief the
As per Final Order
workman is entitled to?"
REASONS
8. As discussed above, the enquiry conducted by
management against workman is found vitiated.
Management was granted permission to prove misconduct
in Court. The chargesheet issued to workman is produced
with list. Charges against workman are of committing theft
of Five Numbers English Electric Make HRC 400 Amps
Fuses costing of Rs. 1250/- misconduct alleged under
Clause 16 (iv) covering theft for willfull damage loss caused
to the company. The workman pleaded not guilty. After the
enquiry conducted against workman is found vitiated, the
management was given opportunity to prove the charge.
Management did not adduce evidence. Workman also not
adduced evidence. Ordersheet dated 15-7-2013 wrongly
shows that the case was fixed for evidence on other issues.
As management failed to adduce evidence to prove charge.
The charges alleged against workman narrated above are
not proved. Absolutely no evidence is adduced by the
management. Therefore order of dismissal of workman is
illegal. For above reasons, I record my finding in Point No.
1, 2 in Negative.
9. Point No. 3— In view of my finding in Point No.
1, 2 that the charge against workman of theft is not
proved, punishment of dismissal from service is illegal,
question arises whether the workman is entitled for
reinstatement with back wages. As punishment of
dismissal is illegal, workman deserves reinstatement in
service. Workman is claiming full back wages. However
he has not adduced evidence after enquiry was vitiated.
In absence of evidence of workman what work he is doing
all the years, full back wages cannot be allowed to him.
Management also failed to adduce evidence whether the
workman is in gainful employment. Considering those
aspects in my considered view, grant of 40% back wages
would be appropriate. Accordingly I record my finding in
Point No. 3.
10. In the result, award is passed as under:—
(1)
Action of IInd party management of Kymore
Cement Works, Kymore in terminating the
services of Shri Bundu Khan Ex. Electrician T.
No. 2/232 by order dated 9-1-89 is not proper
and legal.
(2)
IInd party is directed to reinstate workman with
40% back wages with continuity of service.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 297.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eykt[kaM dkWij
izkstsDV ckyk?kkV ds izcaèr= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;y;] tcyiqj ds iapkV
¼lanHkZ la[;k 191@87½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
6-1-2014 dks izkIr gqvk FkkA
[lañ ,y&43011@3@87&Mh&3¼ch½]
tksgu rksiuks] voj lfpo
806
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
New Delhi 8th January, 2014
S.O. 297.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 191/
87) of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employees in relation to
the management of Malajkhand Copper Project, Balaghat
and their workman, which was received by the Central
Government on 6-1-2014.
[No. L-43011/3/87-D-3(B)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/191/87
PRESIDING OFFICER: SHRI R.B. PATLE
General Secretary,
Bhartiya Khanij Mazdoor Sangh (BMS),
Post Malajkhand.
Distt. Balaghat
...Workman/Union
Versus
Executive Director,
Malajkhand Copper Project,
H.C.Ltd., Post Malajkhand,
Distt. Balaghat
...Management
AWARD
(Passed on this 4th day of December, 2013)
1. As per letter dated 9-9-87 by the Government of
India, Ministry of Labour, New Delhi, there reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-
43011/3/87-D-3(B). The dispute under reference relates
to:
"Whether the action of the management of
Malajkhand Copper Project, H.C. Ltd. in dismissing
the services of S/Shri Sant Masih and Mansingh
Thakre, Technician Grade-III w.e.f. 7-10-86 is legal
and justified? If not, to what relief the workmen are
entitled for?"
2. After receiving reference, notices were issued to
the parties. Ist party workmen field statement of claim
through Union Bhartiya Khanij Mazdoor Sangh. Case as
per statement of claim submitted by Union is that both
Sant Masih and Mansingh Thakre were working as
Technician Grade II with IInd party Malajkhand copper
Project. They were member of Bhartiya Khanji Mazdoor
Sangh. Chargesheet was served on him 12-7-85 by
Dy. General Manager (P&A). Both the workmen were
suspended from duty. The allegations against both the
workmen were that they were demanding and accepting
illegal gratification from Driver of Truck in consideration
of loading of concentrates in the trucks in such a manner
that the trucks do not get damaged. They have been
collecting huge amount since past 6-7 months as illegal
gratification. The amount so collected was distributed
amongst them and two supply mazdoor were sharing the
illegal gratification. It was alleged that he compelled and
adopted coercive method on supply of labours and other
employees of loading section for collecting illegal
gratification. That Mansingh Thakre threatened one Shri
S. Prasad Technician Grade II with dire consequences.
He refused to cllect money from Truck Drivers and
cooperation to investigation agents. The misconduct was
alleged against Clause 30(II), 30(IX), 30(VII), 30(IX) &
30(LI) of standing orders.
3. Both the workmen denied charges against them.
DE was held against both the workmen. Enquiry Officer
concluded the charges were proved. On report of Enquiry
Officer, services of both workmen were terminated from
7-10-88. Union submits that findings of Enquiry Officer
were perverse. The Drivers Harbans Singh, Ramzan and
Mazdoors Ismail Khan and Ranglal were not examined.
They were alleged to be witnesses. The copies of
sttatements recorded in preliminary enquiry were not
given to them. The copies of the statements recorded in
preliminary enquiry cannot be considered as evidence.
That evidence of Sarva Shri Kaul, Neghi and N.P. Tiwari
cannot be considered as those material witnesses were
not cross-examined. The findings of Enquiry Officer are
perverse. Both the workmen were dismissed from service
without obtaining permission under Section 33(2)(B) of
I.D. Act. That the alleged misconduct is not proved from
evidence in Enquiry Proceedings. The dismissal of their
services is illegal. That alleged incident is dated 29-6-85.
The final order was passed after 15 months in October,
1986 is illegal. Charges were in violation of standing
orders. The appeal was rejected without application of
mind. Charges of using illegal gratification are false. The
evidence of Mr. S.B. Sinha about his complaints of illegal
gratification is not relevant. Mr. Sinha admitted that
personally he had not seen the employees receiving
gratification. On such ground, Union prays for
reinstatement of both the workmen with back wages.
4. IInd party filed Written Statement at Page 7/78 to
7/80. The claim of the Union is denied outright. It is
submitted that chargesheet was issued on 12-7-85 for the
allegation of demanding illegal gratification from Truck
Drivers. Workmen were found collecting amount of illegal
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
807
gratification of tune of Rs. 100 to 300/- per day during
past 6-7 months. On 29-6-85, they demanded accepted
Rs. 10/- as gratification from Drivers of certain trucks.
That Enquiry Officer Mr. S.M. Rizwan was appointed.
The enquiry was conducted giving full opportunity for
defence of the workman. Enquiry Officer recorded finding.
That charges against workmen are proved. Considering
the proved misconduct of accepting illegal gratification,
both workmen were dismissed from service is proper. IInd
party submits that workmen are not entitled to relief
claimed by them.
5. Union filed rejoinder at page 6/19 to 6/22
reiterating its contentions in Statement of Claim that
enquiry was not properly conducted, the services are not
proved. Termination of service is illegal.
6. My predecessor has passed Award dated 12-11-91
holding that termination of service of both workmen is
justified. Workmen are not entitled to any reliefs.
7. Said award was challenged by Shri Mansingh
Thakre filing Writ Petition No. 1186/92. Said workman died
during pendency of Writ Petition on 20-6-04, has given
representations were brought on record. Writ Petition are
decided on 26-4-07. The award is quashed. The matter is
remanded back. In Para-6 of the judgment Hon'ble High
Court issued directions to decide the matter duly applied
in mind to all issues raised by Petitioner raising the
dispute. On quantum of punishment imposed upon
petitioner. If substance is contention of petitioner is found,
retirement benefits may be extended to the LRs.
8. It appears that the record of the reference was
weeded out on 27-5-03. The reference has been
reconstructed.
9. My predecessor has held enquiry conducted
against workman is legal and valid as per his order dated
11-3-2011.
10. Considering pleadings between parties and
findings that enquiry conducted against workman is legal
and valid, the points which aise for my consideration and
determination are as under. My findings are recorded
against each of them for the reasons as below:—
(i)
Whether the alleged
In Negative
misconduct of receiving
illegal gratification, giving
threat to kill Shri S. Prasad
are proved from evidence
in Enquiry proceedings?
(ii) Whether the punishment
In Negative
of dismissal imposed
against Lage Mansingh
is legal and proper?
(iii) If not, what relief the
As per final order.
Workman is entitled to?"
REASONS
11. Before deciding the matter, I make it clear that
my predecessor has passed Award dated 12-11-1991
rejecting claim of both the workmen. The award was
challenged filing Writ Petition 1186/1992 only by
Mansingh Thakre who died during pendency of Writ
Petition. His LRs were brought on record. Thus the matter
has been remanded. Ist party workman Sant Masih has
not challenged Award dated 12-11-1991, therefore the
proof of charges alleged against Sant Masih and legality
of punishment imposed against him is not required to be
decided. Only proof of the charges against Mansingh
Thakre and punishment of dismissal imposed against him
needs to be decided. As the enquiry is found legal,
question remains as to whether charges against Mansingh
Thakre are proved from Enquiry proceedings, whether
the punishment of dismissal is proper?
12. The record of Enquiry Proceedings is produced
for reconstructions. Management Representative was
K.G.M. Prasad. He had proposed to produce 8 witnesses.
The record of Enquiry Proceedings shows that
Management Representative had not produced Ismail
Khan, Ramlal in the enquiry. That 4 witnesses were not
produced by the Management's Representative.
Delinquent employee has no objection about it. Ismail
Khan, Ramlal and Harbans Singh were outsiders and they
were not produced in the Enquiry proceedings by
management. Statement of Pramod Shankar Singh was
recorded. He had produced statements of those witnesses
recorded in preliminary enquiry. Enquiry was conducted
on the point how Pramod Shankar Singh was saying that
there was no influence on that witnesses stated in the
record. Any of the witnesses was not examined in the
Enquiry Proceedings. There was no question of their
cross-examination by the Defence assistant. As such there
is no evidence in Enquiry proceedings about giving
gratification amount and its acceptance by workman Late
Mansingh Thakre.
13. The other charge against Mansingh Thakre is
about giving threats to Shri S. Prasad. The evidence of
management's witness Pramod Shankar is not saying
anything about said charge. The careful reading of the
statement of witness in Enquiry Proceeding shows that
Rs. 10/- note was spent by him for tea and 5 Re note No.
7OU 611013 was recovered from him. There is no evidence
that said note was received by him as gratification amount
from Truck Drivers. Statement of Shri S. S. Sinha at Page
7/23 shows that he had not seen delinquent workman
receiving gratification amount. The statement at Page 7/25
808
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
finds reference that after said incident, Mansingh had
threatened to kill him. The incident was not reported to
the police. Except where reference in question put to the
witnesses in Enquiry Proceedings, there is no cogent
evidence about the threats given by Mansingh Thakre to
S. Prasad to kill him. The details when such threat was
given, the place of giving threat is not seen in evidence
in Enquiry Proceedings.
14. Award was passed in 1991, the Writ Petition
was decided in 2007. The record was weeded out in 2003.
Record of Enquiry Proceedings is reconstructed at Page
7/2 to 7/77, 6/61 to 6/78. I do not find cogent evidence.
Mansingh Thakre giving threat to Shri S. Prasad to kill
him. If he does not recover gratification amount from Truck
Driver. Thus said charge is also not proved from evidence
in Enquiry Proceedings. Therefore I record my finding in
Point No. 1 in Negative.
15. Point No. 2-Affidavit of evidence of widow of
Mansingh is filed. She has narrated history that the
husband died during pendency. She was not witness in
the Enquiry proceedings. She has only stated that the
witnesses for not stating Mansingh receiving gratification
amount etc. Her evidence remained unchallenged. IInd
party filed to appear. Written notes of arguments and
submission on behalf of workman only in view of my
findings in Point No. 1 that misconduct alleged against
deceased workman Mansingh Thakre are not proved. The
punishment of dismissal suffers cannot be said legal. The
order of his dismissal deserves to be set-aside. Workman
died on 10-6-04. There is no evidence whether deceased
workman was in gainful employment. Question of back
wages arises. Considering special circumstances of he
case that award dated 12-11-91 passed by my predecessor
was challenged in Writ Petition before High Court. During
pendency of Writ Petition, workman Mansingh died. In
my considered view, 40% back wages from date of
dismissal till his death is justified. After death of workman,
his widow may be given retiral benefits. Accordingly I
record my findings in Point No. 2.
16. In the result, award is passed as under:—
(1)
Action of the management of Malajkhand
Copper Project, H.C. Ltd. in dismissing the
services of S/Shri Sant Masih and Mansingh
Thakre, Technician Grade-II w.e.f. 7-10-86 is
proper and legal.
(2)
IInd party is directed to pay 40% back wages to
deceased Mansingh from his dismissal till his
death 10-6-04. After his death, his widow Malti
Thakre may be considered for retiral/pensionary
benefits.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 298.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj] fHkykbZ LVhy
IykaV 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 ¼lanHkZ la[;k
12@2008½dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 6@1@2014 dks
izkIr gqvk FkkA
[lañ ,y&26012@2@2008&vkbZvkj¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 298.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 12/
2008) 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 Bhilai Steel Plant and their workman,
which was received by the Central Government on 6/1/
2014.
[No. L-26012/2/2008-IR(M)]
JOHAN TOPNO Under Secy.
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/12/2008
Date: 23.09.2013.
Party No. 1
: The Managing Director,
Bhilai Steel Plant,
Bhilai, Distt. Durg,
Chhattisgarh.
Versus
Party No. 2
: The General Secretary,
Chhattisgarh Sangramin
Shramik Sangh, Indiranagar,
Chandaini Bhata, PO Dalli,
Rajhara
Durg (Chhattisgarh)
AWARD
(Dated: 23rd September, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (''the Act'' in
short), the Central Government has referred the industrial
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
809
dispute between the employers, in relation to the
management of Bhilai Steel Plant and their workman.
Shri P.K. Trivedi, for adjudication, as per letter No.L-
26012/2/2008-IR (M) dated 07.04.2008, with the following
schedule:—
''Whether the action of the management of Bhilai
Steel Plant (SAIL) in their Iron Ore Complex,
Dallirajhara, Durg in punishing Shri P.K. Trivedi,
Sr. Operator, HEME with the punishment of
''Reduction of Lower grade of S-6 for a period of 2
years with cumulative effect'' vide letter of
punishment No. OMQ/RJM/ESTT/PUN/2005/2012
dated 21/09/2005 of Dy. G.M. Raajhara Mech. Mines
is 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 union, ''Chhattisgarh
Sangrami Shramik Sangh'', (''the union'' in short) filed the
statement of claim on behelf of the workman Shri P.K.
Trivedi, (''the workman'' in short) and the management of
Bhilai Steel Plant, (''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 while the workman
was working as a senior operator (HEME) in Rajhara
group of mines of party No. 1, charge sheet dated
02.02.2004 containing fabricated charges was served on
him and their was a general dispute regarding the illegality
over the pay scale involving HEME operators in the mines
and all the HEME operators including the workman were
agitating over the issue and the matter was under
discussion with the management, but the party No. 1
submitted the charge sheet against the workman
misrepresenting the facts and though show cause was
filed by the workman denying the charges, party No. 1
did not appreciate the same and enacted the drama of
conducting the departmental inquiry and imposed the
punishment of reduction of lower grade of S-6 for a period
of 2 years with cumulative effect and as the workman
was the President of the union, Chhattisgarh Sangrami
Shramik Sangh, he was targeted by the party No. 1 to
harm the union and the punishment is ill motivated and
punitive and the action taken by the party No. 1 was
illegal and taken only to suppress their rightful demand.
Prayer has been made by the Union to adjudicate
the dispute and to give them justice and to direct the
party No. 1 to withdraw the punishment retrospectively.
3. The party No. 1 in their written statement have
pleaded inter-alia that the workman committed serious
misconduct during the course of employment and as such,
he was kept under suspension vide order dated 09.02.2004
and he was also issued with the charge sheet dated
13.02.2004 and seven charges were levelled against him
and the workman submitted his reply to the charge sheet
and as the reply was found unsatisfactory, it was decided
to conduct a department enquiry and accordingly,
Shri R.S. Prasad was appointed as the enquiry officer
vide order dated 28.02.2004 and the workman appeared in
the enquiry with his co-worker and during the enquiry,
six documents and the list of witnesses were produced
and the documents were admitted into evidence and
marked as Exts. PD/1 — PD-VI-B and after the closure of
the prosecution case, the workman submitted his written
statement and he was examined and cross-examined and
the enquiry officer submitted his enquiry report holding
that four charges, out of the seven charges to have been
proved fully, one charge to have been partially proved
and two charges not to have been proved against the
workman and after receipt of the enquiry report, a show
cause notice alongwith the copy of enquiry report was
issued and the workman made a representation on
24.10.2004 and after careful consideration of the records
of the enquiry and connected documents, the competent
authority agreed with the findings of the enquiry officer
and observed that the gravity of the charges was such,
as it would have attracted removal from services, but
considering the young age of the workman and to give a
chance of improvement in future, the Disciplinary
Authority took a lenient view and imposed the
punishment of down grading i.e. reduction of lower grade
of S-6 for a period of 2 years with cumulative effect vide
order dated 21.09.2005 and against the order of
punishment, the workman filed an appeal to the Appellate
Authority, but the appeal was rejected on 05.12.2005 and
their action is just and proper and the workman is not
entitled to any relief.
4. Even though, this is not a case of dismissal,
termination or removal of the workman from services and
only a case of imposition of punishment of reduction to
lower grade, after conducting a departmental enquiry
against the workman, in the interest of justice, the fairness
or otherwise of the departmental enquiry was been taken
as preliminary issue for consideration and vide order dated
28.12.2012, the departmental enquiry was held to be legal
and proper and by following the principles of natural
justice.
810
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
5. At the time of argument, it was submitted by the
learned advocate for the workman that the initiation of
the departmental enquiry was ill motivated and the
findings of the enquiry officer are perverse, as the same
are not based on any evidence on record of the enquiry
and without consideration of the evidence adduced by
the workman in his defence and the punishment is
shockingly disproportionate to the alleged misconduct
and as such, the order of punishment is liable to be set
aside.
6. Per contra, it was submitted by the learned
advocate for the Party No. 1 that the findings of the
enquiry officer are based on the evidence on record of
the enquiry and the enquiry officer has dealt with the
charges chronologically and commission of minor and
major misconducts have been proved against the workman
in a properly conducted departmental enquiry againt him
and looking into the seriousness of the misconduct
proved against the workman, he deserved for capital
punishment, but the competent authority taking a lenient
view imposed lesser punishment to give the workman
one more opportunity to improve his conduct and
performance and the punishment imposed on the workman
is proportionate to the gravity of misconduct proved
against him. It was further submitted by the learned
advocate for the Party No. 1 that as this is not a case of
dismissal and discharge, there is no scope for the Tribunal
to interfere with the punishment by exercising the power
u/s, 11-A of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocate for the Party No. 1 placed reliance on the
decision reported in (2006) 5 SCC-201 (South Indian
Cashew Factories worker's union Vs. Kerala State Cashew
Development Corporation Ltd. & others).
7. Before delving into the merit of the matter, I think
it proper to mention the principles enunciated by the
Hon'ble Apex Court in the decision as mentioned above.
The Hon'ble Apex Court have held that:—
''D. Labour Law — Industrial Disputes Act, 1947 —
S. 11A — Applicability - Held, applicable only in
case of dismissal or discharge of a workman.
If the enquiry is fair and proper then in the absence
of any allegations of victimization or unfair labour
practice the Labour Court has no power to interfere
with the punishment imposed. Section 11-A of the
Industrial Disputes Act, 1947 gives ample power to
the Labour Court to reappraise the evidence
adduced in the enquiry and also sit in appeal over
the decision of the employer in imposing
punishment. But, that section is applicable only in
the case of dismissal or discharge of a workman.
Since Section 11-A was not applicable, the labour
Court had no power to reappraise the evidence to
find out whether the findings of the enquiry officer
were correct or not or whether the punishment
imposed was adequate or not.''
The principles enunciated by the Hon’ble Apex Court
as mentioned are squarely applicable to the case in hand.
Admittedly, this is not a case of dismissal or discharge of
the workman from services. It is already held that the
departmental enquiry held against the workman was legal,
proper and in accordance with the principles of natural
justice. Commission of major misconducts has been
proved against the workman in a properly conducted
departmental enquiry. It is also found from record that
the enquiry officer after analysing the evidence adduced
by the parties in the departmental enquiry in a rational
manner and dealing with the charges chronologically has
given his findings. The findings of the enquiry officer are
based on the evidence on record of the enquiry. Hence,
the findings of the enquiry officer cannot be said to be
perverse. There is no legal evidence on record to show
that this is a case of victimization or unfair labour practice.
So, applying the principles enunciated by the Hon’ble
Apex Court reported in [2006) 5-SSC-201 (Supra) to this
case and in view of the discussions made above, it is
found that there is no scope to interfere with the
punishment. Hence, it is ordered:—
ORDER
The action of the management of Bhilai Steel Plant
(SAIL) in their Iron Ore Complex, Dallirajhara, Durg in
punishing Shri P.K. Trivedi, Sr. Operator, HEME with the
punishment of “Reduction of lower grade of S-6 for a
period of 2 years with cumulative effect” vide letter of
punishment No. OMQ/RJM/ESTT/PUN/2005/2012 dated
21.09.2005 of Dy. G.M. Raajhara Mech. Mines is justified.
The workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
811
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 299.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fHkykbZ LVhy IykaV
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 ¼lanHkZ la[;k 06@2008½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 6@1@2014 dks izkIr gqvk
FkkA
[lañ ,y&26012@6@2008&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 299.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 06/2008) 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 Bhilai Steel Plant and their workman, which
was received by the Central Government on 6/1/2014.
[No. L-26012/6/2008-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/06/2008
Date: 23.09.2013.
Party No.1
:
The Managing Director,
Bhilai Steel Plant,
Bhilai, Distt. Durg,
Chhattisgarh
Versus
Party No. 2
:
The General Secretary,
Chhattisgarh Sangramin
Shramik Sangh, Indiranagar,
Chandaini Bhata, PO Dalli,
Rajhara, Durg (Chhattisgarh)
AWARD
(Dated: 23rd September, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act"in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Bhilai Steel Plant and their workman,
Shri V.K. Kurre, for adjudication, as per letter No. L-26012/
6/2008-IR (M) dated 07.02.2008, with the following
schedule:—
"Whether the action of the management of Bhilai Steel
Plant (SAIL) in their Iron Ore Complex, Dallirajhara, Durg
in punishing Shri V.K. Kurre, Sr. Operator, HEME with
the punishment of "Reduction of lower grade of S-5 for
a period of 2 years with cumulative effect" vide letter of
punishment No. OMQ/DLM/ESTT/PUN/2005/1850
dated 22/09/2005 of Dy. G.M. Raajhara Mech. Mines is
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 union, "Chhattisgarh Sangrami
Shramik Sangh," ("the union"in short) filed the statement
of claim on behalf of the workman, Shri V.K. Kurre, ("the
workman" in short) and the management of Bhilai Steel
Plant, ("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 while the workman was
working as a senior operator (HEME) in Rajhara group of
mines of Party No. 1, charge sheet dated 02.02.2004
containing fabricated charges was served on him and there
was a general dispute regarding the illegality over the pay
scale involving HEME operators in the mines and all the
HEME operators including the workman were agitating over
the issue and the matter was under discussion with the
management, but the Party No. 1 submitted the charge sheet
against the workman misrepresenting the facts and though
show cause was filed by the workman denying the charges
Party No. 1 did not appreciate the same and enacted the
drama of conducting the departmental inquiry and imposed
the punishment of reduction to S-5 Grade for a period of
2 years with cumulative effect and as the workman was the
General Secretary of the union, Chhattisgarh Sangrami
Shramik Sangh, he was targeted by the Party No. 1 to harm
the union and the punishment is ill motivated and punitive
and the action taken by the Party No. 1 was illegal and
taken only to suppress their rightful demand.
Prayer has been made by the union to adjudicate the
dispute and to give them justice and to direct the Party
No. 1 to withdraw the punishment retrospectively.
3. The Party No. 1 in their written statement have pleaded
inter-alia that the workman is a habitual offender and he
was issued with several charge sheets and lesser
punishment was imposed against him in the past with a
view to give him chance to improve his conduct, but he did
not show any improvement in his conduct and continued
to commit such misconduct one after the other and as the
workman committed serious misconduct during the course
of employment, he was kept under suspension vide order
dated 09.02.2004 and he was also issued with the charge
sheet dated 12.02.2004 and six charges were levelled against
him and the workman submitted his reply to the charge
sheet and as the reply was found unsatisfactory, it was
decided to conduct a departmenal enquiry and accordingly,
Shri R.S. Prasad was appointed as the enquiry officer vide
order dated 01.03.2004 and the workman appeared in the
enquiry with his co-worker and during the enquiry, six
812
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
documents and list of witnesses were produced and the
documents were admitted into evidence and marked as
Exts. PD/1—PD/6 and after the closure of the prosecution
case, the workman was allowed to adduce evidence in his
defence and the workman examined eight witnesses and
on 05.03.2005, after the examination and cross-examination
of the 8th defence witness, on behalf of the workman,
when the workman was asked to bring the remaining
witnesses, he scored out his signature, which he had put
on the proceedings of the enquiry, stating that he was not
intimated about the date of the proceedings in writing and
was orally informed and thereafter, the workman did not
take part in the departmental enquiry, inspite of all possible
steps taken by the enquiry officer and adjourning the
enquiry on several occasions, so, the enquiry officer had
no other option than to proceed with the enquiry exparte
against the workman and the enquiry was closed on
22.03.2005 and the enquiry officer submitted his report on
08.04.2005, holding the charges to have been proved against
the workman and the workman was issued with a show
cause notice along with a copy of the enquiry report and
as no staisfactory explanation was submitted by him, the
competent authority by order dated 22.09.2005 imposed
the punishment of reduction of lower grade of S-5 for a
period of two years with cumulative effect, and though the
workman deserved for capital punishment, but to give him
another opportunity, the competent authority imposed
lenient punishment and the punishment imposed on the
workman is proportionate to the gravity of the misconduct
proved against him and the workman is not entitled to any
relief.
4. Even though, this is not a case of dismissal,
termination or removal of the workman from services and
only a case of imposition of punishment of reduction to
lower grade, after conducting a departmental enquiry
against the workman, in the interest of justice, the fairness
or otherwise of the departmental enquiry was taken as a
preliminary issue for consideration and vide order dated
28.12.2012 the departmental enquiry was held to be legal
and proper and by following the principles of natural
justice.
5. At the time of argument, it was submitted by the learned
advocate for the workman that the initiation of the
departmental enquiry was ill motivated and the punishment
imposed against the workman is quite punitive and the
initial appointment of the workman was in S-6 grade and at
the time of imposition of the punishment, he was in
grade-7 and it is established administrative principle that
no person can be downgraded to below the grade in which
he was initially appointed and the findings of the enquiry
officer are perverse as the same are not based on any
evidence on record of the enquiry and without
consideration of the evidence adduced by the workman in
his defence and the punishment is shockingly
disproportionate to the alleged misconduct and as such,
the order of punishment is liable to be set aside.
6. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the findings of the enquiry officer
are based on the evidence on record of the enquiry and
the enquiry officer has deal with the charges
chronologically and commission of minor and major
misconducts has been proved against the workman in a
properly conducted departmental enquiry against him and
looking into the seriousness of the misconducted proved
against the workman, he deserved for capital punishment,
but the competent authority taking a lenient view imposed
lesser punishment to give the workman one more
opportunity to improve his conduct and performance and
the punishment imposed on the workman is proportionate
to the gravity of misconduct proved against him. It was
further submitted by the learned advocate for the Party
No. 1 that as this is not a case of dismissal and discharge,
there is no scope for the Tribunal to interfere with the
punishment by exercising the power u/s 11-A of the Act
and the workman is not entitled to any relief.
In support of such contentions, the learned advocate
for the Party No. 1 placed reliance on the decision reported
in (2006) 5 SCC-201 (South Indian Cashew Factories
worker's union Vs. Kerala State Cashew Development
Corporation Ltd. & others).
7. Before delving into the merit of the matter, I think it
proper to mention the principles enunciated by the Hon'ble
Apex Court in the decision as mentioned above. The
Hon'ble Apex Court have held that:—
"D. Labour Law—Industrial Dispute Act, 1947-S. 11A
Applicability—Held, applicable only in case of dismissal
or discharge of a workman.
