foÙk ea=ky;

¼foÙkh; lsok,a foHkkx½

ubZ fnYyh] 15 tuojh] 2014

dkñvkñ 311.—cSaddkjh fofu;eu vf/kfu;e] 1949 dh

èkjk 53 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnz ljdkj] Hkkjrh;

fjtoZ cSad dh flQkfj'k ij] ,rn~}kjk fofufnZ"V djrh gS fd cSaddkjh

fofu;eu vf/kfu;e] 1949 dh /kkjk 15 dh mi&/kkjk ¼1½ ds mica/k

lkoZtfud {ks= ds cSadksa vkSj fuEufyf[kr futh {ks= ds cSadksa ;Fkk

dSFkksfyd flfj;u cSad fy-] /kuy{eh cSad fy-] QsMjy cSad fy-]

vkbZ,uth oS'; cSad fy-] d.kkZVd cSad fy-] d:j oS'; cSad fy-]

y{eh foykl cSad fy-] uSuhrky cSad fy-] jRukdj cSad fy- vkSj

lkmFk bafM;u cSad fy- ij ykxw ugha gksaxs tgka rd mudk laca/k foÙkh;

o"kZ 2013&14 ds nkSjku isa'ku dk ,d vkSj fodYi nsus vkSj miknku

lhekvksa esa o`f) ds dkj.k O;; esa gksus okyh o`f) dks vifj'kksf/kr

vkxs ys tkus okys O;; ds :i esa ekus tkus ls gSA

[Qk- la- 10@3@2010&chvks,]

,e- ,e- nkSyk] voj lfpo

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 15th January, 2014

S.O. 311.—In exercise of the powers conferred under

Section 53 of the Banking Regulation Act, 1949, the Central

Government, on the recommendation of the Reserve Bank

of India, specifies that the provision of sub-section (1) of

the Section 15 of the Banking Regulation Act, 1949 shall

not apply to Public Sector Banks and the following private

sector banks viz. Catholic Syrian Bank Limited, Dhanlaxmi

Bank Limited, Federal Bank Limited, ING Vysya Bank Limited,

Karnataka Bank Limited, Karur Vysya Bank Limited, Laxmi

Vilas Bank Limited, Nainital Bank Limited, Ratnakar Bank

Limited and South Indian Bank Limited in so far as the

treatment of the expenditure on account of one more option

for pension and enhancement in gratuity limits, for the

financial year 2013-14 being treated as unamortized carry

forward expenditure.

[F. No. 10/3/2010-BOA]

M. M. DAWLA, Under Secy.

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- 5]

ubZ fnYyh, tuojh 26—iQjojh 1] 2014] 'kfuokj@ek?k 6—ek?k 12] 1935

No. 5]

NEW DELHI, JANUARY 26—FEBRUARY 1, 2014, SATURDAY/MAGHA 6—MAGHA 12, 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)

237 GI/2014

(859)

860

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

¼dk;kZy; eq[; vk;dj vk;qDr] t;iqj½

t;iqj] 15 tuojh] 2014

lañ 11@2013&14

dkñvkñ 312.—vk;dj fu;e] 1962 ds fu;e 2 lh , ds

lkFk iBuh; vk;dj vf/kfu;e] 1961 ¼1961 dk 43oka½ dh /kkjk

10 ds [k.M ¼23 lh½ dh mi/kkjk (vi) ds }kjk iznRRk 'kfDr;ksa dk

iz;ksx djrs gq, eq[; vk;dj vk;qDr] t;iqj ,rn~}kjk fu/kkZj.k o"kZ

2013&14 ,oa vkxs ds fy;s dfFkr /kkjk ds mís'; ls Lokeh ds'kokuan

f'k{kk lfefr] jktiwr dkyksuh] y{eux<+] ftyk&vyoj dks Lohd`fr

nsrs gSaA

2- c'krsZ fd lfefr vk;dj fu;e 1962 ds fu;e 2 lh , ds

lkFk iBuh; vk;dj vf/kfu;e] 1961 dh /kkjk 10 ds mi[kaM ¼23lh½

dh mi/kkjk (vi) ds izko/kkuksa ds vuq:i dk;Z djsA

[Øekad% eqvkvk@vvkvk@¼eqñ½@t;@10¼23lh½(vi)/2013-14/6772]

vrqys'k ftany] eq[; vk;dj vk;qDr

OFFICE OF THE CHIEF COMMISSIONER OF INCOME

TAX, JAIPUR

Jaipur, the 15th January, 2014

No. 11/2013-14

S.O. 312.—In exercise of the powers conferred by

sub-clause (vi) of clause (23C) of Section 10 of the Income-

tax Act, 1961 (43 of 1961) read with rule 2CA of the Income-

tax Rules 1962, the Chief Commissioner of Income-tax,

Jaipur hereby approves "Swami Keshvanand Shiksha

Samiti, Rajput Colony, Laxmangarh, Distt-Alwar" for the

purpose of said section for the A.Y. 2013-14 onwards,

provided that the society conforms to and complies with

the provisions of sub-clause (vi) of clause (23C) of section

10 of the Income-tax Act, 1961 read with rule 2CA of the

Income-tax Rules, 1962.

[No. CCIT/JPR/ITO(Tech.)/10(23C)(vi)/2013-14/6772]

ATULESH JINDAL, Chief Commissioner of Income Tax

okf.kT; ,oa m|ksx ea=ky;

¼okf.kT; foHkkx½

ubZ fnYyh] 22 tuojh] 2014

dkñvkñ 313.—dsanzh; ljdkj] fu;kZr ¼DokfyVh fu;a=.k

vkSj fujh{k.k½ fu;e 1964 ds fu;e 12 ds mifu;e ¼2½ ds lkFk

ifBr fu;kZr ¼DokfyVh fu;a=.k vkSj fujh{k.k½ vf/kfu;e] 1963

¼1963 dk 22½ dh /kkjk 7 dh mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq,] eSllZ feujyl ySc lfoZl izk- fy- nqxkZpkd dkyksuh

esa fLFkr] Cykd&lh] IykV lañ&12] ihñvksñ ,aM ih ,l nqxkZpkd]

ftyk iwohZ fenukiqj ¼if'pe caxky½] dks Hkkjr ljdkj ds okf.kT;

ea=ky; dh vf/klwpuk lañ dkñvkñ 3975 rkjh[k 20 fnlacj] 1965

ls mikc) vuqlwph esa fofufnZ"V [kfutksa vkSj v;Ldksa ¼lewg&1½

vFkkZr~ ykSg v;Ld] mDr [kfutksa vkSj v;Ldksa dk gfYn;k esa] fu;kZr

ls iwoZ fujh{k.k djus ds fy, bl vf/klwpuk ds jkti= esa izdk'ku

dh rkjh[k ls 3 o"kZ dh vof/k ds fy, fuEufyf[kr 'krks± ds v/khu

,d vfHkdj.k ds :i esa ekU;rk iznku djrh gS] vFkkZr~%—

(i)

;g fd eSllZ feujyl ySc lfoZl izkñ fyñ nqxkZpkd

dkyksuh esa fLFkr] Cykd&lh] IykV lañ&12] ihñvksñ ,aM

ih ,l&nqxkZpkd] ftyk iwohZ fenukiqj ¼if'pe caxky½]

[kfut vkSj v;Ld] lewg&1 ¼fujh{k.k½ fu;e 1965

ds fu;e 4 ds v/khu fujh{k.k dk izek.ki= iznku djus

ds fy, muds }kjk vuqlfjr dh tkus okyh fujh{k.k dh

i)fr dh ijh{kk djus ds fy, fu;kZr fujh{k.k ifj"kn

}kjk bl fufeÙk ukefufnZ"V vf/kdkfj;ksa dks i;kZIr

lqfo/kk,a iznku djsxkA

(ii)

eSllZ feujyl ySc lfoZl izk- fy- nqxkZpkd dkyksuh esa

fLFkr] Cykd&lh] IykV la-&12] ih-vks-,aM ih

,l&nqxkZpkd] ftyk iwohZ fenukiqj ¼if'pe caxky½]

bl vf/klwpuk ds v/khu vius d`R;ksa ds ikyu esa ,sls

funs'kksa ls vkc)dj gksxk tks funs'kd ¼fujh{k.k vkSj

DokfyVh fu;a=.k½ fu;kZr fujh{k.k ifj"kn }kjk

le;≤ ij fn, tk,aA

[lañ 4@4@2013&fu;kZr fujh{k.k]

,-ds- f=ikBh] la;qDr lfpo

MINISTRY OF COMMERCE AND INDUSTRY

(Department of Commerce)

New Delhi, the 22nd January, 2014

S.O. 313.—In exercise of the powers conferred by

the sub-section (1) of section 7 of the Export (Quality

Control and Inspection) Act, 1963 (22 of 1963), read with

sub-rule (2) of rule 12 of the Export (Quality Control and

Inspection) Rules, 1964, the Central Government hereby

recognizes M/s. Minerals Lab services Pvt. Ltd., located at

Durgachak Colony, Block-C, Plot No.-12, PO & PS-

Durgachak, Dist: Purba Medinpur (West Bengal), as an

agency for a period of three years from the date of

publication of this notification in the Official Gazette, for

the inspection of Minerals and Ores (Group-I), namely, Iron

Ore, specified in the Schedule annexed to the notification

of the Government of India in the Ministry of Commerce

vide S.O. number 3975 dated the 20th December 1965, prior

to export of said minerals and ores at Haldia, subject to the

following conditions, namely:—

(i) that M/s. Minerals Lab services Pvt. Ltd., located at

Durgachak Colony, Block-C, Plot No.-12, PO & PS-

Durgachak, Dist: Purba Medinpur (West Bengal) shall

give adequate facilities to the officers nominated by

the Export Inspection Council in this behalf to examine

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

861

the method of inspection followed by them in granting

the certificate of inspection under rule 4 of the Export

of Minerals and Ores-Group I (Inspection) Rules,

1965; and

(ii) M/s. Minerals Lab services Pvt. Ltd., located at

Durgachak Colony, Block-C, Plot No. 12, PO & PS-

Durgachak, Dist: Purba Medinpur (West Bengal)

in the performance of their function under this

notification shall be bound by such directions as the

Director (Inspection and Quality Control) may give

in writing, from time to time.

[No. 4/4/2013-Export Inspection]

A.K. TRIPATHY, Jt. Secy.

ubZ fnYyh] 22 tuojh] 2014

dkñvkñ 314.—dsanzh; ljdkj] fu;kZr ¼DokfyVh fu;a=.k

vkSj fujh{k.k½ fu;e 1964 ds fu;e 12 ds mifu;e ¼2½ ds lkFk

ifBr fu;kZr ¼DokfyVh fu;a=.k vkSj fujh{k.k½ vf/kfu;e] 1963

¼1963 dk 22½ dh /kkjk 7 dh mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq,] eSllZ fe=k ,lñdsñ izkbZosV fyfeVsM] gksfYMax lañ

22@107 ij fLFkr] nqxkZpd iksLV vkfQl&[kkutud] gfYn;k]

ftyk&bZLV fenukiqj&721602] osLV caxky ¼ftls blesa blds i'pkr~

mDr ^^vfHkdj.k** dgk x;k gS½] dks Hkkjr ljdkj ds okf.kT; ea=ky;

dh vf/klwpuk lañ dkñvkñ 3975 rkjh[k 20 fnlacj] 1965 ls mikc)

vuqlwph esa fofufnZ"V [kfutksa vkSj v;Ldksa ¼lewg&1½ vFkkZr~ ykSg

v;Ld] mDr [kfutksa vkSj v;Ldksa dk gfYn;k esa] fu;kZr ls iwoZ

fujh{k.k djus ds fy, bl vf/klwpuk ds jkti= esa izdk'ku dh

rkjh[k ls 3 o"kZ dh vof/k ds fy, fuEufyf[kr 'krks± ds v/khu ,d

vfHkdj.k ds :i esa ekU;rk iznku djrh gS] vFkkZr~%—

(i)

;g fd vfHkdj.k] [kfut vkSj v;Ld] lewg&1

¼fujh{k.k½ fu;e 1965 vkSj [kfut vkSj v;Ld]

lewg&II ¼fujh{k.k½ fu;e 1965 ds fu;e 4 ds v/khu

fujh{k.k djus ds fy, muds }kjk vuqlfjr dh tkus

okyh fujh{k.k dh i)fr dh ijh{kk djus ds fy, fu;kZr

fujh{k.k ifj"kn }kjk bl fufeÙk ukefufnZ"V vf/kdkfj;ksa

dks i;kZIr lqfo/kk,a iznku djsxkA

(ii)

;g fd vfHkdj.k] bl vf/klwpuk ds v/khu vius d`R;ksa

ds ikyu esa ,sls funsZ'kksa ls vkc)dj gksxk tks funs'kd

¼fujh{k.k vkSj DokfyVh fu;a=.k½ fu;kZr fujh{k.k ifj"kn

bu fu;eksa ds rgr fyf[kr :i esa fn;s tk,A

[Qkñlañ 4@9@13&fu;kZr fujh{k.k]

,ñdsñ f=ikBh] la;qDr lfpo

New Delhi, the 22nd January, 2014

S.O. 314.—In exercise of the powers conferred by

the sub-section (1) of section 7 of the Export (Quality

Control and Inspection) Act, 1963 (22 of 1963), read with

sub-rule (2) of rule 12 of the Export (Quality Control and

Inspection) Rules, 1964, the Central Government hereby

recognizes M/s. Mitra S.K. Private Limited located at

Holding No. 22/107, Durgachak P.O., Khanjanchak, Haldia,

Dist: Mindapore (East), Pin: 721 602, (herein after referred

to as ' the agency') West Bengal as an agency for a period

of three years from the date of publication of this

notification, for the inspection of Minerals and Ores Group-

I, namely, Iron Ore, specified in the Schedule annexed to

the notification of the Government of India in the Ministry

of Commerce number S.O. 3975 dated the 20th December

1965, prior to export of said minerals and ores at Haldia,

subject to the following conditions, namely:—

(i) that the agency, shall give adequate facilities to the

officers nominated by the Export Inspection Council

in this behalf to examine the method of inspection

followed by them in carrying out the inspections under

rule 4 of the Export of Minerals and Ores, Group-I

(Inspection) Rules, 1965 and the Export of Minerals

and Ores, Group-II (Inspection) Rules, 1965; and

(ii) that the agency, in the performance of their function

under this notification shall be bound by such

directions as may be issued by the Director

(Inspection and Quality Control) Export Inspection

Council may give in writing, under these rule.

[F.No. 4/9/2013-Export Inspection]

A.K. TRIPATHY, Jt. Secy.

ubZ fnYyh] 22 tuojh] 2014

dkñvkñ 315.—dsanzh; ljdkj] fu;kZr ¼DokfyVh fu;a=.k

vkSj fujh{k.k½ fu;e 1964 ds fu;e 12 ds mifu;e ¼2½ ds lkFk

ifBr fu;kZr ¼DokfyVh fu;a=.k vkSj fujh{k.k½ vf/kfu;e] 1963

¼1963 dk 22½ dh /kkjk 7 dh mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq,] eSllZ lqifjVsaMsal dEiuh bafM;k izkñ fyñ] Mh@25&9&17

esa fLFkr] jktkojh ekxZ] izFke ry] Jh f'kok ToSylZ] eq[; lM+d]

dq#ie ekfdZV ds fudV] fo'kk[kkiÙkue&530001 ftls blesa blds

i'pkr~ mDr vfHkdj.k dgk x;k gS] dks Hkkjr ljdkj ds okf.kT;

ea=ky; dh vf/klwpuk dkñvkñ la[;k 3975 rkjh[k 20 fnlacj] 1965

ls mikc) vuqlwph esa fofufnZ"V [kfutksa vkSj v;Ldksa ¼lewg&1½

vFkkZr~ ykSg v;Ld] vkSj eSaxuht v;Ld dk] eSaxuht MkbvkSDlkbM

dks vioftZr djrs gq, mDr [kfut vkSj v;Ld dk fotkx esa] fu;kZr

ls iwoZ fujh{k.k djus ds fy, bl vf/klwpuk ds jkti= esa izdk'ku

dh rkjh[k ls 3 o"kZ dh vof/k ds fy, fuEufyf[kr 'krks± ds v/khu

,d vfHkdj.k ds :i esa ekU;rk iznku djrh gS] vFkkZr~%—

(i)

;g fd vfHkdj.k] [kfut vkSj v;Ld] lewg&1

¼fujh{k.k½ fu;e 1965 vkSj [kfut vkSj v;Ld

lewg&II ¼fujh{k.k½ fu;e 1965 ds fu;e 4 ds

v/khu fujh{k.k djus ds fy, muds }kjk vuqlfjr dh

tkus okyh fujh{k.k dh i)fr dh ijh{kk djus ds fy,

fu;kZr fujh{k.k ifj"kn }kjk bl fufeÙk ukefufnZ"V

vf/kdkfj;ksa dks i;kZIr lqfo/kk,a iznku djsxkA

862

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

(ii)

;g fd vfHkdj.k] bl vf/klwpuk ds v/khu vius d`R;ksa

ds ikyu esa ,sls funsZ'kksa ls vkc)dj gksxk tks funs'kd

¼fujh{k.k vkSj DokfyVh fu;a=.k½ fu;kZr fujh{k.k ifj"kn

bu fu;eksa ds rgr fyf[kr :i esa fn;s tk,A

[Qkñlañ 4@10@13&fu;kZr fujh{k.k]

,ñdsñ f=ikBh] la;qDr lfpo

New Delhi, the 22nd January, 2014

S.O. 315.—In exercise of the powers conferred by

the sub-section (1) of section 7 of the Export (Quality

Control and Inspection) Act, 1963 (22 of 1963), read with

sub-rule (2) of rule 12 of the Export (Quality Control and

Inspection) Rules, 1964, the Central Government hereby

recognizes M/s. Superintendence Co. India Pvt. Ltd.

Located at D/25-9-17, Rajavari street, 1st Floor, Sri Siva

Jewellers, Main Road, Near Kurupam Market,

Vishakhapatnam-530001 herein after referred to as the

agency as an agency for a period of three years from the

date of publication of this notification, for inspection of

Minerals and Ores (Group I), namely, Iron Ore and

manganese ore excluding manganese dioxide, specified in

the Schedule annexed to the notification of the Government

of India in the Ministry of Commerce vide S.O. number

3975 dated the 20th December 1965, prior to export of the

said Minerals and ores at Vizag, subject to the following

conditions, namely:—

(i) that the agency, shall give adequate facilities to the

officers nominated by the Export Inspection Council

in this behalf to examine the method of inspection

followed by them in carrying out the inspection under

rule 4 of the Export of Minerals and Ores, Group-I

(Inspection) Rules, 1965; and the Export of Minerals

and Ores, Group-II (Inspection) Rules 1965 and;

(ii) that the agency, in the performance of their function

under this notification shall be bound by such

directions as may be issued by the Director

(Inspection and Quality Control) Export Inspection

Council may give in writing, from time to time.

[F.No. 4/10/2013-Export Inspection]

A.K. TRIPATHY, Jt. Secy.

tu tkrh; dk;Z ea=ky;

ubZ fnYyh] 16 tuojh] 2014

dkñvkñ 316.—dsUnzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh;

iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mifu;e ¼4½

ds vuqlj.k esa] tutkrh; dk;Z ea=ky;ksa] fuEufyf[kr dk;kZy;ksa esa

fgUnh dk dk;Zlkèd Kku j[kus okys deZpkfj;ksa dh la[;k 80 izfr'kr

ls vfèd gks tkus ds QyLo:i ,rn~}kj vfèlwfpr djrh gS%—

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

eq[;ky;] ubZ fnYyh

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

{ks=h;] dk;kZy;] Hkksiky

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

{ks=h;] dk;kZy;] Hkqous'oj

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

{ks=h;] dk;kZy;] jkaph

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

{ks=h;] dk;kZy;] jk;iqj

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

{ks=h;] dk;kZy;] f'kykax

jk"Vªh; vuqlwfpr tutkfr vk;ksx]

{ks=h;] dk;kZy;] t;iqj

[Qkñ lañ bZ-11016@1@2013&jktHkk"kk]

v'kksd] la;qDr lfpo

MINISTRY OF TRIBAL AFFAIRS

New Delhi, the 16th January, 2014

S.O. 316.—In pursuance of Sub-rule (4) of Rule (10)

of Official Language (Use for Official purposes of the Union)

Rules, 1976, the Central Government hereby notifies the

following offices of the National Commission for Scheduled

Tribes, where more than 80% of Employees have attained

working knowledge of Hindi:—

1. National Commission for

Scheduled Tribes,

Headquarter, New Delhi

2. National Commission for

Scheduled Tribes,

Regional Office, Bhopal

3. National Commission for

Scheduled Tribes,

Regional Office, Bhuvaneshwar

4. National Commission for

Scheduled Tribes,

Regional Office, Ranchi

5. National Commission for

Scheduled Tribes,

Regional Office, Raipur

6. National Commission for

Scheduled Tribes,

Regional Office, Shilong

7. National Commission for

Scheduled Tribes,

Regional Office, Jaipur

[F. No. E - 11016/1/2013-OL]

ASHOK, Jt. Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

863

dks;yk ea=ky;

ubZ fnYyh] 22 tuojh] 2014

dkñvkñ 317.—dsUnzh; ljdkj us dks;yk èkjd {ks= ¼vtZu

vkSj fodkl½ vfèfu;e] 1057 ¼1957 dh èkjk 20½ ¼ftls blesa

blds i'pkr~ mDr vfèfu;e dgk x;k gS½ dh èkjk 7 dh mièkjk

¼1½ ds vèhu tkjh Hkkjr ljdkj ds dks;yk ea=ky; dh vfèlwpuk

la[;kad dk- vk- 2384] rkjh[k 18 tqykbZ] 2012 }kjk Hkkjr ds jkti=]

