143 GI/2014

(493)

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iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi&fu;e

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jktHkk"kk dk;kZUo;u izHkkx] dsanzh; dk;kZy;] eqacbZ

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¼d½

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vkWQ bafM;k

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ftyk jk;cjsyh&229301

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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-

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e/kqiqjh 'kk[kk] MyeÅ jksM

iksLV eqa'khxat

ftyk jk;cjsyh&229405

mÙkj izns'k

4-

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xkao] fVxkfj;k lkapk

ftyk nsokl ¼eñizñ½

455001

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rglhy lkaosj

xkao] dnokyh cqtqxZ

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iksñ vkñ fHkaM

ftyk fHkaM] e/; izns'k&477001

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izkbosV fyfeVsM I;wfiYl oYMZ

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gqtwj ftyk Hkksiky

e/; izns'k&462038

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iksLV ckM+h ftyk jk;lsu

e/; izns'k] fiu&464665

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e/; izns'k] fiu&475661

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e/; izns'k] fiu&464221

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pd gfjgj ou] thñVhñ jksM] >walh

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Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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496

THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935

[PART II—SEC. 3(ii)]

37-

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fiu&276406] mÙkj izns'k

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tksxs'ojh if'pe] eqacbZ&400102

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tksxs'ojh if'pe] eqacbZ&400102

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498

THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935

[PART II—SEC. 3(ii)]

65-

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ftyk&mÙkj dUuM+]

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80-

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ftyk eSlwj]

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499

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83-

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85-

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ftyk djheuxj

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93-

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94-

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95-

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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-

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97-

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xhre dSail

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csaxywj 561203

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ftx.kh] cSaxywj xzkeh.k

csaxywj

99-

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30] vkj ds Iyk>k

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107- vkU/kzk cSad

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cYysifYy

[kEee ftyk&507002

108- vkU/kzk cSad

chnj 'kk[kk

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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

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daftDdksM osLV iksLV vkfQl

daftDdksM&678623

111- vkU/kzk cSad

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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

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uañ 1&11&1032@1] 1032@8

tokgj jksM

dksIiy ftyk

dukZVd&583231

113- vkU/kzk cSad

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,e ,l vkj bZ jksM

efRrdsjs

csaxywj&560054

114- vkU/kzk cSad

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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]

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iksLV&dksVk

ftyk&dksVk] jktLFkku

fiu&324006

117- dksVk vkbZ ,y 'kk[kk

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fiu&324005

118- dksVk jktHkou 'kk[kk

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fiu&324001

119- jkexateaMh 'kk[kk

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fiu&326519

120- dksVk Jhjkeuxj 'kk[kk

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fiu&324004

121- dksVk xqekuiqjk 'kk[kk

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ftyk&dksVk] jktLFkku

fiu&324007

122- dksVk lh,Mh ldZy 'kk[kk

irk% nknkckM+h] dksVk lh,Mh ldZy]

dksVk

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fiu&324007

123- >kyjkikVu 'kk[kk

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124- fjf)&flf) uxj] dksVk 'kk[kk

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ftyk&dksVk] jktLFkku

fiu&324002

125- dSFkwu 'kk[kk

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fiu&325001

126- lqYrkuiqj 'kk[kk

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fiu&325204

127- JhukFkiqje dksVk] 'kk[kk

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fiu&324010

128- cwWanh 'kk[kk

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/keZ'kkyk eaMh]

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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

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ftyk&ckjka] jktLFkku

fiu&325216

130- ckjka 'kk[kk

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iksLV&ckjka] jktLFkku

fiu&325205

131- NcM+kxqxksj 'kk[kk

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ftyk&ckjka] jktLFkku

fiu&325220

132- fNikcjksM 'kk[kk

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ftyk&ckjka] jktLFkku

fiu&325220

133- dksVMh ckjka 'kk[kk

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ftyk&ckjka] jktLFkku

134- LVs'ku jksM 'kk[kk

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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

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fiu&304502

137- LVs'ku jksM] vtesj 'kk[kk

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ftyk&vtesj] jktLFkku

fiu&305001

138- ek[kqiqjk vkSn~;ksfxd {ks= vtesj 'kk[kk

irk% ek[kqiqjk vkSn~;ksfxd {ks=] vtesj

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ftyk&vtesj] jktLFkku

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139- C;koj 'kk[kk

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LVs'ku jksM] C;koj

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fiu&305901

140- enuxat fd'kux<+ 'kk[kk

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141- ulhjkckn 'kk[kk

irk% 61&,] esu ekdsZV] Qse th pkSd] ulhjkckn

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ftyk&vtesj] jktLFkku

fiu&305601

142- iq"dj 'kk[kk

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fiu&305022

143- ihlkaxu 'kk[kk

irk% egs'ojh Hkou] Hks: njokts ds ikl

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ftyk vtesj] jktLFkku

fiu&305204

144- oS'kkyh uxj] vtesj 'kk[kk

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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]

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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

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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

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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.

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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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6

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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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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

Je ,oa jkstxkj ea=ky;

ubZ fnYyh] 31 fnlEcj] 2013

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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

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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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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

¹Hkkx II—[k.M 3(ii)º

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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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[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

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[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

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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

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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

¹Hkkx II—[k.M 3(ii)º

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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.

¹Hkkx II—[k.M 3(ii)º

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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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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

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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 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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[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

580

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

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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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[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

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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;

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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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[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

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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),

¹Hkkx II—[k.M 3(ii)º

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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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[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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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

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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,

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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

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[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.

608

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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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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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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[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

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[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

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[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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[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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[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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[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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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.

¹Hkkx II—[k.M 3(ii)º

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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

¹Hkkx II—[k.M 3(ii)º

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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.

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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

¹Hkkx II—[k.M 3(ii)º

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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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[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

¹Hkkx II—[k.M 3(ii)º

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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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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:

¹Hkkx II—[k.M 3(ii)º

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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

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[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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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

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665

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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[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

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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

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[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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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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[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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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

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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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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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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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683

(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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[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

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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

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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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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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697

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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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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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

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[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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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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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

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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

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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

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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

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esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je

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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

¹Hkkx II—[k.M 3(ii)º

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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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791

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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izkIr gqvk FkkA

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tksgu rksiuks] voj lfpo

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

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838

THE GAZETTE OF INDIA : JANUARY 25, 2014/MAGHA 5, 1935

[PART II—SEC. 3(ii)]

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vf/kdj.k ,oa Je U;k;ky;&2] fnYyh ds iapkV ¼lanHkZ la[;k

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izkIr gqvk FkkA

[lañ ,y&11012@19@99&vkbZ vkj ¼,e½]

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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.

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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.

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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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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

Hkkjr dk jkti=k % tuojh 25] 2014@ek?k 5] 1935

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

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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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[la- ,l&35015@19@2013&,l,l&II]

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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

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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;&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;&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.