If the enquiry is fair and proper then in the absence
of any allegations of victimization or unfair labour
practice the Labour Court has no power to interfere
with the punishment imposed. Section 11-A of the
Industrial Disputes Act, 1947 gives ample power to the
Labour Court to reappraise the evidence adduced in
the enquiry and also sit in appeal over the decision of
the employer in imposing punishment. But, that section
is appliable only in the case of dismissal or discharge of
a workman. Since Section 11-A was not applicable, the
labour Court had no power to reappraise the evidence
to find out whether the findings of the enquiry officer
were correct or not or whether the punishment imposed
was adequate or not."
The principles enunciated by the Hon'ble Apex Court
as mentioned are squarely applicable to the case in hand.
Admittedly, this is not a case of dismissal or discharge of
the workman from services. It is already held that the
departmental enquiry held against the workman was legal,
proper and in accordance with the principles of natural
justice. Commission of major misconducts has been proved
against the workman in a properly conducted departmental
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
813
enquiry. It is also found from record that the enquiry officer
after analyzing the evidence adduced by the parties in the
departmental enquiry in a rational manner and dealing with
the charges chronologically has given his findings. The
findings of the enquiry officer are based on the evidence
on record of the enquiry. Hence, the findings of the enquiry
officer cannot be said to be perverse. There is no legal
evidence on record to show that this is a case of
victimization or unfair labour practice.
It is found from clause 30(2)(d) of the Standing Order
that punishment of reduction to a lower grade or post or
lower stage in a time scale can be imposed for major
misconduct. The workman failed to show that there is any
establishment administrative principle that an employee
cannot be downgraded to below the grade in which he was
initially appointed. There is nothing on record to show
that the punishment imposed against the workman is not
in accordance with the provisions of the Standing Order.
The Punishment imposed against the workman also
cannot be said to be shockingly disproportionate to the
grave misconducts proved against him. So, applying the
principles enunciated by the Hon'ble Apex Court the
decision reported in (2006) 5-SCC-201 (Supra) to this case
and in view of the the discussions made above, it is found
that there is no scope to interefere with the punishment.
Hence, it is ordered:—
ORDER
The action of the management of Bhilai Steel Plant (SAIL)
in their Iron Ore Complex, Dallirajhara, Durg in punishing
Shri V.K. Kusre, Sr. Operator, HEME with the punishment
of "Reduction of lower grade of S-5 for a period of 2 years
with cumulative effect" vide letter of punishment No. OMQ/
DLM/ESTT/PUN/2005/1850 dated 22/09/2005 of Dy. G.M.
Raajhara Mech. Mines is justified. The workman is not
entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 300.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u vkW;y
dkWjiksjs'ku fyfeVsM] ikuhir fjQkbujh izkstsDV ds izcU/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; 2]
paMhx<+ ds iapkV ¼lanHkZ la[;k 569@2005½ izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 6@1@2014 dks izkIr gqvk FkkA
[lañ ,y&30012@39@2003&vkbZvkj¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 300.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 569/2005) of the
Central Government Industrial Tribunal/Labour Court No.
2, Chandigarh now as shown in the annexure in the
Industrial Dispute between the employers in relation to the
management of Indian Oil Corporatioin Limited, Panipat
Refinery Project and their workman, which was received
by the Central Government on 6/1/2014.
[No. L-30012/39/2003-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: Sri A.K. RASTOGI, Presiding Officer.
Case No. I.D. No. 569/2005
Registered on 23/8/2005
Sh. Nand Lal, S/o Sh. Brij Lal, C/o BMS Office, Lal Batti
Chowk, G.T. Road, Panipat.
...Petitioner
Versus
The Executive Director, Indian Oil Corporation Limited,
Panipat Refinery Project, Baholi, Panipat.
...Respondesnt
APPEARANCES:
For the Workman
:
Sh. Karam Singh AR.
For the Management
:
Sh. S. Kaushal Advocate.
AWARD
(Passed on 11.7.2013)
Central Government vide Notification No. [L-30012/39/
2003-IR(M)] Dated 4/11/2003, by exercising its powers under
Section 10 sub-section (1) Clause (d) and sub-section
(2-A) of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'Act') has referred the following Industrial
dispute for adjudication to this Tribunal:—
"Whether the action of the management of IOCL, Panipat
Refinery in terminating the services of Sh. Nand Lal S/o
Sh. Brij Lal, Technician Gr. IV w.e.f. 24.8.2001 is just and
legal? If not, to what relief the concerned workman is
entitled?"
As per claim statement the workman was in the
employment of the mamagement from 1998. He fell sick
and sent application for leave from 16.6.2001 to 14.7.2001
under UPC along with medical certificate. But the
management terminated his services on 23.8.2001 in violation
of Section 25F,H,N and G of the Act though he had
completed more than 240 days' service in a calendar year
without any break. His termination is unlawful, arbitrary,
814
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
illegal and against the principles of natural justice. He has
prayed for his reinstatement with full back wages and
continuous service.
The claim was contested by the management and it was
denied that he had sent any information about his illness
or medical treatment from 16.6.2001 to 14.7.2001. According
to the management the UPC showing the dispatch of medical
certificate is false, fabricated and procured document. The
workman remained absent from duty after 16.6.2001 and
despite notice sent by registered post on 25.6.2001,
20.7.2001 and 30.7.2001. He continued to remain absent
unauthorizedly and neither replied any of the notice. As
per Certified Standing Orders of the company if an employee
remains absent from duty for more than 8 days, the
mamagement will presume that he had abandoned the
employment by his own accord, providing he returns and
explain to the satisfaction of management about the reasons
which compelled him to remain away from work. In that
case management will be required to consider his case. In
this case, action was contemplated after 68 days waiting
and after sending due registered notice on three occasions.
The workman failed to submit any explanation as asked for
or till orders in question were passed. Actually workman
was in the habit of remaining absent from duty. On previous
occasions also he had been unauthorizedly absent. The
action against the workman had been taken as per
stipulation in the Standing Orders and hence, it is not a
retrenchment attracting the provisions of Section 25F of
the Act and there is no violation of Section 25H, G and O of
the Act also. In the circumstances of the case the action of
the management is fully justified and in order.
A replication was filed by the workman denying the
receiving of any notice of management by the workman
and it was alleged that the UPC is genuine. He had sent
leave application along with medical certificate. Action if
any could have been taken against the workman after a
departmental inquiry.
In evidence the workman examined himself and filed the
photocopies of the UPC reciept, medical certificate and
leave application Exb. WW1 to WW3 respectively. At the
stage of management evidence the workman absented
himself and did not appear despite notices sent by
registered post to him. Hence the case was ordered to
proceed exparte against him on 3.9.2010. Statement of
management witness was recorded.
I have heard the learned counsel for management and
perused the evidence on record. Learned counsel for the
management argued that it is wrong to say that the workman
had sent leave application along with medical certificate
under UPC to management. In fact the medical certificate
had been produced before the Conciliation Officer, as the
workman himself had admitted during cross-examination
that he had submitted a letter and medical certificate to the
management before the Conciliation Officer. The letter and
a copy of medical certificate are marked as "A" and "B".
Among other the management had filed copy of notices
dated 25.6.2001, 20.7.2001 and 30.7.2001 Exhibit MW1/1½
and 1/3 sent by registered post. Letter dated 23.8.2001
Exhibit MW1/6 has also been filed by the management
whereby the workman had been informed about treating
him to have voluntarily abandoned his service and striking
off his name from the rolls of the Corporation w.e.f. 16.6.2001.
Learned counsel for management argued that it cannot
be accepted to that the workman had sent his leave
application and medical certificate under UPC. If the medical
certificate had been sent by him as alleged then how could
he provide it to management during the conciliation
proceedings. The management case therefore, is reliable
that the leave application and medical certificate were not
sent by the workman under UPC and he remained absent
from duty unauthorizedly from 16.6.2001 and did not submit
any explanation despite notice sent to him by registered
post and as he had remained absent from duty
unauthorizedly w.e.f. 16.6.2001 hence, the management was
justified in treating the workman to have abandoned the
employment after a lapse of 68 days as per Standing Orders
and it is not a retrenchment. Hence, the violation of Section
25F of any other provision of the ID Act is not involved in
the case. Learned counsel for management in this regard
relied on Hindustan Paper Corporation Vs. Purendu
Chakrobarty and others 1997 SCC(L&S) 244 wherein the
respondent was an employee of the appellant Hindustan
Paper Corporation. On 27.5.1988 had had applied for casual
leave. On the next day an FIR was lodged against him
under Section 302/201 read with Section 34 of the Penal
Code. He continued to apply for extension of leave but the
Corporation refused to sanction his applications and
informed him that he was liable to be treated as an
unauthorized absentee. The Corporation called for his
explanation and finding his explanation to be not proper
passed an order that under Rule 23(vi)(E) of the Hindustan
Paper Corporation Conduct, Discipline and Appeal Rules.
He had lost his lien on his appointment with Corporation.
The Hon'ble Supreme Court held that holding of a full-
fledged inquiry under Rule 25 was not necessary as loss of
lien under said Rule does not amount to a penalty and a
department inquiry was not needed. The need for
departmental inquiry arises only when a penalty is sought
to be imposed.
I agree with the learned counsel for the management
that in the present case also the termination of the workman
as per Standing Orders is not a penalty and neither it is a
retrenchment. The provisions of ID Act regarding
retrenchment are not applicable in the case and the
termination of the services of the workman being according
to Standing Order is legal and justified. He is not entitled to
any relief. Reference is answered against the workman.
Hard and soft copy of the award be sent to the Central
Government as per the directions of the Central Government.
ASHOK KUMAR RASTOGI, Presiding Officer
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New Delhi, the 8th January, 2014
S.O. 301.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 1/2005, 2/2005,
8/2005, 38/2004 & 40/2004) of the Central Government
Industrial Tribunal/Labour Court, Hyderabad now as shown
in the Annexure in the Industrial Dispute between the
employers in relation to the management of Airport
Authority of India, Hyderabad and their workman, which
was received by the Central Government on 6.1.2014.
[No. L-11011/63, 68, 33, 12 & 10/2004-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
PRESENT:
SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 13th day of September, 2013
INDUSTRIAL DISPUTES Nos.
1/2005. 2/2005, 8/2005, 38/2004 & 40/2004
Between:
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad - 500016.
....Respondent
APPEARANCES:
For the Petitioners(s) Union : M/s. Ch. Indrasena Reddy
& D. Vilas, Advocates
For the Respondent:
M/s. D. Hanumanth Rao,
S. Sobhan Reddy, B. Shyam
Raju & Abdul Shafiq,
Advocates
COMMON AWARD
In pursuance of the claim made by the Petitioner Union,
the Indian Airports Kamgar Union represented by their
Joint General Secretary (herein after be referred to as
Petitioner union), the Government of India, Ministry of
Labour by its orders (table given below) referred five
industrial disputes under Sec. 10(1)(d) of the I.D. Act, 1947
requiring this forum to decide the same. The schedule of all
these references is one and same, which reads as under:—
SCHEDULE
"Whether the action of the management of
Airports Authority of India, Hyderabad in terminating
the services of workmen, (name of the workman in each
reference is mentioned respectively in each schedule)
Ex-Sweepers w.e.f. 18.5.2002/18.9.2002, is legal and
justified? If not, to what relief the workmen is entitled?"
The details of workmen as per the respective schedules
pertaining to these five industrial disputes mentioned in
cause title, are as under:—
S.
ID No.
Reference order
Name of the
Date of
No.
No. & date
workmen
Termination
S/Sri/Smt.
1.
1/2005
L-11011/63/
A, Vasantha
18.5.2002
2004-IR(M)
dt. 19.10.2004
2.
2/2005
L-11011/68/
D. Nagaraju
18.9.2002
2004-IR(M)
dt. 19.10.2004
3.
8/2005
L-11011/33/
P. Savithri
18.5.2002
2004-IR(M)
dt. 27.5.2004
4.
38/2004
L-11011/12/
T. Bala
18.9.2002
2004-IR(M)
Narasimha
dt. 27.2.2004
5.
40/2004
L-11011/10/
B. Venkatesh
18.9.2002
2004-IR(M)
dt. 27.2.2004
On receipt of the references this Tribunal has registered
and numbered the five references (mentioned above) as
I.D. Nos. 1/2005, 2/2005, 8/2005, 38/2004, and 40/2004, and
issued notices to the management as well as to the workmen.
For the workmen represented by the Petitioner union in all
the above industrial disputes M/s. Ch. Indrasena Reddy &
D. Vilas, Advocates have appeared as counsels and for the
Respondent and M/s. D. Hanumanth Rao, S. Sobhan Reddy,
B. Shyam Raju & Abdul Shafiq, Advocates have appeared
as counsels.
2. The cause of action as well as facts pertaining to all
these five industrial disputes are similar. Hence, by virtue
816
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
of the order dated 19.9.2005, this court has clubbed all
these disuptes in ID No. 1/2005. As such, a common award
is being passed for all these disputes.
3. The workmen in all these industrial disputes have
filed their respective claim statements with the averments
which are similar in all respects and which are in brief as
follows:—
Petitioner union is a Trade Union and is competent to
espouse the cause of the workmen working under the
Respondent. National Airports Authority Kamgar Union
was registered on 27.2.1990, its name was changed as
Airports Authority Kamgar Union consequent upon
Airports Authority of India Act, 1994 came into force.
Further, the Airports Authority Kamgar Union has now
changed as Indian Airports Kamgar Union with the
approval of the Registrar of Trade Unions vide letter
No. 10(4950)/RTU/645 dated 30.4.2002. Airports
Authority of India is a statutory corporation under
Airports Authority of India Act, after merging
International Airports Authority of India and National
Airports Authority of India w.e.f. 1.4.1995 and the
Airports Authority of India includes the establishments
of Airport Director, Hyderabad Airport, Begumpet,
Hyderabad. All the workmen in these cases are members
of the Petitioner union and authorized to present their
case before the conciliation officer. All the workmen
have been working as sweepers since November, 1996
under various contractors and by office note No. AAI/
HY/AD/G. 18/01 dated 1.5.2001 the Respondent has
terminated the contractors thereby the workmen have
been working under the direct control of Respondent
on par with the regular employees of Resondent.
Workmen were performing duties of permanent and
perennial nature. Petitioner union represented several
times for regularization of these workmen but in vain.
Hence, WP No. 24460/1998 was filed which was allowed
by the Hon'ble High Court of A.P., with a direction to
the Respondent to regularize the services of the workmen
within four weeks and further directed to pay them arrears
from 1.8.1998. Aggrieved by the order of Hon'ble High
Court, Respondent has filed WA No. 1011/2000 before
Division Bench of High Court, who in turn set aside the
orders of Single Judge directing the Petitioner union to
approach the conciliation officer for regularization of
their services within 30 days, with a further direction to
maintain status-quo. In pursuance of the orders in writ
appeal, Petitioner union has espoused the cause of the
workmen before the Regional Labour Commissioner(C)
on 17.5.2002 and they are pending. While so, all of a
sudden the Respondent has orally terminated the
services of the workmen w.e.f. 18.5.2002/18.9.2002 [the
respective dates of termination of services of various
workmen are incorporated in the table wherein the details
of workmen are given in that statement]. Without
assigning any reason, in violation of principles of natural
justice. Questioning the oral termination Petitioner union
filed WP No. 9639 of 2002 and it is pending before the
Hon'ble High Court. It is submitted that during pendency
of the said writ petition, the conciliation officer has
returned the application of Petitioner union vide order
dated 9.9.2002. Then, Petitioner union again moved the
Hon'ble High Court of A.P., Hyderabad by filing another
WP No. 6544/2003 questioning the order dated 9-9-2002
of the conciliation officer and it was allowed setting
aside the orders dated 9.9.2002 and directing the
conciliation officer to take necessary steps for reference
of the dispute raised by the Petitioner union vide order
dated 17.6.2003. In pursuance of the orders dated
17.6.2003, conciliation officer admitted the matter into
conciliation, since the Respondent has not settled the
matter before the conciliation officer, he has sent a failure
report to the Government hence, these references. With
effect from 1.5.2001, the workmen have worked under
the direct control of the Respondent on par with the
regular employees consequent to the office note dated
1.5.2001 terminating the contractors. All these workmen
have continuously worked for more than 5 years in a
permanent vacancy, having worked for more than 240
days in a calendar year and they are entitled for
regularization. As per the provisions of Industrial
Employment (Standing Orders) Act, 1946, workmen have
to be regularized after successful completion of 90 days
of service. Petitioner union submits that instead of
regularizing the services of the workmen the respondent
has terminated the servies of the workmen orally from
18.5.2002/18.9.2002 without following the provisions of
Industrial Disputes Act, 1947 as such, the action taken
by the Respondent against these workmen is illegal,
unjust, contrary to law, contrary to the provisions of
Industrial Disputes Act, 1947 in violation of principles
of natural justice.
4. The Respondent in all these industrial disputes who
is one and the same management, filed their counters in all
these ten industrial disputes with one and the same
averments which are in brief as follows:—
These references are not maintainable and are liable to
be dismissed with exemplary costs as there is no locus
standi to the workmen to raise these disputes. These
references are illegal. There is suppression of true facts,
and abuse of process of court. There is non-joinder of
proper parties. The claim is speculative in nature. The
workmen never worked with the Respondent. The
Petitioner union is not a recognized union. The workmen
could never be the members of the said union. There are
contradictions between the pleadings of the workmen
in WP No. 24660/1998 and that in the present disputes.
Contractor who engaged the services of the workmen is
not made party to these disputes. Respondent entrusted
the upkeep and maintenance of the Airport to the
contractors and it is the look out of the contractor to
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
817
engage labourers depending upon the intensity of the
aircraft operations and passenger movement. The work
will be supervised by the officers of the Respondent.
There were no muster rolls maintained for the contract
labour. The attedance register if any would be maintained
by the contractors. The duty officers of the airport
terminal have to check the work force engaged by the
contractor to the required level of man power. The
workmen were never under the direct control of the
Respondent. The changing scenario of adopting
advanced technologies and using machinery in
regulating the work by using sophisticated equipments
will not plea give raise to that supply is permanent feature
of the employment in the airport. There is no relationship
of employer and employee between the Respondent
and the workmen, at any point of time, therefore,
question of termination of services of the workmen does
not arise. Any service rendered under a judicial order
does not of itself invest a reight within the workmen
enabling the union to champion their cause. There is no
industrial dispute what so ever that could be raised
against the Respondent investing jurisdiction within
this Tribunal. There is no meeting held by Petitioner
union passing resolution authorizing the Petitioner to
espouse the cause of the workmen before the
conciliation officer. Even if there is no such resolution,
there is no resolution to espouse the cause of the
workmen before this Tribunal. Petitioner workmen are
to be put to strict proof that the workmen worked for the
Respondent under various contractors from 1997 and
upto 1.5.2001 and thereafter directly under the
Respondent on par with regular employees, as these
are all incorrect contentions. The workmen were
provided with work by virtue of the order in WP No.
24460/1998 which were extinguished by virtue of
direction in WA 1011/2000. The references are liable to
be dismissed in view of the pendency of the WP No.
9639/2002. The contention of the Petitioner union that
the workmen herein come under the definition of
workman under Sec. 2(s) and 2 (j) of the Industrial
Disputes Act, 1947 and that they are entitled for notice,
notice pay, retrenchment compensation and also
assignment of reasons of termination are all incorrect.
The other contention that respondent employed some
other contract labour in the places of the present
workmen and therefore, the action of the Respondent is
arbitrary, colourable exercise of power and amounts to
unfair labour practice is all incorrect. By efflux of time
contract came to an end and thereafter fresh contracts
were awarded. Petitions are liable to be dismissed with
exemplary costs.
5. By virtue of order dated 10.4.2007, it is held that,
considering the fact that I.D. Nos. 1/2005, 2/2005, 8/2005,
38/2004 and 40/2004 are all similar in nature and therefore, it
is convenient to club these five industrial disputes with
I.D. No. 1/2005.
6. To substantiate the contentions of the workmen, WW1
was examined and Exhibits W1 to W32 were marked. No
evidence is adduced for the Respondent. But in a batch of
other industrial disputes which pertain to the workmen
who are similarly placed with the workmen herein, and in
which Respondent is no other than the present Respondent
[i.e., ID Nos. 93/2003 to 102/2003] Sri VLN Sastry, Asst.
General Manager, Civil, of the Respondent has been
examined as MW1. The facts and circumstances of both
batches of cases are one and the same. Further, these
matters are being taken up for disposal simultaneously.
Therefore, in the interest of the cause of both parties, the
said evidence will be taken notice of while deciding this
batch of matters also as it is applicable to the facts of the
present batch of cases also. By this no prejudice will be
caused to either of the parties. On the other hand it is
helpful to them both as the stand of the Respondent can
also be taken into consideration.
7. Heard the arguments of either party.
8. The points that arise for determination are:
I. whether there is relationship of employee and
employer between the workmen and Respondent?
II. Whether Respondent terminated the services of
the workmen with effect from 18.5.2002/18.9.2002?
If so, whether the said action on the part of the
Respondent is justified?
III. To what relief the workmen are entitled to?
9. Point No. 1:
The question whether there is relationship of employee
and employer between the workmen and the respondent in
these cases is a question of fact. In the case of Workmen of
Nilgiri Coop. Mkt. Society Ltd., Vs. State of Tamilnadu and
Others [(2004) 3 SCC 514], wherein it is held that the question
whether workers are employees of principle employer or of
contractor is a pure question of fact.
10. Therefore, from the facts gathered on record in these
cases it is to be verified whether there is relationship of
employee and employer between the workmen and the
respondent.
11. It is an admitted fact that workmen herein have been
contract labourers, and worked for the respondent under
various contractors upto 1.5.2001, the date on which
respondent has terminated the contractors, by office note
No.AA1/HY/AD/G. 18/01. It is the contention of the
Petitioner that there after workmen continued to work for
the respondent directly under the control and supervision
of the respondent officials, receiving payment from the
respondent directly and therefore, there is employee and
employer relationship between the workmen herein and
the Respondent. Whereas, respondent, who is admitting
that workmen have been working for the respondent even
818
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
after 1.5.2001 and until 18.5.2002/18.9.2002 is claiming that
since the workmen's services were taken during that time
by continuing them in service by virtue of court's orders, it
can not be said that workmen have been in direct
employment with the respondent or that there has been
employee and employer relationship between workmen and
respondent.
12. Now, it is to be verified whether workmen have been
continued in service by virtue of any court order which
was set aside later and if so, what is its effect? In this
context it is to be noted that if there is no material on record
to show that workmen have been continued in service with
the respondent by virtue of any court order and as per the
directions of the court which were set aside later, it is to be
taken that Petitioner has been under the direct employment
of the respondent during this period.
13. Sri VLN Sastry, Asst. Manager, Civil of the
Respondent organization who has been examined as MW1
in ID Nos. 93/2003-102/2003 batch has admitted while he
was under cross examination that from 1.5.2001 the contract
system was terminated by the respondent, but he denied
the truth of the suggestion put to him that since then all
the workmen in these cases worked with the respondent
directly and claimed that they worked under contractor
only from 1.5.2001 to 18.5.2002/18.9.2002. He claimed that
there is record to show the identity of the contractor under
whom the workmen have worked for the period from
1.5.2001 to 18.5.2002/18.9.2002 and he can produce the same
before the court. But no such record has been produced
before the court. On the other hand the fact remains that it
is not the pleading of the respondent that during this period
also the workmen have worked under any contractor. Their
claim has been that by virtue of some court order the
workmen were continued in service during the said period.
But, respondent has not produced any document to show
that the services of the workmen were continued by virtue
of any court order.
14. Whereas, while WW1 was under cross examination
for the Management it is elicited from him that on abolition
of Contractor system the workers were continued and they
worked under the respondent from 1.5.2001 as per Ex.W3.
15. Ex.W3 is office note dated 1.5.2001 pertaining to the
respondent. The subject therein is "Upkeep and
maintenance of NTR and RG terminal at Hyderabad Airport"
This document reads that "After the expiry of AMC
contract, the upkeep and maintenance of both the terminals
is being undertaken departmentally with effect from
1.5.2001. For this purpose, Sri Adarsh Kumar, Senior
Manager (C) will be looking after the maintenance part
New Delhi he will depute suitable engg. Officials for
supervision and execution of engg. Works. Shri Sultan
Moinuddin Manager(T) will be looking after the cleanliness
and upkeep of the building. Thus, ATMs on duty in
respective terminals assisted by HKS will depute the
workers on the job of upkeep and cleanliness and they will
supervise their work. Shri VVK Murthy Asst. The General
Manager (Stores) will make arrangements for supply of
stores as required for the above work through SM(C)-II. In
this connection, Shri R.P. Singh AGM(ATC) is appointed
as the overall in charge to look after the arrangements for
the above work in both the terminals. Shri Adarsh Kumar,
SM(C)-II, Shri Sultan Moinuddin, Manager(T) and Shri
VVK Murthy, Asst. The General Manager (stores) may
coordinate with Shri R.P. Singh far any matter related to the
above job."
16. The above referred contents of Ex.W3 are not giving
out any information that by virtue of any direction from
any court the services of the workmen in these cases were
utilized by the respondent. On the other hand from this
document what one can understand is that after abolition
of the contractor system for upkeep and maintenance of
NTR and RG terminal of Hyderabad Airport, respondent
made arrangement for the said work by entrusting
supervision of the work of the ATMs and workers who
were on the job of upkeep and cleanliness, to various
officials of this organization. Therefore, it can clearly be
seen from Ex.W3 that respondents has directly taken up
the work of upkeeping and maintenance of the NTR & RG
Terminal at Hyderabad Airport and under their direct
supervision the various workmen engaged for upkeep and
maintenance of this place have worked. As already
observed above, it is the very contention of the respondent,
as can be seen from the facts elicited by them while WW1
was under cross examination, that the workmen herein
worked under respondent from 1.5.2001 as per Ex.W3.
Therefore, it can safely be held that the workmen in all
these cases have worked directly for and under the
supervision of the respondent from 1.5.2001 till the date of
the termination of their services i.e., 18.5.2002/18.9.2002
and further that their being continued in service
subsequent to 1.5.2001 was not in pursuance of any court
directions.
17. For coming to the above conclusion, the basis is, as
already observed above, Ex.W3, the proceeding in
pursuance of which, evidently the various workmen in
these cases were continued in service even subsequent to
1.5.2001, does not reflect that in pursuance of any court
order the workmen were continued in service. Further, there
is no document made available on record to prove that the
workmen have been continued in pursuance of any court
order.
18. One another aspect to be noted is that, while WW1
was under cross examination, on one hand, it has been
elicited from them that the workers were continued under
the respondent from 1.5.2001 as per Ex.W3, on the other
hand, it is suggested to him that workers never worked
under the respondent from 1.5.2001 and that there is no
relationship of worker and employer, which is denied by
WW1. This shows, that the respondent is blowing hot and
cold by taking contradictory claims before the court to
¹Hkkx II—[k.M 3(ii)º
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819
wriggle out of the obligations arose under the provisions
of Industrial Disputes Act, 1947. But the fact established
through the evidence on record is that subsequent to
1.5.2001, the date on which respondent abolished the
contractor system, they continued to take the services of
the various workmen who were working under the
contractor till that date, for maintenance and upkeeping of
the airport premises, by directly supervising their work, as
specified in Ex.W3.
19. The contention of the Respondent that subsequent
to 1.5.2001 the cleaning work was entrusted to some other
contractors is totally contradicted to the context of Ex.W3.
Further, no evidence is adduced on record by the
Respondent to show that contractors were not engaged to
attend to the cleaning work subsequent to 1.5.2001.
20. Respondent is making a reference to court order as
the reason for continuing the various workmen in service
subsequent to 1.5.2001. The details of the said court order
are not revealed any where in the counter. For the first time
while WW1 was under cross examination it is put to him
that in view of the status quo order given by the Hon'ble
High Court of A.P., in Writ appeal, respondent only paid
wages without extracting work which is denied by WW1.
From this suggestion what one has to understand is that it
is the contention of the respondent that by virtue of the
status quo order made by the Hon'ble High Court of A.P.,
in the judgement made in writ appeal the various workmen
were continued in service. The said status quo order can
be seen in Ex.W5, the copy of judgment in WA Nos. 865,
866 and 1011 of 2000 dated 18.4.2002 whereas the workmen
herein continued in services of the Respondent even after
abolition of Contractor system from 1.5.2001. In this
judgment status quo was ordered to be maintained for one
month from the date of said judgment Evidently on the
very date of expiry of said period i.e., on 18.9.2002 services
of all the workmen were terminated. There is no other
previous order prescribing or directing the respondent to
maintain status quo, regarding continuation of the workmen
in service with effect from 1.5.2001.