Hkkx II] [k.M 3] mi[k.M ¼II½] rkjh[k 21 tqykbZ] 2012 esa izdkf'kr

mDr vfèlwpuk esa layXu vuqlwph esa fofufnZ"V ifj{ks= esa 182-83

gsDVj ¼yxHkx½ ;k 451-77 ,dM+ ¼yxHkx½ eki okyh esa ;k ml ij

ds vf/kdkjksa ds vtZu djus ds vius vk'k; dh lwpuk nh Fkh(

vkSj l{ke izkfèdkjh us mDr vfèfu;e dh èkjk 8 ds vuqlj.k

esa dsUnzh; ljdkj dks viuh fjiksVZ ns nh gS(

vkSj dsUnzh; ljdkj dk] iwoksZDr fjiksVZ ij fopkj djus ds

i'pkr~ vkSj egkjk"Vª ljdkj ls ijke'kZ djus ds i'pkr~ ;g lekèku

gks x;k gS] fd blls layXu vuqlwph esa ;Fkk of.kZr 182-83 gsDVj

¼yxHkx½ ;k 451-77 ,dM+ ¼yxHkx½ eki okyh Hkwfe vkSj ,slh Hkwfe

esa ;k ml ij ds lHkh vfèdkj vftZr fd, tkus pkfg,(

vr%] vc] mDr vfèfu;e dh èkjk 9 dh mièkjk ¼1½ }kjk

iznÙk 'kfDr;ksa dk iz;ksx djrs gq, ;g ?kks"k.kk djrh gS] fd vuqlwph esa

of.kZr 182-83 gsDVj ¼yxHkx½ ;k 451-77 ,dM+ ¼yxHkx½ eki

okyh Hkwfe vkSj ,slh Hkwfe esa ;k ml ij ds lHkh vfèdkj vftZr fd,

tkrs g®A

bl vfèlwpuk ds varxZr vkus okys {ks= ds js[kkad la[;k lh-

1 ¼bZ½III@tststsvkj@895-0713] rkjh[k 16 tqykbZ] 2013 dk fujh{k.k

dyDVj] panziqj ¼egkjk"Vª½ ds dk;kZy; esa ;k dks;yk fu;a=d] 1]

dkmafly gkml LVªhV dksydkrk] ¼fiu&700 001½ ds dk;kZy; esa ;k

egkizcaèd osLVuZ dksyQhYM~l fyfeVsM ¼jktLo foHkkx½] dksy bLVsV]

flfoy ykbZUl] ukxiqj] 440 001 ¼egkjk"Vª½ ds dk;kZy; esa fd;k

tk ldrk gSA

vuqlwph

fpapksyh vksiudkLV ¼jhdkLV½ ifj;kstuk

cYykjiqj {ks=

ftyk&panziqj ¼egkjk"Vª½

¼js[kkad la[;k lh-1 ¼bZ½III@tststsvkj@895-0713] rkjh[k 16 tqykbZ] 2013½

lHkh vfèdkj%

Øe

xzke

iVokjh

rglhy

ftyk

{ks=Qy gsDVj esa

fVIi.kh

lañ

lfdZy

futh

ljdkjh

dqy

uke

la[;k

lqcbZ

jktwjk

panziqj

165-62

17-21

0-00

182-83

Hkkx

dqy% 182-83 gsDVj ¼yxHkx½

;k 451-77 ,dM+ ¼yxHkx½

xzke lqcbZ esa vftZr fd, x, IykWV la[;kad%

13] 14@1-14@2-14@3] 16] 17@1,&17@2ch] 18] 19]

20@1&20@2&20@3&20@4& 20@5] 21@1ch- 21@2ch]

22@1&22@2&22@3&22@4&23] 24@1&24@2] 25@1&25@2& 25@3]

26@1&26@2]

29@1,-

29@1ch&29@iSdh-

29@2iSdh&29@4&29@1lh@1&29@1lh@2&29@1lh@3&29@1lh@4&29@

1 l h @ 5 & 2 9 @ 1 l h @ 5 & 2 9 @ 1 l h @ 6 & 2 9 @ 1 l h @ 7 ]

30@1,&30@1ch&30@1lh&30@1Mh&30@1bZ&30@2]& 30@2ch]

31@1&31@2&32@1&32@2&32@1,] 32@2,] 33] 35] 36@1,] 36@1 ch]

36@2] 37@1] 37@2] 37@3] 37@4] 38@1] 38@2] 38@3] 38@4] 38@5]

39@1] 39@2] 40] 41] 42] 43] 44@1,&44@2ch] 45@1&45@2&46]

47@1&47@2&47@3] 64@1&64@2& 64@3] 65 Hkkx] 166@1&166@2]

167@1&167@2&167@3] 168] 170] 171] 172@1&172@2]

182@1&182@2] 183-

ljdkjh Hkwfe%

70ih] 71] 164] 169] ukyk] lM+d]

lhek o.kZu%

d - [k% js[kk xzke lqcbZ esa fcUnq ^d* ls vkjaHk gksrh gS vkSj

lqcbZ ukys ds lkFk&lkFk xqtjrh gS] rRi'pkr~ IykWV

la[;kad 183] 168] 167@1&167@2&167@3]

166@1&166@2] 164 ¼ljdkjh½ dh cká lhek ds

lkFk gksdj xqtjrh gS vkSj fcUnq ^[k* ij feyrh gSA

[k - x%

js[kk xzke lqcbZ ls gksdj IykWV la[;kad 164]

¼ljdkjh½ 166@1&166@2] 167@1&167@2&167@3]

168] 169 ¼ljdkjh½ 170] 171] 172@1&172@2&

dh cká lhek ds lkFk gksdj xqtjrh gS vkSj fcUnq

^x* ij feyrh gSA

864

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

x - ?k%

js[kk xzke lqcbZ ls gksdj IykWV la[;kad

172@1&172@2] dh cká lhek ds lkFk&lkFk gksdj

xqtjrh gS] rRi'pkr~ ukyk ikj djrh gS rRi'pkr~

IykWV la[;kad 25@1&25@2&25@3] 26@1&26@2]

29@1lh@1&29@1lh@2&29@1lh@3&29@1lh@4&

29@1lh@5&29@1lh@5&29@1lh@6&29@1lh@7]

29@1]&29@1ch&29@iSdh&29@2iSdh& 29@4] dh

cká lhek ds lkFk gksdj xqtjrh gS] rRi'pkr~ lM+d

ds lkFk gksdj xqtjrh gS vkSj fcUnq ^?k* ij feyrh

gSA

?k &³

% js[kk xzke lqcbZ ls gksdj IykWV la[;kad 29@1

lh@1&29@1lh@2&29@1lh@3&29@1lh@4&

29@1lh@5&29@1lh@6&29@1lh@7] 29@1,-

29@1ch&29@iSdh&29@2iSdh& 29@4] 32@1] 32@2]

32@1,&32@2,] 33 dh cká lhek ds lkFk xqtjrh

gS vkSj fcUnq ^³* ij feyrh gSA

³ &d% js[kk xzke lqcbZ ls gksdj IykWV la[;kad 33] 71

¼ljdkjh½] 70ih ¼ljdkjh½] 36@1,]& 36@1ch&

36@2& 38@1& 38@2& 38@3& 38@4& 38@5] 65 Hkkx]

39@1& 39@2] 64@1& 64@2] 64@3] 47@1& 47@2]

47@3& 44@1,] 44@2ch] dh cká lhek ds lkFk

gksdj xqtjrh gS ] rRi'pkr~ lM+d ikj djrh gS vkSj

IykWV la[;kad 16] 14@1& 14@2& 14@3] 13] dh

cká lhek ds lkFk gksdj xqtjrh gS] rRi'pkr~ lqcbZ

ukyk ikj djrh gS vkSj vkjafHkd fcUnq ^d* ij

feyrh gSA

[Qkñ lañ 43015@14@2010&ihvkj vkbZ MCY;w&I]

,eñdsñ 'kekZ] funs'kd

MINISTRY OF COAL

New Delhi, the 22nd January, 2014

S.O. 317.—Whereas by the notification of the

Government of India in the Ministry of Coal number S.O.

2384, dated the 18th July, 2012, issued under sub-section

(1) of section 7 of the Coal Bearing Areas (Acquisition and

Development) Act, 1957 (20 of 1957) (hereinafter referred

to as the said Act) and published in the Gazette of India,

Part II, Section 3, Sub-section (ii), dated the 21st July, 2012,

the Central Government gave notice of its intention to

acquire all rights in or over the land measuring 182.83

hectares (approximately) or 451.77 acres (approximately) in

the locality as spectified in the Schedule annexed to that

notification;

And whereas the competent authority in pursuance

of section 8 of the said Act, has made his report to the

Central Government;

And whereas, the Central Government after

considering the report aforesaid and after consulting the

Government of Maharashtra, is satisfied that all rights in or

over the land measuring 182.83 hectares (approximately) or

451.77 acres (approximately) as described in the Schedule

appended hereto are hereby acquired.

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 9 of the said Act, the Central

Government hereby declares that all rights in or over the

land measuring 182.83 hectares (approximately) or 451.77

acres (approximately) as described in the Schedule

appended hereto are hereby acquired.

The plan bearing number C-1(E)III/JJJR/895-0713,

dated the 16th July, 2013 of the area covered by this

notification, may be inspected at the office of the Collector,

Chandrapur (Maharashtra) or at the office of the Coal

Controller, 1, Council House Street, Kolkata (Pin-700 001)

or at the office of the General Manager, Western Coalfields

Limited (Revenue Department), Coal Estate, Civil Lines,

Nagpur-440 001 (Maharashtra).

SCHEDULE

CHINCHOLI OPENCAST (RECAST) PROJECT

BALLARPUR AREA

DISTRICT - CHANDRAPUR (MAHARASTRA)

(Plan bearing number C-1 (E)III/JJJR/895-0713, dated the 16th July, 2013)

All Rights:

Sl.

Name of

Patwari

Tahsil

District

Area in hectares

Remarks

No.

village

circle

Tenancy

Govern-

Forest

Total

number

ment

Subai

Rajura

Chandrapur

165.62

17.21

0.00

182.83

Part

Total: 182.83 hectares (approximately)

or 451.77 acres (approximately)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

865

Plot number acquired in village Subai:

13, 14/1-14/2-14/3, 16, 17/1A- 17/2B, 18, 19, 20/1- 20/

2- 20/3-20/4- 20/5, 21/1B, 21/2B, 22/1- 22/2- 22/3- 22/4, 23,

24/1- 24/2, 25/1- 25/2- 25/3, 26/1- 26/2, 29/1A- 29/1B,- 29/

Paiky- 29/2Paiky-29/4- 29/1C/1-29/1C/2- 29/1C/3- 29/1C/4-

29/1C/5- 29/1C/5-29/1C/6- 29/1C/7, 30/1A- 30/1B,- 30/1C-

30/1D- 30/1E- 30/2A-30/2B, 31/1- 31/2- 32/1- 32/2- 32/1A 32/

2A, 33, 35, 36/1A- 32/1B,-36/2- 37/1- 37/2- 37/3- 37/4- 38/1-

38/2- 38/3- 38/4-38/5, 39/1-39/2, 40, 41, 42, 43, 44/1A- 44/

2B, 45/1- 45/2- 46, 47/1- 47/2-47/3, 64/1- 64/2- 64/3, 65 Part

166/1- 166/2, 167/1- 167/2- 167/2-167/3, 168, 170, 171, 172/1-

172/2, 182/1- 182/2, 183.

Government land:

70P, 71 164, 169, Nallah, Road.

Boundary description:

A-B :

Line start from Point 'A' in village 'Subai' and

passes along the Subai Nallah, then passes

along the outer boundary of plot numbers

183, 168, 167/1- 167/2- 167/3, 166/1- 166/2, 164

(Government) and meets at Pont 'B'.

B-C :

Line passes through village 'Subai' along the

outer boundary of plot numbers 164

(Government), 166/1- 166/2, 167/1- 167/2- 167/

3, 168, 169 (Government) 170, 171, 172/1- 172/

2 and meets at Point 'C'

C-D :

Line passes through villages 'Subai' along

the outer boundary of plot numbers 172/1-

172/2, then crosses Subai Nallah and passes

outer boundary of plot numbers 25/1- 25/2-

25/3, 26/1- 26/2, 29/1C/1- 29/1C/2-29/1C/3- 29/

1C/4-29/1C/5- 29/1C/6- 29/1C/7, 29/1A- 29/

1B,- 29/Paiky- 29/2Paiky- 29/4- and meets at

Point 'D'

D-E :

Line passes through villages 'Subai' along

the outer boundary of plot numbers 29/1C/

1- 29/1C/2- 29/1C/3- 29/1C/4- 29/1C/5- 29/1C/

6- 29/1C/7- 29/1A- 29/1B- 29/Paiky- 29/2

Paiky-29/4, 32/1- 32/2- 32/1A- 32/2A, 33 and

meets at Point 'E'

E-A :

Line passes through village 'Subai' along the

outer boundary of plot number 33, 71

(Government), 70P (Government), 36/1A- 36/

1B, 36/2, 38/1 38/2 38/3- 38/4, 38/5, 65 Part, 39/

1- 39/2, 64/1- 64/2- 64/3, 47/1- 47/2-47/3, 44/

1A-44/2B, then crosses road and passes

along the outer boundary of plot numbers

16, 14/1- 14/2 14/3, 13, then crosses Subai

Nallah and meets at starting Point 'A'.

[F. No. 43015/14/2010-PRIW-I]

M.K. SHARMA, Director

miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;

¼miHkksDrk ekeys foHkkx½

¼Hkkjrh; ekud C;wjks½

ubZ fnYyh] 11 uoEcj] 2013

dkñvkñ 318.—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk

vf/klwfpr djrk gS fd ftl Hkkjrh; ekud dk fooj.k uhps vuqlwph esa fn;k x;k gS og LFkkfir gks x;k gS%—

vuqlwph

LFkkfir Hkkjrh; ekud ¼dksa½ dh la[;k

u;s Hkkjrh; ekud

LFkkfir frfFk

o"kZ vkSj 'kh"kZd

}kjk vfrØfer Hkkjrh; ekud

vFkok ekudksa] ;fn dksbZ gks]

dh la[;k vkSj o"kZ

¼1½

¼2½

¼3½

vkbZ ,l 1652%2013 IykUVs /kukRed IysVksa lfgr

—

11 uoEcj] 2013

lhlk&vEy izdkj dh cSVfj;ka vkSj LFkk;h lSy&

fof'kf"V ¼pkSFkk iqujh{k.k½

bl Hkkjrh; ekud dh ,d izfr Hkkjrh; ekud C;wjks] ekud Hkou] 9 cgknqj 'kkg tQj ekxZ] ubZ fnYyh & 110002] {ks=h; dk;kZy;ksa

ubZ fnYyh] dksydkrk] p.Mhx<+] psUubZ] eqEcbZ rFkk 'kk[kk dk;kZy;ksa vgenkckn] caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn]

t;iqj] dkuiqj] ukxiqj] iVuk] iw.ks rFkk fr:ouUrkiqje esa fcØh gsrq miyC/k g®A

[lanHkZ bZVh 11@Vh&21]

vkjñlhñ eSFk;w] oSKkfud ^,Q* ,oa izeq[k ¼fo|qr rduhdh½

866

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

BUREAU OF INDIAN STANDARDS

New Delhi, the 11th November, 2013

S.O. 318.—In pursuance of clause (b) of sub-rule (1) of Rule 7 of the Bureau of Indian Standards Rules, 1987, the

Bureau of Indian Standards hereby notifies that the Indian Standard, particulars of which is given in the Schedule hereto

annexed has been established on the indicated against each:

SCHEDULE

No. & Year of the

No.& Year of the Indian

Date of Established

Indian Standards

Standards, if any,

Superseded by the New

Indian Standard

(1)

(2)

(3)

IS 1652:2013 Stationary Cells and

—

11 November, 2013

Battries, Lead-Acid Type with Plante

Positive Plates - Specification [Fourth Revision]

Copy of this Standard is available for sale with the Bureau of Indian Standards, Manak Bhavan, 9 Bahadur Shah Zafar

Marg, New Delhi-110 002 and Regional Offices: New Delhi, Kolkata, Chandigarh, Chennai, Mumbai and also Branch Offices:

Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur-Kanpur, Nagpur, Patna, Pune,

Thiruvananthapuram.

[Ref. ET 11/T-21]

R.C. MATHEW, Scientist 'F'& Head (Electro technical)

isVªksfy;e vkSj izkd`frd xSl ea=ky;

ubZ fnYyh] 9 tuojh] 2014

dkñvkñ 319.—dsUnzh; ljdkj ] jktHkk"kk ¼la?k ds 'kkldh;

iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mifu;e ¼4½

ds vuqlj.k esa isVªksfy;e vkSj izkd`frd xSl ea=ky; ds iz'kklfud

fu;a=.kk/khu lkoZtfud {ks= ds miØeksa ds fuEufyf[kr dk;kZy;ksa

dks] ftuds 80 ;k vf/kd izfr'kr deZpkjh o`u~n us fgUnh dk

dk;Zlk/kd Kku izkIr dj fy;k gS] vf/klwfpr djrh gS%—

1- fgUnqLrku isVªksfy;e dkiksZjs'ku fyñ

¼i½ HkfVaMk ,yihth] HkjkbZ la;a=] xkao QqYyks[kjh] rglhy

ryoaMh lkcksa] ftyk & HkfVaMk

¼ii½ cM+kSnk fjVsy {ks=h; dk;kZy;] vackyky ikdZ] okWVj V®d

jksM] dkjsyhckx] cM+kSnk & 390018

Hkkjr isVªksfy;e dkiksZjs'ku fyñ

¼i½ Hkkjr isVªksfy;e dkiksZjs'ku fyfeVsM] xksok foekuu] IykV

,&4] eksjewxko LVsV] fpdkfye] xksok & 403711

¼ii½ laLFkkiu izca/kd & jk;iqj ,,Q+,l] Hkkjr isVªksfy;e

dkiksZjs'ku fyñ ,fo,'ku ¶;qfyax LVs'ku] Lokeh foosdkuan]

gokbZ vM~Mk] jk;iqj & 492015

¼iii½ cksj[ksMh fMiks ¼e/; jsyos½] rkyqdk] ftyk ukxiqj &

441108

¼iv½ ekaxfy;k laLFkkiu] Hkkjr isVªksfy;e dkiksZjs'ku fyñ

ekaxfy;k & luosj jksM] bankSj & 453771

¼v½ fjVsy ,fj;k ekdsZfVax] LVsV dks&vkWfMZusVj ¼eñizñ@Nñxñ½

Hkkjr isVªksfy;e dkiksZjs'ku fyñ] Cykd ^,* vkWfQl

dkWEiysDl] izFke ry] xkSre uxj] Hkksiky & 462023

¼vi½ laLFkkiu izca/kd & iw.ks ,ñ,Qñ,lñ] Hkkjr isVªksfy;e

dkiksZjs'ku fyñ ,fo,'ku ¶;qfyax LVs'ku] iq.ks ,;jiksVZ]

yksgxkao] iq.ks&411032

vk;y ,.M uspqjy xSl dkiksZjs'ku fyfeVsM

¼i½ vgenkckn ifjlEifÙk] vkW;y ,.M uspqjy xSl

dkiksZjs'ku fyñ]vofu Hkou] pkan[ksMk] vgenkckn &

380005

[la[;k 11011@1@2012 ¼fgUnh½]

Mhñ,lñ jkor] la;qDr funs'kd ¼jkñHkkñ½

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

867

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 9th January, 2014

S.O. 319.—In pursuance of sub rule (4) of Rule 10

of the Official Language (Use for official purpose of the

Union) Rules, 1976, the Central Government hereby notifies

the following offices of the Public Sector Undertakings

under the administrative control of the Ministry of

Petroleum & Natural Gas, in which 80 or more percent of

the staff have acquired working Knowledge of Hindi:—

1. Hindustan Petroleum Corporation Limited

(i) Bhatinda LPG. Bharai plant, Village Phullokhari, Tahsil,

Talwandi Sabo, District - Bhatinda.

(ii) Baroda Retail Regional Office, Ambala Park, Water

Tank Road, Karelibag, Baroda - 390018

2. Bharat Petroleum Corporation Limited

(i) Bharat Petroleum Corporation Limited Goa Vimanan,

Plot A-4, Mormugaum State, Chikalim, Goa - 403711

(ii) Installation Manager - Raipur AFS, Bharat Petroleum

Corporation Limited Aviation Fulling Station, Swami

Vivekanand, Airport, Raipur -492015

(iii) Borkhedi Depot (Central Railway) Tawka, District

Nagpur - 441108

(iv) Mangliya Installation, Bharat Petroleum Corporation

Limited, Mangliya - Sanver Road, Intaur - 453771

(v) Retial Area Marketing, Stat Co-Ordination (M.P./

Chh.G.) Bharat Petroleum Corporation Limited, Block

'A' Office Complex, First floor, Gautam Nagar, Bhopal

- 462023

(vi) Installation Manager - Pune AFS, Bharat Petroleum

Corporation Limited Aviation Fulling Station, Pune

Airport, Lohgaun, Pune-411032

3. Oil and Natural Gas Corporation Limited

(i) Ahmadabad Assets, Oil and Natural Gas Corporation

Limited, Avani Bhawan, Chandkeda, Ahmadabad -

380005

[No. 11011/1/2012(Hindi)]

D.S. RAWAT, Jt. Director (OL)

Je ,oa jkstxkj ea=ky;

ubZ fnYyh] 3 tuojh] 2014

dkñvkñ 320.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSusftax Mk;jsDVj

ch ,l ,u ,y nsYgh] fizafliy tujy eSustj] VsfydkWe] ch ,l ,u

,y] ukxiqj 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;] ukxiqj ds iapkV ¼lanHkZ la[;k

lhthvkbZVh@,uthih/08/2010½ dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&40012@14@2009&vkbZ vkj ¼Mh ;w½]

ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 3rd January, 2014

S.O. 320.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Case No. CGIT/

NGP/08/2010) 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 Managing Director, BSNL,

New Delhi and Principal General Manager, Telecom,

Nagpur and their workman, which was received by the

Central Government on 31/12/13.

[No. L-40012/14/2009-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/08/2010

Date: 06.12.2013

Party No. 1(a)

: The Managing Director, BSNL,

Sanchar Bhawan, Ashoka Road,

New Delhi-110001.

(b)

: The Principal General Manager,

Telecom, Nagpur Telecom Distt.,

Zero Miles, Civil Lines,

Nagpur - 440001.

Versus

Party No. 2

: Smt. Sunita W/o Mahadeo Athawale,

R/o C/o Shri Vijay Misar, Vandana

General Stroes, Somalwada,

Nagpur.

AWARD

(Dated: 6 th December, 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 Govenment has referred the industrial

dispute between the employers, in relation to the

mangement of BSNL and their workman, Smt. Sunita

Mahadeo Athawale for adjudication, as per letter No.L-

40012/14/2009-IR (DU) dated 27.08.2010, with the following

schedule:—

868

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

"Whether the action of the management of Bharat

Sanchar Nigam Limited, in not re-employing their

workman Smt. Mahadeo Athawale as per the

provisions of Section 25-H of the Industrial Disputes

Act, 1947 is legal and justified? What relief the

workman is entitled to?"

2. On receipt of the reference, parties were notice to

file their respective statement of claim and written statement,

in response to which, Smt. Sunita Mahadeo Athawale ("the

workman" in short) field the statement of claim and the

management of BSNL ("Party no. 1" in short) filed the

written statement.

The case of the workman as projected in the statement

of claim is that she is a workman and she was in the

employment of the Party No. 1 in the capacity of part time

worker continuously from 01.07.0994 till 08.04.1999, when

her services were illegally terminated and though her work

was of regular nature, she was not given appointment

order and she was required to work from 9.00 a.m. to 2.00

p.m. daily for sweeping office, filling drinking water for

office staff and doing other works as and when assigned

to her by her superiors and many a time, she was also

required to work in the morning hours from 6.00 a.m. to 8.00

a.m. for collection of tap water, as tap water was available

during the said hours only and she worked for about

5 years with clean and excellent service record and not a

single charge sheet or memo was issued to her during her

entire service tenure and she was paid Rs. 300/- per month

as her wages for the first five to six months, where after, her

wages was reduced to Rs. 100/- per month, even though,

she was required to work for the same duration and the

work performed by her was of regular nature and the same

is still available, the Party No. 1 neither filled up the vacancy

nor made her permanent and Party No. 1 terminated her

sevices w.e.f. 09.04.1999, without following the due

procedure of law, specifically the provisions of Sections

25-G of the Act and her terminationis arbitrary and illegal.

It is further pleaded by the workman that Party No. 1

is an industry within the meaning of the Act and the

provisions of Industrial Employment (Standing Orders) Act,

1946 are applicable to Party No. 1 and under the Model

Standing Order, the Party No. 1 I is under the obligation to

maintain a list of terminated employees and the provide

them employment, whenever vacancy arises and such

statutory obligations were not followed by Party No. 1

and provisions of Section 25-H of the Act and Rule 79 of

the Rules are applicable to Party No. 1 and therefore it was

and is obligatory upon Party No. 1 to give 11.09.2007,

appointed 12 persons in group 'D' post, in the pay scale of

Rs. 4000. 120 5800, the post on which she was earlier

working and not considering her case, while engaging other

persons, amounts to unfair labour practice and her claim is

for her re-employment as per the provisions of Section 25-H

of the Act.

Prayer has been made by the workman for her

appointment as per Section 25-H of the Act with

retrospective effect i.e. from 01.09.2007, the date on which

12 new persons were appointed.

3. The Party No. 1 in the written statement, denying

all the adverse allegations made in the statement of

claim,has pleaded inter-alia that the workman was working

as part time worker for doing miscellaneous works and she

herself stopped coming to work, due to non-availability of

work and the work she was doing was not of a regular

nature and she was called as and when work was available

for her and she was never paid monthly wages and daily

wages were paid to her, as and when she was required to

work and the provisions of Industrial Employment (Standing

Orders) Act, 1946 are not applicable to the case of the

workman, as she was not working as a regular employee

and it has to provide employment only when the employee

is a regular employee and terminated and provisions of

Sections 25-F and 25-G of the Act are not applicable to the

workman, as she was not a permanent employee and the

persons appointed on 11.09.2007 were appointed on

compassionate ground, as they were children of regular

employees and the provisons of Sections 25-H of the Act

are not applicable to the workman and the workman is not

entitled to any relief.

4. It is necessary to mention here that vide letter No.

40012/14/2009-IR(DU) dated 27.08.2010, Government of

India had referred the industrial dispute to this Tribunal,

for adjudication, with the schedule as to whether the action

of the management of Bharat Sanchar Nigam Limited in

terminating the services of the workman, Smt. Sunita

Mahadeo Athawale w.e.f. 09.04.1999 is legal and justified

and if not, as to what relief the workman is entitled and on

receipt of the letter of reference, this case was registered

by this Tribunal and notices were sent to the parties, fixing

the case to 30.03.2011 for filing of their respective statement

of claim and written statement. On 30.3.2011, the workan

filed a pursis alongwith the copy of the order passed by

the Hon'ble High Court, Nagpur Bench in Writ Petition No.

1627/2010 and requested to close the reference, in view of

the order passed by the Hon'ble Court in Writ Petition No.

1627/2010. As the Hon'ble High Court by order dated

20.07.2010 had been pleased to quash and set aside the

reference made by the Government, with a direction to the

Government to make a proper reference in regard to the

re-employment of the workman in service under the

provision of Section 25-H of the Industrial Disputes Act.

In view of the order passed by the Hon'ble Court, the

reference was closed, by order dated 30.03.2011.

On receipt of the corrigendum from the Government

of India, as per the direction of the Hon'ble court, the case

reopened and being noticed, the parties filed their

respective statement of claim and written statement.

5. The workman in support of her claim has examined

herself as a witness, besides placing reliance on documents

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

869

produced by her. The evidence of the workman is on

affidavit. In her evidence, the workman has reiterated the

facts mentioned in the statement of claim. The evidence of

the workman remained unchallenged, as on the date fixed

for her cross-examination, none appeared on behalf of the

Party No. 1 to cross-examine her. Subsequently also, Party

No. 1 did not make any prayer to allow it to cross-examine

the workman.

It is also to be mentioned that no evidence was

adduced by the Party No. 1 in this case.

6. At the time of argument, it was submitted by the

learned advocate for the workman that the workman was in

the employment of the Party No. 1 as a part time worker

from 01.07.1994 to 08.04.1999 and her services were illegally

terminated w.e.f. 09.04.1999, without following the due

procedure of law and as per the Standing Order and the

provisions of Section 25-H of the Act, it is obligatory upon

Party No. 1 to maintain a list of terminated employees and

to provide them employment, whenever vacancy arises

and Party No. 1 vide order dated 11.09.2007 appointed 12

persons in group 'D' post, without considering the case of

the workman and such action of Party No. 1 amounts to

unfair labour practice and the evidence of the workman

has remained unchallenged and as the Party No. 1 has

appointed 12 new persons as per order dated 11.09.2007,

the workman is entitled for employment, as per the provision

of Section 25-H of the Act.

In support of such contentions, the leaned advocate

for the workman placed reliance on the decision reported

in (1996) 5 SCC - 419 (Central Bank of India Vs. S. Satyam

and others.)

In the above said decision, the Hon'ble Apex Court

have held that:—

''Labour Law - Industrial Dispute Act, 1947 - Ss. 25-

H, 25-F, 25-B, 25-G and 2(oo) - Applicability and

Scope - S.25-H, Held applicable to all retrenchment

workmen and not only to those covered by S.25-F

read with S. 25-B.''

Keeping in view the principle enunciated by the

Hon'ble Apex Court, the present case in hand is to be

considered.

7. In the written notes of argument, it was submitted

by the learned advocate for the Party No. 1 that the workman

was a part time casual labour w.e.f. 01.07.1994 to 08.04.1999

and she stopped coming to the office w.e.f. 09.04.1999 and

the termination of the workman was challenged by her

before the Hon'ble High Court in Writ Petition No. 1001/

2002 and the Hon'ble High Court by order dated 07.08.2002

dismissed the Writ application and in view of the order of

the Hon'ble High Court, the workman cannot agitate the

issue of her termination. It was further submitted by the

learned advocate for the Party No. 1 that in Writ Petition

No. 6027/2004, which was filed by the workman, the Hon'ble

High Court by order dated 27.09.2006, directed that

whenever the Party No. 1 would start making employment,

the workman would at liberty to raise her claim and the list

dated 11.09.2007 annexed by the workman refers to the

candidates appointed on compassionated ground and the

case of the workman cannot be considered for appointment

on compassionate ground and since no appointment has

been made by Party No. 1, the claim of the workman cannot

be entertained and the workman is not entitled to any relief.

8. Perused the record including the documents filed

by the workman. In this case, the issue for consideration is

regarding re-employment of the workman, as per the

provisions of Section 25-H of the Act. It is not disputed

that the Hon'ble High Court in Writ Petition NO. 6027/

2004,by order dated 27.09.2006 have been pleased to allow

the workman to raise her claim for re-employment, in case

Party No. 1 would start making employment. According to

the claim of the workman, the Party No. 1 by order dated

11.09.2007 employed 12 new persons, without considering

her case and she is entitled for appointment w.e.f. 11.09.2007.

The workman has filed the order dated 11.09.2007.

On perusal of the said order, it is found that by the said

order, the approval of the Chief General Manager,

Maharashtra Telecom Circle, BSNL, Mumbai was

communicated for creation of 12 posts of group 'D' in Pune

SSA and two posts in Nagpur SSA with retention of the

posts till 29.02.2008 and creation of the said posts was

purely for utilization of CGA approved candidates

(compassionate ground applicants). It is clear from the said

documents that the Party No. 1 did not employ any junior

to the workman having less number of working days or

started making employment of new persons. As the orders

in question relate to compassionate appointment, the

workman was not entitled for consideration for her

appointment. Hence, it is ordered:—

ORDER

The reference is answered in the negative and against

the workman. The workman is not entitled to any relief.

J.P. CHAND, Presiding Officer

ubZ fnYYkh] 3 tuojh] 2014

dkñvkñ 321.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nh fizafliy

tujy esustj] VsfydkWe] chñ,lñ,uñ,yñ] ukxiqj ds izca/kr= ds

lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je

U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k lhthvkbZVh@,uthih/40/

2013) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks

izkIr gqvk FkkA

[lañ ,y&40012@38@2013&vkbZ vkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

870

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

New Delhi, the 3rd January, 2014

S.O. 321.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Case No. CGIT/

NGP/40/2013) of the Central Government Industrial

Tribunal/Labour Court, Nagpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of The Principal General

Manager, Telecom, BSNL, Nagpur and their workman, which

was received by the Central Government on 31/12/13.

[No. L-40012/38/2013-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/40/2013

Date: 12.12.2013

Party No. 1

(A) : The Principal General Manager,

Telecom, Nagpur Telecom District,

Telecom Bhawan, Civil Lines,

Nagpur-440001

(B)

The Additional General Manager,

(CAFA, Central & West), BSNL,

CTO Compound, 5th Floor, Civil

Lines, Nagpur-440001.

(C)

The Chief Suprintendent, Central

Telegraph Office, BSNL, CTO

Building,Civil Lines, Nagpur:

440001.

Versus

Party No.2

Smt.Manoramabai Krishnaji

Nagrare,

Plot No. 131, Chandan Nagar, Near

Fatte Sing Dhabre's House,

Nagpur-440009.

AWARD

(Dated: 12th December, 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

Telecom, Nagpur Telecom District and their workman, Smt.

Manoramabai Krishnaji Nagrare, for adjudication, as per

letter No.L-40012/38/2013-IR(DU) dated 18.07.2013, with the

following schedule:—

''Whether the action of the management of Bharat

Sanchar Nigam Limited, Nagpur in refusal of

employment to Smt. Manoramabai Krishnaji Nagrare,

Part time casual labourer from 17.05.2012 without

assigning any reason or without any order, is just,

fair and legal? To what relief the applicant is entitled

to?''

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement,by registered post with acknowledge due.

The notice sent to the workman by RPAD was served

personally on the workman and service of notice on her

held to be sufficient.

The management of Telecom (BSNL) appeared

through their advocates, Shri S.C. Mehadia,Shri A.S.

Mehadia and Shri R.A. Jain.

Inspite of adjourning the case thrice for filing of

statement of claim by the workman, the workman neither

neither appeared nor filed any statement of claim. So, on

12.12.2013, the reference was closed, holding that the

workman was not interested to proceed with the reference

and the reference was fixed for award.

3. It is well settled that whenever a workman raises a

dispute challenging the validity of the termination of his/

her service, it is imperative for him/her to file written

statement before the Industrial Court setting out grounds

on which the order is challenged and he/she must also

produced evidence to prove his/her case. If the workman

fails to appear or file written statement or produce evidence,

the dispute referred by the Government cannot be answered

in favour of the workman and the workman would not be

entitled to any relief.

Judging this case with the touch stone of the settled

principles as mentioned above, it is found that the workman

has neither appeared not filed any statement of claim and

as such, she is not entitled to any relief.Hence, it is

ordered:—

ORDER

The action of the management of Bharat Sanchar

Nigam Limited, Nagpur in refusal of employment to Smt.

Manoramabai Krishnaji Nagrare, Part time casual labourer

from 17.05.2012 is just, fair and legal. The workman is not

entitled to any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 3 tuojh] 2014

dkñvkñ 322.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj nh fizafliy

tujy esustj] VsfydkWe] ch ,l ,u ,y ds izca/kra= ds lac)

fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]

ukxiqj ds iapkV ¼lanHkZ la[;k lhthvkbZVh@,uthih/41/2013½ dks

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

871

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk

FkkA

[lañ ,y&40012@39@2013&vkbZvkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 3rd January, 2014

S.O. 322.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Case No. CGIT/

NGP/41/2013) of the Central Government Industrial

Tribunal/Labour Court, Nagpur now as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of The Principal General

Manager, Telecom, BSNL, Nagpur and their workman, which

was received by the Central Government on 31/12/2013.

[No. L-40012/39/2013-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/41/2013

Date: 12.12.2013.

Party No. 1 (A)

The Principal General Manager,

Telecom, Nagpur Telecom District,

Telecom Bhawan, Civil Lines,

Nagpur- 440001

(B)

The additional General Manager,

(CAFA, Central & West), BSNL, CTO

Compound, 5th Floor, Civil Lines,

Nagpur:—440001.

(C)

The Chief Suprintendent,

Central Telegraph Office, BSNL, CTO

Building, Civil Lines, Nagpur: 440001.

Versus

Party No. 2 :

Smt. Kamalabai Madhurkar Jambhulkar

R/o Near Miland Budh Vihar, Rambag,

Nagpur-440009.

AWARD

(Dated: 12th December, 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 Telecom, Nagpur Telecom District and their

workman, Smt. Kamalabai Madhurkar Jambhulkar, for

adjudication, as per letter No. L-40012/39/2013-IR (DU)

dated 18.07.2013, with the following schedule:—

"Whether the action of the management of Bharat

Sanchar Nigam Limited, Nagpur in refusal of

employment to Smt. Kamalabai Madhurkar

Jambhulkar, Part time casual labourer from 17.05.2012

without assiging any reason or without any order, is

just, fair and legal? To what relief the applicant is

entitled to?"

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement, by registered post with acknowledge due.

The notice sent to the wrokman by RPAD was served

personally on the workman and service of notice on her

held to be sufficient.

The management of Telecom (BSNL) appeard

through their advocates, Shri S.C. Mehadia, Shri A.S.

Mehadia and Shri R.A. Jain.

Inspite of adjourning the case thrice for filing of

statement of claim by the workman, the workman neither

appeared nor filed any statement of claim. So, on 12.12.2013,

the reference was closed, holding that the workman was

not interested to proceed with the reference and the

reference was fixed for award.

3. It is well settled that whenever a workman raises a

dispute challenging the validity of the termination of his/

her service, it is imperative for him/her to file written

statement before the Industrial Court setting out grounds

on which the order is challenged and he/she must also

produced evidence to prove his/her case. If the workman

fails to appear or file written statement or produce evidence,

the dispute referred by the Government cannot be answered

in favour of the workman and the workman would not be

entitled to any relief.

Judging this case with the touch stone of the settled

principles as mentioned above, it is found that the workman

has neither appeared nor filed any statement of claim and

as such, she is not entitled to any relief. Hence, it is

ordered:—

ORDER

The action of the management of Bharat Sanchar

Nigam Limited, Nagpur in refusal of employment to Smt.

Kamalabai Madhurkar Jambhulkar, Part time casual labourer

from 17.05.2012 is just, fair and legal. The workman is not

entitled to any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 6 tuojh] 2014

dkñvkñ 323.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj Mk;jsDVj vkWQ

fjlpZ] jcj fjlpZ bafLVV~;wV vkWQ bafM;k] jcj cksMZ] dksVV~k;e 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

872

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Je U;k;ky;] cSaxyksj ds iapkV ¼lanHkZ la[;k 26@2010½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&42011@25@2010&vkbZvkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 6th January, 2014

S.O. 323.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (C.R. No. 26/2010)

of the Central Government Tribunal/Labour Court,

Bangalore now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of The Director of Research, Rubber Research

Institute of India, Rubber Board, Kottayam and their

workman, which was received by the Central Government

on 31/12/2013.

[No. L-42011/25/2010-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, BANGALORE

Dated: 26th December, 2013

PRESENT: SHRI S.N. NAVALGUND, Presiding Officer

C R No. 26/2010

I Party

II Party

The President,

The Director of Research,

Mill, & General Mazdoor

Rubber Research Institute

Sangh,

of India Rubber Board.

BMS Office,

KOTTAYAM - 686009.

Felix Pai Bazaar,

MANGALORE - 575001.

APPEARANCES

I Party

Smt. H. Mangalamba Rao, Advocate

II Party

Shri Markos Vellapally, Advocate

AWARD

1. The Central Government vide order No. L-42011/

25/2010-IR(DU) dated 12.07.2010 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 Mill & General Mazdoor Sangh (BMS)

is justified in its demand for _ (i) extending benefits

to all temporary and permanent workers of RRIL,

HBSS, Nattanna on par with the lowest scale

applicable to the Central Government employees, with

retrospective effect from 01/12/2008, (ii) issuing proper

appointment orders to all these workers with 'D' status

and (iii) extending leave and all other benefits

available to these workers without discrimination? If

yes, what relief they are entitled to?"

2. On receipt of the reference while registering it in

CR 26/2010 when notices were issued to both the sides

they entered their appearances through their respective

advocates and I party filed claim statement on 08.11.2010

and II Party its written statement on 22.11.2011.

After completion of the pleading having regard to

the schedule of the reference when the I Party was called

upon to adduce evidence justifying its demands, on

18.12.2013 a Joint Memo of settlement signed by counsel

for both sides and President of I Party came to be filed with

request to pass an award in terms of the accompanying

settlement.

In the Memorandum of Settlement the II Party/

Employer having agreed to enhance the daily wage of the

permanent general workers to Rs. 250.00 w.e.f. 01.04.2012

which shall remain in vogue for three years period i.e. from

01.04.2012 to 31.03.2015 and the I Party Union has assured

that during the period of currency of the agreement i.e.,

upto 31.03.2015 they will not raise demand for regularisation

as Group D Employees of Rubber Board and other demands

having financial implications over the II Party, the award is

passed accordingly in the following terms:

ORDER

The II party in terms of the settlement submitted

before this tribunal shall pay the daily wages of the

permanent general workers by Rs. 250.00 w.e.f. 01.04.2012

and continue to pay at the same rate till 31.03.2015 of the

following workers:

Category of Workers

RB Job Differential

1. Tapping

10/-

01/12/2008 to 31/03/2010

12/-

from 01/04/2010 onwards

2. Processing

6.75

01/12/2008 to 31/03/2010

7.75

From 01/04/2010 onwards

3. Sweeping

5.35

01/12/2008 to 31/03/2010

6.35

From 01/04/2010 onwards

Watching

1. Day Watching

5/-

From 01/12/2008 onwards

2. Night Watching

15/-

From 01/12/2008 onwards

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

873

RB Service Weightage

Payment

Casual

From 01/12/2008 to 31/3/2009

20/-

From 01/12/2009 to 31/3/2010

40/-

20/-

From 01/12/2010 to 31/3/2011

60/-

30/-

From 01/12/2011 to 31/3/2012

80/-

40/-

From 01/12/2012 to 31/3/2015

100/-

60/-

It is further ordered that the I Party Union during the

period of currency of agreement i.e., upto 31.03.2015 shall

not raise demand for regularisation as Group D of the

Rubber Board and other demands having financial

implications over II party management and shall render all

co-operations in smooth running of its Hevea Breeding

Station, Nattana, D.K. District Karnataka.

S.N. NAVALGUND, Presiding Officer

ubZ fnYyh] 7 tuojh] 2014

dkñvkñ 324.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]

VsfydkWe] HkfVaMk] iatkc ds izca/kra= ds laca) fu;ktdksa 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 550@2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj

dks 31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&40012@105@2001&vkbZvkj¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 7th January, 2014

S.O. 324.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 550/2005)

of the Central Government Industrial Tribunal/Labour

Court-II, Chandigarh now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of the General Manager,Telecom, Bathinda,

Punjab and their workman, which was received by the

Central Government on 31/12/2013.

[F. No. L-40012/105/2001-IR(UD)]

P. K.VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

PRESENT: Shri A.K. RASTOGI, Presiding Officer.

Case No. I.D. No. 550/2005

Registered on 23.8.2005

Smt. Krishna, W/o Sh. Ram Singh, C/o Sh. N.K.

Jeet, 27349, Lal Singh Basti Road, Bathinda.

...Petitioner

Versus

The General Manager, Telecom, Bathinda, Punjab.

...Respondent

APPEARANCES :

For the Workman

Sh. N.K. Jeet.

For the Management

Sh. D.R. Sharma

AWARD

Passed on 12.7.2013

Central Government vide Notification No. L-40012/

105/2001 [IR(DU)] Dated 26.6.2001, by exercising its powers

under Section 10 Sub Section (1) Clause (d) and Sub-

Section (2-A) of 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 General

Manager, Telecom, Bathinda in terminating the

services of Smt. Krishna W/o Sh. Ram Singh is just

and legal? If not to what relief the workman is entitled

to and from which date?"

As per claim statement the workman worked as

Sweeper in Telecom Exchange Balianwali on a permanent

job from 5.4.1993on monthly wages. Her services were

terminated on 1.3.1999 without notice, charge-sheet, inquiry

and compensation. Juniors to her however were retained

at the time of her termination. According to the claim

statement her termination is illegal, null and void and against

the provisions of the Act.

The claim was contested by the BSNL, Bathinda. It

was alleged that the Department of Telecom Services and

Department of Telecom Operations have ceased to exist

w.e.f. 1.10.2000 and they have been converted into public

undertaking known as Bharat Sanchar Nigam Limited. There

is no relationship of master and servant between the BSNL

and the workman. It was further denied that she had been

appointed on permanent job. In fact she had applied for

part-time sweeper on contract basis and offered to work on

contract basis and she had agreed that she will not have

any claim or right for permanent absorption in the

department. She had not been recruited as per Recruitment

Rules. It was also denied that any junior to the workman

had been retained at the time of termination.

A replication was filed by the workman to say that

the BSNL having inherited all the assets and liabilities of

the Department of Telecom and being its successor is fully

liable in the present industrial dispute. It has been further

alleged that workman had been appointed as a part-time

874

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

sweeper as per rules of the department and she

continuously worked from 5.4.1993 to 1.4.1999 under the

supervision and control of the management. She was being

paid by the management. It was denied that the workman

had applied for part-time job on contract basis.

In evidence the workman examined herself while on

behalf of the management Major Singh SDE Legal was

examined. Parties relied on certain documents also. The

workman subsequently absented herself and did not appear

despite notice sent by registered post to her and the case

was ordered to proceed ex-parte against the workman on

3.9.2010 and her evidence was closed. The management

witness was examined on 3.11.2011 while the workman was

ex-parte.

At the stage of argument none appeared to argue

the case on bahalf of management also. I however have

perused the evidence on record carefully. There is no

evidence to show that the workman had been recruited

according to rules. Hence she has no lien on the post.

Though the respondent had denied that the workman was

the employee of the BSNL and her services were terminated

by it. Yet from the written statement the engagement of the

workman with the department is evident. The question is

whether the services of the workman were terminated in

violation of the provisions of the Act. It is important to

note that it has not been specifically alleged in the claim

statement that the workman completed 1 year's continuous

service before her termination. Against it, it is in the affidavit

of the management witness that the workman as per record

had been engaged in February, 1993 and she continued up

to March, 1994 and she never worked for 240 days in a

year. The statement of the management witness remains

uncontroverted as the workman had been put ex-parte.

Thus the workman has failed to prove that she was entitled

to the protection of Section 25F of the Act.

In her statement she could not name the person junior

to her retained in service after her termination. Hence, the

violation of Section 25G is also not proved.

There appears therefore no illegality in the termination

of the workman hence, the reference is answered against

the workman. She is not entitled to any relief. Hard and

Soft copies of the award be sent to the Central Government

for further necessary action.

ASHOK KUMAR RASTOGI, Presiding Officer

ubZ fnYyh] 7 tuojh] 2014

dkñvkñ 325.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ps;jeSu] otzk

LVs'ku dSaVhu] tkya/kj] iatkc ds izca/kra= ds lac) fu;kstdksa vkSj

muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1] paMhx<+ ds iapkV

¼lanHkZ la[;k 26@2007½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&14012@27@2006&vkbZ vkj ¼Mh;w½]

ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 7th January, 2014

S.O. 325.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 26/2007)

of the Central Government Industrial Tribunal/Labour

Court-I, Chandigarh now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of the Chairman Vajra Station Canteen,

Jalandhar, Punjab and their workman, which was received

by the Central Government on 31/12/2013.