21. In view of the fore gone discussion of the material
on record, it can safely be held that, the material on record
clearly discloses that respondent engaged the services of
the various workmen in these cases directly, under the
direct supervision of their officials since 1.5.2001 and
therefore there is relationship of employee and employer
between the Petitioner and the respondent since 1.5.2001
as correctly contended by the Petitioner.
This point is answered accordingly.
22. Point No.2:
It is an admitted fact that respondent terminated the
services of the various workmen in these cases with effect
from 18.5.2002/18.9.2002. As already observed above, after
Ex. W5 judgement was rendered by Hon'ble High Court of
A.P., in WA Nos. 865, 866 & 1011/2001, in compliance of
the direction there in i.e., to maintain status quo for one
month respondent continued the various workmen in
service for one month and terminated their services on
18.5.2002/18.9.2002. Now, it is to be verified whether the
said termination of services is legal, valid and justified.
23. As already concluded above, while deciding point
No.1, there has been employee and employer relationship
between the various workmen and the respondent. The
workmen worked for the respondent directly and under
their supervision from 1.5.2001 till 18.5.2002/18.9.2002 i.e.,
for more than 240 days. In such case, if there is termination
of service the same shall be in compliance of mandatory
pre-requisites provided under Sec.25F of Industrial
Disputes Act, 1947. Sec.25F of Industrial Disputes
Act, 1947 reads as follows:—
"25-F: Conditions precedent to retrenchment of
workmen:— No workman employed in any industry who
has been in continuous service for not less than one year
under an employer shall be retrenched by that employer
until—
(a) the workman has been given one month's notice
in writing indicating the reasons for retrenchment
and the period of notice has expired, or the
workman has been paid in lieu of such notice,
wages for the period of the notice.
(b) The workman has been paid, at the time of
retrenchment compensation which shall be
equivalent to fifteen days' average pay [for every
completed year of continuous service] or any part
thereof in excess of six months; and
(c) Notice in the prescribed manner is served on the
appropriate Government [or such authority as may
be specified by the appropriate Government by
notification in the official Gazette]."
24. Therefore, the workmen in these cases who worked
for more than one year for the respondent i.e., from 1.5.2001
till 18.5.2002/18.9.2002 can not be retrenched until they have
been given one month's notice in writing indicating the
reasons for retrenchment and only after expiry of the period
of notice or otherwise by making payment of wages in lieu
of such notice, for the period of notice. Further more, the
workmen have to be paid retrenchment compensation as
mentioned in Sec.25F (b) and also there shall be compliance
of Sec. 25F(c). unless there is compliance of all the above
mentioned mandatory pre-requisites the retrenchment of
the workmen is to be held as null, void, illegal and
inoperative and such termination of service of the workmen
without complying the mandatory provisions contained
under Sec.25F (a) and (b) should ordinarily result in their
reinstatement as per the well established legal principles
laid down by Hon'ble Apex Court.
820
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
25. In view of the fore gone discussion, it can safely be
held that the termination of the various workmen in these
cases from service by the respondent without complying
the mandatory pre-requisites provided under Sec.25F of
the Industrial Disputes Act, 1947 makes the said termination
as illegal, unjust and invalid.
26. Learned Counsel for the respondent relied upon the
principles laid down in the cases of Steel Authority of India
Limited and another Vs. State of West Bengal and others
[(2008) 14 SCC 589], but the principles laid down in this
case are not helpful to the facts of the present case since,
it is nobody's case that the dispute in this case became
stale for any reason. Learned Counsel for the respondent
further relied upon the principle laid down in the case of
Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd., and
another [(1979) 3 SCC 371], but the facts and circumstances
cited in this case are totally different from that of the present
case. The termination of services in the present case is not
punitive in nature and there was no scope for domestic
enquiry in the present cases unlike the cited case. Therefore,
the various principles laid down in the cited case are not
applicable to the facts of the present case.
27. As can be seen from the material on record, in Ex.W5,
the judgement of the Hon'ble High Court of A.P., the various
workmen and their union are at liberty to seek appropriate
relief before the appropriate industrial courts in terms of
the judgement of constitutional bench in Steel Authority
of India's case. The workmen have approached the Regional
Labour Commissioner(C) for espousing the cause of the
various workmen by raising individual industrial disputes
through Ex.W6 the application made by the workmen to
the Conciliation Officer Regional Labour Commissioner(C)
invoking Sec.2K of the Industrial Disputes Act, 1947 dated
17.5.2002. In respect of most of the workmen, from the very
next date i.e., on 18.5.2002 services of the various workmen
were terminated by the respondent. Thus, it can clearly be
seen that without even giving sufficient opportunity to
the workmen to have their remedy and further without
complying the mandatory prerequisites of Sec.25 F of the
Industrial Disputes Act, 1947 respondent has terminated
the services of the various workmen which is neither proper,
nor justified nor legal.
This point is answered accordingly.
28. Point No. 3:
In view of the findings given in points No.1 and 2 above,
the various workmen in these petitions whose services
were illegally terminated by the respondent without even
complying with the mandatory prerequisites provided for
in Sec.25F of Industrial Disputes Act, 1947, are entitled for
reinstatement into service with all back wages and other
attendant benefits, in the light of the mandate given in
various well established legal principles laid down by the
Hon'ble the Apex Court.
This point is answered accordingly.
29. Result:
In the result, the Petitions are allowed and the schedules
in all these industrial disputes are answered as follows:—
The action of the management of Airports Authority of
India. Hyderabad in terminating the services of the workmen
in I.D. Nos. 1/2005, 2/2005, 8/2005, 38/2004 and 40/2004, Ex.
Sweepers, is neither legal nor justified and therefore the
same is hereby set aside. All these workmen shall be
reinstated into services of the Respondent as Sweepers
forthwith. They all are entitled for back wages from their
respective date of termination i.e., 18.5.2002/18.9.2002 till
the date of their respective reinstatement into service and
also all other attendant benefits. All the arrears of back
wages shall be paid to these workmen by the Respondent
forth with.
Award passed accordingly. Transmit.
Typed to my dictation by Smt P. Phani Gowri, Personal
Assistant
corrected by me on this the 13th day of
September, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence in all the 5 cases mentioned in
cause title
Witnesses examined for the
Witnesses examined for the
Petitioners/workmen
Respondent
WW1: Sri G. A. Rudrappa
MWI: NIL
Documents marked for the Petitioners/workmen
Ex.W1:
Photostat copy of certificate of registration of
Trade union and constitution dt.27.2.1990
Ex.W2:
Photostat copy of espousal resolution
dt.16.12.2003
Ex.W3:
Photostat copy of office note of the Respondent
dt. 1.5.2001
Ex.W4:
Photostat copy of orders in WP 24460/98
dt.1.8.2000
Ex.W5:
Photostat copy of orders in WA 865, 866 & 1011/
2000 dt.18.4.2002
Ex.W6:
Photostat copy of application to conciliation
officer dt.17.5.2002
Ex.W7:
Photostat copy of report of conciliation officer
dt.9.9.2002
Ex.W8:
Photostat copy of orders in WP No.6544/2003
dt. 17.7.2003
Ex.W9:
Photostat copy of order of reference of G.O.I,
dt.12.12.2003
Ex.W10:
Photostat copy of CLC(C) instruction No.1/1998
dt.1.7.1998
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
821
Ex.W11:
Photostat copy of representation of the union
to the management dt.16.12.2002
Ex.W12:
Photostat copies of bunch of identity cards
issued the workmen
Ex.W13:
Photostat copy of statement showing details of
workers engaged as sweepers in Airports
Authority of India with contractors
Ex.W14:
Photostat copy of charter of demands submitted
by Petitioner union to the Respondent.
Ex.W15:
Photostat copy of Memorandum of Settlement
dt.19.2.97
Ex.W16:
Photostat copy of letter Lr.No.A-60011/1/97 PP
addressed by the management to the G.S.
dt.28.4.1997
Ex.W17:
Photostat copy of representation dt.13.3.97 to
the chairman of Respondent organization, for
regularization of these workmen
Ex.W18:
Photostat copy of representation dt.27.5.97 to
the chairman of Respondent organization, for
regularization of these workmen and payment
of salary on the principle of equal pay for equal
work
Ex.W19:
Photostat copy of representation to the chairman
of Respondent organization, with request not
to violate CL(R&A) Act
Ex.W20:
Photostat copy of list of workmen in this case
and the names of contractors with wages paid,
submitted before Hon'ble High Court in WP
No.24460/98
Ex.W21:
Photostat copy of plaper clipping of National
Daily dated 3.3.1999
Ex.W22:
Photostat copy of petition dt.16.3.2000 u/s 2(k)
of ID Act before Regional Labour
Commissioner(C)
Ex.W23:
Photostat copy of office memo dt.20.4.2000 of
Ministry of Labour and Employment along with
enclosures.
Ex.W24:
Photostat copy of Lr. dt.7.7.2000 to Regional
Labour Commissioner(C) by Petitioner union
Ex.W25:
Photostat copy of Lr. dt.30.11.2000 from 0/o
Regional Labour Commissioner(C) to the
Respondent
Ex.W26:
Photostat copy of charter of demands submitted
to AAI management by the union dt.7.2.2000
Ex.W27:
Photostat copy of grievance submitted to Airport
Director dt. 25.6.2000 by Petitioner union
Ex.W28:
Photostat copy of Lr. from Respondent to the
Petitioner union
Ex.W29:
Photostat copy of Lr. from Petitioner union to
the Ministry of Labour and Employment.
Ex.W30:
Photostat copy of letter of the Petitioner union
to the ALC© dt.27.6.2003
Ex.W31:
Photostat copy of representation dt.29.7.2003
addressed to the National Commissioner for S.C.
& ST by the Petitioner union
Ex.W32:
Photostat copy of Lr. addressed by the Ministry
of Labour and Employment to all the members
of Central Advisory Contract Labour Board,
recommending abolition of contract labour
system in the Respondent organization.
Documents marked for the Respondent
NIL
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New Delhi, the 8th January, 2014
S.O. 302.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 30/2004 wherein other
75 disputes are clubbed i.e. total 76 disputes) of the Central
Government Industrial Tribunal/Labour Court, Hyderabad
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
Airport Authority of India, Hyderabad and their workman,
which was received by the Central Government on
6/1/2014.
[No. L-11011/27 to 36, 41 to 50, 53 to 58/2003-IR(M),
No. L-11011/1 to 9,11,13 to 16,20 to 32,34,36 to
49,61,62,64 to 66,67,69 &78/2004-IR(M)]
JOHAN TOPNO, Under Secy.
822
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
Present :
SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 13th day of September, 2013
INDUSTRIAL DISPUTEs Nos.
1/2004,
2/2004, 3/2004, 4/2004, 5/2004,6/004, 7/2004, 8/2004,
9/2004, 10/2004, 11/2004, 12/2004, 13/2004,
14/2004, 15/2004, 16/2004, 17/2004, 18/2004, 19/2004, 20/
2004, 30/2004, 31/2004, 32/2004, 33/2004, 34/2004, 35/2004,
36/2004, 37/2004, 39/2004, 41/2004, 42/2004, 43/2004,
44/2004, 45/2004, 46/2004, 47/2004, 48/2004, 49/2004,
50/2004, 51/2004, 81/2004, 82/2004, 83/2004, 86/2004,
87/2004, 88/2004, 89/2004, 103/2004, 104/2004, 105/2004,
106/2004, 107/2004, 108/2004, 109/2004, 117/2004, 118/2004,
119/2004, 120/2004, 121/2004, 122/2004, 123/2004, 143/2004,
144/2004, 145/2004, 146/2004, 147/2004, 148/2004, 149/2004,
25/2005, 26/2005, 27/2005,28/2005, 29/2005,30/2005, 31/2005,
32/2005
Between:
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad—500016
....Respondent
APPEARANCES :
For the Petitioner(s) Union: M/s. Ch. Indrasena Reddy &
For the Respondent:
D. Vilas, Advocates
1.
M/s. M. Vijay Kumar & C.
Chandra
Mohan,
Advocates for ID Nos.
1-20/2004,
81-83/2004,
86-89/2004, 1 0 3 - 1 0 9 /
2004, 117-123/2004
2.
M/s. D. Hanumanth Rao,
S. Sobhan Reddy & B.
Shyam Raju, Advocates
for ID Nos. 30-37/2004,
39/2004, 41-51/2004, 143-
149/2004, 25-32/2005
COMMON AWARD
In pursuance of the claim made by the Petitioner Union,
the Indian Airports Kamgar Union represented by their
Joint General Secretary (herein after be referred to as
Petitioner union), the Government of India, Ministry of
Labour by its orders (table given below) referred seventy
six industrial disputes under Sec.10(1)(d) of the I.D. Act,
1947 requiring this forum to decide the same. The schedule
of all these references is one and same, which reads as
under:—
SCHEDULE
"Whether the action of the management of Airports
Authority of India, Hyderabad in terminating the
services of workmen, (name of the workman in each
reference is mentioned respectively in each schedule)
Ex-Sweepers w.e.f. 18.5.2002 /18.9.2002, is legal and
justified? If not, to what relief the workman is entitled?"
The details of workmen as per the respective schedules
pertaining to these seventy six industrial disputes
mentioned in cause title, are as under:—
Sl.
ID No.
Reference order
Name of the
Date of
No
No. & date
Workman
termination
S/Sri/Smt.
1.
1/2004
L-11011/27/2003-
A. Hari Babu
18.5.2002
IR(M)
dt.27.11.2003
2.
2/2004
L-11011/28/2003-
A. Radhika
18.5.2002
IR(M)
dt.27.11.2003
3.
3/2004
L-11011/29/2003-
Swarnalatha
18.5.2002
IR(M)
dt.27.11.2003
4.
4/2004
L-11011/30/2003-
M. Jyothi
18.5.2002
IR(M)
dt.27.11.2003
5.
5/2004
L-11011/31/2003-
M. Neelamma 18.5.2002
IR(M)
dt.27.11.2003
6.
6/2004
L-11011/32/2003-
G. Gurumurthy 18.5.2002
IR(M)
dt.27.11.2003
7.
7/2004
L-11011/33/2003-
G. Ramesh
18.5.2002
IR(M)
dt.27.11.2003
8.
8/2004
L-11011/34/2003-
K. Narender
18.5.2002
IR(M)
dt.27.11.2003
9.
9/2004
L-11011/35/2003-
N. Ramesh
18.5.2002
IR(M)
dt.27.11.2003
10.
10/2004
L-11011/36/2003-
G. Yadagiri
18.5.2002
IR(M)
dt.27.11.2003
11.
11/2004
L-11011/41/2003-
K. Padma
18.5.2002
IR(M)
dt.12.12.2003
12.
12/2004
L-11011/42/2003-
P. Revathi
18.5.2002
IR(M)
dt.12.12.2003
¹Hkkx II—[k.M 3(ii)º
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823
13.
13/2004
L-11011/43/2003-
K. Shoba
18.5.2002
IR(M)
dt.12.12.2003
14.
14/2004
L-11011/44/2003-
A. Chandrakala
18.5.2002
IR(M)
dt.12.12.2003
15.
15/2004
L-11011/45/2003-
Swaroopa Rani
18.5.2002
IR(M)
dt.12.12.2003
16.
16/2004
L-11011/46/2003-
D. Narasamma
18.5.2002
IR(M)
dt.12.12.2003
17.
17/2004
L-11011/47/2003-
A. Bhanulaxmi
18.5.2002
IR(M)
dt.12.12.2003
18.
18/2004
L-11011/48/2003-
S. Sumithra
18.5.2002
IR(M)
dt.12.12.2003
19.
19/2004
L-11011/49/2003-
K. Suguna
18.5.2002
IR(M)
dt.12.12.2003
20.
20/2004
L-11011/50/2003-
A. Pushpa
18.5.2002
IR(M)
dt.12.12.2003
21.
30/2004
L-11011/16/2004-
Nazeemunnisa
18.9.2002
IR(M)
dt.27.2.2004
22.
31/2004
L-11011/56/2003-
J. Vijaya
18.9.2002
IR(M)
dt.23.2.2004
23.
32/2004
L-11011/55/2003-
S. Vani
18.5.2002
IR(M)
dt.23.2.2004
24.
33/2004
L-11011/54/2003-
B. Chandrakala
18.5.2002
IR(M)
dt.23.2.2004
25.
34/2004
L-11011/53/2003-
S. Bharathibai
18.5.2002
IR(M)
dt.23.2.2004
26.
35/2004
L-11011/15/2004-
P.Bhoolaxmi
18.9.2002
IR(M)
dt.20.2.2004
27.
36/2004
L-11011/14/2004-
L. Venkatamma
18.9.2002
IR(M)
dt.27.2.2004
28.
37/2004
L-11011/13/2004-
U. Pentamma
18.9.2002
IR(M)
dt.27.2.2004
29.
39/2004
L-11011/11/2004-
P. Prakash
18.9.2002
IR(M)
dt.27.2.2004
30.
41/2004
L-11011/9/2004-
K. Yellaraju
18.9.2002
IR(M)
dt.27.2.2004
31.
42/2004
L-11011/8/2004-
G. Shaker
18.9.2002
IR(M)
dt.25.2.2004
32.
43/2004
L-11011/7/2004-
G. Chandrasekhar 18.9.2002
IR(M)
dt.25.2.2004
33.
44/2004
L-11011/6/2004-
D.A. Raju
18.9.2002
IR(M)
dt.25.2.2004
34.
45/2004
L-11011/5/2004-
D. Narasimha
18.9.2002
IR(M)
dt.25.2.2004
35.
46/2004
L-11011/4/2004-
S. Yellamma
18.9.2002
IR(M)
dt.25.2.2004
36.
47/2004
L-11011/3/2004-
M. Rajesh
18.9.2002
IR(M)
dt.25.2.2004
37.
48/2004
L-11011/2/2004-
M. Swamy
18.9.2002
IR(M)
dt.25.2.2004
38.
49/2004
L-11011/58/2003-
P.Yadamma
18.9.2002
IR(M)
dt.23.2.2004
39.
50/2004
L-11011/1/2004-
K. Laxmi
18.9.2002
IR(M)
dt.24.2.2004
40.
51/2004
L-11011/57/2003-
E Yadamma
18.9.2002
IR(M)
dt.23.2.2004
41.
81/2004
L-11011/21/2004-
G. Shanker
18.5.2002
IR(M)
dt.8.6.2004
42.
82/2004
L-11011/20/2004-
A. Sakkubai
18.5.2002
IR(M)
dt.8.6.2004
43.
83/2004
L-11011/32/2004-
K. Suguna
18.9.2002
IR(M)
dt.27.5.2004
44.
86/2004
L-11011/22/2004-
M. Suresh
18.5.2002
IR(M)
dt.9.6.2004
45.
87/2004
L-11011/23/2004-
K. Anjaiah
18.9.2002
IR(M)
dt.10.6.2004
46.
88/2004
L-11011/24/2004-
L. Madhu
18.5.2002
IR(M)
dt.9.6.2004
47.
89/2004
L-11011/25/2004-
A.M. Venkatesh 18.9.2002
IR(M)
dt.9.6.2004
48.
103/2004 L-11011/43/2004-
G. Ramesh
18.9.2002
IR(M)
dt.13.9.2004
49.
104/2004 L-11011/44/2004-
M. Lalitha
18.9.2002
IR(M)
dt.13.9.2004
50.
105/2004 L-11011/45/2004-
M. Ramesh
18.5.2002
IR(M)
dt.I3.9.2004
51.
106/2004 L-11011/46/2004-
K.Tirupathi
18.9.2002
IR(M)
dt.13.9.2004
52. 107/2004 L-11011/47/2004- K. Trupathi
18.9.2002
IR(M)
dt.13.9.2004
824
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
53. 108/2004 L-11011/48/2004- B. Gurucharnam
18.9.2002
IR(M)
dt.13.9.2004
54. 109/2004 L-11011/49/2004- P. Ravi
18.9.2002
IR(M)
dt.13.9.2004
55. 117/2004 L-11011/36/2004- Unnatasana
18.9.2002
IR(M)
dt.28.9.2004
56. 118/2004 L-11011/37/2004- Rehman Begum
18.5.2002
IR(M)
dt.28.9.2004
57. 119/2004 L-11011/38/2004- Mahaboobi
18.9.2002
IR(M)
dt.28.9.2004
58. 120/2004 L-11011/39/2004- Hemalatha
18.5.2002
IR(M)
dt.28.9.2004
59. 121/2004 L-11011/40/2004- K. Shashikala
18.5.2002
dt.28.9.2004
60. 122/2004 L-11011/41/2004- Andalamma
18.9.2002
IR(M)
dt.28.9.2004
61. 123/2004 L-11011/42/2004- K. Suresh
18.9.2002
IR(M)
dt.28.9.2004
62. 143/2004 L-11011/26/2004- P. Rajashree
18.5.2002
IR(M)
dt.27.5.2004
63. 144/2004 L-11011/27/2004- A. Durgabai
18.5.2002
IR(M)
dt.27.5.2004
64. 145/2004 L-11011/28/2004- M. Shyamala
18.9.2002
IR(M)
dt.27.5.2004
65. 146/2004 L-11011/29/2004- E. Padma
18.9.2002
IR(M)
dt.27.5.2004
66. 147/2004 L-11011/30/2004- M. Yadamma
18.9.2002
IR(M)
dt.27.5.2004
67. 148/2004 L-11011/31/2004- M. Nageswara
18.5.2002
IR(M)
Rao
dt.27.5.2004
68. 149/2004 L-11011/34/2004- M. Bhagyalaxmi 18.5.2002
IR(M)
dt.27.5.2004
69. 25/2005
L-11011/61/2004- M. Malesh
18.9.2002
IR(M)
dt.19.10.2004
70. 26/2005
L-11011/62/2004- P. Naresh
18.9.2002
IR(M)
dt.19.10.2004
71. 27/2005
L-11011/64/2004- K. Raju
18.5.2002
IR(M)
dt.19.10.2004
72. 28/2005
L-11011/65/2004- Yellubai
18.5.2002
IR(M)
dt.19.10.2004
73. 29/2005
L-11011/66/2004- N. Krishna
18.5.2002
IR(M)
Kumari
dt.19.10.2004
74. 30/2005
L-11011/67/2004- M. Kantha
18.9.2002
IR(M)
dt.19.10.2004
75. 31/2005
L-11011/69/2004- M. Ramaswamy
18.9.2002
IR(M)
0.19.10.2004
76. 32/2005
L-11011/78/2004- K. Swamy Raju
18.5.2002
IR(M)
dt.18.1.2005
On receipt of the references, this Tribunal has registered
and numbered the 76 references (mentioned above) as I.D.
Nos. 1/2004 to 20/2004, 30/2004 to 37/2004, 39/2004, 41/
2004 to 51/2004, 81/2004 to 83/2004, 86/2004 to 89/2004,
103/2004 to 109/2004, 117/2004 to 123/2004, 143/2004 to
149/2004, 25/2005 to 32/2005 and issued notices to the
management as well as to the workmen. For the workmen
represented by the Petitioner union in all the above
industrial disputes M/s. Ch. Indrasena Reddy & D. Vilas,
Advocates appeared as counsels and for the Respondent,
M/s. M. Vijay Kumar & C. Chandra Mohan, appeared as
counsels in ID Nos. 1-20/2004, 81-83/2004, 86-89/2004, 103-
109/2004, 117-123/2004 and M/s. D. Hanumanth Rao,
S. Sobhan Reddy & B. Shyam Raju, appeared as counsels
in ID Nos. 30-37/2004, 39/2004, 41-51/2004, 143- 149/2004,
25-32/2005.
2. The cause of action as well as facts pertaining to all
these seventy six industrial disputes are similar. Hence, by
virtue of the order dated 19.9.2005, this court has clubbed
all these disputes in ID No.30/2004 and further proceedings
from that date were taken up and recorded in ID No. 30/
2004. As such, a common award is being passed for all
these disputes.
3. The workmen in all these industrial disputes have
filed their respective claim statements with the averments
which are similar in all respects and which are in brief as
follows:—
Petitioner union is a Trade Union and is competent to
espouse the cause of the workmen working under the
Respondent. National Airports Authority Kamgar Union
was registered on 27.2.1990, its name was changed as
Airports Authority Kamgar Union consequent upon
Airports Authority of India Act, 1994 came into force.
Further, the Airports Authority Kamgar Union has now
changed as Indian Airports Kamgar Union with the approval
of the Registrar of Trade Unions vide letter No.10(4950)/
RTU/645 dated 30.4.2002. Airports Authority of India is a
statutory corporation under Airports Authority of India
Act, after merging International Airports Authority of India
and National Airports Authority of India w.e.f. 1.4.1995 and
the Airports Authority of India includes the establishments
of Airport Director, Hyderabad Airport, Begumpet,
Hyderabad. All the workmen in these cases are members of
the Petitioner union and authorized to present their case
before the conciliation officer. All the workmen have been
working as sweepers since November, 1996 under various
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825
contractors and by office note No.AAI/HY/AD/G.18/01
dated 1.5.2001 the Respondent has terminated the
contractors thereby the workmen have been working under
the direct control of Respondent on par with the regular
employees of Respondent. Workmen were performing
duties of permanent and perennial nature. Petitioner union
represented several times for regularization of these
workmen but in vain. Hence, WP No.24460/1998 was filed
which was allowed by the Hon'ble High Court of A.P., with
a direction to the Respondent to regularize the services of
the workmen within four weeks and further directed to pay
them arrears from 1.8.1998. Aggrieved by the order of Hon'ble
High Court, Respondent has filed WA No.1011/2000 before
Division Bench of High Court, who in turn set aside the
orders of Single Judge directing the Petitioner union to
approach the conciliation officer for regularization of their
services within 30 days, with a further direction to maintain
status-quo. In pursuance of the orders in writ appeal,
Petitioner union has espoused the cause of the workmen
before the Regional Labour Commissioner(C) on 17.5.2002
and they are pending. While so, all of a sudden the
Respondent has orally terminated the services of the
workmen w.e.f. 18.5.2002/18.9.2002 without assigning any
reason, in violation of principles of natural justice [the
respective dates of termination of services of various
workmen are incorporated in the table wherein the details
of workmen are given in that statement]. Questioning the
oral termination Petitioner union filed WP No.9639 of 2002
and it is pending before the Hon'ble High Court. It is
submitted that during pendency of the said writ petition,
the conciliation officer has returned the application of
Petitioner union vide order dated 9.9.2002. Then, Petitioner
union again moved the Hon'ble High Court of A.P.,
Hyderabad by filing another WP No.6544/2003 questioning
the order dated 9.9.2002 of the conciliation officer and it
was allowed setting aside the orders dated 9.9.2002 and
directing the conciliation officer to take necessary steps
for reference of the dispute raised by the Petitioner union
vide order dated 17.6.2003. In pursuance of the orders dated
17.6.2003, conciliation officer admitted the matter into
conciliation, since the Respondent has not settled the
matter before the conciliation officer, he has sent a failure
report to the government hence, these references. With
effect from 1.5.2001, the workmen have worked under the
direct control of the Respondent on par with the regular
employees consequent to the office note dated 1.5.2001
terminating the contractors. All these workmen have
continuously worked for more than 5 years in a permanent
vacancy, having worked for more than 240 days in a calendar
year and they are entitled for regularization. As per the
provisions of Industrial Employment (Standing Orders)
Act, 1946, workmen have to be regularized after successful
completion of 90 days of service. Petitioner union submits
that instead of regularizing the services of the workmen
the Respondent has terminated the services of the workmen
orally from 18.5.2002/18.9.2002 without following the
provisions of Industrial Disputes Act, 1947 as such, the
action taken by the Respondent against these workmen is
illegal, unjust, contrary to law, contrary to the provisions
of Industrial Disputes Act, 1947 in violation of principles
of natural justice.
4. The Respondent in all these industrial disputes who
is one and the same management, filed their counters in all
these ten industrial disputes with one and the same
averments which are in brief as follows:—
These references are not maintainable and are liable to
be dismissed with exemplary costs as there is no locus
standi to the workmen to raise these disputes. These
references are illegal. There is suppression of true facts
and abuse of process of court. There is non-joinder of
proper parties. The claim is speculative in nature. The
workmen never worked with the Respondent. The Petitioner
union is not a recognized union. The workmen could never
be the members of the said union. There are contradictions
between the pleadings of the workmen in WP No.24660/
1998 and that in the present disputes. Contractor who
engaged the services of the workmen is not made party to
these disputes. Respondent entrusted the upkeep and
maintenance of the Airport to the contractors and it is the
look out of the contractor to engage labourers depending
upon the intensity of the aircraft operations and passenger
movement. The work will be supervised by the officers of
the Respondent. There were no muster rolls maintained for
the contract labour. The attendance register if any would
be maintained by the contractors. The duty officers of the
airport terminal have to check the work force engaged by
the contractor to the required level of man power. The
workmen were never under the direct control of the
Respondent. The changing scenario of adopting advanced
technologies and using machinery in regulating the work
by using sophisticated equipments will not plea give raise
to that supply is a permanent feature of the employment in
the airport. There is no relationship of employer and
employee between the Respondent and the workmen, at
any point of time, therefore, question of termination of
services of the workmen does not arise. Any service
rendered under a judicial order does not of itself invest a
right within the workmen enabling the union to champion
their cause. There is no industrial dispute what so ever
that could be raised against the Respondent investing
jurisdiction within this Tribunal. There is no meeting held
by Petitioner union passing resolution authorizing the
Petitioner to espouse the cause of the workmen before the
conciliation officer. Even if there is no such resolution,
there is no resolution to espouse the cause of the workmen
before this Tribunal. Petitioner workmen are to be put to
strict proof that the workmen worked for the Respondent
under various contractors from 1997 and upto 1.5.2001 and
thereafter directly under the Respondent on par with regular
employees, as these are all incorrect contentions. The
workmen were provided with work by virtue of the order in
826
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
WP No.24460/1998 which were extinguished by virtue of
direction in WA 1011/2000. The references are liable to be,
dismissed in view of the pendency of the WP No.9639/
2002. The contention of the Petitioner union that the
workmen herein come under the definition of workman
under Sec.2(s) and 2 (j) of the Industrial Disputes Act, 1947
and that they are entitled for notice, notice pay, retrenchment
compensation and also assignment of reasons of
termination are all incorrect. The other contention that
Respondent employed some other contract labour in the
places of the present workmen and therefore, the action of
the Respondent is arbitrary, colourable exercise of power
and amounts to unfair labour practice is all incorrect. By
efflux of time contract came to an end and thereafter fresh
contracts were awarded. Petitions are liable to be dismissed
with exemplary costs.
5. By virtue of order dated 19.9.2005, it is held that,
considering the fact that I.D. Nos. 1/2004 to 20/2004,
30/2004 to 37/2004, 39/2004, 40/2004 to 51/2004, 81/2004 to
83/2004, 86/2004 to 89/2004, 103/2004 to 109/2004, 117/2004
to 123/2004, 143/2004 to 149/2004, 25/2005 to 32/2005 are all
similar in nature and the evidence is common for all these
disputes and therefore, it is convenient to club these
seventy six industrial disputes with I.D. No. 30/2004 and
common evidence is to be recorded in I.D. No. 30/2004.
6. Accordingly, Common evidence for all these cases
has been recorded in I.D. No. 30/2004.
7. To substantiate the contentions of the workmen, WW1
was examined and Exhibits W1 to W32 were marked. No
evidence is adduced for the Respondent. But in a batch of
other industrial disputes which pertain to the workmen
who are similarly placed with the workmen herein, and in
which Respondent is no other than the present Respondent
[ i.e., ID Nos. 93/2003 to 102/2003] Sri VLN Sastry, Asst.
General Manager, Civil, of the Respondent has been
examined as MW1. The facts and circumstances of both
batches of cases are one and the same. Further, these
matters are being taken up for disposal simultaneously.
Therefore, in the interest of the cause of both parties, the
said evidence will be taken notice of while deciding this
batch of matters also as it is applicable to the facts of the
present batch of cases also. By this no prejudice will be
caused to either of the parties. On the other hand it is
helpful to the stand of the Respondent can be taken into
consideration.
8. Heard the arguments of either party.
9. The points that arise for determination are:—
I. Whether there is relationship of employee and
employer between the workmen and the
Respondent?
II. Whether Respondent terminated the services of
the workmen with effect from. 18.9.2002? If so,
whether the said action on the part of the
Respondent is justified?
III. To what relief the workmen are entitled to?
10. Point No.1:
The question whether there is relationship of employee
and employer between the workmen and the respondent in
these cases is a question of fact. In the case of Workmen of
Nilgiri Coop. Mkt. Society Ltd., Vs. State of Tamilnadu and
Others [(2004) 3 SCC 514], wherein it is held that the question
whether workers are employees of principle employer or of
contractor is a pure question of fact.
11. Therefore, from the facts gathered on record in these
cases it is to be verified whether there is relationship of
employee and employer between the workmen and the
respondent.
12. It is an admitted fact that workmen herein have been
contract labourers and worked for the respondent under
various contractors upto 1.5.2001, the date on which
respondent has terminated the contractors, by office note
No. AA1/HY/AD/G. 18/01. It is the contention of the
Petitioner that there after workmen continued to work for
the respondent directly under the control and supervision
of the respondent officials, receiving payment from the
respondent directly and therefore, there is employee and
employer relationship between the workmen herein and
the Respondent. Whereas, respondent, who is admitting
that workmen have been working for the respondent even
after 1.5.2001 and until 18.5.2002/18.9.2002 is claiming that
since the workmen's services were taken during that time
by continuing them in service by virtue of court's orders, it
can not be said that workmen have been in direct
employment with the respondent or that there has been
employee and employer relationship between workmen and
respondent.
13. Now, it is to be verified whether workmen have been
continued in service by virtue of any court order which
was set aside later and if so, what is its effect? In this
context it is to be noted that if there is no material on record
to show that workmen have been continued in service with
the respondent by virtue of any court order and as per the
directions of the court which were set aside later, it is to be
taken that Petitioner has been under the direct employment
of the respondent during this period.
14. Sri VLN Sastry, Asst. Manager, Civil of the
Respondent organization who has been examined as MW1
in ID Nos. 93/2003-102/2003 batch has admitted that while
he was under cross examination that from 1.5.2001 the
contract system was terminated by the respondent, but he
denied the truth of the suggestion put to him that since
then all the workmen in these cases worked with the
respondent directly and claimed that they worked under
contractor only from 1.5.2001 to 18.5.2002/18.9.2002. He
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827
claimed that there is record to show the identity of the
contractor under whom the workmen have worked for the
period from 1.5.2001. to 18.5.2002/18.9.2002 and he can
produce the same before the court. But no such record has
been produced before the court. On the other hand the fact
remains that it is not the pleading of the respondent that
during this period also the workmen• have worked under
any contractor. Their claim has been that by virtue of some
court order the workmen were continued in service during
the said period. But, respondent has not produced any
document to show that the services of the workmen were
continued by virtue of any court order.
15. Whereas, while WW1 was under cross examination
for the Management, it is elicited from him that on abolition
of Contractor system the workers were continued and they
worked under the respondent from 1.5.2001 as per Ex.W3.
16. Ex.W3 is office note dated 1.5.2001 pertaining to the
respondent. The subject therein is "Upkeep and
maintenance of NTR and RG terminal at Hyderabad Airport."
This document reads that "After the expiry of AMC
contract, the upkeep and maintenance of both the terminals
is being undertaken departmentally with effect from
1.5.2001. For this purpose, Sri Adarsh Kumar, Senior
Manager (C) will be looking after the maintenance part
New Delhi he will depute suitable engg. Officials for
supervision and execution of engg. Works. Shri Sultan
Moinuddin Manager (T) will be looking after the cleanliness
and upkeep of the building. Thus, ATMs on duty in
respective terminals assisted by HKS will depute the
workers on the job of upkeep and cleanliness and they will
supervise their work. Shri VVK Murthy Asst. The General
Manager (Stores) will make arrangements for supply of
stores as required for the above work through SM(C)-II. In
this connection, Shri R.P. Singh AGM(ATC) is appointed
as the overall in charge to look after the arrangements for
the above work in both the terminals. Shri Adarsh Kumar,
SM(C)-II, Shri Sultan Moinuddin, Manager (T) and Shri
VVK Murthy, Asst. The General Manager (Stores) may
coordinate with Shri R.P. Singh for any matter related to the
above job."
17. The above referred contents of Ex.W3 are not giving
out any information that by virtue of any direction from
any court the services of the workmen in these cases were
utilized by the respondent. On the other hand from this
document what one can understand is that after abolition
of the contractor system for upkeep and maintenance of
NTR and RG terminal of Hyderabad Airport, respondent
made arrangement for the said work by entrusting
supervision of the work of the ATMs and workers who
were on the job of upkeep and cleanliness, to various
officials of this organization. Therefore, it can clearly be
seen from Ex.W3 that respondents has directly taken up
the work of upkeeping and maintenance of the NTR & RG
Terminal at Hyderabad Airport and under their direct
supervision the various workmen engaged for upkeep and
maintenance of this place have worked. As already
observed above, it is the very contention of the respondent,
as can be seen from the facts elicited by them while WW1
was' under cross examination, that the workmen herein
worked under respondent from 1.5.2001 as per Ex.W3.
Therefore, it can safely be held that the workmen in all
these cases have worked directly for and under the
supervision of the respondent from 1.5.2001 till the date of
the termination of their services i.e., 18.5.2002/18.9.2002
and further that their being continued in service
subsequent to 1.5.2001 was not in pursuance of any court
directions.
18. For coming to the above conclusion, the basis is, as
already observed above, Ex.W3, the proceeding in
pursuance of which, evidently the various workmen in
these cases were continued in service even subsequent to
1.5.2001, does not reflect that in pursuance of any court
order the workmen were continued in service. Further, there
is no document made available on record to prove that the
workmen have been continued in pursuance of any court
order.
19. One another aspect to be noted is that, while WW1
was under cross examination, on one hand, it has been
elicited from them that the workers were continued under
the respondent from 1.5.2001 as per Ex.W3, on the other
hand, it is suggested to him that workers never worked
under the respondent from 1.5.2001 and that there is no
relationship of worker and employer, which is denied by
WW1. This shows, that the respondent is blowing hot and
cold by taking contradictory claims before the court to
wriggle out of the obligations arose under the provisions
of Industrial Disputes Act, 1947. But the fact established
through the evidence on record is that subsequent to
1.5.2001, the date on which respondent abolished the
contractor system, they continued to take the services of
the various workmen who were working under the
contractor till that date, for maintenance and upkeeping of
the airport premises, by directly supervising their work, as
specified in Ex.W3.
20. The contention of the Respondent that subsequent
to 1.5.2001 the cleaning work was entrusted to some other
contractors is totally contradicted to the context of Ex.W3.
Further, no evidence is adduced on record by the
Respondent to show that any contractors were engaged
to attend to the cleaning work subsequent to 1.5.2001.
Therefore, the said contention can not be accepted as true
and correct contention.
21. Respondent is making a reference to court order as
the reason for continuing the various workmen in service
subsequent to 1.5.2001. The details of the said court order
are not revealed any where in the counter. For the first time
while WW1 was under cross examination it is put to him
that in view of the status quo order given by the Hon'ble
High Court of A.P., in Writ appeal, respondent only paid
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THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
wages without extracting work which is denied by WW1.
From this suggestion what one has to understand is that it
is the contention of the respondent that by virtue of the
status quo order made by the Hon'ble High Court of A.P.,
in the judgement made in writ appeal the various workmen
were continued in service. The said status quo order can
be seen in Ex.W5, the copy of judgment in WA Nos. 865,
866 sand 1011 of 2000 dated 18.4.2002 whereas the workmen
herein continued in services of the Respondent even after
abolition of Contractor system from 1.5.2001. In this
judgment status quo was ordered to be maintained for one
month form the date of said judgment. Evidently on the
very date of expiry of said period i.e., on 18.5.2002/18.9.2002
services of all the workmen were terminated. There is no
other previous order prescribing or directing the
respondent to maintain status quo, regarding continuation
of the workmen in service with effect from 1.5.2001.
22. In view of the fore gone discussion of the material
on record, it can safely be held that, the material on record
clearly discloses that respondent engaged the services of
the various workmen in these cases directly, under the
direct supervision of their officials since 1.5.2001 and
therefore there is relationship of employee and employer
between the Petitioner and the respondent since 1.5.2001
as correctly contended by the Petitioner.
This point is answered accordingly.
23. Point No. 2:
It is an admitted fact that respondent terminated the
services of the various workmen in these cases with effect
from 18.5.2002/18.9.2002. As already observed above, after
Ex.W5 judgement was rendered by Hon'ble High Court of
A.P., in WA Nos. 865, 866 & 1011/2001, in compliance of
the direction there in i.e., to maintain status quo for one
month respondent continued the various workmen in
service for one month and terminated their services on
18.5.2002/18.9.2002. Now, it is to be verified whether the
said termination of services is legal, valid and justified.
24. As already concluded above, while deciding point
No.1, there has been employee and employer relationship
between the various workmen and the respondent. The
workmen worked for the respondent directly and under
their supervision from 1.5.2001 till 18.5.2002/18.9.2002 i.e.,
for more than 240 days. In such case, if there is termination
of service the same shall be in compliance of mandatory
pre-requisites provided under Sec.25-F of Industrial
Disputes Act, 1947. Sec.25-F of Industrial Disputes Act,
1947 reads as follows:—
"25-F: Conditions precedent to retrenchment of
workmen:— No workman employed in any industry who
has been in continuous service for not less than one
year under an employer shall be retrenched by that
employer until:—
(a) the workman has been given one month's notice
in writing indicating the reasons for retrenchment
and the period of notice has expired, or the
workman has been paid in lieu of such notice,
wages for the period of the notice.
(b) The workman has been paid, at the time of
retrenchment compensation which shall be
equivalent to fifteen days' average pay [for every
completed year of continuous service] or any part
thereof in excess of six months; and
(c) Notice in the prescribed manner is served on the
appropriate Government [or such authority as may
be specified by the appropriate Government by
Notification in the Official Gazette]."
25. Therefore, the workmen in these cases who worked
for more than one year for the respondent i.e., from 1.5.2001
till 18.5.2002/18.9.2002 can not be retrenched until they have
been given one month's notice in writing indicating the
reasons for retrenchment and only after expiry of the period
of notice or otherwise by making payment of wages in lieu
of such notice, for the period of notice. Further more, the
workmen have to be paid retrenchment compensation as
mentioned in Sec.25F (b) and also there shall be compliance
of Sec. 25F(c). unless there is compliance of all the above
mentioned mandatory pre-requisites the retrenchment of
the workmen is to be held as null, void, illegal and
inoperative and such termination of service of the workmen
without complying the mandatory provisions contained
under Sec.25F (a) and (b) should ordinarily result in their
reinstatement as per the well established legal principles
laid down by Hon'ble Apex Court.
26. In view of the fore gone discussion, it can safely be
held that the termination of the various workmen in these
cases from service by the respondent without complying
the mandatory pre-requisites provided under Sec.25F of
the Industrial Disputes Act, 1947 makes the said termination
as illegal, unjust and invalid.
27. Learned Counsel for the respondent relied upon the
principles laid down in the cases of Steel Authority of India
Limited and another Vs. State of West Bengal and others
[(2008) 14 SCC 589], but the principles laid down in this
case are not helpful to the facts of the present case since,
it is nobody's case that the dispute in this case became
stale for any reason. Learned Counsel for the respondent
further relied upon the principle laid down in the case of
Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd., and
another [(1979) 3 SCC 371], but the facts and circumstances
cited in this case are totally different from that of the present
case. The termination of services in the present case is not
punitive in nature and there was no scope for domestic
enquiry in the present cases unlike the cited case. Therefore,
the various principles laid down in the cited case are not
applicable to the facts of the present case.
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829
28. As can be seen from the material on record, in Ex.W5,
the judgement of the Hon'ble High Court of A.P., the various
workmen and their union are at liberty to seek appropriate
relief before the appropriate industrial courts in terms of
the judgement of constitutional bench in Steel Authority
of India's case. The workmen have approached the Regional
Labour Commissioner(C) for espousing the cause of the
various workmen by raising individual industrial disputes
through Ex.W6 the application made by the workmen to
the Conciliation Officer. Regional Labour Commissioner(C)
invoking Sec.2K of the Industrial Disputes Act, 1947 dated
17.5.2002. In respect of most of the workmen, from the very
next date i.e., on 18.5.2002 their services were terminated
by the respondent. Thus, it can clearly be seen that without
even giving sufficient opportunity to the workmen to have
their remedy and further without complying the mandatory
prerequisites of Sec.25 F of the Industrial Disputes Act,
1947 respondent has terminated the services of the various
workmen which is neither proper, nor justified nor legal.
This point is answered accordingly.
29. Point No. 3:
In view of the findings given in points No.1 and 2 above,
the various workmen in these petitions whose services
were illegally terminated by the respondent without even
complying with the mandatory prerequisites provided for
in Sec.25F of Industrial Disputes Act, 1947, are entitled for
reinstatement into service with all back wages and other
attendant benefits, in the light of the mandate given in
various well established legal principles laid down by the
Hon'ble the apex court.
This point is answered accordingly.
30. Result:
In the result, the Petitions are allowed and the schedules
in all these industrial disputes are answered as follows:—
The action of the management of Airports Authority of
India, Hyderabad in terminating the services of the workmen
in I I.D. Nos.1/2004 to 20/2004, 30/2004 to 37/2004, 39/2004,
41/2004 to 51/2004, 81/2004 to 83/2004, 86/2004 to 89/2004,
103/2004 to 109/2004, 117/2004 to 123/2004, 143/2004 to
149/2004, 25/2005 to 32/2005, Ex. Sweepers, is neither legal
nor justified and therefore the same is hereby set aside. All
these workmen shall be reinstated into services of the
Respondent as Sweepers forthwith. They all are entitled
for back wages from their respective date of termination
i.e., 18.5.2002/18.9.2002 [as mentioned in the table supra]
till the date of their respective reinstatement into service
and also all other attendant benefits. All the arrears of back
wages shall be paid to these workmen by the Respondent
forth with.
Award passed accordingly Transmit.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence in all the 76 cases mentioned in
cause title
Witnesses examined for the
Witnesses examined for the
Petitioners/workmen
Respondent
WW1: Sri G. A. Rudrappa
MW1: NIL
Documents marked for the Petitioner Union/workmen
Ex.W 1:
Photostat copy of certificate of registration of
Trade union and constitution dt.27.2.1990
Ex.W 2:
Photostat copy of espousal resolution
dt.16.12.2003
Ex.W 3:
Photostat copy of office note of the Respondent
dt. 1.5.2001
Ex.W 4:
Photostat copy of orders in WP 24460/98
dt.1.8.2000
Ex.W 5:
Photostat copy of orders in WA 865, 866 & 1011/
2000 dt.18.4.2002
Ex.W 6:
Photostat copy of application to conciliation
officer dt. 17.5.2002
Ex.W 7:
Photostat copy of report of conciliation officer
dt.9.9.2002
Ex.W 8:
Photostat copy of orders in WP No.6544/2003
dt. 17.7.2003
Ex.W 9:
Photostat copy of order of reference of G.O.I, dt.
12.12.2003
Ex.W 10: Photostat copy of CLC(C) instruction No.1/1998
dt.1.7.1998
Ex.W 11: Photostat copy of representation of the union
to the management dt.16.12.2002
Ex.W 12: Photostat copies of bunch of identity cards
issued the workmen
Ex.W 13: Photostat copy of statement showing details of
workers engaged as sweepers in Airports
Authority of India with contractors
Ex.W 14: Photostat copy of charter of demands submitted
by Petitioner union to the Respondent
Ex.W 15: Photostat copy of Memorandum of Settlement
dt.19.2.97
Ex.W 16: Photostat copy of lr. dt. 28.4.97 from management
to the Petitioner union
Ex.W 17: Photostat copy of representation to the Hon'ble
Minister of Tourism
Ex.W 18: Photostat copy of representation dt.27.5.97 to
the chairman of Respondent organization, for
regularization of these workmen and payment
830
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
of salary on the principle of equal pay for equal
work
Ex.W 19: Photostat copy of representation to the chairman
of Respondent organization, with request not
to violate CL(R&A) Act
Ex.W 20: Photostat copy of list of workmen in this case
and the names of contractors with wags paid,
submitted before Hon'ble High Court in WP
No.24460/98
Ex.W 21: Photostat copy of paper clipping of national
daily dt.3.3.1999
Ex.W 22: Photostat copy of petition dt.16.3.2000 u/s 2(k)
of ID Act before Regional Labour
Commissioner(C)
Ex.W 23: Photostat copy of office memo dt.20.4.2000 of
Ministry of Labour and Employment along with
enclosures.
Ex.W 24: Photostat copy of representation to ALC(C) by
Petitioner union dt.Nil.
Ex.W 25: Photostat copy of Ir. dt.30.11.2000 from 0/o
Regional Provident Commissioner's office
Ex.W 26: Photostat copy of charter of demands submitted
to AAI management by the union dt 7 2.2000
Ex.W 27: Photostat copy of grievance submitted to Airport
Director dt. 25.6.2001 by Petitioner union
Ex.W 28: Photostat copy of Ir. from Petitioner union
N.AAI/N AD/HYD/GN-10/ENGG(C)/348/5346/48
dt.18/19.4.2001
Ex.W 29: Photostat copy of Ir. from Petitioner union to
the Ministry of Labour and Employment.
Ex.W 30: Photostat copy of letter of the Petitioner union
to the ALC(C) dt. 27.6.2003
Ex.W 31: Photostat copy of representation dt.29.7.2003
addressed to the National Commissioner for S.C.
& ST by the Petitioner union
Ex.W 32: Photostat copy of Ir. addressed by the Ministry
of Labour and Employment to all the members
of Central Advisory Contract Labour Board,
recommending abolition of contract labour
system in the Respondent organization.
Documents marked for the Respondent
NIL
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New Delhi, the 8th January, 2014
S.O. 303.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. Nos. 93, 94, 95, 96, 97, 98,
99, 100, 101 and 102 of 2003) of the Central Government
Industrial Tribunal/Labour Court, Hyderabad now as shown
in the Annexure in the Industrial Dispute between the
employers in relation to the management of Airport
Authority of India, Hyderabad and their workman, which
was received by the Central Government on 6.1.2014.
[No. L-11011/16, 17, 18, 19, 20, 21,
22, 23, 24 & 25 /2003-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present:
SMT. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 13th day of September, 2013
INDUSTRIAL DISPUTEs No.
93/2003, 94/2003, 95/2003, 96/2003, 97/2003,
98/2003, 99/2003, 100/2003, 101/2003 and 102/2003
Between:
1. ID No.93/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NA D, Begumpet,
Hyderabad
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad — 500016
....Respondent
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
831
2. ID No.94/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AA1,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
3. ID No.95/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad — 500016.
....Respondent
4. ID No.96/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
....Respondent
5. ID No.97/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s) Union
AND
The Director,
Airports Authority of India, Begumpet,
Hyderabad —500016.
....Respondent
6. ID No.98/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
....Respondent
7. ID No. 99/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
....Respondent
8. ID No.100/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
....Respondent
9. ID No.101/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
....Respondent
10. ID No.102/2003
The Jt. General Secretary
Indian Airports Kamgar Union, C/o AAI,
NAD, Begumpet,
Hyderabad.
....Petitioner(s)/Union
AND
The Director,
Airports Authority of India,
Begumpet,
Hyderabad —500016.
....Respondent
Appearances:
For the Petitioner(s) Union:
M/s. Ch. Indrasena Reddy
& D. Vilas, Advocates
For the Respondent:
M/s. A.K. Jaya Prakash Rao,
K. Srinivas Rao, P. Sudha,
T. Bal Reddy, M. Govind &
K. Ajay Kumar, Advocates
COMMON AWARD
In pursuance of the claim made by the Petitioner Union,
the Indian Airports Kamgar Union represented by their
date 6.11.2003 referred ten industrial disputes and Joint
832
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
General Secretary (herein after be referred to as Petitioner
union) the Government of India, Ministry of Labour by its
Orders No. L-11011/16/2003-IR(M) to L-11011/25/2003-
IR(M) dateer section 10(1)(d) of the I.D. Act, 1947 requiring
this forum to decide the same. The schedule of all these
references is one and same, which reads as under:—
SCHEDULE
"Whether the action of the management of Airports
Authority of India, Hyderabad in terminating the
services of workmen, (name of the workman in each
reference is mentioned respectively in each schedule)
Ex-Sweepers w.e.f. 18.5.2002, is legal and justified? If
not, to what relief the workman is entitled?"
The details of workmen as per the respective schedules
pertaining to these ten industrial disputes mentioned in
cause title, are as under:—
Sl.
ID No.
Reference order
Name of the
Date of
No.
No. & date
Workman
termination
S/Sri/Smt.
1.
93/2003
L-11011/16/2003-
M. Mallaiah
18.5.2002
IR(M) dt.6.11.2003
2.
94/2003
L-11011/17/2003-
G. Sadanand
18.5.2002
IR(M) dt.6.11.2003
3.
95/2003
L-11011/18/2003-
B. Chandraiah
18.5.2002
IR(M) dt.6.11.2003
4.
96/2003
L-11011/19/2003-
P. Narender
18.5.2002
IR(M) dt.6.11.2003
5.
97/2003
L-11011/20/2003-
G. Gattamma
18.5.2002
IR(M) dt.6.11.2003
6.
98/2003
L-11011/21/2003-
G. Padmavathi
18.5.2002
IR(M) dt.6.11.2003
7.
99/2003
L-11011/22/2003-
P. Narsing Rao
18.5.2002
IR(M) dt.6.11.2003
8.
100/2003 L-11011/23/2003-
M. Yellaiah
18.5.2002
IR(M) dt.6.11.2003
9.
101/2003 L-11011/24/2003-
G.N. Yadagiri
18.5.2002
IR(M) dt.6.11.2003
10. 102/2003 L-11011/25/2003-
T.
18.5.2002
IR(M) dt.6.11.2003
Subbaratnamma
On receipt of the references this Tribunal has registered
and numbered the references (mentioned above in cause
title) as I.D. Nos.93, 94, 95, 96, 97, 98, 99, 100, 101 and 102 of
2003 and issued notices to the management as well as to
the workmen. For the workmen represented by the
Petitioner union in all the above industrial disputes M/s.
Ch. Indrasena Reddy & D. Vilas, Advocates appeared as
counsels and for the Respondent M/s. A.K. Jaya Prakash
Rao, K. Srinivas Rao, P. Sudha, T. Bal Reddy, M. Govind &
K. Ajay Kumar, Advocates appeared as counsels.
2. The cause of action as well as facts pertaining to all
these ten industrial disputes are similar. Hence, by virtue
of the order dated 15.9.2005, this court has clubbed all
these disputes in ID No.93/2003 and further proceedings
from that date were taken up and recorded in ID No.93/
2003. As such, a common award is being passed for all
these disputes.
3. The workmen in all these industrial disputes have
filed their respective claim statements with the averments
which are similar in all respects and which are in brief as
follows:—
Petitioner union is a Trade Union and is competent to
espouse the cause of the workmen working under the
Respondent. National Airports Authority Kamgar Union
was registered on 27.2.1990, its name was changed as
Airports Authority Kamgar Union consequent upon
Airports Authority of India Act, 1994 came into force.
Further, the Airports Authority Kamgar Union has now
changed as Indian Airports Kamgar Union with the
approval of the Registrar of Trade Unions vide letter
No.10(4950)/RTU/645 dated 30.4.2002. Airports
Authority of India is a statutory corporation under
Airports Authority of India Act, after merging
International Airports Authority of India and National
Airports Authority of India w.e.f. 1.4.1995 and the
Airports Authority of India includes the establishments
of Airport Director, Hyderabad Airport, Begumpet,
Hyderabad. All the workmen in these cases are members
of the Petitioner union and authorized to present their
case before the conciliation officer. All the workmen
have been working as sweepers since November, 1996
under various contractors and by office note No.AAI/
HY/AD/G.18/01 dated 1.5.2001 the Respondent has
terminated the contractors thereby the workmen have
been working under the direct control of Respondent
on par with the regular employees of Respondent.
Workmen were performing duties of permanent and
perennial nature. Petitioner union represented several
times for regularization of these workmen but in vain.