[No. L-14012/27/2006-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI S.P. SINGH, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT-1, CHANDIGARH

Case No. ID 26/2007

Shri Gend Lal C/o Shri H.S. Hundal, Chamber No. 112,

District Courts, Sector-17, Chandigarh.

...Workman

Versus

The Chairman, Vajra Station Canteen, Jalandhar Canteen,

Janalndhar (Punjab).

...Management

APPEARANCES:

For the workman:

Shri Hardayal Singh.

for the management:

Shri G.L. Aggarwal.

AWARDS

(Passed on 3.7.2013)

Central Govt. vide letter No. L-14012/27/2006-IR(DU)

dated 25.4.2007 has referred the following dispute to this

Tribunal for adjudication:

"Whether the action of the management of Vajra

Station Canteen Jalandhar, in terminating the services

of their workman Shri Gend Lal w.e.f.15.11.2005 is

legal and justified? If not, to what relief the workman

is entitled to?"

2. The workman in claim statement pleaded that he

was appointed as Counter-Attendant at Vajra Station

Canteen Depot Jalandhar Cantt. in 1994 on temporary basis

and he was issued regular appointment w.e.f. 13.7.1996.

Workman was charge-sheeted later on vide charge-sheet

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

875

dated 21.1.2004. He replied the charges stating therein that

12 bottles of rum was found from Sh. Vijain an employee of

the VSC who was working in the Canteen and workman

was only working as helper and duties of the halper and

salesman are quite different and he was falsely implicated

in a case. The worrkman further stated that he has no

knowledge for sale of 60 bottles in August 2004 by Smt.

Beena Kumari. Beena Kumari named the workman when

she requested for reinstatement after his resignation was

accepted and on inducement of the management she was

given in writing implicating the workman in a false case.

During the inquiry Smt. Beena Kumari did not appear and

the evidence of Mr. Vijain cannot be taken against the

workman as Mr. Vijain himself was involved in the case.

The inquiry was not conducted in a fair and proper manner.

As the workman was not afforded full opportunity and

being Class IV employee he was not aware of the intricacies

of the inquiry proceeding. He was not provided with

assistance of co-worker during the inquiry proceeding. The

termination order passed by the Chairman, Vajra Station

Canteen w.e.f. 15.11.2005 is wholly illegal, arbitrary and

against the service rules. No inquiry report was supplied

to the workman and he was not aware of the inquiry report

whether charges were proved against him or not. The

workman was not provided with the inquiry report even

after his termination. It is prayed by the workman that his

termination is in violation of Section 25F and Section 25H

of the ID Act as he was not given any retrenchment

compensation and new appointments have been made by

the management after his termination. He has prayed for

his reinstatement with continuation of service and full back

wages.

3. Management filed written statement. preliminary

objection has been taken that respondent-management is

not an industry as defined under the ID Act. As the

management is neither a trade nor a business nor

undertaking nor an establishment similar to or analogous

to industry, therefore, this Court has no jurisdiction to

adjudicate the present reference. It is further pleaded that

Gend Lal petitioner is not a workman as defined under the

Act. In view of the judgment passed by the Hon'ble Supreme

Court in Union of India and Other Vs. M. Aslam and Other

in Civil Appeal No. 1039-1940 of 1999 dated 4.1.2001,

employees of Canteen are to be treated at par with

Government employees. Therefore this dispute cannot be

tried by this Tribunal. It is further pleaded that the dismissal

of the workman is based on fair and proper inquiry for the

serious misconduct. Domestic inquiry was held in

accordance to the principal of natural justice and the charges

were duly proved. It is further pleaded that management is

a Military Canteen and its services are limited only to the

person serving the Armed Forces or Ex-Servicemen. As

such the respondent management is governed by the law

applicable to Defence services and is not governed by the

provisions of Industrial Disputes Act. It is further pleaded

that management is governed by the SOP which are framed,

amended, renewed and replaced from time to time and the

termination of the workman is according to the rules

applicable to the management. On merits it is pleaded that

12 bottles of rum were arranged and given to workman by

Sh. Vijain and the workman was responsible for the same.

The responsibility of picking up the bottles was of the

workman and workman was rightly implicated.

Reinstatement of one Beena Kumari by the management

has nothing to do with the charges leveled against the

workman. Fair and proper inquiry was conducted against

the workman in accordance with the principles of natural

justice and he was given full opportunity during the inquiry

to defend himself. Order dated 10.11.2005 was legal. The

dismissal from service of the workman was after holding

the inquiry in which charges were proved and provisions

of Section 25F and 25H of the Industrial Disputes Act 1947

are not attracted. Management has prayed for the dismissal

of the reference.

4. Replication was also filed by the workman

reiterating the claim made in the claim statement.

5. Both the parties in evidence filed affidavits along

with documents. Management also along with the affidavit

of Col. A.K. Singh also placed on record complete inquiry

proceeding. My learned predesessor heard the arguments

on fairness of enquiry and vide order dated 7.7.2010 held

as under—

"On perusal of the entire material on record, I am of

the view that there have been no procedural lapse

and enquiry was conducted as per the rules.

Accordingly I am of the view that fair and proper

enquiry was conducted by the enquiry officer.

There is a difference in conducting enquiry and

decision making of the enquiry officer. One of the

contentions of the workman is that no speaking order was

passed by the enquiry officer. It does not relate to the

procedure adopted by the enquiry officer but it relate to

the decision making of the enquiry officer. On decision

making of the enquiry officer and disciplinary proceedings,

the opportunity to both of the parties is afforded for

adducing any evidence shall be given. There may be cases

where the enquiry might have been conducted in a fair and

proper manner but the decision making of the enquiry officer

has suffered with some perversity. The enquiry officer might

have considered the evidence on record or he has not

considering the material evidence not on record. Under

such cases, the opportunity for hearing is mandatory. Thus,

on perversity of the enquiry officer and on quantum of

punishment, I am affording the opportunity to adduce

evidence to both of the parties. Both of the parties are

directed to appear this tribunal for adducing evidence on

27.9.2010 Let parties be informed."

6. On the issue of perversity of the Inquiry Officer

and on quantum of punishment both the parties led

evidence. Workman filed his affidavit Exhibit W1 and was

876

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

cross-examined. During cross-examination workman stated

that he has not received any show casuse notice and he

was not provided any opportunity to reply the same.

Management produced Lieutenant Colonel A.K. Singh who

filed his affidavit Exhibit M1 and also relief on inquiry file

consisting of 107 pages and other documents Exhibit M2

to M8. The witness of the management stated that it is

incorrect that no personal hearing was given, no show

cause notice was given that he was punished without

following the procedure. It is also denied by witness that

Sh. Vijain was named and implicated the workman to save

his skin.

7. My predecessor vide Order dated 7.7.2010 has

held that inquiry conducted against the workman was in

accordance with the principles of natural justice and no

infirmity was found and there have been no procedural

lapse and inquiry was conducted as per rules and it was

held that fair and proper inquiry was conducted by the

Inquiry Officer. This Court is only to decide whether there

is any perversity of the Inquiry Officer and on quantum of

punishment. One more question to be decided by this Court

is whether the management is an industry under the ID Act

and consequently applicant Gend Lal is a workman under

Section 2-S of the ID Act?

8. Both the parties filed written arguments. The

workman in written arguments has submitted that he was

charge-sheeted and Inquiry Officer was appointed but no

show cause notice was given by the management to the

workman which was mandatory along with the inquiry

report. It is further pleaded in the written arguments that

principles of natural justice required furnsihing of the copy

of the inquiry report and petitioner was grately prejudiced

by non-furnishing of copy of inquiry report which render

the inquiry vitiated. The learned counsel for the workman

relief upon the judgment of the Andhra Pradesh High Court

in Hari Prasad Vs. Depot Manager reported in 1996 (5) SLR

Page 365 the Full Bench judgment of the Hon'ble Supreme

Court reported in 1991 (1) SCT 111 Union of India and

Other Vs. Mohammed Ramzan Khan. It is prayed in the

wirtten arguments that termination order dated 10.11.2005

is wholly illegal and arbitrary and against the Central Service

Punishment & Appeal Rules and the workman may be

reinstated with continuity of service with full back wages.

9. The management in written arguments submitted

that inquiry was conducted in accordance with the

principles of natural justice and full opportunity was given

to the workman to defend himself during the inquiry. The

charges were proved and the disciplinary authority rightly

imposed the punishment of termination of service.

10. The first and foremost question to be decided

first before proceeding further is whether the respondent

management i.e. Vajra Station Canteen is an industry under

Section 2(j) of the Industrial disputes Act 1947?

11. The management Vajra Station Canteen Jalandhar

Cantt. Punjab filed detailed reply stating therein that as the

management is neither a trade nor a business nor

undertaking nor an establishment similar to or analogous

to industry in the definition of industry in the Industrial

Disputes Act 1947. It has also been held in award of Labour

Court Jalandhar in the case of of Jagdish Singh Vs. Vajra

Station Canteen that the management of Vajra Station

Canteen Jalandhar is not an industry. The undertaking of

respondent is neither a trade nor a business, nor an

undertaking nor an establishment similar to or analogous

to industry, therefore this Court has no jurisdiction to

adjudicate the present reference. Respondent management

in its written statement also mentioned that it has been

held by the Hon'ble Supreme Court in union of India and

other Vs. M. Aslam and other in Civil Appeal No.1039-1940

of 1999 dated 4.1.2001, employees of Canteen are to be

treated at par with Government employees. As such the

employees of Central Govt. or State Govt. are not covered

under the provisions of Industral jurisdiction. On this

ground the respondent management submit that as the

respondent management is not an industry and this

Tribunal has no jurisdiction to entertain and try the present

reference.

12. In para 3 of the authority cited AIR 2001 Supreme

Court page 526 Union of India Vs/am and others it is

mentioned that in order to decide whether the employees

seving in the Unit run Canteens can be held to be

government servants, it is necessary to find out the mode

of appointment of such employees. Rules and regulations

governing the conditions of service of such employees,

found from which such salary is paid and other factors

which really determine the existence of relationsip of master

and servant between the government and the employees.

There are two types of canteens(I). canteen store

department and (2). unit run canteen.

Section 2(j) of the Indsutrial Disputes Act 1947

defines the 'índustry' as under:

"(j) industry means any business, trade, undertaking,

manufacture or calling of employees and includes

any calling, service, employment, handicraft, or

industrial occupation or avocation of workmen;"

13. It is pertinent to mention here that his provisions

has been substituted by amendment in Section 2 in

Industrial Disputes (Amendment) Act 1982 (46 of 1982)

which is as under:

"(j)"industry"means any systematic activity carried

on by co-operation between an employer and his

workmen (whether such workmen are employed by

such employer directly or by or through any agency,

including a contractor) for the production, supply

or disrtribution of goods or services with a view to

satisfy human wants or wishes (not being wants or

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

877

wished which are merely spiritual or religious in

nature), whether or not,—

(i)

.......

(ii)

such activity is carried on with a motive or make

any gain or profit and includes-

(a)

Any acitivty of the Dock Labour Board

established under Section 5A of the Dock

Workers (Regulation of Employment) Act,

1948 (9 of 1948);

(b)

Any activity relating to the promotion of sales

or business or both carried on by an

establishment,

......

But does not include......

(1)

.........

(2)

.........

(3)

.........

(4)

.........

(5)

.........

(6)

any activity of the Government relatable to

the sovereign functions of the Government

including all the activities carried on by the

department of the Central Govt. dealing with

defence research, atomic energy and space;

14. Keeping in view of the amended provision of the

Industrial Disputes Act 1947 (amendment Act 1982) Vajra

Station Canteen is not an industry and hence this Tribunal

has no jurisdiction to entertain and adjudicate the present

reference.

15. As in the forgoing paras it has been held that

this Tribunal has no jurisdiction to try and adjudicate the

present reference, therefore, the reference is returned to

the Central Govt. without deciding the same on merits.

Central Govt. be informed.

S.P. SINGH, Presiding Officer

ubZ fnYyh] 7 tuojh] 2014

dkñvkñ 326.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vky bafM;k

jsfM;ks] U;w fnYyh ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa

ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj

vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; lañ&2 ds iapkV ¼lanHkZ la[;k

14@2000½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013

dks izkIr gqvk FkkA

[lañ ,y&42012@206@99vkbZ vkj ¼Mh ;w½]

ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 7th January, 2014

S.O. 326.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby published the award (I.D. No. 14/

2000) of the Central Government Indstrial Tribunal/Labour

Court No. II, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of All India Radio, New Delhi and their

workman, which was received by the Central Government

on 26/12/13.

[No. L.42012/206/99-IR(DU)

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT-II, DELHI

PRESENT: Shri Harbansh Kumar Saxena

ID No. 14/2000

Sh. Mahipal Singh

Verus

All India Radio

AWARD

The Central Government in the Ministry of Labour

vide notification No. L-42012/206/99/IR(DU) dated

20.01.2000 referred the following industrial Dispute to this

tribunal for the adjudication:—

"Whether Sh. Mahipal Singh S/o Sh. Ghamandhi Lal

who worked as casual artist with All India Radio,

News Services Division for 72 days in 1996, 150 days

in 1997 and 90 days in 1998 is entitled to regularization

of his Services/ If yes, to what relief and benefits the

workman is entitled and from what date?"

On 22-02-2000 reference was received in this tribunal

which was register as I.D. No. 14/2000 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 on 06.11.2000. Wherein he state as follows:—

1. That the workman has been in the employment of

the management for the last many years since 1982-83 at

the post of Peon as IVth class worker. The period in which

the workman has worked with the said management are

given in detail is under.

01.10.1983

02.02.1983

16.08.1986

20.02.1986

01.01.1996

31.03.1996

90 days

878

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

01.08.1997

31.12.1997

150 days

10.05.1998

31.08.1998

114 days

2. That the workman has worked during the last

calender year since 01.08.1997 to 31.08.1993 for more than

240 days and the workman requested the management for

regularization in the service. The management turned

annoyed with the said demand to regularization in the

service and the management has terminated the services

of the workman with effect from 31.08.1998 by way of

refusal from duty without giving any notice /notice pay

in lieu thereof.

3. That the workman approached the management

personally a number of times and requested for duty but

the management flately refused to take back the workman

on duty and thereafter the workman gave a letter to the

management vide dated 23.09.1998 personally but the

management again refused the workman to take on duty.

4. That the workman thereafter was constrained to

file an application before the conciliation officer/Asstt.

Commissioner, Labour Court, Central Curzon Road, New

Delhi vide application dated 26.02.1999. There the

management filed its reply vide dated 23.06.1999 in which

they admitted that the workman has worked with the

management but they refused the workman to take back

him on duty. At this the conciliation officer sent the

matter for appropriate action to the Government of India,

Ministry of Labour "BHARAT SARKAR SHRAM

MANTRALAYA" New Delhi and the Ministry of Labour

has referred the matter to this Hon'ble Court for

adjudication. The reference is as under:-

"Whether Sh. Mahipal Singh S/o Sh. Ghamandhi

Lal who worked as casual artist with All India Radio,

News Services Division for 72 days in 1996,

150 days in 1997 and 90 days in 1998 is entitled to

rgularization of his services? If yes, to what relief

and benefits the workman is entitled and from what

date?"

5. That the workman submits that he was not given

any appointment letter at any point of time and he was

directly given duty by the management however his

attendance was being marked in the attendance register

of the management.

6. That the workman submits that he was paid salary

on daily rated basis but he was never engaged on the

contract basis as stated by the management before the

conciliation officer in reply to the application of the

workman.

7. That the workman submits that he was issued

various certificates in favour of the workman by the

management which prove that the workman was engaged

with the management as on daily rated basis.

8. That the workman submits that the date of birth

of the workman is 01.07.1969 and he is also handicapped

person having disability of Post Polio.

Unjustified, against the principle of natural justice

and contrary to the provisions of Industrial Dispute Act

1947 (as amended up date) and also tentamount to unfair

labour practice.

It is therefore most respectfully/humbly prayed to

this Hon'ble Court that this Hon'ble Tribunal/Court may

kindly be pleased to pass as award in favour of the workman

and against the management and directing thereby to the

management to reinstate the workman in the service as

regular workman with full back wages, continuity in the

service with all consequential benefits in the interest of

justice.

Any other and action may kindly be passed in

favour of the workman and against the management and

also any other relief to the workman which this Hon'ble

Court deem fit and proper in the interest of justice.

Against claim statement management filed

following written statement on 5.6.2002:-

1. That the claim of the applicant under this para is

misconceived misleading and devoid of factual position. He

has been engaged as casual assignee to manually in General

New Room/Hindi News Room at the prescribed fee for the

categories of casual assignees for the following period:—

Year

No. of days he performed duty

1996

72 days

1997

150 days

1998

90 days

As regards his claim for the period from 01.10.1982 to

02.02.1983, it is respectfully submitted that the certificate

No. 1(9)S-82 dated 16.02.1983 has not been issued by any

authorized officer. As regards its correctness, it may be

stated that this being very old, it has been possible to lay

hands on the record to verify it, the period 16.08.1986 to

20.02.1986 does not appear to be correct obviously.

1. It is thus evidently clear that he has not been

engaged against any of the regular posts as claimed by him

and also for the period claimed by him. A specimen copy of

the contract under which he has been given causal

assignment is annexed herewith and marked as Annexure-

M-1. The claim of the workman is false and liable to be

rejected.

2. The workman's contention that he has worked for

more than 240 days in each of the two calender years is

wrong and denied. The calculation made by him is false.

Moreover, his service has never been terminated since he

was to discharge his assignment for the period the contract

has been assigned under the contractual obligations for

causal assignee. The contention therefore brought out

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

879

under this para by the workman is totally foreign to his

case and does not withstand the test of scrutiny. He is not

eligible for regularization under the contract.

3. The contention under this para are baseless,

fabricated and are aimed at gaining misplaced sympathy.

4. The contents of this para are a matter of record.

5. Being a casual assignee, he was given assignment

on a written contract. His engagement has therefore neither

been under daily rated causal employee against a regular

post or otherwise of any other post except on casual

assignment to render assistance in General News Room/

Hindi News Room.

6. The workman's assertion that he was paid salary

on daily rated basis is not correct the workman was engaged

on assignment basis to discharge his assignment for the

period the contract has been assigned under the contractual

obligations for casual assignee and was paid fee as per the

scale prevailing.

7. The contention of the workman under this para is

totally wrong. The workman has never been issued any

letter or communication by any authorized officer except

the contract entered into. The contractual engagement on

assignment basis cannot be termed as engagement as daily

rated employee.

8. The management do not want to make any comment

on workman's disability and other information stated under

this para except that he has worked with the management

only for limited days in three years on casual assignment

basis as mentioned in the preceding paragraphs, which

does not make him eligible for regularization. The contents

of para 8 of claim are denied for want to information.

9. The contents of para 9 are specifically denied. As

has already been stated in reply to the proceding

paragraphs, the services of the workman has never been

terminated since he was to discharge his assignment for

the period the contract was assigned under the contractual

obligations for casual assignee. His engagement was

neither under daily rated casual employee against a regular

post or otherwise for any other post except on casual

assignment. As far as his unemployment is concerned, the

management has offered casual assignments to him during

the Lok Adalat proceedings. However, the workman did

not accept the offer of the management for his engagement

on as and when required basis. This is brought to the

notice to this Hon'ble Court that his issue has also come

up for settlement before the Lok Adalat under the Central

Government Industrial Tribunal-cum-Labour Court where

the claim of the workman for his regularisation was rebutted

on the legal grounds that he was not eligible for his

regularisation under the instructions issued by the Govt.

of India for regularization of casual labourers and also the

departmental instructions for regularisation of casual

assignees working against various posts issued from time

to time since his engagement did not fall within the category

of casual labourers or a casual artist against any of the

post belonging to erswhile categories of Staff Artists.

The suggestions made by the Presiding Officer of

the Lok Adalat to the workman to accept whatever

assignment he is entitled to as and when offered by the

Management was not accepted by the workman.

10. The question of his reinstatement in service as

regular employee and other benefits does not arise since

he was engaged on assignment basis to discharge his

assignment for the period the contract was assigned under

the contractual obligations for casual assignee. The

contents of para 10 are denied specifically.

11. The contention of the workman under this para is

baseless, fabricated and are aimed at gaining misplaced

sympathy since he was engaged by the management on

assignment basis as and when required. By preferring this

application, he only wants to exploit the management for

the casual assignments offered to him by them for his self-

interests to get regularization for which he is not entitled

under any of the rules on regularisation.

The workman's claim under this application is

therefore liable to be dismissed outright. The last para of

claim is prayer and the same is denied being false and

frivolous.

Reply of the written statement on the behalf of the

workman filed on 27.11.2002 as follows:—

1. That the contents of Para No. 1 of the written

statement are misconceived, misleading and wrong, hence

denied. It is denied that the workman has been engaged as

causal assignee. It is denied that the certificate No. 1 (a)

S-82 dated 16/2/1983 has not been issued by any authorized

officer. It is submitted that the management deliberately,

intentionally and malafidely concealing the true facts from

this Hon'ble and only because of this the management is

stating herein "the Record is very old".

It is also denied that the workman has not been

engaged against any of the regular post as claimed and

also for the period claimed by the workman. It is submitted

that the contents of the corresponding para of the claim

are reiterated and re-affirmed as correct.

2. That the contents of Para No. 2 of the written

statement are wrong and denied. It is denied that the

workman has not worked for more than 240 days in each of

two calendar years. The contents of the corresponding

para of the claim is reiterated and re-affirmed as correct.

3. That contents of Para No. 3 of the written statement

are wrong and denied and the contents of the corresponding

para of the claim is reiterated and re-affirmed as correct.

4. That the contents of para no. 4 of the written

statement needs no reply.

880

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

5. That the contents of Para No. 5 of the written

statement are wrong and denied and the contents of

corresponding para of the claim is reiterated and reaffirmed

as correct.

6. That the contents of Para No. 6 of the written

statement are misleading and misconceived, wrong and

hence denied and the contents of the corresponding para

of the claim are reiterated and re-affirmed as correct.

7. That the contents of Para No. 7 of the written

statement are misleading, misconceived, wrong and denied

in toto and the contents of corresponding para of the claim

are reiterated and re-affirmed as correct.

8. That the contents of Para No. 8 of the written

statement are wrong and denied. It is submitted that the

workman has worked with the management since 1982 till

1998 on daily rated basis. It is also denied that the workman

was employed on contract/casual assignment basis. The

contents of the corresponding para of the claim is reiterated

and re-affirmed as correct.

9. That the contents of Para 9 of the written statement

are misleading, illegal and wrong, hence denied. It is denied

that the services of the workman has never been terminated

since he has to discharge his assignment for the period the

contract was assigned under the contractual obligations

for casual assignee. It is also denied that his engagement

was neither under daily rated causal employee against a

regular post or for any other post except on casual

assignment. It is also denied that the management has

offered employment to the workman. It is also denied that

the management was working with the management since

1982 against a job of permanent nature and the management

deliberately and intentionally and illegally terminated the

services of the workman.

The contents of corresponding para of the claim is

reiterated and re-affirmed as correct.

10. That the contents of Para No. 10 of the written

statement are wrong and denied and the contents of the

corresponding para of the claim are reiterated and re-

affirmed as correct.

11. That the contents of Para No. 11 of the written

statement illegal, wrong and hence denied. The contents

of the corresponding para of the claim are reiterated and re-

affirmed as correct.

Contents of prayer clause and verification clause of

the management in the written statement is wrong and

denied. The contents of prayer clause of the claim are

reiterated and re-affirmed as correct.

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 Sh. Mahipal Singh S/o Sh. Ghamandhi Lal

who worked as casual artist with All India Radio,

News Services Division for 72 days in 1996, 150 days

in 1997 and 90 days in 1998 is entitled to regularization

of his services? If yes, to what relief and benefits the

workkan is entitled and from what date ?"

Workman in support of his case filed his affidavit in

evidence on 29/3/2005. Wherein he stated as follows:

1. That the deponent has been in the employment of

the management of the All India Radio for the last years

since 1982 to 31.08.1998 at the post of peon as IVth class

workman. The period for which the workman has worked

with the said management are given as under:—

01-10-1982

to 02-02-1983

124 days

16-08-1986

to 20-02-1987

248 days

01-01-1996

to 31-03-1996

90 days

01-08-1997

to 31-12-1997

150 days

01-05-1998

to 31-08-1998

114 days

2. That the deponent has worked 248 days in English

calendar year since 16-08-1986 to 2-02-1987 and again from

01-08-1997 to 31-08-1998 for more than 240 days and the

deponent requested the management to regularize his

services but the management instead of regularization of

the services turned annoyed with the said demand of

regularizing the services and terminated the services of the

deponent with effect from 31-08-1998 by way of refusal

from duty without giving any notice/notice pay in lieu

thereof.

3. That the deponent approached the management

personally a number of time and requested for duty but the

management flatly refused to take the deponent on duty

and thereafter the deponent gave a letter to the management

on dated 23.09.1998 personally but the management again

refused the deponent to take duty, the said letter is exhibit

as Ex. WE-1/1.

4. The deponent thereafter was constrained to file an

application before the conciliation Officer/Asstt.

Commissioner, Labour Court, Central Curzon Road, New

Delhi vide application dated 26.02.1999, the same is here as

Ex-WE-1/2. There the management filed its reply dated

23.06.1999, Exhibit WE-1/3 admitting that the deponent has

worked with the management but they refused the deponent

has worked with the management but they refused the

deponent to take back on duty, consequently the

conciliation officer sent the matter for appropriate action

to the Government of India, Ministry of Labour "BHARAT

SARKAR SHRAM MANTRALYA" New Delhi and the

Ministry of Labour has referred the present matter to this

Hon'ble Court for adjudication. The reference is as under

and the same is already on record.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

881

"Whether Sh. Mahipal Singh S/o Sh. Ghamandhi Lal

who worked as casual artist with All India Radio, News

Services Division for 72 days in 1996, 150 days in 1997 and

90 days in 1998 is entitled to regularization of his services?

If yes, to what relief and benefits the workman is entitled

and from what date?"

5. That the deponent submits I was not given any

appointment letter at any period was directly given duty

by the management, however may attendance was being

marked in the attendance register of the management.

6. That the deponent submits that I was being paid

salary on daily rated basis but I was never engaged on the

contract basis as stated by the management before the

conciliation officer in reply to the application of the

deponent. The photocopies of the cheque against the daily

wages are marked here as Mark-A to L.

7. That the deponent was issued various certificates

in may favour by the management which are exhibited here

as Ex WE-1/4 to 1/7 and these certificates proves that the

deponent was engaged on daily rated basis by the

management. The various gate passes and entry cards

issued by the management to the deponent are exhibited

here as Ex, WE-1/8 Collectively.

8. That the date of birth of deponent is 01.07.1967

and the deponent is also a handicapped person having

disability of Post Polio paralysis of right lower limb, Doctor

opined in the certificate as the deponent is disabled person

having disability of 40% and the disability certificate is

Exhibited here as Ex-1/9. Thus the deponent is unable to

do any heavy works well as he has spent his valuable

years of life with the said management and how I am not

able to get any job anywhere as I have tried my best but

could not get succeeded.

9. That the deponent is unemployed since the date

of illegal termination of services by the management and is

dependent on others mercy.

10. That the deponent is entitled for reinstatement

on the services as regular employee with the management

with full back wages, continuity of services including all

consequential benefits.

11. That the act of illegal termination of the services

of the deponent is highly illegal, invalid and unjustified,

against the principles of natural justice and also contrary

to the provisions of Industrial Dispute Act 1947 (as

amended up to date) and also a unfair labour practice.

Subsequently affidavit of workman was tendered

exhibit WW1/1. He also proved photocopies of document

WW 1/1 to WW 1/9.

He was cross-examined by Shri Sanjay Aggarwal

A/R for the management.His cross-examination is as

follows:—

I have brought the original documents. Objected to

the mode of exhibition of the photo-copies. The witness

has shown the Exhibit No. W 1/4, W 1/5 W-1/9. I am 8th

passed. I do not know how to read English. I was not

issued any appointment letter by the management. It is

incorrect that I have adduced evidence beyond pleading

and reference and all evidence adduced by me is irrelevant.

It is incorrect that I have not worked 240 or more days in

any year. It is incorrect to suggest that I have filed forged

documents for the year 1982-83/86. It is also incorrect to

suggest that my entire case is based on forged documents.

It is correct that I was given work as and when required. It

is incorrect to suggest that I am not entitled to any claim.

Thereafter workman closed his evidence.

Management in support of his case filed affidavit of

Shri D.K. Dass on 4.11.2007. Wherein he stated as

follows:—

1. That the case of worker is beyond reference.

2. That he has been engaged as casual assignee to

assist manually in General News Room/Hindi News Room

at the prescribed fee for the categories of casual assignees

for the following period:

Year

No. of days he performed duty

1996

72 days

1997

150 days

1998

90 days

3. That as regards his claim for the period from

01.10.1982 to 02.02.1983, it is respectfully submitted that

the certificate No. 1(9) S-82 dated 16.02.1983 has not been

issued by any authorized officer. As regards it is

correctness, it may be stated that this being very old, it has

not been possible to lay hands on the record to verify it,

the period 16.08.1986 to 20.02.1987 does not appear to be

correct obvisouly and are forged ones.

4. That he has not been engaged against any of the

regular posts as claimed by him and also for the period

claimed by him. A specimen copy of the contract under

which he has been given casual assignment is annexed

herewith the worked as Annexure-MI. the claim of the

workman is false and liable to be rejected.

5. That the workman's contention that he has worked

for more than 240 days in each of the two calendar years is

wrong and denied. The calculation made by him is false.

Moreover, his service has never been terminated since he

was to discharge his assignment for the period the contract

had been assigned under the contractual obligations for

casual assignee. The contention, therefore, brought out

under this para by the workman is totally foreign to his

case and does not withstand the test of scrutiny. He is not

eligible for regularization under the contract.

882

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

6. That this engagement has, therefore, neither been

under daily rated casual employee against a regular post or

otherwise for any other post except on casual assignment

to render assistance in General News Room/Hindi News

Room.

7. That the workman's assertion that he was paid

salary on daily rated basis is not correct. The workman was

engaged on assignment basis to discharge his assignment

for the period the contract has been assigned under the

contractual obligations for casual assignee and was paid

fee as per the scale prevailing.

8. That he has worked with the management only for

limited days in three years on casual assignment basis,

which does not make him eligible for regularization.

9. That complete case of workman is liable to be

rejected.

He was cross-examined by Sh. S.P. Singh A/R for the

workman. His cross-examination is as follows:—

I joined the Mgt. in June, 2007 and I am aware with

the fact and circumstances of the present dispute and my

duty hours in the office 9:30 A.M. to 6:00 P.M. I do not

recollect whether I was in office on 5th November, 2007

(Vol.) I was on leave. The present affidavit was got typed in

my office staff same as it was of earlier of Sh. Gurucharan

Singh Bedi and the contest of the affidavit of

Sh. Gurucharan Singh Bedi as it is and my council as advice

me to copy the same. I signed the said affdavit in the

chamber of advocate in Tis Hazari Court and after the

signing the same I returned back from the chamber of the

advocate. The typing did not took at my instance by the

typist the same was copied from previous affidavit of

Sh. Gurucharan Singh. I do not know how many days

claimants has worked in 1996, 1997 & 1998 with Mgt. I am

not aware of the content of the affidavit hence I connot tell

the workman has worked from 150 days in 1997 (Vol.) It may

be less or more than 150. My reply is same from three year

1996 & 1998. As our office does not have any record 1986,

1987 we cannot say whether the workman has worked for

248 days in between 16/8/1986 to 20/2/1987. The workman

has worked on contract basis on daily wages basis as casual

labourer. We have not signed any contract with the workman

in writing at the time of joining the services of the All India

Radio (Vol.) He might be working in the other department

of AIR and the same might have issued by the other

department. The contents of exhibit M1 are admitted more

specifically in respect of wages @ Rs. 850 per day. It is

correct that the document dated 16/02/1983 has been isued

by our office All India Radio, News Service Division which

is exhibit WE1/4 (Vol.) I am aware about the name of Head

Cleark working at that time. I have no knowledge about the

document dated 22/8/1998 WE1/5 as the same is in Hindi

and I do not know Hindi. I do not have any knowledge

about the document mentioned in the list of document

filed by workman from page No. 1 to 33 but the same has

been issued by the main building of All India Radio. It is

correct as per our record that the workman has worked for

240 days fromt the year in 1997 to 1998 on daily wages

basis. It is correct that I do not have any sufficient

knowledge about the dispute in question as well as

documents pertaining to the dispute in question. It is wrong

to suggest that I am not aware about the contents of the

affidavit. It is wrong to suggest that I am deposing

falsely.

Thereafter workman closed his evidence.

Written Argument on behalf of the workman are as

follow:—

1. That this poor workman having 40% disability from

Post Polio vide Ex. WE-1/9 humbly submit that the workman

has all along been victimized arbitrarily treated. In the matter

the workman was all along handicapped for the reasons

that he was not in a position to claim any thing from the

management since under the sword-‘‘Take it or go" and

hence the services of the workman were illegally terminated

by the management of All India Radio. The workman has

personally visited the management to take him on duty

and also wrot letters. Ex. WE-1/1 but the workman was not

taken on duty.

2. That now the management have submitted a totally

false picture. It is submitted that the workman has worked

with All India Radio for 248 days from 16.8.1986 to 20.02.1987

and from 01.8.1997 to 31.08.1998 for 114 days. The gate

pass and entry cards are exhibited as EX-WE-1/8 (Colly). It

has totally been suppressed that the work is of a

continuously nature in so much so that the main function

of the News Services Division is preparation of bulleting

and the management instead fo having regular group 'D'

employee for the so called manual work — a term for the

work is given as peon, the management from time post,

much earlier than 1982 resorted to engagement the

employees on assignment basis while the workman has

worked with the management for 124 days from 01.10.1982

to 02.02.1983.

3. That against fairness and co-operation with the

judicial authorities, totally against procedure, the

management has come forward with a total resorted facts.

The management have suppressed facts as to the details

as to how many such employees had been engaged or are

being engaged for the purpose. Further to this the

management have also suppressed the fact that there is

binding order of the Central Administrative Tribunal, who

had jurisdiction in the matter.

4. That the whole scheme regarding Contract,

piecemeal on assignment basis came for consideration of

the Central Administrative Tribunal, Principal Bench, New

Delhi, is case Vasudev & Ors. Vs. Union of India & an.

(1991) 17 ATC 679, a copy of which has been annexed at

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

883

ANNEXURE-P-1

(i)

That in para 6, thereof it has been observed

that this stop gan arrangement was being done

so that none should become eligible for regular

appointment. The Tribunal after considering all

aspects of the matter, directed that a scheme

should be formulated for all the categories

engaged on such assignment basis who had

completed 120 days whether in service or not

form 1980 onwards, as per giving seniority on

the basis when they earliest completed

120 days, and regularize them without resorting

to recruitment.

(ii)

That this order (Supra) relatels to such

employees of Doordarshan where work was

being given 10 days in a month. In case of All

India Radio, they acted more arbitrarily and had

resorted to give assignment for 6 days in a

month only. Such employees also approached

the Central Administative Tribunal in case

Suresh & Ors. Vs. Union of India, a copy of the

order is at ANNEXURE-P-2. That in the matter,

the Tribunal directed to make a revised scheme

on the basis of the observation earlier made in

Vasudeva's case, emplained in sub-para (i)

above.

(iii)

That this clearly admits that for the survival of

such employees, they were continued to be

given monthly assignment for 10/6 days in a

month. This was totally unfair and arbitrary. In

the circumstances as per the binding order

management was to formulate a scheme to

regularize them for their livelihood assignments

per month as committed should continued to

be given.

5. It is humbly sumbmitted that this poor worker

continued to work from 1.10.1982 to 02.02.1983 and

thereafter 16.8.1986 to 31.8.1998 as per the certificate

produced. This is supported by the certificate (Ex. WW-1/

4 to 1/7) of Head clerk, who is the only competent authority

who maintains records. It is totally wrong to claim him as

an incompetent authority. An officer working under the

Union Government is subject to the Conduct Rules and in

the position of making any unauthorized action is liable to

the penalized. Thus to say that the certificates (Ex. WW-1/

4 to 1/7) given were not correct, is totally wrong. It is

submitted that Cash Book is a permanent document and

the authorities/witness of the management should have

well ascertained the position from there before deposing

before this Hon'ble Court.

6. That it was for favour and favoritism that this poor

worker was denied work thereafter for considerable period

in order to provide those who found favour of the

management. It was only after the order of the Tribunal,

mentioned above, that they resorted to call the workman, It

is humbly submitted that the Hon'ble Supreme Court in

Ghaziabad Development Authority Vs. Vikram Chaudhary

Jt. 1995 (5) SC 536, has observed that those such employees

engaged first should be re-engaged as per their initial

seniority. Thus this poor workman had a pre-emptive right

for re-engagement, which management resorted and as

admitted given assignments for 248 days inform 01.08.86

to 20.02.87, 90 days in 1996, 150 days in 1997 and 114 days

in 1998.

7. That in the facts and circumstances, this poor

workman submits that the management should have

submitted the correct record before the Hon'ble Court but

the management failed to submit the same. The management

failed to give details of all such employees engaged for

such work at least from 1996 which would have explained

that they the management had been changing hands, the

work is of regular nature which is obvious for the reason

that much important work cannot be done in office without

the help of Group 'D' employees. The management have

also failed to submit that whether the authorities were under

law to prepare a scheme as per the direction of the Tribunal

and whether such a scheme was not drawn by DGAIR

(Proper) and employees regularized.

8. That thus this poor workman has been illegally

denied this 'Livelihood' by wrong termination, retaining

juniors-totally against the binding law declared by the

Hon'ble Supreme Court in case Ghaziabad Development

Authority. It is against the Article 21 of the Constitution to

deprive me of the 'Livelihood 'even as per the promise to

continue for 16 days in a month. That thus the workman

have suffered at the hands of the Management by way of

termination of the services without any reason despite the

fact that the workman has worked for more than 240 days

in one year as stated in the claim petition as well as in the

affidavit of evidence of the workman.

9. The witness of management has admitted that the

workman was working as casual worker this A-1-R on daily

wages and has also admitted the documents of workman in

his cross examination (see last 10 lines of cross

examination). It is evident from the documents Mark A to I

that the workman used to receive salary/wages through

cheques. It has also been admitted by the witness of the

management that the documents place on record were

issued by the management (kindly perused the cross

examination of the management witness.)

10. That the workman has devoted his whole life in

the work of the management and at this stage is at starvation

as he is unable to get jot due to disability while after

terminating the services of the workman, the management

has given advertisements for recruitment of employee but

the workman was no employed.

884

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

It is humbly prayed that the workman immediate be

reinstated in the services with full back wages. Further the

respondent/management be directed to regularize the

handicapped workman in terms of the scheme, taking 1982

as his seniority.

Written submission on behalf of management are as

follows:—

1. Reference under section 2(A) of section 10 of

Industrial Disputes Act made in the above case reads as

under:—

"Whether Sh. Mahipal Singh S/o Sh. Ghamandhi Lal

who worked as casual artist with All India Radio,

News Services Divison for 72 days in 1996, 150 days

in 1997 and 90 days in 1998 is entitled to regularization

of his service? If yes, to what relief and benefits the

workman is entitled and from what date?"

2. That this Hon'ble Tribunal is vested with specific

jurisdiction circumscribed by the terms of an order of

reference. Thus, this Hon'ble Tribunal is to decide:—

(a)

Whether workman worked continuously for 240

days in a year, if so;

(b)

Whether the workman is entitled to

regularization in service.

THE AVERTMENTS MADE IN THE STATEMENT

OF CLAIM FILED BY WORKMAN

3. The workman has been in employment of

management for last many years since 1982 as Peon as

Class-IV worker as detailed below:—

01.10.1982 to 02.02.1983

Not in reference

16.8.1986 to 20.02.1986

-do-

01.01.1996 to 31.03.1996

90 dyas reference is

made for 72 days and

management's record

is also 72 days.

01.08.1997 to 31.12.1997

150 days

10.05.1998 to 31.08.1998

114 days

4. The workman has alleged in the petition that he

worked since 01.08.1997 to 31.08.1998 for 240 days.

WRITTEN STATEMENT ON BEHALF OF

MANAGEMENT IN BRIEF:—

5. That workman was engaged a casual Assignee to

assist manually in General News Room/Hindi News Room

at the prescribed fee for the categories of casual assignee

for:—

1996

—

72 days

1997

—

150 days

1998

—

90 days

As such, the workman has never worked for 240 days

in a year and filed the case.

6. As regards him claim for period 01.10.1982 to

02.02.1983 (not in reference), the Certificate No. 1(9) S-82

dt. 16.02.1983 has not been issued by authorized and

competent person from the administration. It is being very

old record not available. The period from 20.02.1986 to

16.08.1986 is not correct. Workman has not been engaged

against any regular posts of vacancy and was not engaged

for the period claimed by him. A copy of assignment

attached as M-1. He was not eligible for his regularization

under instruction of Govt. of india for regularization of

casual labour (Grant of Temporary status and regularization)

scheme of GOI, 1953 effective from 1/9/1993, the para 4 of

the Scheme is reproduced as below:—

"Temporary status would be conferred on all casual

labours who are in employment on the date of issue

of this OM and who have rendered a continuous

service of at least one year, which means that they

must have been engaged for a period of at least

240 days, 206 days in the case of Officers observing

5 days in a week." (Copy of the Scheme is enclosed).

7. His engagement does not fall within the category

of casual artist against and of the posts of erstwhile

category of staff Artists.

8. The intermittent casual engagement as and when

required cannot be termed as engagement at daily rated

employee in continuation.

9. The services of the claimant was of the nature of

unskilled and has not been terminated since he was to

discharge his assignment for the period he was assigned

casual obligation. His engagement was not either on daily

rated casual employee or against regular post. Submissions

by way of Written Arguments.

10. Scope of reference is limited for the period 1996-

72 days; 1997-150 days; 1998-90 days. The workman has

wrongly and with malafide intention expanded it to 1982.

11. However, it is submitted that if we refer to the

schedule made hereinabove, the workman has not worked

continuously for 240 days in any year.

After leaving on 02.02.1983, workman given casual

engagement after gap of 3 years (absent - gap) from

16.08.1986 to 20.2.1987 (160 days). He left on 20.02.1987 at

his own connivances and then (re-assignment) given to

him pathetic ground only after a gap of 9 years.

12. Came to work on 01.01.1996 to 31.03.1996 - 90

days which is wrong because in reference it was 72 days.

13. Then workman engaged on casual basis on

01.08.1997, workman came to work on 10.05.1998, so he has

not worked continuously for 240 days in any years.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

885

14. Then again he was disengaged on 31.12.1997,

workman came to work on 10.05.1998, so he has not worked

continuously for 240 days in any years.

15. The workman in his Statement of Account and

through written Submissions alleged that he worked for

240 days in last Calendar year since 01.08.1997 to 31.08.1998.

This is patently false. He has not worked continuously.

After disengagement on 31.12.1997, he re-engaged from

10.05.1998 (that he was not in service for 31.12.1997 to

10.05.1998). Secondly it is not in a year. It covers two

different years 1997 and 1998.

16. Hence he has not worked continuously for 240

days in a year. For this no evidence except his bare

Statement. Burden was on workman to prove.

So it cannot be held that he worked for 240 days

continuously in a year as held in (2006) 9 SCC 132.

Termination

17. As submitted in evidence by Affidavit and

admitted in Cross Examination which supported by M-1,

admitted that workman has worked on contract basis on

daily wages as Casual Labour. So as the period of contract

ended. The workman left the job. Hence no question of

termination of service. His service was not terminated by

the management and even the workman led no evidence to

show that his services were terminated.

18. The Statement of Claim filed by the workman if

false, misleading, misconceived and devoid of factual

position. He has been engaged as Casual assignee on and

when required basis to assist manually in General News

Room/Hindi News Room at prescribed fee for casual

assignee for following period.

1996—72 days

1997—150 days

1998—90 days

19. The averment to workman that he worked in one

Calendar year for 240 days is apparently false and incorrect.

Calendar year mean starting from 1st January of each year

31st of day of December of same year. It is not so alleged

by the workman.

20. The workman was engaged on casual assignment

basis to discharge his assignment for the period of contract/

assigned under the contractual obligation for which

payment was made as per prescribed prevailing to casual

assignee. The contractual engagement on assignment basis

cannot be termed or equated to engagement as daily rated

employee. This fact is confirmed that he worked for specific

period as shown in the Schedule mentioned here in above

and there is no denial by workman. He was never employed

as casual employee against regular post or any vacancy

except that he was as casual workman on daily rated

assignment as is evident from Annexure M-1 annexed to

Evidence Affidavit.

21. The alleged Letter for the year 1982-83 for the

post of Peon is false, fabricated and not signed by

competent and authorized Person and being old one and

not on record.

22. The workman did not work for 240 days in any

year and thus not eligible for regularization. As he has

been engaged on casual assignment on as and when under

a contract as mentioned in written statement also, his

services were not terminated, but to come to end on expiry

of contractual period.

It is pertinent to mention here that in the Lok Adalat

where matter was referred, the management offered the job

on contractual basis as was being engaged earlier, but he

refused.

GROUNDS:—

In the matter of regularization of casual/contractual

employees have been examined by the constitutional bench

of the Hon'ble Supreme Court and in the case in question,

was dealt with from social angle, decision given in the

case of Secretary, State of Karnataka and Ors. Vs. Uma

Devi and Qrs. "While deciding various appeal cases and

observations made therein by the Constitutional Bench of

Apex Court, in Appeal (Civil) 3595-3612 of 1999 WITH

CIVIL APPEAL No. 1861-2063/2001, 3849/2001, 3520/

3524/2002 AND CIVIL APPEAL No. 1968 OF 2006 rising

out of SLP © 103-9105 of 2001 P.K. Balsubramanayan,

J. Leave/Grant in SLP © Nos. 9103-9105 of 2001. Date of

Judgment 10/4/2006.