Hence, WP No.24460/1998 was filed which was allowed
by the Hon'ble High Court of A.P., with a direction to
the Respondent to regularize the services of the workmen
within four weeks and further directed to pay them arrears
from 1.8.1998. Aggrieved by the order of Hon'ble High
Court, Respondent has filed WA No.1011/2000 before
Division Bench of High Court, who in turn set aside the
orders of Single Judge directing the Petitioner union to
approach the conciliation officer for regularization of
their services within 30 days, with a further direction to
maintain status-quo. In pursuance of the orders in writ
appeal, Petitioner union has espoused the cause of the
workmen before the Regional Labour Commissioner(C)
on 17.5.2002 and they are pending. While so, all of a
sudden the Respondent has orally terminated the
services of the workmen w.e.f. 18.5.2002 without
assigning any reason, in violation of principles of natural
justice. Questioning the oral termination Petitioner union
filed WP No.9639 of 2002 and it is pending before the
¹Hkkx II—[k.M 3(ii)º
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833
Hon'ble High Court. It is submitted that during pendency
of the said writ petition, the conciliation officer has
returned the application of Petitioner union vide order
dated 9.9.2002. Then, Petitioner union again moved the
Hon'ble High Court of A.P., Hyderabad by filing another
WP No.6544/2003 questioning the order dated 9.9.2002
of the conciliation officer and it was allowed setting
aside the orders dated 9.9.2002 and directing the
conciliation officer to take necessary steps for reference
of the dispute raised by the Petitioner union vide order
dated 17.6.2003. In pursuance of the orders dated
17.6.2003, conciliation officer admitted the matter into
conciliation, since the Respondent has not settled the
matter before the conciliation officer, he has sent a failure
report to the government hence, these references. With
effect from 1.5.2001, the workmen have worked under
the direct control of the Respondent on par with the
regular employees consequent to the office note dated
1.5.2001 terminating the contractors. All these workmen
have continuously worked for more than 5 years in a
permanent vacancy, having worked for more than 240
days in a calendar year and they are entitled for
regularization. As per the provisions of Industrial
Employment (Standing Orders) Act, 1946, workmen have
to be regularized after successful completion of 90 days
of service. Petitioner union submits that instead of
regularizing the services of the workmen the Respondent
has terminated the services of the workmen orally from
18.5.2002 without following the provisions of Industrial
Disputes Act, 1947 as such, the action taken by the
Respondent against these workmen is illegal, unjust,
contrary to law, contrary to the provisions of Industrial
Disputes Act, 1947 in violation of principles of natural
justice.
4. The Respondent in all these industrial disputes who
is one and the same management, filed their counters in all
these ten industrial disputes with one and the same
averments which are in brief as follows:—
The reference made by the Government of India, for
adjudication of the dispute is illegal and unjust, contrary
to law and without jurisdiction. There was no relationship
of employer and employee between the Respondent
and the Workmen. Therefore, the question of
termination of services of the Workmen by the
Respondent does not arise. Annual maintenance
contract for civil works for the period 1998-99 was
awarded which was subsequently extended upto
July, 1999. No further extension of the said contract was
given. Thereafter said tender was called for civil works
(repairs and maintenance) and contract was awarded.
Respondent does not know as to how many labourers
were engaged by the contractor in the piece rate contract
and the work for which they were engaged Workmen
have not made the contractor under whom they have
worked, as a party. Petition is liable to be rejected for
non-joinder of the party. Workmen along with all other
contract labourers approached Hon'ble High Court of
A.P. and in pursuance of the directions given by the
said court they were all continued even after expiry of
contract. The judgement passed by the Single Judge
was set aside in the writ appeal. Continuance of the
Workmen by virtue of the interim orders passed by the
Hon'ble High Court of A.P. does not give him any vested
right or create relationship of employer and employee
which was not in existence. Workmen can not claim any
relief in pursuance of the judgement which was set aside
by the Division Bench. Petitioner union is not a
recognized union and Workmen is not an employee of
the Respondent. Workman does not disclose as to under
whom he has worked as a contract labourer. Respondent
never paid any wages to the Workman as Workman was
never employed on the rolls of the Respondent.
Workman filed the present application with a distorted
version and approached the court with unclean hands.
The notification referred by the Workman is no longer
in existence the notification dated 1.7.1998 is not relevant
to the issue pertaining to the claim of the Workman.
Activities of sweeping is not a core activity and not
connected with the activity of the Respondent. The
judgement in WP No.6544 of 2003 referred to by the
Workman is not binding on the Respondent for the
reason that Respondent was not made a party to the
said proceeding. Honble Supreme Court of India has
considered similar issue in the matter of State Bank of
Hyderabad [2001 (89) FLR page 354 and 2004(2)LLJ 253],
wherein it is held that no award can be passed when
there is no relationship of employer and employee.
Respondent is not liable to pay any compensation as
workmen were never engaged by them.
There is no obligation on the part of the Respondent to
comply with the provisions of Industrial Disputes
Act, 1947. Therefore, there is no question of violation
of any of the said provisions. It is in the sole discretion
of the contractor to engage the labour and Respondent
has no control over them. If the contractor to whom the
contract has been awarded does not engage the
Workmen, Workmen can not make any complaint against
the Respondent. Respondent never engaged the
services of these Workmen and question of
regularization of their services does not arise. All the
ten references are not maintainable and are liable to be
rejected.
5. By virtue of order dated 15.9.2005, it is held that
considering the fact that I.D.Nos.93/2003,94/2003,
95/2003,96/2003,97/2003, 98/2003,99/2003, 100/2003, 101/
2003 and 102/2003 are all similar in nature and the evidence
is common for all these disputes and therefore, it is
convenient to club industrial disputes 94/2003 to 102/2003
with I.D.No. 93/2003 and common evidence is to be recorded
in I.D.No. 93/2003.
834
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
6. Accordingly, Common evidence for all these cases
has been recorded in I.D.No. 93/2003.
7. To substantiate the contentions of the workmen WW1
was examined and Exhibits W1 to W32 were marked. On
behalf of the Respondent MW1 was examined. No
documents were marked.
8. Heard the arguments of either party.
9. The points that arise for determination are:
I. Whether there is relationship of employee and
employer between the workmen and the
Respondent?
II. Whether Respondent terminated the services of
the workmen with effect from. 18.5.2002? If so,
whether the said action on the part of the
Respondent is justified?
III. To what relief the workmen are entitled to?
10. Point No.1:
The question whether there is relationship of employee
and employer between the workmen and the respondent in
these cases is a question of fact. Learned Counsel for the
Respondent relied upon the principles laid down in the
case of Workmen of Nilgiri Coop. Mkt. Society Ltd., Vs.
State of Tamil Nadu and Others [(2004) 3 SCC 514]. Wherein
it is held that the question whether workers are employees
of principle employer or of contractor is a pure question of
fact.
11. Therefore, from the facts gathered on record in these
cases it is to be verified whether there is relationship of
employee and employer between the workmen and the
respondent.
12. It is an admitted fact that workmen herein have been
contract labourers and worked for the respondent under
various contractors upto 1.5.2001, the date on which
respondent has terminated the contractors, by office note
No. AA1/HY/AD/G. 18/01. It is the contention of the
Petitioner that there after workmen continued to work for
the respondent directly under the control and supervision
of the respondent officials, receiving payment from the
respondent directly and therefore, there is employee and
employer relationship between the workmen herein and
the Respondent. Whereas, respondent, who is admitting
that workmen have been working for the respondent even
after 1.5.2001 and until 18.5.2002 is claiming that since the
workmen's services were taken during that time by
continuing them in service by virtue of court's orders, it
can not be said that workmen have been in direct
employment with the respondent or that there has been
employee and employer relationship between workmen and
respondent.
13. Now, it is to be verified whether workmen have been
continued in service by virtue of any court order which
was set aside later and if so, what is its effect? In this
context it is to be noted that if there is no material on record
to show that workmen have been continued in service with
the respondent by virtue of any court order and as per the
directions of the court which were set aside later, it is to be
taken that Petitioner has been under the direct employment
of the respondent during this period.
14. MW1 the only witness who was examined for the
respondent/Management admitted while he was under
cross examination that from 1.5.2001 the contract system
was terminated by the respondent, but he denied the truth
of the suggestion put to him that since then all the workmen
in these cases worked with the respondent directly and
claimed that they worked under contractor only from 1.5.2001
to 18.5.2002. He claimed that there is record to show the
identity of the contractor under whom the workmen have
worked for the period from 1.5.2001 to 18.5.2002 and he can
produce the same before the court. But no such record has
been produced before the court. On the other hand the fact
remains that it is not the pleading of the respondent that
during this period also the workmen have worked under
any contractor. Their claim has been that by virtue of some
court order the workmen were continued in service during
the said period. But, respondent has not produced any
document to show that the services of the workmen were
continued by virtue of any court order.
15. Whereas, while WW1 was under cross examination
for the Management it is elicited from him that on abolition
of Contractor system the workers were continued and they
worked under the respondent from 1.5.2001 as per Ex.W3.
16. Ex.W3 is office note dated 1.5.2001 pertaining to the
respondent. The subject therein is "Upkeep and
maintenance of NTR and RG terminal at Hyderabad Airport"
This document reads that "After the expiry of AMC
contract, the upkeep and maintenance of both the terminals
is being undertaken departmentally with effect from
1.5.2001. For this purpose, Sri Adarsh Kumar, Senior
Manager (C) will be looking after the maintenance part
New Delhi he will depute suitable engg. Officials for
supervision and execution of engg. Works. Shri Sultan
Moinuddin Manager (T) will be looking after the cleanliness
and upkeep of the building. Thus, ATMs on duty in
respective terminals assisted by HKS will depute the
workers on the job of upkeep and cleanliness and they will
supervise their work. Shri VVK Murthy Asstt. The General
Manager (Stores) will make arrangements for supply of
stores as required for the above work through SM (C)-II. In
this connection, Shri R.P. Singh AGM (ATC) is appointed
as the overall in charge to look after the arrangements for
the above work in both the terminals. Shri Adarsh Kumar,
SM(C)-II, Shri Sultan Moinuddin, Manager (T) and
Shri VVK Murthy, Asstt. The General Manager (stores)
may coordinate with Shri R.P. Singh for any matter related
to the above job."
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
835
17. The above referred contents of Ex.W3 are not giving
out any information that by virtue of any direction from
any court the services of the workmen in these cases were
utilized by the respondent. On the other hand from this
document what one can understand is that after abolition
of the contractor system for upkeep and maintenance of
NTR and R.G terminal of Hyderabad Airport, respondent
made arrangement for the said work by entrusting
supervision of the work of the ATMs and workers who
were on the job of upkeep and cleanliness, to various
officials of this organization. Therefore, it can clearly be
seen from Ex.W3 that respondents has directly taken up
the work of upkeeping and maintenance of the NTR and
RG Terminal at Hyderabad Airport and under their direct
supervision the various workmen engaged for upkeep and
maintenance of this place have worked. As already
observed above, it is the very contention of the respondent,
as can be seen from the facts elicited by them while WW1
was under cross examination, that the workmen herein
worked under respondent from 1.5.2001 as per Ex.W3.
Therefore, it can safely be held that the workmen in all
these cases have worked directly for and under the
supervision of the respondent from 1.5.2001 till the date of
the termination of their services i.e.,18.5.2002 and further
that their being continued in service subsequent to 1.5.2001
was not in pursuance of any court directions.
18. For coming to the above conclusion, the basis is, as
already observed above, Ex.W3, the proceeding in
pursuance of which, evidently the various workmen in
these cases were continued in service even subsequent to
1.5.2001, does not reflect that in pursuance of any court
order the workmen were continued in service. Further, there
is no document made available on record to prove that the
workmen have been continued in pursuance of any court
order.
19. One another aspect to be noted is that, while WW1
was under cross examination, on one hand, it has been
elicited from them that the workers were continued under
the respondent from 1.5.2001 as per Ex.W3, on the other
hand, it is suggested to him that workers never worked
under the respondent from 1.5.2001 and that there is no
relationship of worker and employer, which is denied by
WW1. This shows, that the respondent is blowing hot and
cold by taking contradictory claims before the court to
wriggle out of the obligations arose under the provisions
of Industrial Disputes Act, 1947. But the fact established
through the evidence on record is that subsequent to
1.5.2001, the date on which respondent abolished the
contractor system, they continued to take the services of
the various workmen who were working under the
contractor till that date, for maintenance and upkeeping of
the airport premises, by directly supervising their work, as
specified in Ex.W3.
20. Respondent is making a reference to court order as
the reason for continuing the various workmen in service
subsequent to 1.5.2001. The details of the said court order
are not revealed any where in the counter. For the first time
while WW1 was under cross examination it is put to him
that in view of the status quo order given by the Hon'ble
High Court of A.P., in Writ appeal, respondent only paid
wages without extracting work which is denied by WW1.
From this suggestion what one has to understand is that it
is the contention of the respondent that by virtue of the
status quo order made by the Hon'ble High Court of A.P.,
in the judgement made in writ appeal the various workmen
were continued in service. The said status quo order can
be seen in Ex.W5, the copy of judgment in WA Nos. 865,
866 and 10 11 of 2000 dated 18.4.2002 whereas the workmen
herein continued in services of the Respondent even after
abolition of Contractor system from 1.5.2001. In this
judgment status quo was ordered to be maintained for one
month from the date of said judgment. Evidently on the
very date of expiry of said period i.e., on 18.5.2002 services
of all the workmen were terminated. There is no other
previous order prescribing or directing the respondent to
maintain status quo, regarding continuation of the workmen
in service with effect from 1.5.2001.
21. In view of the fore gone discussion of the material
on record, it can safely be held that, the material on record
clearly discloses that respondent engaged the services of
the various workmen in these cases directly, under the
direct supervision of their officials since 1.5.2001 and
therefore there is relationship of employee and employer
between the Petitioner and the respondent since 1.5.2001
as correctly contended by the Petitioner.
This point is answered accordingly.
22. Point No. 2:
It is an admitted fact that respondent terminated the
services of the various workmen in these cases with effect
from 18.5.2002. As already observed above, after Ex.W5
judgement was rendered by Honble High Court of A.P., in
WA Nos. 865, 866 and 1011/2001, in compliance of the
direction there in i.e., to maintain status quo for one month
respondent continued the various workmen in service for
one month and terminated their services on 18.5.2002. Now,
it is to be verified whether the said termination of services
is legal, valid and justified.
23.
As already concluded above, while deciding point
No.1, there has been employee and employer relationship
between the various workmen and the respondent. The
workmen worked for the respondent directly and under
their supervision from 1.5.2001 till 18.5.2002 i.e., for more
than 240 days. In such case, if there is termination of service
the same shall be in compliance of mandatory pre-requisites
provided under Sec. 25F of Industrial Disputes Act, 1947.
Sec. 25F of Industrial Disputes Act, 1947 reads as follows:—
"25-F: Conditions precedent to retrenchment of
workmen:— No workman employed in any industry
836
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
who has been in continuous service for not less than
one year under an employer shall be retrenched by that
employer until—
(a) the workman has been given one month's notice
in writing indicating the reasons for retrenchment
and the period of notice has expired, or the
workman has been paid in lieu of such notice,
wages for the period of the notice.
(b) The workman has been paid, at the time of
retrenchment compensation which shall be
equivalent to fifteen days' average pay [for every
completed year of continuous service] or any part
thereof in excess of six months; and
(c) Notice in the prescribed manner is served on the
appropriate Government [or such authority as may
be specified by the appropriate Government by
notification in the official Gazette]."
24. Therefore, the workmen in these cases who worked
for more than one year for the respondent i.e., from 1.5.2001
till 18.5.2002 can not be retrenched until they have been
given one month's notice in writing indicating the reasons
for retrenchment and only after expiry of the period of notice
or otherwise by making payment of wages in lieu of such
notice, for the period of notice. Further more, the workmen
have to be paid retrenchment compensation as mentioned
in Sec.25F (b) and also there shall be compliance of Sec.
25F(c). Unless there is compliance of all the above
mentioned mandatory pre-requisites the retrenchment of
the workmen is to be held as null, void, illegal and
inoperative and such termination of service of the workmen
without complying the mandatory provisions contained
under Sec.25F (a) and (b) should ordinarily result in their
reinstatement as per the well established legal principles
laid down by Hon'ble Apex Court.
25. In view of the fore gone discussion, it can safely be
held that the termination of the various workmen in these
cases from service by the respondent without complying
the mandatory pre-requisites provided under Sec.25F of
the Industrial Disputes Act, 1947 makes the said termination
as illegal, unjust and invalid.
26. Learned Counsel for the respondent relied upon the
principles laid down in the cases of Steel Authority of India
Limited and another Vs. State of West Bengal and others
[(2008) 14 SCC 589], but the principles laid down in this
case are not helpful to the facts of the present case since,
it is nobody's case that the dispute in this case became
stale for any reason. Learned Counsel for the respondent
further relied upon the principle laid down in the case of
Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd., and
another [(1979) 3 SCC 371], but the facts and circumstances
cited in this case are totally different from that of the present
case. The termination of services in the present case is not
punitive in nature and there was no scope for domestic
enquiry in the present cases unlike the cited case. Therefore,
the various principles laid down in the cited case are not
applicable to the facts of the present case.
27. As can be seen from the material on record, in Ex.W5,
the judgement of the Hon'ble High Court of A.P., the various
workmen and their union are at liberty to seek appropriate
relief before the appropriate industrial courts in terms of
the judgement of constitutional bench in Steel Authority
of India's case. The workmen have approached the Regional
Labour Commissioner(C) for espousing the cause of the
various workmen by raising individual industrial disputes
through Ex.W6 the application made by the workmen to
the Conciliation Officer Regional Labour Commissioner(C)
invoking Sec.2K of the Industrial Disputes Act, 1947 dated
17.5.2002. On the very next date i.e., on 18.5.2002 services
of the various workmen were terminated by the respondent.
Thus, it can clearly be seen that without even giving
sufficient opportunity to the workmen to have their remedy
and further without complying the mandatory prerequisites
of Sec.25 F of the Industrial Disputes Act, 1947 respondent
has terminated the services of the various workmen which
is neither proper, nor justified nor legal.
This point is answered accordingly.
28. Point No. 3:
In view of the findings given in points No.1 and 2 above,
the various workmen in these petitions whose services
were illegally terminated by the respondent without even
complying with the mandatory prerequisites provided for
in Sec.25F of Industrial Disputes Act, 1947, are entitled for
reinstatement into service with all back wages and other
attendant benefits, in the light of the mandate given in
various well established legal principles laid down by the
Hon'ble the apex court.
This point is answered accordingly.
29. Result:
In the result, the Petitions are allowed and the schedules
in all these industrial disputes are answered as follows:—
The action of the management of Airports Authority of
India, Hyderabad in terminating the services of the
workmen in I.D. Nos. 93, 94, 95, 96, 97, 98, 99, 100, 101
and 102 of 2003 i.e., S/Sri M. Mallaiah, G. Sadanand, B.
Chandraiah, P. Narender, G. Gattamma, G. Padmavathi, P.
Narsing Rao, M. Yellaiah, G.N. Yadagiri & T.
Subbaratnamma respectively Ex. Sweepers, is neither
legal nor justified and therefore the same is hereby set
aside. All these workmen shall be reinstated into services
of the Respondent as Sweepers forthwith. They all are
entitled for back wages w.e.f. 18.5.2002 till the date of
their respective reinstatement into service and also all
othei attendant benefits. All the arrears of back wages
shall be paid to these workmen by the Respondent forth
with.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
837
Award passed accordingly. Transmit.
Typed to my dictation by Smt P Phani Gown, Personal
Assistant corrected by me on this the 13th day of
September, 2013
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence in all the 10 cases mentioned in
cause title
Witnesses examined for the Witnesses examined for the
Petitioners/workmen
Respondent
WWI: Sri G. A. Rudrappa
MW1: Sri V.L.N. Sastry
Documents marked for the Petitioners/workmen
Ex.W1:
Photostat copy of certificate of registration of
Trade union and constitution dt.27.2.1990.
Ex.W2:
Photostat copy of espousal resolution
dt.16.12.2003.
Ex.W3:
Photostat copy of office note of the Respondent
dt. 1.5.2001
Ex.W4:
Photostat copy of orders in WP 24460/98
dt.1.8.2000.
Ex.W5:
Photostat copy of orders in WA 865, 866 & 1011/
2000 dt.18.4.2002.
Ex.W6:
Photostat copy of application to conciliation
officer dt.17.5.2002.
Ex.W7:
Photostat copy of report of conciliation officer
dt.9.9.2002.
Ex.W8:
Photostat copy of orders in WP No.6544/2003
dt. 17.7.2003.
Ex.W9:
Photostat copy of order of reference of G.O.I,
dt.12.12.2003.
Ex.W 10: Photostat copy of CLC(C) instruction No.1/1998
dt. 1 .7.1998.
Ex.W11:
Photostat copy of representation of the union
to the management dt.I 6.12.2002
Ex.W12:
Photostat copies of bunch of identity cards
issued the workmen (25 in no.).
Ex.W13:
Photostat copy of statement showing details of
workers engaged as sweepers in Airports
Authority of India with contractors.
Ex.W14:
Photostat copy of charter of demands submitted
by Petitioner union to the Respondent.
Ex.W15:
Photostat copy of Memorandum of Settlement
dt.19.2.97.
Ex.W16:
Photostat copy of letter from management to
the Petitioner union dt. 3.4.97
Ex.W17:
Photostat copy of lr. dt. 28.4.97 from management
to the Petitioner union
Ex.W18:
Photostat copy of representation dt.13.3.97 to
the chairman of Respondent organization, for
regularization of these workmen.
Ex.W19:
Photostat copy of representation dt.27.5.97 to
the chairman of Respondent organization, for
regularization of these workmen and payment
of salary on the principle of equal pay for equal
work.
Ex.W20:
Photostat copy of representation to the chairman
of Respondent organization, with request not
to violate CL(R&A) Act.
Ex.W21:
Photostat copy of list of workmen in this case
and the names of contractors with wages paid,
submitted before Hon'ble High Court in WP
No.24460/98.
Ex.W22:
Photostat copy of petition dt.16.3.2000 u/s 2(k)
of ID Act before Regional Labour
Commissioner(C).
Ex.W23:
Photostat copy of office memo dt.20.4.2000 of
Ministry of Labour and Employment along with
enclosures.
Ex.W24:
Photostat copy of lr. dt.7.7.2000 to Regional
Labour Commissioner(C) by Petitioner union.
Ex.W25:
Photostat copy of lr. dt.30.11.2000 from O/o
Regional Labour Commissioner(C) to the
Respondent.
Ex.W26:
Photostat copy of charter of demands submitted
to AAI management by the union dt.7.2.2000.
Ex.W27:
Photostat copy of grievance submitted to Airport
Director dt. 25.6.2001 by Petitioner union.
Ex.W28:
Photostat copy of lr. from Respondent to the
Petitioner union.
Ex.W29:
Photostat copy of lr. from Petitioner union to
the Ministry of Labour and Employment.
Ex.W30:
Photostat copy of letter of the Petitioner union
to the ALC(C) dt.27.6.2003 .
Ex.W31:
Photostat copy of representation dt.29.7.2003
addressed to the National Commissioner for S.C.
& ST by the Petitioner union.
Ex.W32:
Photostat copy of lr. addressed by the Ministry
of Labour and Employment to all the members
of Central Advisory Contract Labour Board,
recommending abolition of contract labour
system in the Respondent organization.
Documents marked for the Respondent
NIL
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 304.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,vjiksVZ vFkkWfjVh
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
838
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;&2] fnYyh ds iapkV ¼lanHkZ la[;k
79@2000½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 6@1@2014 dks
izkIr gqvk FkkA
[lañ ,y&11012@19@99&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 304.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 79/2000) of the
Central Government Industrial Tribunal/Labour Court No.2,
Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Airport Authority of India and their
workman, which was received by the Central Government
on 6/1/2014.
[No. L-11012/19/99-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT - II, DELHI
Present: Shri Harbansh Kumar Saxena
ID No. 79/2000
Smt. Lata Devi
Versus
International Airport Authority of India
AWARD
The Central Government in the Ministry of Labour vide
notification No. L-11012/19/99-IR(M) dated 24.09.1999
referred the following Industrial Dispute to this tribunal for
the adjudication:—
"Whether the action of Airport Director, Airport
Authority of India(IAD), IGI Airport, New Delhi to
discontinue the services of Smt. Lata Devi w.e.f. 13.07.98
is legal & Justified. If not, what the workman is entitled
to and from which date."
On 28/08/2000 reference was received in this tribunal.
Which was register as 1.D No. 79/2000 and claimant was
called upon to file claim statement with in fifteen days from
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
After service of notice workman/claimant filed claim
statement. Wherein he stated as follows:—
1. That the claimant has been working as sweeper with
the Respondent Authority for the last about 12 years
and her last drawn salary was Rs. 3,460.00 per month.
2. That by office order dated 13.07.98, the Respondent
Authority has terminated the services of the claimant
w.e.f. 14.07.1998 on ground of alleged dual marriage.
3. Briefly stated the facts of the present case are as
follows:—
(i) That the claimant was married to Shri Sushthi Dass
(Shrushthi Dass) about 25 years back at village
Mayapur, District Malda and has three children
out of the said marriage wedlock, namely Lakhi
(Daughter, Ram Kishan (Son) and Shanta
(Daughter).
(ii) That about 12 years back the claimant has shifted
to Delhi alongwith her family to earn her livelihood.
Since, then, the Claimant has been staying in Delhi
but unfortunately due to illhealth her husband
i.e. Shri Shrushthi Dass had to shift back to his
native place at Malda and since then the claimant
alongwith her children has been staying with a
near relative of her husband, i.e. Shri Khushi Ram,
and she has been visiting her husband at her
native place during her vacations and Shri
Shrushthi Dass had also been visiting Delhi off
and on and has been staying with the claimant
but his health did not permit him to Stay in Delhi
for longer period of duration as he has to continue
with his medical treatment at his native place.
(iii) That in the year May '96, at the time of the
preparation of the Ration Card, due to some
mistake, the name of Sh. Khushi Ram was
mentioned in place of the name of the husband of
the claimant as she had gone to the office of the
Rationing Officer alongwith Sh. Khushi Ram but
the claimant failed to notice the said fact and she
is illiterate and only knows how to subscribe her
name in Hindi script.
(iv) That consequent upon Hon'ble Supreme Court
judgment dated 06.12.1996, ex-contract workers
engaged in the field of sweeping, cleaning and
dusting at I.G.I Airport were taken under care of
A.A.I. w.e.f. 01.02.1997, pending detailed scrutiny
by Management. A process was accordingly,
initiated to examine the cases of these workers for
considering them for regularization, including the
case of the claimant.
(v) That vide office order dated 13th July, 98, the
Claimant service have been discontinued w.e.f
14.07.98 on the alleged ground of dual marriage,
without giving to the claimant any opportunity of
being heard.
(vi) That being aggrieved of the above action or the
respondent the claimant sent its representation
dated 21.07.1998 to Respondent but the
respondent failed to act according to law.
(4) Thus, the claimant had to move the conciliation
officer, Curzon Road, New Delhi, but the conciliation
proceedings before the conciliation officer have failed on
05.04.1999 and thus the present Industrial Dispute.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
839
(5) Being aggrieved of the above action of the
respondent, the claimant challenges the same on the
following amongst other.
Grounds
(A) Because the action of the Respondent is illegal,
arbitrary and against all the canons of justice.
(B) Because no opportunity of hearing has been given
to the claimant before passing the impugned order
by the Respondent.
(C) Because the Respondent has failed to consider
that the said mistake in the recording of the name
of the husband of the Claimant was due to the
fact that the respondent is illiterate and only
known how to subscribe her name in Hindi script.
(D) Because the services of the Claimant/Workman
were terminated without assigning any reason or
serving any charge-sheet or conducting any
domestic enquiry.
(E) Because the Respondent has failed to consider
that the services or the Claimant were liable to be
continued in view of the Hon'ble Supreme Court's
Judgment dated 06.12.1996.
(F) Because the finding of the respondent is mala-
fide, perverse and against the material available
on record as through-out the service period of
the work of the Workman/Claimant remaining
satisfactory and she served her superiors to their
entire satisfaction.
(G) Because the order passed by the Respondent/
Management thereby terminating the services of
the
Workman/Claimant
is
unlawful,
unconstitutional and void-ab-initio and the same
is liable to be quashed and the Claimant/Workman
is entitled to reinstatement with continuity of
service and full back wages as the Claimant/
Workman is out of job from the date of termination
and suffering very much economical problems.
On the Basis of which he prayed that this Hon'ble
Adjudicating tribunal may graciously be pleased to:—
(a) Pass an Award in Favour of the Workman/Claimant
and against the Management/Respondent
thereby quashing and setting-aside the impugned
order dated 13.07.1998 with directing the
reinstatement of the Claimant/Workman with
continuity of service and full back wages
alongwith all dues and earned wages as per the
last drawn pay @ Rs.3,460/- per month and
consequential benefits.
(b) Allow the costs of claim in favour of the claimant/
workman and against the Respondent/
Management.
(c) Pass any other such other order(s) as this Hon'ble
court may kindly deem fit and proper in the
interest of justice and in the facts and
circumstances of the case.
REPLY ON BEHALF OF THE MANAGEMENT/
RESPONDENT TO THE STATEMENT OF CLAIM OF
THE CLAIMANT.
Preliminary objections:—
1. That the claimant was never employed by the
Respondent as such there is no relationship of employer
and employee between the claimant and the Respondent
and as such the claim of the claimant is not maintainable
and as such the same is liable to be dismissed.
Reply on Merits:—
1.That the contents of the Para no.1 of the statement of
claim are wrong, false and hence denied. It is denied that
the claimant had been working as a sweeper with the
respondent Authority for the last about 12 years. It is further
denied that the last drawn salary of the claimant was
Rs.3,460/- per month. The true facts are that the claimant
was engaged by the ex-contractor M/s Office Care Services
and she was working as a sweeper under the ex-contractor
in the Cargo Terminal.
2. That the contents of Para No.2 of the statement of
claim are not denied.
3. (i-iii). That the contents of paras No. 3(i-iii) of the
statement of claim are wrong, false and concocted one and
as such the same are denied. It is denied that the name of
Kushi Ram was mentioned in place of the name of the
husband of the claimant due to some mistake. It is further
denied that the claimant failed to notice that the name of
Kushi Ram was mentioned in the Ration Card in the capacity
of her husband as she was an illiterate and only knew how
to subscribe her name in Hindi script. It is submitted that
the contents of the paras under reply are the sheer
concoction of the mind of the claimant and are an after
thought for gaining undue benefits for which she is
otherwise not entitled for.
3(iv) That the claimant of Para No.3 (iv) of the stàtement
of claim are not denied.
3(v) That the contents of Para No.3 (v) of the statement
of claim are admitted to the extent that vide office order
dated 13.07.98 the services of the claimant was discontinued
on the ground of dual marriage and the rest of the para is
wrong, false and hence denied. It is denied that the claimant
was not given any opportunity of being heard before
discontinuing her services. It is submitted, that only after
detailed scrutiny by the committee, the services of the
claimant was discontinued.
840
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
3(vi) That the contents of Para No. 3(vi) of the statement
of claim are wrong, false and hence denied. It is denied that
the Respondent failed to act according to the law.
4. That the contents of Para No.4 of the statement of
claim is a matter of record.
5(A) That the contents of Para No.5 of the statement of
claim are wrong, false and hence denied. It is denied that
the action of the Respondent is illegal, arbitrary and against
all the canons of justice. It is submitted that on scrutiny
the Respondent found that the claimant in her affidavit
dated 14.02.97, submitted to the Respondent, had declared
her husband name as Sh.Shanti Dass whereas from the
Photo Identity Card issued by the Election commission of
India and from the Ration Card, the name of the claimant's
husband is Shri Kushi Ram and as per Respondent's Rules
And Regulations any person who has entered into dual
marriage, is not entitled for employment in the services of
the Respondent's Authority and in pursuance of the same,
the services of the claimant was discontinued.
5(B) That the contents of Para No.5 (B) of the statement
of claim are wrong, false and hence denied. It is denied that
no opportunity of hearing was given to the claimant before
passing the impunged order. It is submitted that in
pursuance of the pronouncement of Judgment by the
Supreme Court in the matter of Air India Statuatory
Corporation etc., Vs. United Labour Unions etc. a process
to regularize the services of those ex-contractor workers,
who were on rolls under various contractors with the
Respondent engaged in the field of sweeping, cleaning
and dusting was taken up by the Respondent in conformity
to the services rules, job specification etc. of the
Respondent as applicable on 06.12.96. In pursuance of the
same a committee of officers was constituted by the Airport
Director for interviewing/scrutiny of documents such as
birth certificate, Ration Card etc. of the ex-contract workers
and a medical board was also constituted for medically
examining them where there was no proof of their
authenticity of the Date of Birth and the claimant was
examined by the comittee of officers constituted by the
Respondent Authority for interviewing/ scrutiny of
documents and only after that the services of the claimant
was not regularized as the case of the claimant was not
found to be of dual marriage.
5(C) That the contents of Para No. 5(C) of the statement
of claim are wrong, false, misconceived and hence denied.
It is denied that the claimant is illiterate and only knows
how to subscribe her name in Hindi script. It is submitted
that the claimant knew that her Photo Identity Card and
Ration card had the name of Kushi Ram as her husband
and it was not being mentioned thereon due to some mistake.
5(D) That the contents of Para No.5(D) of the statement
of claim are wrong, false, misconceived and hence denied.
It is submitted that in view of the averments made in the
foregoing paras of the present reply, the workers those
who were on the roll on 6.12.96 through some contractor in
the field of sweeping, cleaning were to be regularized
because of the Judgment of the Hon'ble Supreme Court
and were not recruited, accordingly the Respondent was
not recruited, accordingly the Respondent was not liable
to serve any charge sheet or conduct any domestic enquiry
as alleged by the claimant, more so, the claimant was not a
regular employee of the Respondent, accordingly the
question of serving the charge sheet or conducting of the
domestic enquiry did not arise. However it is submitted
that the claimant was examined by the committee of officers
constituted by the Respondent Authority.
5(F) That the contents of Para No.5 (f) of the statement
of claim are wrong, false and hence denied. It is denied that
the findings of the Respondent is malafide, perverse and
against the material available on record. It is submitted that
the finding of the Respondent is based upon the material
available on the record. It is further submitted that the
claimant was never in the employment of the Respondent,
the question of any complaint against the claimant did not
arise.
5(G) That the contents of Para No.5 (G) of the statements
of claim are wrong, false and hence denied. It is denied that
the order passed by the Respondent/Management
whereby discontinuity the services of the claimant/workmen
is unlawful, unconstitutional and void-ab-initio or the same
is liable to be quashed. It is denied that the claimant is
entitled to be reinstated with continuity of service and full
back wages. It is denied that the claimant is out of job from
the date of discontinuity and is suffering economical
problems It is submitted that the order passed by the
respondent is as per the Rules And Regulations of the
Respondent's organization.
It is therefore prayed that the claim of the claimant be
dismissed with heavy cost.
REPLICATION ON BEHALF OF THE CLAIMANT/
WORKMAN ARE AS FOLLOW:—
1. That the Preliminary objection No.1 is wrong and
denied. It is submitted that it is an admitted case of the
Respondents/Management that the services of the
Claimant/Workman were discontinued w.e.f. 14-07-1998 vide
office order No. ADD/PERS/38(1)/98/20 dt. 13.7.98 and if
there was no relationship of employer and employee, the
question of discontinuance of service would not arise at
all. Thus the preliminary objection is misconceived and
deserves to be rejected outrightly.
Replication to reply on Merits:—
(1) That the contents of Para No.1 of the reply are
wrong and denied and the contents of Para No.1
of the claim statement are reiterated as correct. It
is further submitted that the factum of last drawn
salary being Rs. 3,460.00 per month is well borne
¹Hkkx II—[k.M 3(ii)º
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841
out from the records of the Respondent/
Management which bear the signatures of the
Claimant/Workman also.
(2) That the contents of Para No.2 of the reply do not
need any Replication.
(3) That the contents of Para No.3 (i-iii) and (v-vi) of
the reply are wrong and denied and the
corresponding paras of the claim statement on
behalf of the claimant/workman are reiterated as
correct. Contents of Para No.3 (iv) do not need
any replication. It is further reiterated that
claimant/workman has never married Shri Khushi
Ram but the wrong mentioning of the name of
Shri Khushi Ram as husband of the Claimant/
Workman was an inadvertent mistake and Shri
Shrushthi Das was and continues to be the
husband of the Claimant/Workman and the
presumption of the Respondent/Management
regarding the dual marriage of the claimant/
workman is baseless, misconceived and perverse
because the claimant/Workman was not given any
opportunity to explain the circumstances under
which the said mistake had occurred and thus the
act of the Respondent/Management is bad in law.
(4) That the contents of Para No.4 of the reply do
not need any replication.
(5) That the contents of Para No. (5) (A) to (5) (G) of
the reply are wrong and denied and the
corresponding paras of the claim statement on
behalf of the Claimant/ Workman are reiterated as
correct. It is submitted that consequently upon
the Hon'ble Supreme Court Judgement dt.
06.12.1996, the ex-contract workers engaged in
the field of sweeping , cleaning and dusting at
I.G.I Airport were taken under case of A.A.I w.e.f
01.02.1997, pending detailed scrutiny by the
management and accordingly, process was
initiated to examine the cases of those workers
for considering them for regularization, including
the case of the claimant/Workman and the
Respondent/Management was not justified in
discontinuing the services of the claimant/
workman on the presumption of alleged dual
marriage without any proof of the same and
without giving any opportunity to the claimant/
workman to explain the circumstances in which
the said mistake of wrong noting of husband's
name had occurred and the claimant/workman is
being made to suffer mental and economical
problems due to the malafide, perverse and filmy
findings of the Respondent/ Management on the
basis of imaginary grounds and the act of the
Respondent Management is illegal, arbitrary and
against all the canons of justice and is liable to be
quashed/sed aside as unlawful, unconstitutional
and void-ab-initio and the Claimant/ Workman is
liable to be reinstated with continuity of service
and full back wages alongwith all dues, benefits
and earned wages alongwith consequential
benefits as claimed in the claim statement of the
Claimant/Workman.
It is, therefore most respectfully prayed that
this Hon'ble Adjudicating Tribunal may graciously
be pleased to pass an Award in Favour of the
Claimant/Workman and against the Respondent/
Management as claimed in the claim statement of
the claimant/workman.
On basis of pleadings of parties following issues have
been framed by my Ld. Predecessor on 12/07/2004 :—
1. Whether there does not exist relationship of
employer and employee between the workman &
management and as such claim is not
maintainable? Onus on both the parties.
2. Whether the claim of the workman is not
maintainable? Onus on both parties.
3. As in terms of reference?
Lata Devi in support of her case filed her affidavit on
20.4.2005. Her affidavit alongwith the document i.e. I card,
Ration Card, Death Certificate of Sri Shrushti Dass.
1. That I am the Applicant/Workman in the
aforementioned case and as such fully conversant with
the facts of the case and able to depose this affidavit.
2. That the Applicant/Workman was married to Sh.
Shrushti Dass about 30 years back and has three children
from the said marriage wedlock namely (i) Lakhi (daughter),
(ii) Ram Kishan (son) and (iii) Shanta (daughter). The report
cards/certificate issued by the school are marked as Exhibit
WW-1/A (collectively).
3. That at the time of the preparation of the Ration Card,
due to some bonafide mistake, the name of Sh. Khushi
Ram was erroneously mentioned in place of the name of
the husband of the Applicant/Workman but the Applicant/
Workman failed to notice the said error as she is illiterate
and only knows how to subscribe her name in Hindi script.
4. That consequent upon Hon'ble Supreme Court
Judgment dated 06.12.1996, ex-contract workers engaged
in the field of sweeping, cleaning and dusting at I.G.I. Airport
were taken under care of A.A.I w.e.f. 01.02.1997.
5.That about 15 years back the Applicant/Workman
shifted to Delhi alongwith her family to earn her livelihood.
Since then, Applicant/Workman has been staying in Delhi
but unfortunately due to ill health her husband i.e. Sh. Shrushti
Dass had to shift back to his native place and since then the
Applicant/Workman has been staying with a near relative of
her husband, Shri Kushi Ram, Sh. Shrushti Dass
842
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
used to come to Delhi of and on to undergo medical
treatment due to his illness and during the pendency of the
present proceedings, the husband of the Applicant/
Workman, Sh. Shrushti Dass, has died on 19.08.2002 at
Delhi. His death certificate is marked as Exhibit WW-1/B.
6. That vide office order dated 12th July, 1998, the
services of the Applicant/Workman have been
discontinued w.e.f 14.07.1998 on the alleged ground of dual
marriage without giving any show cause notice and without
affording any opportunity of hearing being given to the
Applicant/Workman before passing the impugned order
and the Respondent have failed to consider that the wrong
mentioning of the name of the husband of the Applicant/
workman was by some mistake which occurred due to the
fact that the Applicant/Workman is illiterate and only knows
how to subscribe her name in Hindi script and she failed to
notice that the name of Shri. Khushi Ram was wrongly
mentioned in place of the name of the husband of the
Applicant/Workman. There has been no relationship of
husband and wife between the Applicant/Workman and
Sh. Khushi Ram. Sh. Khushi Ram is the younger cousin
brother of my husband. The name of Sh. Khushi Ram in the
Ration Card has been wrongly mentioned by the Ration
Card Authorities as at the relevant time of enquiry made by
the department, my husband was not in the house and was
sick in the village. The Ration Card was prepared on the
spot visit and no written submission was made either by
way of application or by way of declaration or affidavit. On
the mistake being noted, necessary corrections has been
made both in the ration card and the election voter card
from the appropriate Govt. Authority. I affrim that my
marriage has taken place with Late Shri Shrushti Dass. His
death has taken place during the pendency of the present
proceedings. Thereafter, I have not married. I do not have
a common mess with my Dever Sh. Khushi Ram. I am
separately and independently living in the house with my
family members comprising of two daughters and one son
as described above. My relationship with Sh. Khushi Ram
is only that of my Dever in the family, who is looking after
myself and my family as I have no other adult male member
in the family. My children are of minor ages. I did not marry
a second time with anyone either during the lifetime of my
deceased husband Sh. Shrushti Dass or even after his
death. The plea taken by the management in this regard is
wrong, illegal and without any opportunity of hearing to
the Applicant/Workman. The corrected copies of Ration
Card and Election/Voter Identity Card filed with the
Rejoinder are marked as Exhibit WW-1/C.
7. That being aggrieved of the above action of the
Respondent the Applicant/Workman sent its representation
dated 21.07.1998 to Respondent but the Respondent failed
to act according to law.
8. That the Respondents have further failed to consider
that the services of the Applicant/Workman were liable to
be continued in view of the Hon'ble Supreme Court's
Judgment dated 06.12.1996 as consequent upon the Hon'ble
Supreme Court's judgment dated 06.12.1996, ex-contract
workers engaged in the field of sweeping, cleaning and
dusting at I.G.I Airport were taken under care of A.A.I., the
Respondent herein, w.e.f. 01.02.1997.
9. That my claim statement datedis correct and the
same bears my signature at place marked as Mark-`A' and
the award may kindly be passed as prayed therein.
Her affidavit was tendered in evidence on 6/07/2005.
Her statement is as follows:—
I have filed my affidavit in evidence. The same in Ex.
WW1/A. It may be read as part of my evidence. The
report card/certificate issued by the school of the
children No.1 Lakhi (2) Ram Kishan (3) Shanta is Ex.
WW1/A. Death Certificate of Shri Shrushti Dass is Ex.
WW1/B. copies of Ration Card and Election /Voter I.
Card of Lata Devi is Ex. WW1/C. Claim statement is
Mark A. (Original I.Card and Death Certificate brought.
Seen and returned to be brought at the time of arguments.
She was cross-examined by A/R for the management on
28/10/2010. Her cross-examination is as follow:—
I never gave any application for employment with the
management. It is correct that I was an employee of ex-
contractor, M/s. Office care Service. It is correct that the
officers of the Scrutiny Committee of the management
had asked me to appear and provide copies of ration
card, voteer's ID card and also to file an affidavit. Again
said, voter's ID card was not asked from me. Nothing
was asked from me by the committee. It is correct that
my husband's name in the ration card was mentioned as
Khushi Ram and not Shrushti Dass. I am totally un-
educated and as such I cannot read or write. I had
submitted document Ex. WW.M/1 before the committee
of the management . It is correct that in the copy of the
card given by me to the Scrutiny Committee, the name
of my husband was mentioned as Khushi Ram. It is
correct that Shrushti Dass and Khushi Ram ware two
different persons. It is incorrect to suggest that I was
never a permanent employee of the AAI . I did not
know what was written in the ration card or in the
voter's ID cards as I do not know how to read and
write and I am illiterate . I never cast my vote before
the date of termination of services. The committee did
not tell me that I had furnished false documents with
my husband's name as Khushi Ram. It is wrong to
suggest that I have no good case for reinstatement . It
is incorrect to suggest that my husband's name is
Khushi Ram who is alive today and not Shrushti Dass
who is dead . It is incorrect to suggest that I married
both Shrushti Dass as well as Khushi Ram. I do not
even know the address of Khushi Ram. It is wrong to
suggest that I am deposing falsely.
¹Hkkx II—[k.M 3(ii)º
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843
In support of her statement she examined WW2, Khushi
Ram who filed affidavit on 20/4/2005 are as follow:—
1.That I am the cousin brother-in-law of the Applicant/
workman according to the village customs as living in
the same village and neighbourhood.
2.That I am not a married persons and I further say I did
not have any marriage with the Applicant/Workman
namely, Smt. Lata Devi. I do not have a common mess
with Smt. Lata Devi and his family. My name in the
Ration Card was recorded wrongly by the Rationing
Authority, as at the relevant time of enquiry made by
the department, her husband was not in the house and
was sick in village. The Ration Card was prepared on
the spot visit and no written submission was made either
by way of application or by way of declaration in
affidavit for the preparation of the ration card. I and
Smt. Lata Devi being illiterate, could not notice the said
mistake and the mistake when noted was got rectified
immediately with the Rationing Authority. And likewise
the entry in the Voter Identity Card was made on the
basis of the entry appearing in the Ration Card and after
detection of the said mistake, the same was also got
correct from the Govt. of NCT of Delhi. Therefore, the
ration card did not bear the photograph of the adult
male member of the family being the husband it bears
only the photograph of Smt. Lata Devi . The Respondent/
Management did not take into account these facts while
considering the case of the Applicant/Workman and
correctness of the ration card. Smt. Lata Devi remains
the head of the family and not Shri Khushi Ram.
His affidavit was tendered in evidence on 6/7/2005. His
statement is as follow:—
I have filed my affidavit in evidence. The same is Ex.
WW2/1 . It may be taken on record and read in evidence
in support of the case of the workman.
He was cross-examined by A/R for the Management on
28/10/2010.
His cross-examination is as follows:—
Lata Devi is not related to me at all. I do not live with
Smt. Lata Devi WW! Nor 1 ever lived with her. It is wrong
to suggest that I am deposing falsely that I am unmarried
till today or that I ever married WW1 Smt. Lata Devi and
she is my wife. I am labourer. I am totally illetrate. I do not
know if that the husband's name of Smt. Lata Devi
mentioned in her ration card is Khushi Ram. I came to know
about this when she had lost her job and she came crying
to me. Today, Lata Devi told me that her case is fixed and
my evidence will also be recorded and I have come at her
instance. It is incorrect to suggest that I am the husband of
Smt. Lata Devi WW1 or that I am living with her under one
roof It is wrong to suggest that I am deposing falsely to
help Lata Devi.
In support of its case management filed affidavit of Shri.
Girish Kumar which having following contents:—
1.I state that I am Senior Manager (HR) and looking
after the matters pertaining to this case at present, am
conversant with the facts of the case as per record and
information received and am fully competent and
authorized by the management, Airports Authority of
India to depose in the present matter.
2. I state that the claimant was never employed by the
management of Airports Authority of India as such there
is no relationship of employer and employee between
the claimant and the management of Airports Authority
of India.
3.I state that the claim of the claimant workman is liable
to be dismissed in view of the judgment in the matter
titled as Steel Authority of India Vs. National Union
Water front Workers has over ruled its judgment dated
6.12.1996 in Air India's case and has held that the
notification dated 9.12.1976 issued by the Central
Government does not satisfy the requirements of section
10 of the CLRA Act and as such the same is quashed
prospectively i.e. from the date of this judgment subject
to the clarification that on the basis of this Judgment no
order passed or no action taken giving effect to the said
notification on or before the date of this Judgment, shall
be called in question in any Tribunal or court including
a High Court if it has otherwise attained finality/or it has
been implemented. It has been further held that neither
Section 10 of the CLRA Act nor may other provision in
the Act, whether expressly or by necessary implication,
provides for automatic absorption of the contract labour
on issuing a notification by appropriate Government
under 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 absorption of the
contract labour in the concerned establishment.
4.I state that the claimant as per her own particular was
not at all on the rolls on 6.12.96 which was the cutoff
date for regularization of the ex-contractor workmen as
per the judgment dated 6.12.96 of the Hon'ble Supreme
Court in Air India's case. I further deny that the claimant
was working with the Airport Authority.
5.I state that the Airports Authority of India i.e. the
management had been awarding the contracts and the
contractors had been getting the execution of the
awarded jobs on employing workers under their
employment , who had no relationship of employee with
the Airport Authority of India i.e. management as
employer and had never been in direct employment of
the Authority. After the judgment dated 6.12.96 of the
Hon'ble Supreme Court in the matter of Air India
Statutory Corporation etc. Vs United Labour Union etc.
844
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
about thousand applications were received for the
purposes of seeking regular services with the Authority
out of which several were bogus. All such applicants
were merely taken under care by the Authority i.e.
Management w.e.f. 1.02.97 to ascertain the eligibility/
authenticity for their regularization and were paid lump
sum monthly honorarium as an interim arrangement till
the proper scrutiny was done. Subsequently, House
keeping Department was instructed to obtain affidavits
from the persons engaged in the field of sweeping,
dusting and cleaning and forward the same to the
department of Personnel. These affidavits were
forwarded to the department of Personnel by EHK —II
in May , 1997. After this all the ex-contractors as on
6.12.96 and those affidavits which had been received
by the Department of Personnel were called to appear
before the committee of officers constituted by the then
Airport Director to elicit the data from ex-contract
workers regarding their experience, age etc. A Medical
Board was also constituted consisting of the Medical
Officers of AAI (IAD) and a medical officer from the
Government Department for medically examining all the
ex-contract workers whose affidavits had been received
with respect of their fitness condition and age. After
this a committee consisting of House Keeping
Supervisors was appointed to physically identify the
ex-contract workers.
A committee of officers was also constituted and the
following guidelines were issued to the committee members
to make tabulations in respect of ex-contract workers:—
(i) Pay bills/acquaintance rolls for the period
September, 1996 to December, 1996 should be
checked so as to see the continuity of a person
(with name and signature) in the employment of
AAI (IAD) on sweeping cleaning/dusting job and
also to see whether the employee was on the rolls
on 6.12.96.
(ii) Personal knowledge by identification of the
contract workmen by the House Keeping staff.
(iii) Observation of the committee who had
interviewed the contract workmen.
(iv) Any other supporting evidences to cross check
the authenticity with attendance record. PIC/ESI
wherever available.
6.I state that on scrutiny of the applications, affidavits,
pay bills and attendance sheets of December, 96 and other
relevant documents by the Scrutinizing Committee
constituted by the authority, it was found that several
bogus applications with tempered photocopies of PIC, with
duplicate/forged signatures upon declaration and affidavits
and also false affidavits have been made and thus the
Authority scrutinized the application strictly and on finding
the same not genuine the same were rejected and such
persons taken under care were asked not to report on duty
as not found eligible. For genuinity and verification school
certificates, ration card, election card and other documents
were also considered.
7.I state that the reasons/factual positions in respect of
the claimant is that on scrutiny it was found that she in her
own affidavit dated 14-2-1997, submitted to the management
had declared her husband's name as Sh. Shanti Dass
whereas from the Photo Identity Card issued by the Election
Commission of India and from the Raion Card, the name of
the Claimant's husband is Sh. Kushi Ram. Hence, even
otherwise as per the Management's Rule and Regulations
any person who has entered dual marriage is not entitled
for any employment in the services of the management and
hence her claim was not considered for this reason as well.
8.I state that the claimant never worked directly with the
Management of Airport Authority of India or any Identity
Card was issued to her.
9.I state that the claimant never fulfilled the conditions
of eligibility of being appointed on the basis of the Supreme
Court Judgment. I further state that the claimant had not
been found eligible for the job after detailed scrutiny by
the Management . After the judgment dated 6.12.96 of the
Hon'ble Supreme Court in the Air India's matter all the
applicants/claimants workmen were just taken under care
and not in the employment wherein it can be said that any
show cause notice or any reason for discontinuing their
services or termination order or salary in lieu of notice or
retrenchment compensation was required to be served/
paid. It is pertinent to mention here that at no point of time
direct relationship between the claimant and the
Management Authority came into existence.
10.I state that considering the facts of the matter the
claimant is neither eligible nor entitled to be reinstated in
service nor to be regularized with continuity of service
from any date with any back wages.
His affidavit was tendered on 20/12/12 . He was cross-
examined on the same day. His cross-examination is as
follow:—
I was posted at Rajiv Gandhi Bhawan, Safdarjung
Airport, New Delhi on 13.7.1998 Smt. Lata Devi workman
was never working under me. I have not gone through
the order dated 15.2.2002 passed by Sh. P.N.Pandey;
the then learned Presiding Officer of CGIT, New Delhi. I
do not know if this order was challenged by our
department.
I am ware the 50-60 sweepers were regularized after the
delivery of judgment in the case of Steel Authority of
India Vs. National Union Water Front workers, dated
06.12.1996. I am aware that our office had asked for some
documents from the workman in order to consider her
case for regularization along with few other workers.
¹Hkkx II—[k.M 3(ii)º
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845
Q. I put it to you that the workman married only once in
life and the name of her husband was Shruhti Dass.
Ans. It may be correct but I have no knowledge.
In case the workman had married only once and that
fact was brought to our notice, her case could have been
considered for regularization if she fulfilled other
requirements in this regard also.
Q.I put it to you that the case of the workman for
regularization was wrongly rejected taking her as a lady
who had married twice in her life though she had fulfilled
all other requirements for regularization.
Ans. It may be correct.
The workman never conveyed the name of her husband
as Shrushti Dass. I admit that the workman is illiterate. I
had not personally seen the Election Commission of India
card Ex. WW. I/C in respect of the workman though the
scrutiny committee must have seen all this.
Q.I put it to you that many senior and junior workers to
the workman were regularized.
Ans. All those who fulfilled the requirements were
regularized.
According to us the workman was not our employee
and so we did not feel the necessity to do any enquiry into
her case or to give any other opportunity to her expect
scrutinizing her documents. It is wrong to suggest that the
case of the workman has been deliberately rejected wrongly.
It is incorrect to suggest that we denied natural justice to
the workman.
Workman Arguments on Behalf of workman are as
follows:—
1.That the appropriate Government i.e. Ministry of
Labour, Govt. of India vide order No.L 11012/19/99-IR(M)
dated 24.09.1999 has referred the following dispute
before this Hon'ble Tribunal as per the Schedule
mentioned as under:
"Whether the action of Airport Director, Airport
Authority of India(IAD), IGI Airport, New Delhi to
discontinue the services of Smt. Lata Devi w.e.f
13.07.98 is legal & Justified. If not, what the workman
is entitled to and from which date."
2.Brief facts of the case:—
(a) The facts of the case are mentioned in the
statement of claim of the workman.
(b) Smt. Lata Devi W/o. Late Shrushthi Dass married
in her native place at Malda District, West Bengal.
She was employed in the year 1990 for the work of
sweeping for the establishment of International
Airport Authority of India and after the decision
of Hon'ble Supreme Court of India dated
6th December, 1996 reported in 1996(9) SCALE
AIR INDIA STATUTORY CORPORATION ETC.
Vs. United Labour Union & Ors etc. The Hon'ble
Supreme Court has held that after Abolition of
Contract system from any establishment under
section 10 of ID. Act by appropriate Government
the erstwhile contract labour covered by the
sweep of such abolition of the concerned activity
would be entitled to be treated as direct employee
of the employer whose establishment they were
earlier working and they would be entitled to be
treated as regular employee atleast from the day
on which the concerned labour system in the
establishment for the work which they were doing
gets abolished. The operative portion of the
judgment in para 72 is reproduced as under:
"72. So far as the judgment of the three Member
Bench of this Court in R.K Panda & Ors Vs. Steel
Authority of India & Ors (1994) (5 SCC 304) is
concerned, it is true that in para 6 of the report in
the last four lines it is observed while referring to
Dena Nath's case (supra) that neither the Act nor
the Rules framed by the Central Government by
any appropriate Government provide that upon
abolition of the contract labour, the laborers would
be directly absorbed by the principal employer,
but that is not the ratio of the decision of the said
three-Member Bench. It has only referred to what
Dena Nath's case decided. It is also required to be
noted that the question which has been posed
for our consideration is as to what is the fate of
the erstwhile contract labour on abolition of
contract labour system in the establishment under
Section 10 of the Act. Such a question had not
come upto the consideration before this Court in
R.K. Panda's case (supra). Therefore, it would not
be urged that the Radio of Dena Nath's case was
approved by three Member Bench in R.K. Panda's
Case (supra). In the latter case no abolition was
directed by appropriate Government under
Section 10 of the Act. It was a case in which the
contract labourers were claiming to be absorbed
directly by the principal employer without they
being any order under section 10.Consequently,
the question with which we are concerned in the
present case did not fall for consideration of the
Bench in R.K. Panda's Case (supra), nor had the
Bench decided that question one way or other. I,
therefore, respectfully concur with the view taken
by Brother Ramaswamy.J on the scope and ambit
of Section 10 of the Act and hold that on abolition
of contract Labour system from any establishment
846
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
under Section 10 of the Act by the appropriate
Government the logical and legitimate
consequences thereof will be that the erstwhile
regulated contract labour covered by the sweep
of such abolition of the concerned activities would
be entitled to be treated as direct employee of the
employer on whose establishment they were
earlier working and they would be entitled to be
treated as regular employees at least from the day
on which the contract labour system in the
establishment for the work which they were doing
gets abolished.