The most relevant Paras are given in the citation

are given below:—

... merely because, an employee had continued under

cover of an order of Court, which we have described as

Litigous employment in the earlier part of the judgment,

he would not be entitled to any right to be absorbed or

made permanent in the service. (Para 34).

... It is not as if the person who accepts an

engagement either temporary or casual in nature, is not

aware of the nature of his employment. He accepts the

employment with eyes open... (Para 36).

... It cannot also be relied on to claim a right to be

absorbed inservice even through they have never been

selected in terms of the relevant recruitment rules. The

argument on article 14 and 16 of the constitution are

therefore overruled. (Para 39).

... It is argued that in a country like India where

there is so much poverty and unemployment and there is

no equaity of bargaining power, the action of the state is

not making the employment permanent, would be violate

of Article 21 of the Constitution. But the very argument

886

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

indicates that there are so many waiting for employment

and an equal opportunity for competing for employment

and it is in that context that the Constitution as one of its

basic feature, has included Article 14 & 16 and 309 so as

to ensure that public employment is given only in a fair

and equitable manner by giving all those who are qualified,

an opportunity to seek employment. (Para 41)

... It is also clarified that those decision which run

counter to the principle settled in this decision, or in which

directions running counter to what we have held herein,

will stand denuded of their status as precedents. (Para

45).

23. Management shall refer to Written Statement and

Evidence at the time of oral arguments.

24. The claim by the workman is false and may kindly

be dismissed as he is not entitled to any relief.

In the light of contentions and counter contentions

I perused the pleadings & evidence of parties, principles

laid down in the ruling cited by Ld ARs for the parties as

well as I perused the settled law of Hon'ble Supreme Court

& Hon'ble High Court of Delhi.

It is admitted fact that Ministry of Labour Vide

Notification No. L-42012/206/99/IR(DU) dated 27/1/2000

referred the Industrial Dispute in the instant case to this

tribunal for adjudication. Against which management of

ALL INDIA RADIO has filed no writ-petition to challenge

it on the ground that workman has not completed work for

240 days. Non-filing of writ-petition as a available remedy

goes against management. Hence on this count management

cannot assail the reference. Moreover workman in support

of his case produced his evidence to show that he worked

for about 240 days. In these circumstances burden was on

employer to produce the attendance register to controvert

the workman's claim as to the number of days he had

actually worked, will lead to an inference of the correctness

of the workman claim.

In this regard there is settled Law of Supreme Court

in case of H.D. Singh Vs. Reserve Bank of India, (1985) 4

SCC 201.

Where in their Lordship of Hon'ble Supreme Court

laid down following principle:—

Employer's failure to produce the attendance register

to controvert the workman's claim as to the number of days

he had actually worked, will lead to an inference of the

correctness of the workman's claim.

Which applies with full force in the instant case in

want of evidence of management on the point. Hence an

inference of correctness of the workman's claim i.e. he

worked for 240 days shall be drawn.

On the basis of evidence on record I am of considered

view that workman/claimant was casual worker on daily

rated basis. Who worked for more than 240 days

continuously as required by settled law of Hon'ble Supreme

Court. His termination is illegal and in contravention of

provisions of S. 25-F of the Industrial Dispute 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,

Honble 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."

Workman of the instant case was not appointed by

following due procedure and as per rules. He had rendered

service with the respondent as a casual worker, thus.

Compensation of Rs. 50,000/- (Rs. Fifty thousand only) by

way of damages as compensation to the workman/claimant

by Management after expiry of period of limitation of

available remedy against Award. That will meet the ends of

Justice.

Thus Reference is decided in favour of workman and

against Management.

Award is accordingly passed.

Dated: 11/12/2013

HARBANSH KUMAR SAXENA, Presiding Officer

ubZ fnYyh] 7 tuojh] 2014

dkñvkñ 327.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj]

fMikVZesaV vkWQ+ VsfydkWe] gksf'k;kjiqj] iatkc 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; 2]

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

887

paMhx<+ ds iapkV ¼lanHkZ la[;k 310@2005½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk FkkA

[,y&40012@18@2000&vkbZvkj¼Mh;w½]

ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 7th January, 2014

S.O. 327.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 310/2005)

of the Central Government Industrial Tribunal/Labour

Court-II, Chandigarh now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of The General Manager, Department of

Telecom, Hoshiarpur, Punjab and their workman, which was

received by the Central Government on 31/12/13.

[No. L-40012/18/2000-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

PRESENT: SRI KEWAL KRISHAN, Presiding Officer.

Case No.: I.D. No. 310/2005

Registered on 11/8/2005

Sh. Dinesh Thakur, C/o Sh. N.K. Jeet, President,

Telecom Labour Union, Mohalla Hari Nagar, Lal Singh Basti

Road, Bathinda.

........Petitioner

Versus

The General Manager, Department of Telecom,

Hoshiarpur.

......Respondent

APPEARANCES

For the workman

Sh. Charanjeet Adv.

For the Management

Sh. Anish Babbar Adv.

AWARD

(Passed on 10.12.2013)

Central Government vide Notification No. L-40012/

18/2000/IR(DU) Dated 29.5.2000, by exercising its powers

under Section 10 sub-section (1) Clause (d) and Sub Section

(2-A) of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'Act') has referred the following Industrial

dispute for adjudication to this Tribunal:—

"Whether the action of the General Manager,

Telecom, Hoshiarpur in ordering disengagement/

termination of services of Sh. Dinesh Thakur a

workman engaged through contractor Sh. Ashok

Kumar Sharma, w.e.f. 1/3/99 is legal and justified? If

not, to what relief the workman is entitled and from

which date?"

In response to the notice, the workman appeared

and submitted statement of claim pleading that he served

in the O/o SDO(T) Hoshiarpur as Clerk on a permanent job

from 1.9.1996 and was drawing Rs. 2138/- as monthly wages.

His services were terminated on 28.2.1999 without notice,

charge-sheet, inquiry or compensation. That his termination

is illegal and against the provisions of the Act. That juniors

to him were retained by the management and even new

persons were recruited without calling the workman. That

he be reinstated with all the consequential benefits.

Respondent management filed written reply

controverting the averments pleading that the workman

was never engaged by the management nor he was paid

any salary. That the management has given contract to Sh.

Gurbachan for providing the labour and the management

did not maintain any service record with regard to the

labourers supplied by the contractor. That management is

not aware about the workman whether he worked with the

contractor.

An objection that the Tribunal has no jurisdiction to

decide the matter was also taken.

Parties led their evidence. In support of its case,

Dinesh Thakur workman appeared in the witness-box and

filed his affidavit reiterating his case as set out in the claim

petition.

On the other hand management examined Surinder

Singh who filed his affidavit supporting the version as

given in the written statement.

I have heard Sh. Charanjeet, counsel for the workman

and Sh. Anish Babbar, counsel for the management.

It was argued by the learned counsel for the workman

that workman continuously worked with the management

from 1.9.1996 to 28.2.1999 as Clerk and his services were

illegally terminated and even without paying him any

retrenchment compensation. He has further argued that

the persons who were junior to the workman were kept in

employment and even new persons were employed and

thus the termination is in violation of the provisions of the

Act and he is entitled to be reinstated in service.

The learned counsel further carried on through

Clause 6 of the Agreement dated 13.12.1996 and 16.3.1998

placed on record by the management and submitted that

as per Clause 6 of the Agreement the labourers were to be

controlled by the AE/SDO and thus the workman even if

employed by the contractor, was working under the control

of the management and was its employee and his services

were not liable to be terminated without complying with

the provisions of the Act.

888

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

I have considered the contentions of the learned

counsel for the workman.

The workman has pleaded in his statement of claim

that he was serving as Clerk in the Office of SDO(T)

Hoshiarpur from 1.9.1996 drawing Rs. 2138/- as monthly

wages and his services were terminated on 28.2.1999. Thus,

according to him he was appointed as Clerk by the

management but he did not produce any appointment letter

on the file. Respondent management is a statutory body

and is governed by Rules and Regulations. It has to follow

certain procedure to employ a person as Clerk but there is

nothing on the file that any procedure was adopted while

employing the workman as clerk with the management. In

the circumstances, it cannot be said that the workman

worked as Clerk with the management. Even while appearing

in the witness box he admitted during cross-examination

that he was engaged as a casual labourer and when it is so,

it cannot be said that he was employed as Clerk by the

management.

Though reliance was placed on Clause 6 of the

agreement dated 13.12.1996 and 16.3.1998, but it was argued

at length that the said agreement is not proved on the file.

Be that as it may, the question to be seen is whether the

workman was ever employed by the management. As

discussed above, it is not proved on the file that he was

employed by the management and therefore, the agreements

if not proved on the file are of no consequence.

It is the case of the management that it has given

contract for employing labourers for it and as per Clause 6,

of the said agreement the utilization of the labourers was to

be controlled by AE/SDO. The services of the labourers

was to be utilized by the Department and certainly under

the supervision of its officers. This Clause do not go to

show at all that the workmen employed by the contractor

were actually the employees of the management.

Since the workman has failed to prove that he was an

employee of the management, he cannot be heard to say

that the persons who were junior to him were retained in

service and even some other persons were employed by

the management. Attention was also drawn towards copies

of the attendance register from 1.10.1996 to 31.12.1996,

1.8.1997 to 31.8.1997, 1.10.1997 to 31.10.1997, 1.1.1998 to

28.2.1998 and 1.2.1999 to 28.2.1999 to submit that the

presence of the workman was duly verified by SDO(T)

Hoshiarpur and thus he was a employee of the management.

Suffice to say that the said attendance-sheets are not

proved on the file. However, if the SDO has certified the

presence of the workman on particular days that do not

prove the workman as the employee of the management.

As stated above, the labourers engaged was to work under

the control of the AE/SDO and the presence shown in the

relevant register seems to have been marked for payment

of wages to him by the contractor; and from the said

documents the workman does not become an employee of

the management.

Thus, the workman was not an employee of the

management and his services were not terminated by it

and workman is not entitled to any relief. The reference is

accordingly answered against the workman. Let hard and

soft copy of the award be sent to the Central Government

for further necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 7 tuojh] 2014

dkñvkñ 328.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dekaMj oDlZ

bathfu;j] gsM DokVZj ¼,;j QkWlZ½] paMhx<+ ds izcaèra= ds lac)

fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa fu£n"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky;&2]

paMhx<+ ds iapkV ¼lanHkZ la[;k 276@2005½ izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&14012@29@2002&vkbZvkj¼Mh;w½]

ihñdsñ os.kqxksiky] vuqHkkx vfèdkjh

New Delhi, the 7th January, 2014

S.O. 328.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 276/2005)

of the Central Government Industrial Tribunal/Labour

Court-II Chandigarh now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of The Commander Works Engineer, Head

Quarter (Air Force), Chandigarh and their workman, which

was received by the Central Government on 31/12/2013.

[No. L-14012/29/2002-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

PRESENT: SHRI A.K. RASTOGI, Presiding Officer.

Case No. I.D. No. 276/2005

Registered on 16.8.2005

Sh. Pawan Kumar, H.No. 704, Sector 47A,

Chandigarh.

......Petitioner

Versus

The Commander Works Engineer, Head Quarter (Air

Force), Chandigarh.

......Respondent

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

889

APPEARANCES :

For the workman

Sh. N.K. Nagar, Adv.

For the Management

Sh. D.R. Sharma, Adv.

AWARD

Passed on 10.7.2013

Central Government vide Notification No. L-14012/

29/2002 IR(DU) Dated 5.8.2002, by exercising its powers

under Section 10 Sub Section (1) Clause (d) and Sub Section

(2-A) of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'Act') has referred the following Industrial

dispute for adjudication to this Tribunal:—

"Whether the action of the management of

Commander Works Engineer (Air Force), Chandigarh

in terminating the services of Sh. Pawan Kumar, ex-

DG Set Operator is just and fair? If not so, to what

relief the workman is entitled?"

As per claim statement the workman had been

selected as DG Set Operator in 1993. His working was being

controlled and regulated by the management. His salary

was also paid by the management but he was always shown

to have been employed through different contractors. The

said contractors were not the licensed contractors and

contract employment is barred by law also. The

management was the principal employer, of the workman.

His services were abruptly terminated on 21.12.1998 by

management and though he had rendered continuous

service for more than 240 days from the date of his

appointment till his termination yet the provisions of

Section 25F of the Act were not complied with and after his

termination new person was also employed without any

intimation to him. He has prayed for his reinstatement and

regularization.

The claim was contested by the management and it

was alleged that the workman had never been selected or

appointed by the management and he never worked under

the management or was paid salary by the management.

The allegation of the termination of his services by the

management was also denied and the allegation of retaining

junior was alleged to be incorrect. It was also denied that

management was the principal employer of the workman.

In support of his case workman examined himself

and filed log sheets marked W1 to W26 and also a

photocopy of I. Card W27. On behalf of management

affidavit of Hans Raj was filed but the workman failed to

appear on 7.12.2010 and the case was ordered to proceed

ex parte against him.

I heard the learned counsel for the management and

perused the evidence on record. It was argued on behalf of

management that the workman has alleged the relationship

of employer and employee between the management and

himself, while the management has denied it. Hence it was

for the workman to prove the relationship; in which he had

failed. In his cross-examination he has admitted that had

not been given any appointment letter and at the time of

joining he had been told that the contractor will look after

the maintenance of DG Set. The log sheet relating to DG

Set or the I. Card cannot be accepted as a proof of

employment. There is no evidence that log sheet relates to

respondent and the I. Card had been issued by a competent

authority. At the same time there is no evidence that he

was being paid salary by the management and his

attendance was marked by the management.

I agree with the learned counsel for the management

that there is no evidence to show the employment of the

workman with the management. He has stated in the claim

statement that he had been shown to have been employed

through different contractors but the said contractor was

not licensed contractor. This statement in claim statement

shows that he has not stated the complete truth. This

statement in the claim statement suggests the existence of

a contractor. Anyway; it was for the workman to prove the

relationship of master and servant and he has failed in

discharging the burden and since he was not in the

employment of the management hence, the question of

termination of his services by the management does not

arise. The reference is accordingly answered against the

workman. Hard and soft copies of the award be sent to the

Central Government for further necessary action.

ASHOK KUMAR RASTOGI, Presiding Officer

ubZ fnYyh] 8 tuojh] 2014

dkñvkñ 329.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj tujy esustj]

,Dok nslSUl bafM;k fyfeVsM] psUubZ ds izca/kra= ds lac) fu;kstdksa

vkSj muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; psUubZ ds

iapkV ¼lanHkZ la[;k 10@2012½ dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 31-12-2013 dks izkIr gqvk FkkA

[lañ ,y&42012@18@2010&vkbZ vkj ¼Mh-;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 8th January, 2014

S.O. 329.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No 10/2012)

of the Central Government Industrial Tribunal/Labour

Court, Chennai now as shown in the Annexure in the

Industrial Dispute between the employers in relation tothe

management of The General Manager, Aqua Designs India

Ltd., Chennai and their workman, which was recived by the

Central Government on 31.12.2013.

[No. L-42012/18/2010-IR(DU)]

P. K. VENUGOPAL, Section Officer

890

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Tuesday, the 26th November, 2013

PRESENT : K.P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 10/2012

[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

M/s. Aqua Designs India Limited and their workman]

BETWEEN

Sri K. Sivasankar

1st party/Petitioner

AND

The General Manager

2nd party/Respondent

M/s Aqua Designs India Ltd.

1, Jayanthi Nagar Extension

200 Ft. Road, Kolathur

Chennai-600099.

APPEARANCES:

For the : 1st party/Petitioner

M/s S. Sivakumar,

Adovacte

For the : 2nd party/Management :

Ex-parte

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-40012/18/2010_IR (DU)

dated 02.02.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order:

"Whether the action of the management of M/s Aqua

Designs India Pvt. Ltd., Chennai, a Contractor of

Nuclear Power Corporation of India Ltd. in

terminating the services of Sri K. Sivasankar w.e.f.

18.07.2009 is legal and justified? What relief the

workman is entitled to?"

2. On receipt of the Industrial Dispute this Tribunal

numbered it as ID 10/2012 and issued notice to both sides.

The petitioner as well as respondent appeared through

counsel and filed their claim and counter statement

respectively. However, subsequently the Respondent has

remained absent and has been set ex-parte.

3. The averments in the Claim Statement of the

petitioner in brief are these:

The petitioner was appointed by the Respondent in

M/s Aqua Designs India Ltd. as Electrician on 10.12.2006.

The petitioner was working in the Company to the

satisfaction of the authorities. In march 2009 he had taken

leave on a day. On another day he had worked overtime for

an hour. On 10.03.2009 and 15.03.2009 he had left his work

early with the permission of the site in-charge. But the

Respondent has deducted two days salary in the month of

March 2009. The Respondent did not pay for four hour

overtime work done the petitioner in February 2009. He

had submitted a written requested to the site in-charge to

pay the above amount. The petitioner did not get any reply.

When he made enquiry about the letter the petitioner was

assaulted. His Identity Card also was taken away from him.

He had given a complaint to the Police in this respect.

Since His Identity Card was taken away, the petitioner could

not enter the premises of the company for attending work.

He had written to the General Manager requesting to return

the Identity Card. But the letters written by the petitioner

met without any result. On 05.06.2009 the petitioner gave

representation to the General Manager and Site in -charge

of the Company and applied for leave till he rejoins duty.

The petitioner then sent a representation to Labour Officer,

Tuticorin and he directed to enquire into the matter and

submit the report. On intervention by the Labour Officer,

the Respondent issued a Show Cause Notice to the

petitioner alleging that he has failed to report for duty and

that he is to given explanation within 3 days. The petitioner

was also asked to report for duty at the Head Office before

15.06.2009 on the basis of a Transfer Order dated 25.04.2009.

But the petitioner had not received any Transfer Order.

The Show Cause Notice was received by him only on

15.06.2009. So he was not in a position to join the office at

Chennai on 15.06.2009. The petitioner was issued a

termination order dated 18.07.2009 alongwith a Demand

Draft of one month's pay. So the petitioner had filed a

complaint to the Labour Office, tuticorin requesting to

reinstate him with back wages. The Assistant Labour

commissioner had sent a letter starting that conciliation

has filed. Even though the petitioner has worked for more

than 480 days the Respondent has failed to comply with

Section-25F of the Industrial Disputes Act before

terminating him from service. There is no justification in

terminating the services of the petitioner. The petitioner is

entitled to be reinstated in service with back wages,

continuity of service and other attendant benefits.

4. The Respondent has filed a Counter Statement

contenting as follows:

The Respondent has appointed the petitioner as

Operator, by appointment order dated 29.12.2006. The

petitioner was not regular in work from the beginning itself.

He was orally warned on serveal occasions for his latches

in work. On 10.03.2009 the petitioner has left the place of

work without permission of the controlling Officer. He was

given warning on account of this. In spite of this, on

15.03.2009 also he left the place of work without permission.

He wanted his unauthorized absence to be considered as

leave. Two days salary was cut and a warning letter was

issued to the petitioner. Subsequently, the petitioner was

transferred to the Corporate Office of Chennai by Transfer

Order dated 24.05.2009. The petitioner refused to receive

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

891

the said order. So the order was displayed in the notice

board of the RO Plant where the petitioner had been

working. After 29.04.2009 the petitioner failed to report for

duty either at the RO Plant or at the Corporate Office. A

letter was issued to him asking him to report for duty on or

before 08.06.2009. Since he failed to report for duty another

letter was issued to him asking him to report for duty on

15.06.2009 at Chennai as per the Transfer Order. He was

asked to Show Cause for his unauthorized absence also

along with this. But still the petitioner did not rejoin duty.

In the meanwhile the petitioner had sent the letter dated

05.06.2009 requesting for leave till he rejoins duty. But he

did not specify the period of leave. Since the petitioner did

not show any interest in continuing his service with the

Respondent his service was terminated by letter dated

15.07.2009 giving him a Demand Draft for one month's pay.

During Conciliation proceedings the Respondent has

expressed willingness to provide employment to the

petitioner if he reports for duty at the Corporate Office at

Chennai but the petitioner refused to avail this opportunity.

All the allegations made by the petitioner against the

Respondent in the Claim Statement are denied. The

petitioner is not entitled to any relief.

5. The evidence in the case consists of the Proof

Affidavit filed by the petitioner in lieu of Chief Examination

and the documents marked on his side as Exs. W1 to Ex.

W21. The Respondent had failed to appear before the Court

in spite of repeated postings and had to be set ex-parte.

6. The points for consideration are

(i)

Whether the Respondent is justified in

terminating the service of the petitioner?

(ii)

Whether the Petitioner is entitled to be

reinstated in service and if not to any other

relief?

The Points

7. The petitioner has contented in the Claim Statement

he was in the service of the Respondent company and that

he was terminated from service without any justification.

From the Counter Statement filed by the Respondent itself

it is very much clear that the petitioner was in the service of

the Respondent company. The Respondent has stated in

its Counter Statement that they were carrying out work for

the Nuclear Power Corporation of India Ltd. at

Koodankulam Nuclear Power project and that the petitioner

was appointed for the operation and maintenance of the

Reverse Osmosis Plant of the Nuclear Power Project, by

appointment order dated 29.12.2006. The petitioner was

working with the Respondent until he was terminated from

service by letter dated 15.07.2009. According to the

Respondent, the petitioner has been regularly irregular in

his duty. He was leaving the work premises without

permission from the superior officer. He was becoming

unauthorizedly absent also. In spite of warning he has

refused to mend his ways. According to the Respondent,

even while the petitioner was on unauthorized absence he

was asked to join duty for which he has refused and then a

Transfer Order was issued to him to report for duty in the

office at Chennai to which also the petitioner did not

respond. The petitioner is stated to have been terminated

from service on account of all these.

8. It is clear from the very Counter Statement filed by

the Respondent that before the petitioner was terminated

from service an equiry was not conducted against the

alleged breaches committed by the petitioner in his duty.

What is state in the Counter Statement is that since the

petitioner did not show any interest in continuing in the

service of the Respondent a letter of termination was given

to him with one month's pay. When allegation of breaches

are made by the Respondent against the petitioner it was

incumbent on the Respondent to obtain explanation from

the petitioner and frame charge against him if the

explanation is found not satisfactory, and also to enquire

into the breaches allegedly committed by him. The

termination of the petitioner from service without doing

this itself is improrer.

9. The petitioner has filed Affidavit of Chief

Examination reiterating under what circumstances he

happended to be absent from duty. He has produced the

representation given by the petitioner to the Site-In-charge

asking to pay his salary for the days on leave and also for

his overtime work and this is marked as Ex. W2. Ex. W3 is

the copy of the complaint given by him to Sub-Inspector

of Police alleging that he was assaulted on account of his

demand for payment. Ex. W5 is the copy of the

representation given by the petitioner to the General

Manager of the Company. It is clear from the very Counter

Statement filed by the Respondent that the petitioner did

submit an application for leave until he is able to join duty.

His case is that while he was assaulted his Identity Card

was taken away and it became impossible for him to attend

duty in the absence of Identity Card and it is accordingly

he has submitted the leave application.