3.That the central Government exercising the power
u/s10 of the I.D. Act on the basis of recommendation and
in consultation with Central Advisory Board constituted
u/s 10(1) of I.D. Act issued a notification on December 9,
1976 prohibiting "employment of contract labour on and
from December, 9, 1976 for sweeping, cleaning dusting and
watching of buildings owned or occupied by the
establishments in respect of which the appropriate
government under the said Act is the Central Government."
This fact is mentioned in para 3 of the judgment of AIR
India Statutory Corporation etc. is reproduced as under:
"3 The appellants engaged, as contract labour, the
respondent union's members, for sweeping, cleaning,
dusting and watching of the buildings owned and
occupied by the appellant. The Contract Labour
(Regulation and Abolition) Act, 1970 (for short, the
'Act') regulates registration of the establishment of
principal employer, the contractor engaging and
supplying the contract labour in every establishment
in which 20 or more workmen are employed on any day
of the preceding 12 months as contract labour. The Act
had come into force from September 5, 1970. The
appellant had obtained on September 20, 1971 a
certificate of registration from Regional labour
Commissioner (Central) under the Act. The Central
Government, exercising the power under Section 10 if
the Act, on the basis of recommendations and in
consultation with the Central Advisory Board
constituted under Section 10(1) of the Act, issued a
notification on December 9, 1976 for sweeping,
cleaning dusting and watching of building owned or
occupied by the establishment in respect of which the
appropriate government under the said Act is the
Central Govt. However, the said prohibition was not to
apply to "outside" cleaning and other maintenance
operations of multi-storyed buildings where such
cleaning or maintenance cannot be carried out expect
with specialised experience'. It would appear the
Regional Labour Commissioner (Central) Bombay by
letter dated January 20, 1972 informed the appellant
that the State Government is the appropriate
Government under the Act. Therefore, by proceedings
dated May 22, 1973 the Regional Labour Commissioner
(Central) had revoked the registration. By amendment
Act 46 of 1982, the Industrial Dispute Act, 1947 (for
short, the 'ID Act) was made applicable to the appellant
and was brought on statute book specifying the
appellant as one of the industries in relation to which
the Central government is the appropriate Government
and the appellant has been carrying on its business
"by or under its authority" with effect from August 21,
1982. The act was amended bringing within its ambit
the Central Government as appropriate Government
by amendment Act 14 of 1986 was effect from January
28, 1986.
4.The MW1/A Shri Girish Kumar in its Affidavit stated
that the judgment titled "Steel Authority of India Vs. National
Union Water Front Workers in its Judgment dated 6.12.1996
in Air India Case has held that the notification dated
9.12.1976 issued by the Central Government has overruled
on 30.08.2001. It is proved that during 6.12.1996 till
30.08.2006 has intact and the Management implemented
the said judgment and admitted in cross-examination that
"I am aware that 50-60 sweepers were regularized after the
delivery of judgment in the case of Steel Authority of India
Vs. National Union Water Front workers, dated 06.12.1996,
I am aware that our office had asked for some documents
from the workman in order to consider here case for
regularization alongwih few other workers".
5. It is proved that the Office Order dated July 13, 1998
the Management accepted the judgment of Hon'ble
Supreme Court dated 6th December 1996 reported in 1996(9)
SSCALE titled AIR INDIA STATUTORY CORPORATION
ETC. VS. UNITED LABOUR UNION AND OTHERS ETC.
In view of this judgment Smt. Lata Devi who is appointed
on Contract Labour for sweeping the work of International
Airport Authority in the year 1999 so she deemed to be
employee of Air India Statutory Corporation Vs. United
Labour Union ect" w.e.f the judgment in the case dated 6th
December 1996 retrospectively i.e. in the year 1999. The
operative portion of the said judgment i.e. Air India Statutory
Corporation Vs. United Labour Union mentioned in para 72.
6.That the Constitution Bench of Hon'ble Supreme Court
of India decided the legality of Air India Statutory
corporation of India Vs. United Labour etc. (1996 (9) Scale
has overruled from the prospective dated and if the
Management accepted the judgment i.e. Air India Statutory
Corporation Ltd. Vs. United Labour Union & Others etc.
1996(9) Scale so the said judgment that is Air India case
has become final mentioned in para 122(4). In light of the
judgment of Constitution Bench i.e. Steel Authority of India
Ltd. & other etc. Vs. National Union Water Front Workers
& others etc. has nothing to do with the legality and
¹Hkkx II—[k.M 3(ii)º
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847
observation of the workmen from the date of their initial
employment before 30.08.2001. Para 122(4) is reproduced
as under:
"122(4). Be overrule the judgment of this court in Air
India's case (supra) prospectively and declare that any
direction issued by any industrial adjudicator, any court
including high Court, for absorption of contract labour
following the judgment in Air India's case (Supra), shall
hold good and that the same shall not be set aside,
altered or modified on the basis of this judgment in case
where such a direction has been given effect to and it
has become final.
7.That it is crystal clear that Smt. Lata Devi is the
workman of the management i.e. Air India Statutory
Corporation from the date of her initial employment through
Contract Labour w.e.f. the year 1990 so the Management
have to absorb her on regular basis w.e.f 1999 as per the
judgment dated 6th December 1996 titled Air India Statutory
Corporation etc. United Labour India and Others.
8.That Smt. Lata Devi is deemed to be workmen as
Sweeper to the Management of Air India Statutory
Corporation etc. from the date i.e. 1990 w.e.f she is appointed
through the contractor for providing the job of Air India
Statutory Corporation etc. and the said judgment become
final as per para 122(4) of the judgment of Steel Authority
of India.
9.That the Management unlawfully terminated the
services of Smt. Lata Devi wife of Late Shrushti Dass w.e.f
13.07.1998 on the ground of alleged dual marriage without
holding any enquiry and even did not pay the
compensation notice etc. as per section 25(1) of I.D act. In
this connection no charge sheet has been served and no
proper enquiry was conducted on the alleged misconduct
of dual marriage or even no notice for one month and one
month pay in lieu of notice as well as compensation from
the year 1990 till date of termination i.e. 13.07.1998 were
paid to her from the date of her discontinuation of service.
It is also submitted that the name mentioned in the Ration
Card etc. cannot be termed as dual marriage as the Officer
of issuing the ration card is not competent to declare
marriage to any person or dissolve the marriage.
10.That the Hon'ble Supreme Court in Nar Singh Pal ...
Appellant Vs. Union of India & others ... Respondents
reported in 2000 Lab IC 1377 has held that the casual
workers are also entitled the retrenchment compensation
as well as regular enquiry before terminating their services.
The operative para 12 & 13 are reproduced as under:
"12.The fact that the applicant was involved in a criminal
case is not disputed by the appellant. What is contended
by him in is that he was ultimately acquitted by the
Court of Chief Judicial Magistrate. Agra and,
therefore, involvement of the appellant in a criminal
case could not have been made the basis for terminating
his services. Since the appellant was acquitted, and it
was a clean acquittal, the stigma attached to him of
having been prosecuted in a criminal case should have
been treated to have disappeared and so argument can
be allowed to be realized for justifying he order of
dismissal on the ground of appellant's involvement in a
criminal case.
13.The tribunal has also the High Court, both appears
to have been moved by the fact that the appellant had
encashed the cheque through which retrenchment
compensation was paid to him. The intended to say that
once the retrenchment compensation was accepted by
the appellant the chapter stands closed and it is no
longer open to the appellant to change his
reinstatement. Thus we are constraint to observe, was
wholly erroneous and not the correct approach. The
appellant was the casual labour who had attained the
temporary" status after having putting 10 years of
service like any other employees, he has to stand
himself, or may be his family members on the wages he
got. On the termination of his services there was no
hope left for payment of salary in future. The
retrenchment compensation paid to him, which was only
mearge amount of Rs. 6,350/- was unutilized by him to
sustain himself. This does not mean that he had
surrendered all his consequential rights in favour of
the respondent . Fundamental right under the
constitution cannot be battered away. They cannot be
compromised nor they can be any estoppels against the
exercise of fundamental rights available under the
constitution . As pointed out earlier, the termination of
the appellant from service was punitive in nature and
was in violation of the principles of natural justice and
he is constitutional rights such an order cannot be
sustainable.
10.That in similar situated matter that is "MCD...
Applettant Vs. Praveen Kumar Jain "reported (1999) Lab
I.C. (619) the Hon'ble Supreme Court has again held the
muster roll employees/casual workers and were not regular
employee of the Petitioner Corporation or that of, they
were not entitled to departmental enquiry as is required for
regular employees of petitioner- corporation."As such a
stand was taken, it is obvious that the termination order
based on misconduct is not the result of any department
enquiry against respondent No.1 Consequently, order of
termination would failed on the ground, it is simplicitor
discharge order is violative of Section 25 F of the Industrial
Tribunal Act, if it is a penalty order, as contended by the
appellant, it would fail on merit as not having followed the
procedure of departmental enquiry in either view of the
matter, the impugned order must be held to be rightly set
aside by the Labour court and the decision was also rightly
confirmed by the Hon'ble High Court. In the present case
the department did not hold any enquiry on the misconduct
framed orally and even not observed the provisions of 25 F
of I.D Act 1947 so the termination of the workman Smt. Lata
Devi is illegal and unjustified.
848
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
In view of this, the workman is treated as the direct
employee of the Management of Airport Authority of India
since 1990 and as per the judgment dated 6.12.1996 as per
judgment of Hon'ble Supreme Court in the matter Air India
Statutory Corporation etc. V. United Labour Union & Ors
reported 1996(9) Scale. The management adopted the said
judgment as per their policy and accordingly she has to be
treated as direct employees of Air India Statutory
Corporation etc. so she cannot be terminated simplicitor
without holding the departmental enquiry and hence the
termination of her service cannot be discontinue of
Smt. Lata Devi w.e.f 13.07.1998 which is illegal & unjustified
and she deemed to be in service w.e.f. 13.07.1998 and entitled
full back wages in the regular Grade provided to the
Sweepers in the said establishment from the date of her
discontinuation of service w.e.f 13.07.1998 as per the
judgment of the Hon'ble Supreme Court declared by the
Constitution Bench in the matter Steel Authority of India
& others etc.... Applellant Vs. National Water Union Front
workers & others etc. etc." as per para 122(4) of the said
judgment because the Management did not challenged
the same and the said direction become final.
I have heard the arguments of Ld A/Rs for the parties
and perused the pleadings and evidence of parties
including written arguments of workman as well as
principles laid down in cited rulings on behalf of workman
and relevant provisions of law and settled law on the
relevant points.
It is relevant to mention here that management prior to
stage of evidence raised objection in the instant ID. and
three other IDs. showing those to be not maintainable in
the light of principle laid down by Hon'ble Supreme Court
in case of steel Authority of India Ltd. Vs. National Union
Water Front workers Labour and Industrial Cases 2001 Page
3656 decided on 30/8/2001 which was heard, decided and
rejected by my Ld Predecessor by detailed order on
15.2.2002.
It is also relevant to mention here that after a Oral
arguments A/R for the management as well as any person
on behalf of management is not turning up to participate in
the proceedings of the instant case with an ulterior motive
to prolong the proceedings of the instant old I.D. No. 79/
2000 since 11.10.13 so that only exparte award could be
passed against management. That could be with inordinate
delay. Management has not filed reply to written arguments
of workman.
It is necessary to mention here that workman Lata Devi
who was casual worker on daily rated wage discontinued
from service on 13.7.1998. On which date principles laid
down by their Lordship of Hon'ble Supreme Court in case
Air India Statutory Corporation etc Vs United Labour Union
& Ors. 1996(9) Scale , MCD Vs. Praveen Kumar Jain (1999)
Lab I.C. 619 and Nar Singh Pal Vs. Union of India & Ors
2000 Lab IC 1377 were applicable in the instant case.
Reference of the instant I.D. was made on 24.9.1999. On
which date principle laid down by their Lordship of Hon'ble
Supreme Court in aforesaid case was the settled law of
Hon'ble Supreme Court on the point, and the principle laid
down by their Lordship of Hon'ble Supreme Court on in
case of Steel Authority of India Ltd. Vs National Union
Water Front Workers reported in Labour and Industrial
cases 2001 page 3656 at page 3696 was not applicable.
Which overruled the aforesaid Judgment is inapplicable
in the instant case because prior to it management itself
has adopted the aforesaid principle of aforesaid Judgment
of Hon'ble Supreme Court and regularised the other co-
employees. In the instant case management has not
regularised the workman Lata Devi but discontinued her
on the count of alleged dual Marriage without any proof
by way of evidence or enquiry etc.
Hence order of management is illegal and unjustified is
liable to be set aside hence set aside and Reference is liable
to be decided in favour of workman and against
management. Which is accordingly decided in favour of
workman and against management.
Workman Lata Devi is liable to be reinstated but without
Back Wages in want of her pleadings and evidence of Back
wages.
She is accordingly reinstated without Back wages and
Management is accordingly directed to reinstate Lata Devi
without Back wages after expiry of period limitation of
available remedy.
Award is accordingly passed.
Dated: 13/12/2013
HARBANSH KUMAR SAXENA, Presiding Officer
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849
New Delhi, the 8th January, 2014
S.O. 305.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 08/2004) 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 Kudremukh Iron Ore Company Limited and
their workman, which was received by the Central
Government on 6/1/2014.
[No. L-26012/11/2003-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL-TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
DATED:
23rd DECEMBER 2013
PRESENT:
Shri S. N. NAVALGUND,
Presiding Officer
C.R. No. 08/2004
I Party
II Party
Sri D. Vasudev Rao,
The General Manager,
S/o Sri Dhanoji Rao,
Kudremukh Iron Ore
R/o Barandur Village & Post,
Company Limited,
Bahdravathi Taluk,
Kudremukh.
SHIMOGA.
KUDREMUKH-577 142.
Appearances:
I Party:
Shri P. S. Ranganathan,
Advocate
II Party:
Shri K. Subha Ananthi,
Advocate
AWARD
1. The Central Government vide Order No. L-26012/11/
2003-IR(M) dated 05.02.2004 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 Kudremukh
Iron Ore Company Limited, Kudremukh in dismissing
the services of Sri D. Vasudev Rao, w.e.f. 13.08.1996 is
legal and justified? If not, to what relief the workman
concerned is entitled?"
2. On receipt of the reference while registering it in C R
08/2004 when notices were issued to both sides, they
entered their appearance through their respective advocates
and I party file claim statement on 02.04.2004 whereas the II
party filed its counter statement on 13.09.2004.
3. After completion of the pleadings my learned
predecessor having regard to certain allegations made in
the claim statement touching the fairness of the Domestic
Enquiry framed a Preliminary Issue as to "Whether the
Domestic Enquiry held against the I Party by the II Party is
fair and proper" and after receiving the evidence of both
sides and hearing the arguments by order dated 15.04.2013
the said issue came to be answered in the affirmative holding
that the Domestic Enquiry held against the I party by the II
party is fair and proper. After the Domestic Enquiry issue
was answered and the matter was posted for evidence of I
party on victimisation and being not gainfully employed
he filed his affidavit and by examining himself on oath as
WW 1 (V) got exhibited an appreciation letter issued to
him and three others for preparing a very attractive model
of AG Plant dated 09.10.1995; two certificates of
appreciation for voluntarily donating the blood and a
certificate issued for having completed the National
Physical Fitness Programme dated 04.06.1985 as Ex W-1(v)
to Ex W-4(v) whereas the II party did not lead any oral or
documentary evidence on these points. After close of the
evidence on the point of I party victimization and being
not gainfully employed the arguments addressed by the
learned advocates for both sides were heard.
4. The brief facts leading to this reference and Award
may be stated as under :
5. The I party while serving as Junior Operator cum
Mechanic Gr. II in the II Party he was served with charge
sheet dated 20.11.1996 for theft of about 300 Mtrs. Of 6.6
kv of category and 120 Sq mm. size of Copper cable which
was found missing from the Barge pump house located in
Lakya Dam mainly on the charge sheet submitted by the
Police of Kudremukh Police Station after investigation of
complaint/report made by Sh. N. Krishna Bhat, Sr. Manager
(D&M) dated 28.10.1995 as under:
"The undersigned proposes to hold an enquiry against
you. The substance of the imputations of misconduct
as per Clause 34(13), 34(17), 34(53), 34(55), 34(56) and
34(57) of the certified standing orders of the company
under which the enquiry is proposed to be held is set
out in the enclosed statement of Articles of charges
(Annexure - A). A list of documents by which and list of
witnesses by whom the article of charges are proposed
to be sustained are also enclosed (annexure 'B' &
Annexure 'C' respectively).
You are hereby directed to submit in writing through
proper channel a statement of defence to the
undersigned within 7 days from the date of receipt of
this Charge Sheet.
850
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
You are informed that an Enquiry will be held only in
respect of those articles of charges which are not
admitted. You should, therefore, specifically admit or
deny such article of charge.
You are further informed that in the event of your failure
to submit a statement of defence within the time specified
in Para 2 above, it will be presumed that you have no
defence to offer and the Enquiry Committee will hold
the Enquiry against you ex-parte."
Enc : AA
STATEMENT OF ARTICLES OF CHARGES
On 28.10.95 a complaint was lodged by Sr. Mgr. (D&M),
KIOCL, Kudremukh with the Kudremukh Police Station
that about 300 meters of 6.6 KV category and 120 Sq. M M
size of Copper cable has been missing from the Barge Pump
House located in Lakya Dam. This was observed during
the routine inspection/checking being done by the Staff of
D & M Dept. On 26.10.95, it was observed that
approximately 250 meters of Copper Cable was found missing
and again during inspection/checking done on 27.10.95
along with the CISF staff, it was observed that a further
quantity of 50 meters of Copper cable from the Sub-station
has been removed. The approximate value of this is more
than Rs. 25,000. Based on the above complaint a criminal
case bearing No. 39/95 under Section 379 IPC was registered
by the Kudremukh Police Station.
Consequent upon the investigations done by the
Kudremukh Police Authorities it has been reported that
based on the factual informations obtained by them during
the course of investigation you were arrested and taken
into Police Custody on 29.10.95. After making detailed
enquiries from you and based on the information/written
statement given by you, the Police Authorities have
recovered the Copper Cable weighing approximately
67 kgs. From Quarter No. 69 A Single, Sector III in which
you were residing. Apart from the above, materials viz. 2
Nos. Hacksaw blades, 1 Torch and Scooter bearing
Registration No. CRX 3900 have been taken into Police
Custody. You have also accepted before the Police
Authorities that the Copper Cable pertaining to the
complaint lodged by the DM Dept. have been stolen on
15.10.95 and 26.10.95 and the same have been burnt and
the total quantity oi Copper Cables have been distributed
among the people involved in the above theft case. The
materials, i.e. Copper Cable weighing 67 Kgs. which happen
to be your share has also been confiscated from your
residence which has been transported from Lakya Dam
Barge Pump House in the above scooter. Subsequently,
you were arrested on 7.11.1995 at around 9.45 AM and
produced before the JMFC, Mudigere on 8.11.95 by the
Kudremukh Police Station and have been remanded to
judicial custody (Jail) until further orders.
The above acts on your part constitute misconducts
under the following Clauses of the certified Standing Orders
of the Company:
34(13)
—
Theft, fraud or dishonesty in connection
with the Company's business or property
..... within the Company's premises.
34(17)
—
loss of Company's property.
34(53)
—
Acting in a manner prejudicial to the
interests of the company.
34(55)
—
Abetments of or attempt to commit any of
the above acts of misconduct.
34(56)
—
Contravention of any of the Standing
Orders and/or rules or regulations made
thereunder.
34(57)
—
Commission of any act subversive of
discipline or good behaviour.
6. The management being not satisfied with the reply/
explanation given to the charge sheet ordered to hold the
Domestic Enquiry by appointing Sh. B Loka Reddy, as
Chairman, Sh. H S Ramachandra as Member and
Sh. N C Saha as Presenting Officer. The Enquiry Officer
while issuing the notice to the I Party/CSE to appear on
03.01.2006 on his appearance while observing the formalities
of preliminary hearing and recording the evidence of eight
witnesses for the management and the statement of the
I party/CSE and exhibiting Ex I to 15 for the management
and after receiving the written brief of both the sides
submitted his enquiry finding dated 07.05.1996 to the
Disciplinary Authority charges levelled against the CSE
being proved. The Disciplinary Authority then serving the
copy of the enquiry finding and show cause notice after
affording the opportunity of hearing by its order dated
31.08.1996 imposed the punishment of dismissal. Aggrieved
by the said order the I party approached the RLC(C),
Bangalore vide his application dated 21.07.2003 after he
was acquitted by the criminal court by Judgement dated
04.04.2001 since the RLC(C) submitted FOC the Central
Government made this reference for adjudication.
7. Since the Domestic Enquiry conducted is held as fair
and proper the point that now remains for my consideration
are :
Point No. 1: Whether the finding of the Enquiry Officer
charge being proved is perverse?
Point No. 2: If not, whether the punishment imposed is
disproportionate to the misconduct proved against the
I Party?
Point No. 3: What Order/Award?
8. On appreciation of the reference schedule with the
pleadings, oral and documentary evidence brought on
record in the Domestic Enquiry with the arguments put
forward by the learned advocates my finding on
¹Hkkx II—[k.M 3(ii)º
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851
Point No. 1 is in the affirmative, Point No. 2 does not survive
for consideration and Point No. 3 as per final order for the
following.
REASONS
9. It is borne out from the documentary evidence marked
for the management in the Domestic Enquiry that on a
complaint filed by Sh. N Krishna Bhat, Sr. Manager (D&M)
on 28.10.1995 to Sub-Inspector of Police, Kudremukh Police
Station alleging that on 26.10.1995 250 mtrs. of copper cable
between stuff sub-station and Barge Pump house was
found missing and again on 27.10.1995 50 mtrs. of cable
found missing towards sub-station valued of about
Rs. 25000.00, the sub-inspector while issuing a FIR to the
jurisdictional court for offence punishable under section
379 of IPC without naming the accused it appears on the
information given by the I Party and five others leading to
discovery of the stolen articles he charge sheeted them
(six persons including the CSE) for offence punishable
under Section 379 of IPC before JMFC, Mudigere and the
learned JMFC, Mudigere while registering it in C C No.
566/1997 on his file after receiving the evidence led by the
prosecution by his judgement dated 04.04.2001 acquitted
all of them, in view of the facts narrated by me above, now
it has to be seen whether in the Domestic Enquiry the
II Party/Management proved the complete or part of the
stolen articles were being discovered on the information
given by the I Party from the quarters of the company
occupied by him. In other words whether the evidence
adduced by the II Party/management before the Enquiry
Officer satisfy complete or part of the stolen articles were
being recovered from the quarters of the company occupied
by the I Party/CSE has to be seen.
10. As already adverted to by me above the management
examined in all eight witnesses as PWs 1-8 in the Domestic
Enquiry. Out of them the evidence of PW 1 Mr. Satish
Kumar, Staff No. 3148; PW 2 Mr. R Pandey, Staff No.
7516179; PW 3 Sh. Darshan Singh, Sub- Inspector, CISF,
Kudremukh Unit; PW 4, Sh. B K Kamalkh, Staff No. 4140;
PW 5 Sh. G B Yadav, Staff No. 3146; PW 6 Sh. P Selvaraj
being formal as to having come to know about missing of
cable from the alleged points their evidence do not throw
any light as to the recovery/discovery of stolen wire from
the residential quarters of the company occupied by the
I Party and as PW 6 N Krishna Bhat who moved the police
by filing a formal complaint of missing of cable and PW 8
I S Pawar have deposed portion of the stolen article being
recovered from the quarters bearing No. 69A occupied by
the I Party their evidence has to be appreciated as to
whether their version a portion of-the stolen wire was
recovered from the quarters occupied by the CSE/I Party.
The I party/CSE in his claim statement and affidavit filed in
lieu of the evidence on the victimization issue has catego-
rically stated that he who was allotted quarters bearing
No. 55 was residing in the same and that the quarters bearing
No. 69 from which some of the articles alleged to have been
recovered was not at all in his occupation as such he has
nothing to do with such articles and as he was actively
involved in the union activities he has been falsely
implicated in the criminal case, whereas, the management
in its counter statement though stated that I Party had
exchanged his quarters with one Mr. L Ananda Murthy
who was the allottee of quarters bearing No. 69 failed to
place on record any evidence substantiating such exchange
of quarters between the I party and Mr. L Ananda Murthy.
In other words the II Party by saying in its counter statement
the I Party had exchanged his quarters with Mr. L Ananda
Murthy who was the allottee of quarter No. 69 having
admitted that the quarters allotted to I Party was one bearing
No. 55 and that he had exchanged it with Mr. L Ananda
Murthy who was allotted with quarters no. 69 admitted
that quarters allotted to the I Party was No. 55. When that
is the admitted fact it was for the II Party management to
prove by leading necessary evidence either in the Domestic
Enquiry or atleast when an opportunity was given to lead
evidence on Domestic Enquiry issue or victimization and I
party being not gainfully employed but the II Party did not
make any attempt on this aspect of its contention. Thereby
the II Party case that I Party was in occupation of Quarter
No. 69 and from that quarters stolen articles were recovered/
discovered falls to the ground. Even assuming that I Party
was in occupation of the quarter bearing No. 69 A what is
the evidence of the management to demonstrate that from
that quarters the stolen articles were recovered. PW 6
Sh. N Krishna Bhat who happens to be the complainant in
his evidence while narrating that on 26.10.1995 being
informed by the SeIva Raj, Deputy Manager (D&M) he
came to know about theft of cable from the barge pump
house on 28.10.1995 he lodged a complaint reporting the
same to the police when he was asked by the Presenting
Officer as to whether he recognise Sh. D Vasudev Rao (i.e.
I Party) , he stating that he had seen ' him earlier on 07.11.1995
to a leading question by the Presenting Officer that 'in
connection with this .case police has ceased some items
from the residing house of D Vasudev Rao, A569, sector 3
on 07.11.1996, did you witness the ceaser of items from his
residing house, he answers as 'YES' and that is his evidence
against the I party. In other words he never stated in his
evidence that the I party was residing in Quarters bearing
No. 69 sector 3 and that the police on the information either
given by him or some how discovered or recovered stolen
articles from the quarters in his occupation. Similar is the
evidence given by PW 8 IS Pawar. The management failed
to examine either the investigating officer or the witnesses
attesting the recovery mahajar to establish that stolen
articles were discovered or recovered from the quarters in
the occupation of the I party. Thereby in the presence of
such vague evidence through PW 6 and 8 the Enquiry
Officer in my opinion erred in coming to the conclusion the
charge being proved and the same is a perverse finding.
Accordingly, having arrived at conclusion of answering
852
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
this point in the Negative, the Point No. 2 does not survive
for consideration.
11. In view of my finding on Point No. 1 i.e. the finding
of the Enquiry Officer charge is proved being perverse the
I party is entitle for reinstatement into service, the only
point that remains for consideration is whether he is entitle
for full backwages from the date of imposing the
punishment of dismissal w.e.f. 13.08.1996. The I party in his
claim statement states that after the JMFC, Mudgere
acquitted him in the criminal case (the date of which is
04.04.2001) he preferred an appeal to the Director (P&P),
Kudremukh Iron Ore Company by registered post and
thereby though admittedly he was dismissed from service
by order dated 13.08.1996 he did not prefer appeal within
the prescribed time and waited till he was acquitted in the
criminal case and naturally same was not considered and
only there after he raised the dispute by filing an application
before the RLC(C), Bangalore on 21.07.2003. Thereby he
failed to explain the delay in raising the dispute for over a
period of 06 years which deprive him from claiming
backwages for the said period. In other words it is not
reasonable and justifiable to grant him backwages for the
period he slept over the punishment of dismissal. The
evidence of I party that he is not gainfully employed after
his impugned dismissal from service is not rebutted by any
cogent evidence he being gainfully employed. Under the
circumstances, I feel it just and appropriate to grant him
full backwages from the date he moved the RLC(C) by his
application dated 21.07.2003 till he is actually reinstated
into service and also continuity of service. In the result, I
pass the following.
ORDER
The reference is allowed holding that the action of the
management of Kudremukh Iron Ore Company Ltd.,
Kudremukh in dismissing the services of Sri D Vasudev
Rao w.e.f. 13.08.1996 is not legal and justified and that
Sh. D Vasudev Rao, is entitle for reinstatement into service
with continuity of service and full backwages from
21.07.2003 till he is actually reinstated into service adjusting
the amount given to him by way of interim relief for this
period with other consequential benefits that he would
have received in the absence of his impugned dismissal
from service.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 23rd December, 2013)
S.N. NAVALGUND, Presiding Officer
ANNEXURE — I
Witnesses examined in Domestic Enquiry:
PW 1
—
Satish Kumar, 4138, Asst. Mgr. (D&M)
PW 2
—
R Pandey, Head Constable, CISF
PW 3
—
Darshan Singh, Sub-Inspector, CISF
PW 4
—
B K Kamalaksha, 4140, DCM-I
PW 5
—
G B Yadav, 3146, Techn. II, D&M Dept.
PW 6
—
N K Bhat, 3186, Sr. Mg. (D&M), D & M Dept.
PW 7
—
P Selvaraj, 2940, Dy. MGr. (D&M), D&M Dept.
PW 8
—
I S Pawar, 2841, Jr. Eng., D & M Dept.
Documents exhibited In Domestic Enquiry on behalf of
management:
Ex -1
:
Police complaint by Sri N K Bhat, Sr. Mgr. (D&M)
dated 28.10.1995 along with FIR copy bearing C
C No. 39/95 under Section 379/IPC to Kudremukh
Police Station.
Ex -2
:
Report from Police Station (Kudremukh) to Sri S
Murari, D(P&P), vide No. CC 261/95, dated
11.11.95 along with Statement from Sri D
Vasudev Rao dated 7.11.95
Ex -3
:
Suspension Order bearing No. PERS/
GM(PP&S)/4608/95/3549 dated 13.11.95
Ex -4
:
Photograph of Sri D Vasudev Rao showing that
a case No. 39/95 under Section IPC has been
registered against him by the kudremukh Police
Station
Ex -5
:
Photograph showing cable cut pieces of
3 x 120 sq. mm, burnt out cable, copper ingot moulds
Ex -6
:
Letter No. CC 291/95 dated 30.11.95 from the
Sub-Inspector, Kudremukh Police Station
forwarding the photographs indicated at SI. No.
4 & 5 (Ex No. 4 & 5).
Ex -7
:
Charge Sheet No. PERS/GM(PP&S)/01/4608/
3568 dated 29.11.95, along with Statement of
articles (ANNEXURE A), list of documents
(ANNEXURE B), list of witnesses
(ANNEXURE C), Photocopy of Police Report
dtd. 11.11.95 and photocopy of statement of Sri
D Vasudeva Rao dtd. 7.11.95 in the Police Station.
Photocopy of complaint from Sr. Mgr. (D&M)
dated 20.10.95, photocopy of FIR CC No. 39/95
under Section 379/IPC.
Ex -8
:
Request for time extension from Sri D. Vasudev
Rao dtd. 5.12.95
Ex -9
:
Grant
of time extension
vide
Ltr
No. PERS/GM(PP&S)/01/4608/7489 dtd. 7.12.95
Ex -10 :
Explanation from Sri D Vasudev Rao dtd. 11.12.95
received vide No. 853 dtd. 16.12.95.
Ex -11 :
Diagram showing the cross section of the said
cable. Drawing No. CABLE-342 dtd. 4.10.78 (vide
Spec. No. 7502-1444/V-2187)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
853
Ex -12 :
Specimen copy of
material
acceptance
certificate No. 12738/1517 dtd. 6.11.78 showing
details of the specification of the above cable.
Ex -13 :
Copy of work order No. S/Cont/1584/3527/1962
dtd. 29.8.92 (emergency recommissioning of
Barge Pump House & restoration of power
supply to 4 pole feeder of Township supply).
Ex -14 :
Copy of work Order No. S/Cont/2063/4538/532
dtd 7.11.95 retrieving of 6.6 KV cable at RWT &
No. DM(C)/T&C/1575 dtd. 14.11.95 final
deviation statement for retrieving of 6.6 KV cable
at RWT.
Ex -15 :
5 photographs taken after the theft in Barge
Pump House area on 27.10.95.
Documents exhibited in Domestic Enquiry on behalf of
the CSE:
Nil
ubZ fnYyh] 8 tuojh] 2014
dkñvkñ 306.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fganqLrku isVªksfy;e
dkWjiksjs'ku] /kkjokM+ 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;] c®xyksj ds iapkV ¼lanHkZ la[;k 70@2000½
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 6-1-2014 dks izkIr gqvk
FkkA
[lañ ,y&30012@60@2000&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 8th January, 2014
S.O. 306.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 70/2000) 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 Hindustan Petroleum Corporation, Dharwad
and their workman, which was received by the Central
Government on 6-1-2014.
[No. L-30012/60/2000-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
DATED
:
9th December, 2013
PRESENT
:
Shri S.N. NAVALGUND,
Presiding Officer
C R No. 70/2000
I Party
II Party
Sri N C Sortur,
The Regional Manager
C/o Sh. B K Kale, Advocate,
(LPG), Hindustan
Durga View,
Petroleum Corpn. R O, P B
Maratha Colony,
No. 24, 165/166, Dharwar,
DHARWAD.
DHARWAD
Appearances:
I Party
:
Shri Muralidhara
Advocate
II Party
:
Shri CM Desai
Advocate
AWARD
1. The Central Government vide order No. L-30012/60/
2000-IR(M) dated 18.09.2000 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 Hindustan
Petroleum Corporation Ltd in terminating the service of
Shri N C Sortur justified? If not, to what relief the
workman is entitled?"
2.
On receipt of the reference while registering it in
CR 70/2000 when notices were issued to both the sides,
they entered their appearance through their respective
advocates and I party claim statement came to be flied on
21.08.2001 and counter statement of the II party on
11.01.2002.
3. The brief facts leading to this reference and award
may be stated as under :
"The I party while serving as General Workman at Hubli
LPG Plant of the II Party he was served with the charge
sheet dated 21.08.1998 as under:
CHARGE SHEET
It has been reported against you that you have been
remaining absent unauthorisedly effect 6.7.98.You were
advised to report for duty immediately vide letters LPG/
PRN/OPS dated 13/7/98, 20/7/98 and LPG/KS/PERS dated
11/8/98. Despite the above referred letters, you have not
reported for duty as of date.
It is further reported that during the period April 97 to
2/7/98, you remained absent unauthorisedly as mentioned
below:
APRIL 97
1 DAY
MAY 97
3 DAYS
854
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
JUNE 97
5 DAYS
JULY 97
5 DAYS
AUGUST 97
5 DAYS
SEPT 97
12 DAYS
OCT 97
13 DAYS
NOV 97
10 DAYS
DEC 97
4 DAYS
JAN 98
6 DAYS
FEB 98
13 DAYS
MAR 98
7 DAYS
APR 98
8 DAYS
MAY 98
19 DAYS
JUNE 98
25 DAYS
JULY 98
2 DAYS
145 DAYS
The above unauthorised absenteeism is in addition o
87 days of leave availed by you, during the said period.
You were vide following letters advised to improve your
attendance.
(1) Letter LPG/KS/P&A dated 15/11/97 from Plant
Manager — Hubli LPG.
(2) Letter LPG/KS/OPS dated 17/11/97 from Plant
Manager — Hubli LPG.
(3) Letter LPG/KS/PERS dated 4/3/98 from Plant Manager
— Hubli LPG.
(4) Letter BGMRO/VDM/PERS dated 6/3/98 from SRM -
Belgaum RO.
(5) Letter LPG/PRN/OPS dated 13/7/98 from Plant
Manager — Hubli LPG.
(6) Letter LPG/PRN/OPS dated 20/7/98 from Plant
Manager — Hubli LPG. .
Despite above Communications and the assurances
given by you orally and vide your letter dated 17.11.97,
there is no improvement in your attendance as you continue
to be remaining absent unauthorisedly, which besides
affecting day to-day operations, is also affecting the
discipline of the Plant.
The above act on you part amounts to following
misconduct as per provisions of standing orders applicable
to you and accordingly you are charged for the same.
CLAUSE 31(7) : "Habitual absence without leave or
absence without leave for more than 21 consecutive days
or over staying the sanctioned leave without sufficient
grounds of proper and satisfactory explanation".
You are hereby advised to submit your written
explanation within 3 days from the date of receipt of this
charge sheet. In case you failed to submit your written
explanation as stipulated above, it will be presumed that
you have no explanation whatsoever to offer and
management will initiate further action as deemed fit."
4. To the said charge sheet the I party who wrote a letter
dated 12.09.1998 to the Disciplinary Authority stating that
he had already sent a letter to him stating that due to ill
health he could not attend the duties and will attend duty
within 10 days with written explanation requesting to give
10 days time and as later did not give any reply the
Disciplinary Authority while appointing Sh. S C Malhotra
as Enquiry Officer and Sh. K Srinivas as Presenting Officer
ordered for holding Domestic Enquiry and then the Enquiry
Officer while causing notice to the I Party regarding
schedule of the enquiry since he went on sending requests
to postpone the enquiry stating that he is not keeping well
without affixing any medical certificate ultimately on
24.02.1999 the Enquiry Officer placing him exparte receiving
the documentary evidence produced by the Presenting
Officer marking them as Exhibit No. 1 to 29 after receiving
the written brief from the Presenting Officer submitted his
enquiry finding dated 02.07.1999 the charge being proved.
Then the Disciplinary Authority while sending copy of a
enquiry finding issued second show cause notice to which
the I Party gave his reply dated 12.08.1999 stating that he
could not attend the duties due to his ill health and the
Disciplinary Authority after giving him opportunity of
hearing by his order dated 15.10.1999 imposed punishment
of discharge from the corporation services as per Clause
32(f) of the standing order and communicated the same
along with a cheque for Rs. 5830.00 drawn on State Bank of
India in lieu of one month's notice. Aggrieved by the said
order when the I Party preferred appeal to the Director
(Marketing) he affording an opportunity of hearing to the
I Party by his order dated 02.02.2000 affirmed the order of
the Disciplinary Authority and dismissed the appeal.
Thereafter, the I Party raised the dispute before the ALC(C),
Hubli and as the conciliation failed the Central Government
made this reference for adjudication.
5. The I party in his claim statement alleges that he was
constrained to be on leave due to mother's and child's ill
health and various domestic reasons from April 1997 to
July 1998 and that being a disciplined workman used to
keep his official superiors informed of his requirement of
leave in advance and follow it up with formal application
and that he gave reply to the charge sheet and another
letter dated 28.12.1998 explaining the reasons for his
absence from duty and inspite of it Disciplinary Authority
initiated Domestic Enquiry and Enquiry Officer inspite of
his request to postpone the enquiry on ground of ill-health
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
855
hurriedly concluded the enquiry and submitted his finding
and thereafter Disciplinary Authority without considering
his documents passed the order of punishment and similarly
the Appellate Authority affirmed the same mechanically.
Inter alia, in the counter statement filed for the II Party it is
contended the I Party who joined the service on 13.04.1987
was all along remaining absent unauthorisedly the detail
of which is as under :
Year
CL SL with
P L
SL without
Unauthorised
Total
Pay
pay
Absent
1988
10
35
32
3
4
84
1989
11
14
32
6
111
174
1990
10
10
32
5
253
310
1991
0
0
0
0
354
354
1992
0
0
0
0
355
355
1993
10
12
12
0
20
54
1994
10
12
43
0
46
111
1995
12
12
47
0
130
201
1996
11
13
46
0
120
190
1997
9
12
33
0
58
112
1998
9
3
21
0
106
139
Total
92
123
298
14
1557
2084
thus his total absenteeism worked out to 2084 days
equivalent to 6 years out of his 11 years of service and as
inspite of counselling and issuing innumerable letter to
improve himself he did not show any improvement and on
the other hand from April 1997 to June 1998 he remained
absent even without applying leave which amounted to
misconduct as provided in clause 31(7) of the standing
Order which reads as under:
CLAUSE 31(7) : Habitual absence without leave or
absence without leave for more than 21 consecutive
days or over staying the sanctioned leave without
sufficient grounds of proper and satisfactory
explanation.
6. Since inspite of service of charge sheet he neither
attended the duty and rest contended by giving sending a
letter stating that he would give proper reply within 10
days did not give any reply and even avoided to participate
in the enquiry without any reasons and Enquiry Officer
having regard to the documents placed before him held the
charge being proved and even to the show cause notice
since he failed to satisfy the Disciplinary Authority reasons
for his unauthorised absence the Disciplinary Authority
passed the impugned order of discharge from service and
communicated the same with a cheque for Rs. 5830.00 in
lieu of one month's notice and even in appeal since he
failed to satisfy the Appellate Authority as to how the
enquiry finding or the punishment imposed by the
Disciplinary Authority was wrong or erroneous he having
affirmed the same there are no reasons to interfere either in
the finding of the Enquiry Officer or the order of punishment
imposed by the Disciplinary Authority and affirmed by the
Appellate Authority. Thus, the II Party prayed for rejection
of the reference.
7. Since the Domestic Enquiry conducted by the II Party
against the I Party by order of my predecessor dated
11.05.2007 is held as Fair and Proper, after the I Party lead
evidence by filing his affidavit being not gainfully employed
after his discharge from service and he was cross-examined
by the learned advocate appearing for the II Party the
arguments addressed by both sides were heard. In view of
the facts narrated by me above, the points now remain for
my consideration are:
1.
Whether the finding of the Enquiry Officer charge
being proved is perverse?
2.
If not, whether the punishment of discharge
imposed by the Disciplinary Authority and
confirmed by the Appellate Authority is
disproportionate?
3.
What Order/Award?
8. On appreciation of the evidence placed in the Domestic
Enquiry by the management with the arguments put forward
by the advocates for both sides, my finding on point on
No. 1 and 2 are in the Negative and Point No.3 is as per final
order for the following.
REASONS
9. There is no dispute the I party who joined the service
of the corporation on 13.04.1987 availed Casual Leave, Sick
Leave with Pay, Privilage Leave, Sick Leave without Pay
and Absent without applying for any sort of leave from
1988 to 1998 as given in the following table vaguely alleging
that he used to keep his official superiors informed and
follow it up with formal applications. The management by
producing the attendance register, letters sent to CSE
satisfied the Enquiry Officer about allegations about his
absent from duties availing Casual Leave, Sick Leave with
Pay, Privilege Leave, Sick Leave without pay and Absent
without applying for sort of leave and as the I Party by his
failure to appear before the Enquiry Officer failed to satisfy
him that he had remained absent by giving information
either before remaining absent or subsequently. When
admittedly the I Party from April 1997 to 02.07.1998 remained
continuously absent and charge sheet was served on him
it was his duty to explain as to why the same should not be
treated as unauthorised absence. In the absence of the
explanation of the I Party in the Domestic Enquiry in my
opinion the Enquiry Officer did not err in giving his finding
the charge being proved. Since as per clause 31(7) of the
standing Orders habitual absence without leave or absence
without leave for more than 21 consecutive days or
overstaying the sanctioned leave without sufficient ground
or proper and satisfactory explanation amounts to
misconduct, the Enquiry Officer from facts is justified in
holding the charge being proved.
856
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
10. Since as narrated above in the table the I Party made
it a habit right from the first year of his service after
exhausting all sorts of leave that he could avail he remained
unauthorisedly absent and the management giving him
warning used to allow him to report to duty and tolerated
him for more than 10 years and as from April 1997 till July
1998 when he did not report to duty at all even without
applying for leave the bank constrained to initiate the
disciplinary enquiry and after receiving the finding of the
Enquiry Officer the Disciplinary Authority after serving
the show cause notice and receipt of reply wherein no
justification is made out by the I Party imposed the
punishment of discharge which in my opinion cannot be
found fault with. Under the circumstances, I arrive at
conclusion of answering the Point No. 1 and 2 in the
Negative and pass the following
ORDER
The reference is Rejected holding that the action of the
management of Hindustan Petroleum Corporation Ltd. in
terminating the services of Shri N C Sortur is justified and
that he is not entitle for any relief.
(Dictated to U D C, transcribed by him, corrected and
signed by me on 9th December 2013)
S.N. NAVALGUND, Presiding Officer
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6 esa fofufnZ"V fu;eksa dh rqyuk esa deZpkfj;ksa ds fy, de mi;qDr
ugha gSa vkSj deZpkjh mDr vf/kfu;e vFkok deZpkjh Hkfo"; fuf/k
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bl laca/k esa le;≤ ij fofufnZ"V 'krksZa ds v/;/khu] mDr izfr"Bku
dks 01-01-2001 ls vxyh vf/klwpuk rd mDr ;kstuk ds lHkh
mica/kksa ds izHkko ls NwV iznku djrh gSA
[la- ,l&35015@19@2013&,l,l&II]
lqHkk"k dqekj] voj lfpo
New Delhi, the 9th January, 2014
S.O. 307.—Whereas M/s. Biltech Building Elements
Limited [under Code No. HR/6857 in Faridabad region]
(hereinafter referred to as the establishment) has applied
for exemption under clause (a) of sub-section (1) of section
17 of the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952) (hereinafter referred to as
the Act).
2. And whereas in the opinion of the Central Government,
the rules of the provident fund of the said establishment
with respect to the rates of contribution are not less
favourable to employees therein than those specified in
section 6 of the said Act and the employees are also in
enjoyment of other provident fund benefits provided under
the said Act or under the Employees' Provident Funds
Scheme, 1952 (hereinafter referred to as the Scheme) in
relation to the employees in any other establishment of
similar character.
3. Now, therefore, in exercise of the powers conferred
by clause (a) of sub-section (1) of section 17 of the said
Act and subject to the conditions specified in this regard
from time to time, the Central Government, hereby, exempts
the said establishment from the operation of all the
provisions of the said Scheme with effect from 01.01.2001
until further notification.
[No.S&35015@19@2013&SS-II]
SUBHASH KUMAR, Under Secy.
ubZ fnYyh] 9 tuojh] 2014
dkñvkñ 308.—tcfd eSllZ chchlh oYMZ ¼bafM;k½ izkbZosV
fyfeVsM] [dksM la[;k Mh,y@937458 ds varxZr fnYyh ¼nf{k.k½
{ks= esa] ,rnqijkUr izfr"Bku ds :i esa lanfHkZr us deZpkjh Hkfo";
fufè ,oa izdh.kZ mica/k vf/kfu;e] 1952 ¼1952 dk 19½ ¼,rnqijkUr
vf/kfu;e ds :i esa lanfHkZr½ dh /kkjk 17 dh mi&/kkjk ¼1½ ds
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laca/k esa mDr izfr"Bku ds Hkfo"; fuf/k fu;e mDr vf/kfu;e dh /kkjk
6 eas fofufnZ"V fu;eksa dh rqyuk esa deZpkfj;ksa ds fy, de mi;qDr
ugha gSa vkSj deZpkjh mDr vf/kfu;e vFkok deZpkjh Hkfo"; fuf/k
;kstuk] 1952 ¼,rnqijkar ;kstuk ds :i esa lanfHkZr½ ds varxZr
ln`'k Lo:i ds fdlh vU; izfr"Bku esa deZpkfj;ksa ds laca/k esa nh
tkus okyh vU; Hkfo"; fuf/k izlqfo/kkvksa dk Hkh ykHk mBk jgs gSaA
3- vr%] vc] dsUnzh; ljdkj] mDr vf/kfu;e dh /kkjk 17 dh
mi&/kkjk ¼1½ ds [k.M ¼d½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,
bl laca/k esa le;≤ ij fofufnZ"V 'krksZa ds v/;/khu] mDr izfr"Bku
dks 01-04-2009 ls vxyh vf/klwpuk rd mDr ;kstuk ds lHkh
mica/kksa ds izHkko ls NwV iznku djrh gSA
[la- ,l&35015@9@2010&,l,l&II]
lqHkk"k dqekj] voj lfpo
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935
857
New Delhi, the 9th January, 2014
S.O. 308.—Whereas M/s. BBC World (India) Private
Limited [under Code No. DL/937458 in Delhi (south) region]
(hereinafter referred to as the establishement) has applied
for exemption under clause (a) of sub-section (1) of section
17 of the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952) (hereinafter referred to as
the Act).
2. And whereas in the opinion of the Central Government,
the rules of the provident funds of the said establishment
with respect to the rates of contribution are not less
favourable to employees therein than those specified in
section 6 of the said Act and the employees are also in
enjoyment of other provident funds benefits provided
under the said Act or under the Employees Provident Funds
Scheme, 1952 (hereinafter referred to as the Scheme) in
relation to the employees in any other establishment of
similar character.
3. Now, therefore, in exercise of the powers conferred
by clause (a) of sub-section (1) of section 17 of the said
Act and subject to the conditions specified in this regard
from time to time, the Central Government, hereby, exempts
the said establishement from the operation of all the
provisions of the said Scheme with effect from 01.04.2009
until further notification.
[No.S&35015@9@2010&SS-II]
SUBHASH KUMAR, Under Secy.
ubZ fnYyh] 9 tuojh] 2014
dkñvkñ 309.—tcfd eSllZ eSDl bafM;k fyfeVsM] [dksM la[;k
ih,u@11332 ds varxZr tkya/kj {ks= esa] (,rnqijkUr izfr"Bku ds :i
esa lanfHkZr½ us deZpkjh Hkfo"; fuf/k ,oa izdh.kZ mica/k vf/kfu;e]
1952 ¼1952 dk 19½ ¼,rnqijkUr vf/kfu;e ds :i esa lanfHkZr½
dh /kkjk 17 dh mi&/kkjk ¼1½ ds [k.M ¼d½ ds varxZr NwV ds fy,
vkosnu fd;k gSA
2- vkSj tcfd dsUnzh; ljdkj ds fopkj esa] va'knku dh njksa ds
laca/k esa mDr izfr"Bku ds Hkfo"; fuf/k fu;e mDr vf/kfu;e dh /kkjk
6 esa fofufnZ"V fu;eksa dh rqyuk esa deZpkfj;ksa ds fy, de mi;qDr
ugha gS vkSj deZpkjh mDr vf/kfu;e vFkok deZpkjh Hkfo"; fuf/k
;kstuk] 1952 ¼,rnqijkUr vf/kfu;e ds :i esa lanfHkZr½ ds varxZr
ln`'k Lo:i ds fdlh vU; izfr"Bku esa deZpkfj;ksa ds laca/k esa nh
tkus okyh vU; Hkfo"; fuf/k izlqfo/kkvksa dk Hkh ykHk mBk jgs gSaA
3- vr%] vc] dsUnzh; ljdkj] mDr vf/kfu;e dh /kkjk 17 dh
mi/kkjk ¼1½ ds [k.M ¼d½ n~okjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,
bl laca/k esa le;≤ ij fofufnZ"V 'krksZa ds v/;/khu] mDr izfr"Bku
dks 01-10-1993 ls vxyh vf/klwpuk rd mDr ;kstuk ds lHkh
mica/kksa ds izHkko ls NwV iznku djrh gSA
[la- ,l&35015@18@2013&,l,l&II]
lqHkk"k dqekj] voj lfpo
New Delhi, the 9th January, 2014
S.O. 309.—Whereas M/s. Max India Limited [under
Code No. PN/11332 in Jalandhar region] (hereinafter referred
to as the establishment) has applied for exemption under
clause (a) of sub-section (1) of section 17 of the Employees'
Provident Funds and Miscellaneous Provisions Act, 1952
(19 of 1952) (hereinafter referred to as the Act.)
2. And whereas in the opinion of the Central Government,
the rules of the provident fund of the said establishment
with respect to the rates of contribution are not less
favourable to employees therein than those specified in
section 6 of the said Act and the employees are also in
enjoyment of other provident fund benefits provided under
the said Act or under the Employees' Provident Funds
Scheme, 1952 (hereinafter referred to a the Scheme) in
relation to the employees in any other establishment of
similar character.
3. Now, therefore, in exercise of the powers conferred
by clause (a) of sub-section (1) of section 17 of the said
Act and subject to the conditions specified in this regard
from time to time, the Central Government, hereby, exempts
the said establishment from the operation of all the
provisions of the said Scheme with effect from 01-10-1993
until further notification.
[No. S-35015/18/2013-SS-II]
SUBHASH KUMAR, Under Secy.
vkns'k
ubZ fnYyh] 9 tuojh] 2014
dkñvkñ 310.—tc dsUnzh; ljdkj dk ;g er gS fd lkoZtfud
{ks= dh chek daifu;ksa ds izca/kuksa vkSj muds dkexkjksa ds chp ,d
vkSn~;ksfxd fookn FkkA
vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn esa jk"Vªh;
egRo dk iz'u varoZfyr gS vkSj bldk U;k;fu.kZ;u ,d jk"Vªh;
vkSn~;ksfxd U;k;kf/kdj.k n~okjk fd;k tkuk pkfg,A
vkSj tcfd dsUnzh; ljdkj us vkSn~;ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 7[k n~okjk iznRr 'kfDr;ksa dk iz;ksx djrs
gq, dksydkrk esa eq[;ky; lfgr Je ea=ky; ds vkns'k la[;k
,y&17011@4@2006&vkbZvkj¼,e½ fnukad 14-2-2007 rFkk blds
'kqf)i= fnukad 29-6-2007 n~okjk jk"Vªh; vkSn~;ksfxd vf/kdj.k
xfBr fd;k rFkk U;k;ewfrZ Jh lh-ih- feJk dks blds ihBklhu
vf/kdkjh ds :i es fu;qDr fd;k vkSj mDr vf/kfu;e dh /kkjk 10
dh mi /kkjk ¼1d½ n~okjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, mDr
vkSn~;ksfxd fookn dks U;k;fu.kZ;u gsrq mDr jk"Vªh; vkSn~;ksfxd
vf/kdj.k dks fufnZ"V dj fn;k(
858
THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935
[PART II—SEC. 3(ii)]
vkSj tcfd U;k;ewfrZ Jh lh-ih- feJk us mDr jk"Vªh; vkSn~;ksfxd
vf/kdj.k dk dk;ZHkkj 02-04-2009 dks R;kx fn;k(
vr%] vc] U;k;ewfrZ Jh nhid lkgk js ds blds ihBklhu
vf/kdkjh ls ;qDr dksydkrk esa eq[;ky; lfgr jk"Vªh; vkSn~;ksfxd
vf/kdj.k xfBr fd;k tkrk gS vkSj mi;qZDr fookn dks U;k;fu.kZ;u
gsrq mi;qZDr jk"Vªh; vkSn~;ksfxd vf/kdj.k dks bl funs'k ds lkFk
fufnZ"V fd;k tkrk gS fd U;k;ewfrZ Jh nhid lkgk js bl ekeys esa ml
pj.k ls vkxs dk;Zokgh djsaxs ftl pj.k ij ;g bls U;k;ewfrZ Jh lh-
ih feJk n~okjk NksM+k x;k Fkk bls rnuqlkj fuiVk,axsA
[lañ ,y&17011@4@2006&vkbZvkj¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 9th January, 2014
S.O. 310.—Whereas the Central Govt. is of the opinion
that an industrial dispute existed between the management
of Public Sector Insurance Companies and their workmen:
And whereas the Centra l Government is of the opinioin
that the above dispute involved a question of national
importance and should be adjudicated by a National
Industrial Tribunal;
And whereas the Central Government in exercise of the
powers conferred by Section 7B of the I.D. Act, 1947 (14 of
1947) constituted a National Industrial Tribunal vide
Ministry of Labour Order No. L-17011/4/2006-IR(M) dated
14.2.2007 & it's Corrigendum dated 29.6.2007 with
headquarters at Kolkata and appointed Justice Shri C.P.
Mishra 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 C.P. Mishra relinquished from
the charge of the said National Industrial Tribunal on
2.4.2009;
Now, therefore, a National Industrial Tribunal is
constituted with Headquarters at Kolkata with Justice Shri
Dipak Saha Ray 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
Dipak Saha Ray shall proceed in the matter from the stage
at which it was left by Justice Shri C.P. Mishra and dispose
of the same accordingly.
[No. L-17011/4/2006-IR(M)]
JOHAN TOPNO, Under Secy.
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.