10. The Respondent having remained ex-parte there

is no evidence available to disprove the evidence tendered

by the petitioner through his Proof Affidavit and the

documents marked on his behalf. There is nothing to show

that the petitioner had been absent from duty

unauthorizedly. There is nothing to show that the petitioner

had committed breaches in doing his duty. Thus it could

be seen that there is no evidence available on the side of

the Respondent to justify the termination of the petitioner

from the service also. What the Respondent has stated in

the Counter Statement is that it was willing to take back the

petitioner in service provided he was willing to report for

duty at the Corporate Office at Chennai. This conduct of

892

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

the Respondent would show that the Respondent itself

was aware of the injustice in terminating the services of the

petitioner. I find that the petitioner is entitled to be reinstated

in service.

11. The petitioner state in his Affidavit that for no

fault of his he is out of job and is in severe financial problem.

Considering this evidence of the petitioner I am inclined to

allow him 50% back wages.

12. In view of my discussion above, the Respondent

is directed to reinstate the petitioner in service within one

month with 50% back wages. The petitioner is entitled to

continuity of service and other attendant benefits also.

13. The reference is answered in favour of 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 26th November, 2013)

K.P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/

WW1, Sri K. Sivasankar

Petitioner Union

For the 2nd Party/

None

Management

Documents Marked:

On the petitioner's side

Ex. No.

Date

Description

Ex.W1

29.12.2006

Appointment order of the

petitioner

Ex.W2

16.04.2009

Representation of the petitioner

to the Site In-charge

Ex.W3

29.04.2009

Complaint given by the

petitioner to the Sub-Inspector

of Police

Ex.W4

30.04.2009

CSR given by the Police State

Ex.W5

02.05.2009

Representation of the petitioner

to the GM

Ex.W6

29.05.2009

Application given by the

petitioner to the Labour Officer

Ex.W7

29.05.2009

Letter submitted by the

petitioner to the Superintendent

of Police, Tirunelveli alongwith

acknowledgement card.

Ex.W8

01.06.2009

Representation of the petitioner

to the General Manager

alongwith acknowledgement

card

Ex.W9

05.06.2009

Representation of the petitioner

to the Site In-charge alongwith

acknowledgement card

Ex.W10

08.06.2009

Letter

the

Labour

Enforcement Officer

Ex.W11

12.06.2009

Show Cause Notice issued by

the respondent to the petitioner

alongwith its postal cover

Ex.W12

18.07.2009

Termination order issued by the

respondent to the petitioner

alongwith with a cheque

Ex.W13

03.08.2009

Legal notice issued by the

petitoner to the Respondent

Ex.W14

03.08.2009

Application of the petitioner to

the Labour Officer alongwith

acknowledgement card

Ex.W15

19.08.2009

Death Certificate of the

petitioner's father

Ex.W16

08.09.2009

Representation

the

Assistant

Labour

Commissioner (Central),

Madurai

alongwith

acknowledgement card

Ex.W17

10.09.2009

Application of the petitioner to

the

Regional

Labour

Commissioner, Chennai

Ex.W18

09.12.2009

Reply of the Respondent

before

Asstt.

Labour

Commissioner

Ex.W19

23.12.2009

Rejoinder submitted by the

petitioner to Assistant Labour

Commissioner, Madurai

Ex.W20

25.01.2010

Conciliation failure report of

Assistant

Labour

Commissioner

Ex.W21

Salary slips of the petitioner

On the Management's side

Ex. No.

Date

Description

N/A

ubZ fnYyh] 8 tuojh] 2014

dkñvkñ 330.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj

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vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; psUubZ ds

iapkV ¼lanHkZ la[;k 84@2012½ dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&42012@64@2012&vkbZ vkj ¼Mh;w½]

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¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

893

New Delhi, the 8th January, 2014

S.O. 330.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 84/2012)

of the Central Government Industrial Tribunal/Labour

Court, Chennai now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of The General Manager, National Textile

Corporation, Coimbatore and their workman, which was

received by the Central Government on 31/12/2013.

[No. L-42012/64/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Thursday, the 10th October, 2013

PRESENT : K.P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 84/2012

(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 National Textile Corporation Ltd. and

their workmen)

BETWEEN

The Assistant General Secretary

1st Party/1st

Desiya Panchalai Thozhilar

Petitioner Union

Sangam Ramanathapuram,

Coimbatore-45

The General Secretary

1st Party/2nd

Coimbatore District Mill Labour

Petitioner Union

Union Anupparpalayam, Kattoor,

Coimbatore-9

The General Secretary

1st Party/3rd

Kovai Mandala Panchalai

Petitioner Union

Thozhilar Sangam

Vilankurichi, Coimbatore-35

AND

The General Manager

2nd Party/

National Textile Corporation,

Respondent

Coimbatore

APPEARANCE:

For the 1st Party/Petitioner

Sri S. Senthilnathan,

Advocate

For the 2nd Party/Management

M/s. T.S. Gopalan &

Co., Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-42012/64/2012-IR(DU)

dated 06.11.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the action of the Management of National

Textile Corporation, Coimbatore for not considering

the demands of the petitioner unions viz. Coimbatore

District Mill Labour Union (CIT), Kovai Mandala

Panchalari Thozhilalar Sangam (NDLF) and Desiya

Panchalai Thozhilalar Sangam (INTUC) in respect of

revision of wages and benefits is justifiable or not?

If not, what relief the petitioner unions are entitled

to?"

2. After receipt of the Industrial Dispute this Tribunal

has numbered it as ID 84/2012 and issued notice to both

sides. Initially Respondent has entered appearance through

Advocate. However, though three organizations are

arraigned as First Party, none of them have entered

appearance or filed any Claim Statement. In the absence of

any attempt on the part of the First Party to substantiate

the case my predecessor has passed an award against the

First Party. Subsequently, the General Secretary, Coimbatore

District Mill Labour Union arraigned as Number-2 of the

First Party has filed an application to restore the case to file

and this was allowed. However, even after that the First

Party has continued its lethargic stand. None of the

organizations arraigned as First Party have come forward

to file Claim Statement.

3. The issue raised by the First Party organizations is

regarding revision of wages and benefits for the workers

of the National Textile Corporation. Since no material has

been placed before this Court to substantiate the case the

First Party is not entitled to any relief. The reference is to

be answered against the First Party.

4. In the result the First Party is found not entitled to

any relief. The reference is answered against the First Party.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 10th October, 2013).

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/Petitioner

None

For the 2nd Party/Management

None

Documents Marked on both sides

Nil.

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bafLVV~;wV vkWQ VhplZ Vªsfuax psUubZ ds izca/kra= ds lac) fu;kstdksa

894

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] psUubZ ds

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[lañ ,y&42012@130@2011&vkbZ vkj ¼Mh;w½]

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New Delhi, the 8th January, 2014

S.O. 331.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 46/2013)

of the Central Government Industrial Tribunal/Labour

Court, Chennai now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of The Director, National Institute of Technical

Teachers Training, Chennai and their workman, which was

received by the Central Government on 31/12/2013.

[No. L-42012/130/2011-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Thursday, the 28th November, 2013

PRESENT: K.P. PRASANNA KUMARI, Presiding

Officer

Industrial Dispute No. 46/2013

(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 National Institute of Technical

Teachers Training and Research, Taramani, Chennai and

their workmen)

BETWEEN

Sri D. Shankarlal

1st Party/Petitioner

AND

The Director,

2nd Party Respondent

National Institute of

Technical Teachers

Training And Research,

Taramani, Chennai-600013

APPEARANCE:

For the 1st Party/Petitioner

For the 2nd Party/Management:

M/s. Sai Raaj &

Associates,

Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-42012/130/2011-IR (DU)

dated 01.04.2013 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the action of the management of National

Institute of Technical Teachers Training and Research

Centre, Taramani, Chennai in not allowing to continue

Sri D. Shankarlal on "Non-Muster Roll" basis followed with

regularization, is legal and justified? What relief the workman

is entitled to?"

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 46/2013 and issued notice to both

sides. Both sides have entered appearance through their

respective counsels.

3. The petitioner has earlier filed ID 84/2011 before

this Tribunal directly regarding the same issue. So he does

not want to proceed with the present ID that has been

referred by the Government. He has endorsed stating that

he does not want to proceed with this. Accordingly this ID

is closed.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 28th 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

N/A

On the Management's side

Ex. No.

Date

Description

N/A

ubZ fnYyh] 8 tuojh] 2014

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vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je

U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 05@2005½ dks izdkf'kr

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¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

895

New Delhi, the 8th January, 2014

S.O. 332.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 05/2005)

of the Central Government Industrial tribunal/Labour Court,

Chennai now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of Ministry of Defence, New Delhi and Officer

Commanding, Ootacamund and their workman, which was

received by the Central Government on 31/12/13.

[No. L-14012/41/2004-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Friday, the 20th December, 2013

PRESENT: K.P. PRASANNA KUMARI, Presiding

Officer

Industrial Dispute No. 5/2005

(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 The Officer Commanding, 68(I), ASC

Suppliers, Wellington and their workman)

BETWEEN

Sri C. Chinnaraj

1st Party/Petitioner

AND

Union of India

2nd Party/1st

Represented by its Secretary

Respondent

Ministry of Defence,

New Delhi

The Officer Commanding

2nd Party/2nd

68(I), ASC Supplier PLASC

Respondent

Wellington Bazar P.O.

Ootacamund-6432232

APPEARANCE

For the 1st Party/Petitioner`:

M/s. T. Fennwalter

Associates, Advocates

For the 2nd Party/1st and :

Ms. K. Akilandeswari,

2nd Respondent

Advocate

AWARD

The Central Government, Ministry of Labour and

Employment vide its Order No. L-14012/41/2004-IR(DU)

dated 25.11.2004, referred the Industrial Dispute between

the above referred parties for adjudication.

The schedule mentioned in that order is:

"Whether the claim of Sri C. Chinnaraj for

reinstatement with continuity of service and back

wages against the Officer Commanding, 68(I), ASC

Supplier PLASC, Wellingtone Bazar PO Ooty is legal

and justified? If not, to what relief the workman is

entitled to?"

2. On the receipt of Industrial Dispute, this Tribunal

has numbered it as ID 5/2005 and sent notices to both

sides. Both sides entered appearance through their

respective counsel and filed their claim and counter

statement respectively.

3. In the claim statement filed by the petitioner, the

petitioner has contended as below:

The petitioner had entered the services of the 2nd

Respondent as Mazdoor on 02.03.1998. He was working

continuously in this capacity. After he had worked for more

than 5 years, the petitioner had requested the management

to regularize him in service. The Government of Inda vide

order dated 10.09.1993 had issued instruction to appoint

persons like the petitioner in permanent vacancies. Though

the petitioner had represented to the Respondents to

regularize him in the vacant post and they have refused to

do so. Consequently the petitioner had filed application

before the Central Administrative Tribunal (CAT) seeking

regularization. While this was pending the petitioner was

retrenched on 28.12.2001 without assigning any reason.

He was not paid salary for his last month's work. Since the

petitioner was retrenched from service he had withdrawn

the application filed before the CAT. The petitioner was

not given any notice as contemplated under the Industrial

Disputes Act, before retrenchment. He was not given any

compensation also. The petitioner is entitled for

reinstatement with full back wages. The Respondents have

to be directed to reinstate the petitioner in service with full

back wages, continuity of service and other attendant

benefits.

4. The Respondent have filed Counter Statement

contending as follows:

The petitioner was employed as casual labourer on

daily wages during the period between March 1998 and

December, 2001. He was employed intermittently and not

employed on regular basis. He has not rendered 240 days

of continuous service in any year of employment.

Regularization of service could not be done in the absence

of conferment of temporary status to the petitioner. The

petitioner was not considered for direct recruitment also in

the absence of conferment of temporary status. Termination

notice need not be issued to a casual labourer. Though in

2001, a notice of interview was sent to the petitioner for

Group 'D' vacancy, he did not appear for the interview. The

petitioner is not entitled to any relief. The petition is to be

dismissed.

896

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

5. The points for consideration are:

(i)

Whether the petitioner is entitled to

reinstatement with continuity of service and

back wages?

(ii) If the petitioner is not entitled to the above relief,

what if any, is the other relief to which he is

entitled?

6. The evidence in the case consists of oral evidence

of petitioner examined as WW1 and the witness of the

Respondent examined as MW1 and also the documents

marked as Exs. W1 to Ex. W14 and Ex. M1 to Ex. M10.

The Points

7. The petitioner has stated in his Claim Statement

that he has entered the service of the Respondent as a

Mazdoor on 02.03.1998. In the counter statement filed by

the Respondents it is admitted that the petitioner was

employed as casual labourer on daily wages and he was

working in this capacity for the period between March,

1998 to December, 2001.

8. The case that is advanced on behalf of the

petitioner is that he is entitled to regularization in service

on permanent vacancy in lieu of the government order

dated 10.09.1993. The petitioner has also produced the

concerned government orders.

9. On going through the concerned government Order

it could be seen that the petitioner could not have been

eligible for conferment of permanent status on the basis of

said order. The copy of the order dated 10.09.1993 marked

as Ex. W1 states that temporary status would be conferred

on all casual labourers who are in employment on the date

of issue of the order and who have rendered continuous

service for at least 1 year. This means that they must have

been engaged for at least 240 days (206 days in the case of

Offices 5 days week). It could be seen from this itself that

temporary status was to be conferred to only on persons

who were in service as on 01.09.1993 and had rendered

continuous service for 1 year. The petitioner, even as

admitted by him has entered the services of the Respondent

in 1998 only. Ex. W3 produced by the petitioner is the copy

of a govt. order dated 24.04.1998 giving policy guideline of

employment of casual labourers. This has specifically

instructed that temporary status is not to be conferred on

those who had not completed 240 or 206 days as the case

may be, on 10.09.1993 and also on those employed as casual

labourers subsequently. In the govt. order dated 10.09.1993

there is a direction that two out of three vacancies in Group

"D" cadres in respective offices where casual labourers

have been working would be filled up from among casual

workers with temporary status. Thus it is clear that only if

temporary status has been conferred, the petitioner would

have been entitled to be considered for permanent post.

Other than Ex. W1 and Ex. W3 no other orders showing

entitlement of the petitioner for temporary status has been

placed before me. So the case of the petitioner that he was

eligible to be conferred with temporary status is to be

rejected even at the outset.

10. Even though in his Claim Statement the petitioner

has stated that he has been employed as casual labourer in

1998, the case in his Affidavit in Chief Examination is that

he has started to do work with the Respondent in 1995

itself. In fact a perusal of the documents produced by the

petitioner would show that the petitioner must have started

to work earlier. Ex. W5 is the copy of the Attendance

this document is not disputed by the Respondent. The

first page of this document pertains to the attendance of

the petitioner for the month of August 1997.

11. The argument that is advanced on behalf of the

counsel for the petitioner is that the petitioner has been in

continuous service with the Respondent and has completed

more than 240 days in all the years he had worked. This

case of the petitioner is disputed in the counter statement.

According to the Respondents, the petitioner had worked

for 194 days in 1998, 206 in 1999, 181 days in 2000 and 212

days in 2001. Initially, the Respondents did not produced

the Attendance Register pertaining to the petitioner. After

the matter has been posted in orders, the petitioner had

got it reopened to make the Respondents produce

documents including the Attendance Register. On the basis

of the direction of this Court the Second Respondent has

produced the Muster Roll of casual employees for the period

from June, 1998 to February 2002. They have stated that

the document prior to that period has been destroyed under

the Defence Service Regulations. The Muster Roll thus

produced has been marked as Ex. W10 at the instance of

the petitioner. A perusal of the Muster Roll would reveal

that the attendance of the petitioner marked in the Muster

Roll is in consonance with the claim made in the Counter

Statement. On perusing the Muster Roll it could also be

seen that in most of the months the petitioner had worked

only for 18 days or less than that. Same is the case with the

other casual employees also. Thus, there is a deficit of

several days to make out days of work to 240 days to bring

the work of the petitioner within the definition of continuous

service.

12. The argument that is advanced on behalf of the

petitioner is that if Sundays and other holidays also are

taken into account, the total number of working days of

the petitioner in the year prior to his termination would be

more than 240 days and therefore he is entitled to

reinstatement in service. In this respect the counsel has

referred to the decision of the Apex Court in workman of

American Express International Banking Corporation Ws.

Management American Express International Baning

Corporation reported in AIR 1986 SC 458. It has been argued

by the counsel that in the above decision the Apex Court

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

897

has taken into account Sundays and other leave days also

for the calculation of 240 days work. It is true that the Apex

Court has held that Sundays and other holidays also should

be taken into account for the purpose of reckoning the

total number of days on which the workman could be said

to have actually worked. However, the above dictum is

accompanied by an addenda that the Sundays and other

holidays so reckoned should have been days for which

wages were paid to the worker. On going through Ex. M10,

I find that the petitioner was not given any wages for

Sundays or other days of the month on which he was left

without any work. On all the months the number of days

worked are counted and wage is seen paid only for those

days. The petitioner was turned out from work in February,

2001. During this period wage for a day for casual work

was Rs. 100/-. The petitioner had worked for 18 days in this

month and he was paid Rs. 1800/-. In January, 2001 also he

had worked for 18 days only and payment is in accordance

with this. The amount payable to the petitioner and other

casual workers is shown against their respective names in

the Muster Rolls. It could be seen that during the entire

period for which the petitioner had worked with the Second

Respondent he was paid for the days he had worked only

and not for Sundays, other holidays or the days on which

he had not worked. So the dictum of the Apex Court in

American Express case will not be applicable to the present

case. The petitioner having failed to complete 240 days in

the year preceding his termination, he could not be said to

have been in continuous service with the Respondents.

So the termination of the petitioner from service will not

amount to retrenchment as contemplated in Section 25(F)

of the Industrial Disputes Act. So the petitioner is not

entitled to any relief.

In view of my findings above the reference is

answered against the petitioner.

K.P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/Petitioner

WW1, Sri Chinnaraj

For the 2nd Party/Management

MW1,

Naib

Subedar Sri P.K.

Lenka

Documents Marked:

On the petitioner's side

Ex. No.

Date

Description

Ex. W1

10.09.1993

Government of India instructions

Ex. W2

14.10.1993

Government of India instructions

Ex. W3

24.04.1998

Letter by Army Headquarters

Ex. W4

Temporary Identity Card issued

to me

Ex. W5

Copy of Attendance Registers

Ex. W6

15.08.2000

Certificate of Appreciation

Ex. W7

04.01.2002

Representation by me to the

Respondent for regularization of

my service

Ex. W8

05.08.2002

Representation by me to the

Respondent for regularization of

my service

Ex. W9

17.02.2002

Legal notice with postal receipt

Ex. W10

Employment Card

Ex. W11

Transfer Certificate

Ex. W12

Community Certificate

Ex. W13

30.12.2001

OA No. 40 of 2002

Ex. W14

20.08.2002

Rejoinder filed by me in OA No.

40/2002

On the Management's side

Ex. No.

Date

Description

Ex M1

24.07.2012

Authorization

letter

Respondent in the above ID

Ex. M2

21.02.2003

Copy of legal notice

Ex. M3

06.06.2002

OM No. 40011/6/2002-Estt. by

Respondent

Ex. M4

10.09.1993

Office Memorandum

Ex. M5

14.10.1993

Departmental letter

Ex. M6

24.04.1998

Policy guidelines for employment

of causal Labourers

Ex. M7

2002

Counter Affidavit filed by

Respondents in OA No. 40/2002

Ex. M8

9/2010

Counter Affidavit in WP No.

29355/2007

Ex. M9

27.10.2011

Departmental letter ref. temporary

status casual Labourers

ubZ fnYyh] 8 tuojh] 2014

dkñvkñ 333.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,XthD;wfVo

Mk;jsDVj Hkkjr gSoh bysfDVªdYl fyfeVsM fFk:fpjkIiYYkh] rfeyukMq]

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

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k

,oa Je U;k;ky; psUubZ ds iapkV ¼lanHkZ la[;k 02@2013½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk FkkA

[lañ ,y&42012@127@2012&vkbZvkj¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

898

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

New Delhi, the 8th January, 2014

S.O. 333.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 2/2013)

of the Central Government Industrial Tribunal-cum-Labour

Court, Chennai now as shown in the Annexure, in the

Industrial Dispute between the employers in relation to the

management of The Executive Director, Bharat Heavy

Electricals Ltd. Chennai and their workman which was

received by the Central Government on 31.12.2013.

[No. L-42012/127/2012-IR(DU)]

P. K.VENUGOPAL , Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Monday, the 25th November, 2013

PRESENT: K.P. PRASANNA KUMARI, Presiding

Officer

Industrial Dispute No. 2/2013

(In the matter of the dispute for adjudication under

clasue (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 Bharat Heavy Electricals Ltd. and their

workmen)

BETWEEN

Sri N. Manian

1st Party/Petitioner

AND

The Executive Director :

2nd Party/Respondent

M/s. Bharat Heavy

Electricals Ltd.,

Tiruchirapalli,

Tamilnadu 620014

APPEARANCE:

For the 1st Party/Petitioner

Ex-parte

For the 2nd Party/Management:

Sri A.V. Arun,

Advocate

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-42012/127/2012-IR(DU)

dated 09.01.2013 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the demand of the workman Sri N. Manian,

S/o Natesan for employment of BHEL from 10.07.1993

is justified? If so, what relief the concerned workman

is entitled to?"

2. On the receipt of the Industrial Dispute this

Tribunal has numbered it as ID 2/2013 and issued notice to

both sides. Both sides have entered appearance through

their counsel and filed claim and counter statement

respectively.

3. In spite of repeated postings, the petitioner has

been absent. Today also the petitioner and his counsel

were absent and there was no representation also on behalf

of the petitioner, though, the Respondent was represented.

Apart from filing the Claim Statement, the petitioner has

not done anything to substantiate the claim. He seems to

be not interested in pursuing the claim. In the absence of

any material the Tribunal is unable to give a finding in

favour of the petitioner.

4. The reference is answered against him and an

award is passed accordingly.

(Dictated to the P.A. transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 25th 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

N/A

On the Management's side

Ex. No.

Date

Desciption

N/A

ubZ fnYyh] 9 tuojh] 2014

dkñvkñ 334.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWQ bafM;k

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

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k

,oa Je U;k;ky;] /kuckn ds iapkV ¼49@2012½ dks izdkf'kr djrh

gS tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA

[lañ ,y&12011@118@2011&vkbZvkj¼ch&II½]

jfo dqekj] vuqHkkx vf/kdkjh

New Delhi, the 9th January, 2014

S.O. 334.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. 49/2012) 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 Bank of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

899

India and their workmen which was received by the Central

Government on 29.11.2013.

[No L-12011/118/2011-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEUXRE

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. 49 of 2012

Employer in relation to the management of Bank of

India, Patna

AND

Their workmen.

APPEARANCES:

For the employers:-None

For the Workman:-Sri Satish Rajak, Concerned

Workman

State:-Jharkhand.

Industry:-Banking

Dated 18-10-2013

AWARD

By order No. L-12011/118/2011/IR(B-II) dt. 18.10.2012

the Central Government in the Ministry of Labour has, in

exercise of powers conferred by clause (d) of sub-section

(1) and sub-section (2A) of Section 10 of the Industrial

Disputes Act, 1947, referred the following disputes for

adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Bank of

India acted erroneously in charging the workman for

disciplinary action ? Whether the disciplinary

authority looked into the merit of the case properly

as per evidence value? If not, then what remedy lies

to the workman?"

2. This Case is received from the Ministry on

30.10.2012. During the pendency of the case concerned

workman files a petition for withdrawing this reference. It

is felt that the dispute between parties is resolved. Hence

"No dispute" award is passed. Communicate.

R.K. SARAN, Presiding Officer

vkns'k

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 335.—tcfd dsUnz ljdkj dk ;g er gS fd Hkkjrh;

[kkn~; fuxe ds izca/ku ls lacaf/kr fu;ksDrkvksa ,oa blds lkFk layXu

vuqlwph ds laca/k esa muds dkexkjksa ds e/; ,d vkS|ksfxd fookn gS(

vkSj tcfd bl fookn esa jk"Vªh; egRo dk iz'u 'kkfey gS ,oa

,slh izd`fr dk Hkh gS fd blesa ,d jkT; ls vf/kd esa fLFkr Hkkjrh;

[kk| fuxe ds izfr"Bkuksa ds blesa #fp j[kus vFkok izHkkfor gksus dh

laHkkouk gS(

vkSj tcfd dsUnz ljdkj dk ;g er gS fd mDr fookn dk

jk"Vªh; vf/kdj.k }kjk U;k;fu.kZ;u fd;k tkuk pkfg,(

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vf/kfu;e]

1947 ¼1947 dk 14½ dh /kkjk 7 [k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, dksydkrk esa eq[;ky; lfgr Je ea=ky; ds vkns'k la[;k

,y&22012@304@2006&vkbvkj- ¼lh&II), fnukad 18-03-2008 }kjk

jk"Vªh; vkS|ksfxd vf/kdj.k xfBr fd;k rFkk U;k;ewfrZ Jh lhñihñ

feJk dks blds ihBklhu vf/kdkjh ds :i esa fu;qDr fd;k vkSj

vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 10 dh

mi&/kkjk ¼1d½ }kjk iznÙk dk iz;ksx djrs gq, mDr vkS|ksfxd fookn

dks U;k;fu.kZ;u gsrq mDr jk"Vªh; vkS|ksfxd vf/kdj.k dks fufnZ"V dj

fn;kA

vkSj tcfd U;k;ewfrZ Jh lhñ ihñ feJk us 02-04-2009 dks

mDr jk"Vªh; vkS|ksfxd vf/kdj.k dk dk;ZHkkj R;kx fn;kA

vkSj tcfd dsUnzh; ljdkj us fnukad 23-08-2011 ds vkns'k

}kjk jk"Vªh; dk iquxZBu fd;k vkSj U;k;ewfrZ Jh ekf.kd eksgu ljdkj

dks blds ihBklhu vf/kdkjh fu;qDr fd;kA

vkSj tcfd U;k;ewfrZ Jh ekf.kd vkSj eksgu ljdkj us viuh

lsokfuo`fÙk ij mDr jk"Vªh; vkS|ksfxd vf/kdj.k dk dk;ZHkkj R;kx fn;kA

vr%] vc] U;k;ewfrZ Jh nhid lkgk js ds blds ihBklhu

vf/kdkjh ls ;qDr dksydkrk esa eq[;ky; lfgr jk"Vªh; vkS|ksfxd

vf/kdj.k xfBr fd;k tkrk gS vkSj mi;qZDr fookn dks U;k;fu.kZ;u

gsrq mi;qZDr jk"Vªh; vkS|ksfxd vf/kdj.k dks bl funs'k ds lkFk fufnZ"V

dj fn;k fd U;k;ewfrZ Jh nhid lkg js bl ekeys esa ml pj.k ls vkxs

dk;Zokgh djsaxs ftl pj.k ij bls U;k;ewfrZ Jh ekf.kd eksgu ljdkj

}kjk NksM+k x;k Fkk vkSj bls rnuqlkj fuiVk,axsA

[lañ ,y&22012@304@2006&vkbZvkj¼lh&II½]

chñ ,eñ iVuk;d] MsLd vf/kdkjh

ORDER

New Delhi, the 10th January, 2014

S.O. 335.—Whereas the Central Govt. is of the

opinion that an industrial dispute exists between the

employers in relation to the management of FCI and their

workmen in respect to the schedule hereto annexed;

And whereas the dispute involves question of

national importance and also is of such nature that the

establishments of Food Corporation of India situated in

more than one State are likely to be interested in, or affected;

And whereas the Central Government is of the

opinion that the said disputes should be adjudicated by

the National Tribunal;

900

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

And whereas the Central Government in exercise of

the powers conferred by Section 7 B of the I.D. Act, 1947

(14 of 1947) constituted a National Industrial Tribunal vide

Ministry of Labour Order No. L-22012/304/2006-IR(C-II)

dated 18.03.2008 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

the charge of the said National Industrial Tribunal on

02.04.2009.

And whereas Central Government vide order dated

23.08.2011 reconstituted the National Tribunal and

appointed Justice Shri Manik Mohan Sarkar as its Presiding

Officer;

And whereas Justice Shri Manik Mohan Sarkar

relinquished the charge of the said National Industrial

Tribunal on his retirement;

Now, therefore, a National Industrial Tribunal is

consituted with Headquarters at Kolkata with Justice Shri

Dipak Saha Ray as its Presiding Offcer 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 Shr Manik Mohan Sarkar and

dispose of the same accordingly.

[No. L-22012/304/2006-IR(C-II)]

B.M. PATNAIK, Desk Officer

vkns'k

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 336.—tcfd Hkkjrh; [kk| fuxe ds izca/ku ds

laca/k esa fu;ksDrkvksa vkSj bl vkns'k ds lkFk layXu vuqlwph ds

lacaè esa muds deZdkjksa ds chp ,d vkS|ksfxd fookn dks vkns'k

la[;k ,y&22011@180@2000&vkbZvkj ¼lh&II½ fnukad 8-3-2001

}kjk U;k;fu.kZ;u gsrq dsUnzh; ljdkj vkS|ksfxd vf/kdj.k&lg&Je

U;k;ky; y[kuÅ dks fufnZ"V fd;k x;k FkkA

vkSj tcfd bykgkckn fLFkr ekuuh; mPp U;k;ky;] y[kuÅ

ihB us fjV ;kfpdk la[;k 4551@2005 us ljdkj dks bl fookn dks

vf/kekur% fu.kZ; dh izekf.kr izfr izkIr gksus dh rkjh[k ls rhu ekg dh

vof/k ds Hkhrj leqfpr izkf/kdj.k dks fufnZ"V djus dk funs'k fn;k FkkA

vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn dks

,d jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dks fufnZ"V djuk lehphu gksxk

D;ksafd ;g ekeyk mDr izca/ku ds ,d ls vf/kd jkT; esa vofLFkr

izfr"Bku ls lacaf/kr gSA

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vf/kfu;e]

1947 ¼1947 dk 14½ dh /kkjk 7[k }kjk iznÙk 'kkfDr;ksa dk iz;ksx

djrs gq, dksydkrk esa eq[;ky; lfgr Je ea=ky; ds vkns'k la[;k

,y&22011@180@2000 &vkbZvkj ¼lh&II½ fnukad 15-11-2006 }kjk

jk"Vªh; vkS|ksfxd vf/kdj.k xfBr fd;k rFkk U;k;efrZ Jh lhñihñ

feJk dks blds ihBklhu vf/kdkjh ds :i esa fu;qDr fd;k vkSj mDr

vf/kfu;e dh /kkjk 10 dh mi /kkjk ¼1d½ }kjk iznÙk 'kfDr;ksa dk

iz;ksx djrs gq, mDr vkS|ksfxd fookn dks U;k;fu.kZ;u gsrq mDr jk"Vªh;

vkS|ksfxd vf/kdj.k dks fufnZ"V dj fn;k(

vkSj tcfd U;k;ewfrZ Jh lhñihñ feJk us mDr jk"Vªh; vkS|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

vfèdkjh ls ;qDr dksydkrk esa eq[;ky; lfgr jk"Vªh; vkS|ksfxd

vf/kdj.k xfBr fd;k tkrk gS vkSj mi;qZDr fookn dks U;k;fu.kZ;u

gsrq mi;qZDr jk"Vªh; vkS|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 izfØ;k/khu Fkk vkSj bls

rnuqlkj fuiVk,axsA

[lañ ,y&22011@180@2000&vkbZvkj¼lh&II½]

chñ ,eñ iVuk;d MsLd vf/kdkjh

ORDER

New Delhi, the 10th January, 2014

S.O. 336.—Whereas an Industrial Dispute between

employees in relation to management of Food Corporation

of India and their workmen in respect to the schedule hereto

annexed was referred for adjudication to Central Government

Industrial Tribunal-cum-Labour Court, Lucknow vide order

No. L-22012/180/2000-IR(C-II) dated 8.03.2001.

And whereas the Hon'ble High Court of Judicature

at Allahabad, Lucknow Bench in W.P. No. 4551/2005 had

directed the Government to refer the dispute before the

appropriate authoirty preferably within a period of three

months from the date of receipt of certified copy of the

judgment.

And whereas the Central Govt. is of the opinion that

it would be expedient to refer the said Industrial Dispute to

a National Industrial Tribunal as the matter pertains to

establishment of the said management located in more than

one State.

And whereas the Central Government in exercise of

the powers conferred by Section 7 B of the I.D. Act, 1947

(14 of 1947) constituted a National Industrial Tribunal vide

Ministry of Labour Order L-22012/180/2000-IR(C-II) dated

15.11.2006 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

the charge of the said National Industrial Tribunal on

02.04.2009;

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

901

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 under process and dispose of the same

accordingly.

[No. L-22012/180/2000-IR(C-II)]

B.M. PATNAIK, Desk Officer

vkns'k

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 337.—tcfd dsUnzh; ljdkj dk ;g er gS fd

Hkkjrh; [kk| fuxe ds izca/ku vkSj muds dkexkjksa ds chp ,d

vkS|ksfxd fookn fo|eku gS(

vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn esa

jk"Vªh; egRo dk iz'u 'kkfey gS vkSj bldk U;k;&fu.kZ;u ,d jk"Vªh;

vkS|ksfxd U;k;kf/kdj.k }kjk fd;k tkuk pkfg,(

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vf/kfu;e]

1947 ¼1947 dk 14½ dh /kkjk 7[k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, Je ea=ky; ds fnukad 17-12-2004 ds vkns'k la[;k ,y-

22012@400@2003 vkbZvkj¼lh&II½ }kjk ,d jk"Vªh; U;k;kf/kdj.k

xfBr fd;k Fkk ftldk eq[;ky; dksydkrk esa Fkk vkSj U;k;ewfrZ Jh

âf"kds"k cuthZ dks blds ihBklhu vf/kdkjh ds :i esa fu;qDr fd;k

Fkk rFkk mDr vf/kfu;e dh /kkjk 10 dh mi&/kkjk ¼1d½ }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq, mDr vkS|ksfxd fookn dks U;k;&fu.kZ;u

gsrq mDr jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dks lanfHkZr fd;k Fkk(

vkSj tcfd U;k;ewfrZ Jh âf"kds'k cuthZ us fnukad 03-05-2006

dks mDr jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dk dk;ZHkkj NksM+ fn;k Fkk(

vkSj tcfd dsUnzh; ljdkj us fnukad 06-03-2007 ds vkns'k

}kjk jk"Vªh; U;k;kf/kdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ Jh

lhñihñ feJk dks blds ihBklhu vf/kdkjh ds :i esa fu;qDr fd;k Fkk(

vkSj tcfd U;k;ewfrZ Jh lhñihñ feJk us 02-04-2009 dks

mDr jk"Vªh; U;k;kf/kdj.k dk dk;ZHkkj NksM+ fn;k Fkk(

vkSj tcfd dsUnzh; ljdkj us fnukad 14-06-2010 ds vkns'k }kjk

jk"Vªh; U;k;kf/kdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ Jh ekf.kd

eksgu ljdkj dks blds ihBklhu vf/kdkjh ds :i esa fu;qDr fd;k Fkk(

vkSj tcfd U;k;ewfrZ Jh ekf.kd eksgu ljdkj us viuh

lsokfuo`fÙk ij mDr jk"Vªh; U;k;kf/kdj.k dk dk;ZHkkj NksM+ fn;k Fkk(

vr% vc ,d jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dk xBu fd;k

tkrk gS ftldk eq[;ky; dksydkrk esa gksxk rFkk ftlds ihBklhu

vf/kdkjh U;k;ewfrZ Jh nhid lkgk js gksaxs ,oa mi;qZDr fookn dks U;k;fu.kZ;u

ds fy, mi;qZDr jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dks bl funs'k ds lkFk

lanfHkZr fd;k tkrk gS fd U;k;ewfrZ Jh nhid lkgk js bl ekeys esa ml

voLFkk ls vkxs dk;Zokgh djsaxs tgka ij bls U;k;ewfrZ Jh ekf.kd eksgu

ljdkj us NksM+k Fkk vkSj rnuqlkj mldk fuiVku djsaxsA

[lañ ,y&22012@400@2003&vkbZvkj¼lh&II½]

chñ ,eñ iVuk;d] MsLd vf/kdkjh

ORDER

New Delhi, the 10th January, 2014

S.O. 337.—Whereas the Central Government is of

the opinion that an industrial dispute existed between the

management of FCI and their workmen.

And whereas the Central Government is of the

opinion that the above dispute involved a question of

national importance and should be adjudicated by a

National Industrial Tribunal;

And whereas the Central Government in exercise of

the powers conferred by Section 7 B of the I.D. Act, 1947

(14 of 1947) constituted a National Industrial Tribunal vide

Ministry of Labour Order No. L-22012/400/2003-IR(C-II)

dated 17.12.2004 with headquarters at Kolkata and

appointed Justice Shri Hrishikesh Benerji 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 Hrishikesh Benerji

relinquished the charge of the said National Industrial

Tribunal on 03.05.2006;

And whereas Central Government vide order dated

06.03.2007 reconstituted the National Tribunal and

appointed Justice Shri C.P. Mishra as its Presiding Officer;

And whereas Justice Shri C.P. Mishra relinquished

the charge of the said National Industrial Tribunal on

02.04.2009;

And whereas Central Government vide order dated

14.06.2010 reconstituted the National Tribunal and

appointed Justice Shri Manik Mohan Sarkar as its Presiding

Officer;

And whereas Justice Shri Manik Mohan Sarkar

relinquished the charge of the said National Industrial

Tribunal on his retirement;

Now, therefore, a National Industrial Trinunal 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 mater from the stage at

which it was left by Justice Shri Manik Mohan Sarkar and

dispose of the same accordingly.

[No. L-22012/400/2003-IR(C-II)]

B.M. PATNAIK, Desk Officer

902

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

vkns'k

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 338.—tcfd dsUnzh; ljdkj dk ;g er gS fd

Hkkjrh; [kk| fuxe ds izcaèu vkSj muds dkexkjksa ds chp ,d

vkS|ksfxd fookn fo|eku gS(

vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn esa

jk"Vªh; egRo dk iz'u 'kkfey gS vkSj bldk U;k;&fu.kZ;u ,d jk"Vªh;

vkS|ksfxd U;k;kfèdj.k }kjk fd;k tkuk pkfg,(

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vfèfu;e]

1947 ¼1947 dk 14½ dh èkjk 7[k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, Je ea=ky; ds fnukad 24-12-2004 ds vkns'k la[;k

,y&22012@11@2004&vkbZvkj ¼lh&II½ }kjk ,d jk"Vªh;

U;k;kfèdj.k xfBr fd;k Fkk ftldk eq[;ky; dksydkrk esa Fkk vkSj

U;k;ewfrZ Jh âf"kds"k cuthZ dks blds ihBklhu vfèdkjh ds :i esa

fu;qDr fd;k Fkk rFkk mDr vfèfu;e dh èkjk 10 dh mi&èkjk

¼1d½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, mDr vkS|ksfxd fookn

dks U;k;&fu.kZ;u gsrq mDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dks lanfHkZr

fd;k Fkk(

vkSj tcfd U;k;ewfrZ Jh âf"kds'k cuthZ us fnukad 03-05-

2006 dks mDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk dk;ZHkkj NksM+ fn;k

Fkk(

vkSj tcfd dsUnzh; ljdkj us fnukad 06-03-2007 ds vkns'k

}kjk jk"Vªh; U;k;kfèdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ Jh

lhñihñ feJk dks blds ihBklhu vfèdkjh ds :i esa fu;qDr fd;k

FkkA

vkSj tcfd U;k;ewfrZ Jh lhñihñ feJk us fnukad 02-04-2009

dks mDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk dk;ZHkkj NksM+

fn;k Fkk(

vkSj tcfd dsUnzh; ljdkj us fnukad 14-06-2010 ds vkns'k

}kjk jk"Vªh; U;k;kfèdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ Jh

ekf.kd eksgu ljdkj dks blds ihBklhu vfèdkjh ds :i esa fu;qDr

fd;k FkkA

vkSj tcfd U;k;ewfrZ Jh ekf.kd eksgu ljdkj us viuh

lsokfuo`fÙk ij mDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk dk;ZHkkj NksM+

fn;k Fkk(

vr% vc ,d jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk xBu fd;k

tkrk gS ftldk eq[;ky; dksydkrk esa gksxk rFkk ftlds ihBklhu

vfèdkjh U;k;ewfrZ Jh nhid lkgk js gksaxs ,oa mi;qZDr fookn dks

U;k;fu.kZ;u ds fy, mi;qZDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dks bl

funs'k ds lkFk lanfHkZr fd;k tkrk gS fd U;k;ewfrZ Jh nhid lkgk js

bl ekeys esa ml voLFkk ls vkxs dk;Zokgh djsaxs tgka ij bls U;k;ewfrZ

Jh ekf.kd eksgu ljdkj us NksM+k Fkk vkSj rnuqlkj mldk fuiVku

djsaxsA

[lañ ,y&22012@11@2004&vkbZvkj ¼lh&II½]

chñ,eñ iVuk;d] MsLd vfèdkjh

ORDER

New Delhi, the 10th January, 2014

S.O. 338.—Whereas the Central Government is of

the opinion that an industrial dispute existed between the

management of FCI and their workmen.

And whereas the Central Government is of the

opinion that the above dispute involved a question of

national importance and should be adjudicated by a National

Industrial Tribunal;

And whereas the Central Government 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-22012/11/2004-IR(C-II) dated

24.12.2004 with headquarters at Kolkata and appointed

Justice Shri Hrishikesh Banerji 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 Hrishikesh Banerji

relinquished the charge of the said National Industrial

Tribunal on 03.05.2006;

And whereas Central Government vide order dated

06.03.2007 reconstituted the National Industrial Tribunal

and appointed Justice Shri C.P. Mishra as its Presiding

Officer;

And whereas Justice Shri C.P. Mishra relinquished

the charge of the said National Industrial Tribunal on

02.04.2009;

And whereas Central Government vide order dated

14.06.2010 reconstituted the National Tribunal and appointed

Justice Shri Manik Mohan Sarkar as its Presiding Officer;

And whereas Justice Shri Manik Mohan Sarkar

relinquished the charge of the said National Industrial

Tribunal on his retirement;

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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

903

stage at which it was left by Justice Shri Manik Mohan

Sarkar and dispose of the same accordingly.

[No. L-22012/11/2004-IR (C-II)]

B.M. PATNAIK, Desk Officer

vkns'k

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 339.—tcfd dsUnzh; ljdkj dk ;g er gS fd

Hkkjrh; [kk| fuxe ds izcaèu vkSj muds dkexkjksa ds chp ,d

vkS|ksfxd fookn fo|eku gS(

vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn esa

jk"Vªh; egRo dk iz'u 'kkfey gS vkSj bldk U;k;&fu.kZ;u ,d jk"Vªh;

vkS|ksfxd U;k;kfèdj.k }kjk fd;k tkuk pkfg,(

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vfèfu;e]

1947 ¼1947 dk 14½ dh èkjk 7[k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, Je ea=ky; ds fnukad 15-12-1998 ds vkns'k la[;k

,y&22012@439@1995&vkbZvkj ¼lh&II½ }kjk ,d jk"Vªh;

U;k;kfèdj.k xfBr fd;k Fkk ftldk eq[;ky; dksydkrk esa Fkk vkSj

U;k;ewfrZ Jh ,ñdsñ pØcrhZ dks blds ihBklhu vfèdkjh ds :i esa

fu;qDr fd;k Fkk rFkk mDr vfèfu;e dh èkjk 10 dh mi&èkjk ¼1d½

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, mDr vkS|ksfxd fookn dks

U;k;&fu.kZ;u gsrq mDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dks lanfHkZr

fd;k Fkk(

vkSj tcfd U;k;ewfrZ Jh ,ñdsñ pØcrhZ us fnukad 31-12-1999

dks mi;qZDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk dk;ZHkkj NksM+ fn;k

FkkA

vkSj tcfd dsUnzh; ljdkj us fnukad 14-03-2002 ds vkns'k

}kjk jk"Vªh; U;k;kfèdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ

Jh chñihñ 'kekZ dks blds ihBklhu vfèdkjh ds :i esa fu;qDr fd;k

FkkA

vkSj tcfd U;k;ewfrZ Jh chñihñ 'kekZ us mDr jk"Vªh; vkS|ksfxd

U;k;kfèdj.k dk dk;ZHkkj 23-1-2003 dks NksM+ fn;k FkkA

vkSj tcfd dsUnzh; ljdkj us fnukad 28-1-2004 ds vkns'k

}kjk jk"Vªh; U;k;kfèdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ

Jh âf"kds"k cuthZ dks blds ihBklhu vfèdkjh ds :i esa fu;qDr

fd;k FkkA

vkSj tcfd U;k;ewfrZ Jh âf"kds"k cuthZ us fnukad 03-05-

2006 dks mDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk dk;ZHkkj NksM+ fn;k

FkkA

vkSj tcfd dsUnzh; ljdkj us fnukad 06-03-2007 ds vkns'k

}kjk jk"Vªh; U;k;kfèdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ

Jh lhñihñ feJk dks blds ihBklhu vfèdkjh ds :i esa fu;qDr fd;k

FkkA

vkSj tcfd U;k;ewfrZ Jh lhñihñ feJk us fnukad 02-04-2009

dks mDr jk"Vªh; U;k;kfèdj.k dk dk;ZHkkj NksM+ fn;k FkkA

vkSj tcfd dsUnzh; ljdkj us fnukad 14-06-2010 ds vkns'k

}kjk jk"Vªh; U;k;kfèdj.k dks iquxZfBr fd;k Fkk rFkk U;k;ewfrZ Jh

ekf.kd eksgu ljdkj dks blds ihBklhu vfèdkjh ds :i esa fu;qDr

fd;k FkkA

vkSj tcfd U;k;ewfrZ Jh ekf.kd eksgu ljdkj us viuh

lsokfuo`fÙk ij mDr jk"Vªh; U;k;kfèdj.k dk dk;ZHkkj NksM+ fn;k FkkA

vr% vc ,d jk"Vªh; vkS|ksfxd U;k;kfèdj.k dk xBu fd;k

tkrk gS ftldk eq[;ky; dksydkrk esa gksxk rFkk ftlds ihBklhu

vfèdkjh U;k;ewfrZ Jh nhid lkgk js gksaxs ,oa mi;qZDr fookn dks

U;k;fu.kZ;u ds fy, mi;qZDr jk"Vªh; vkS|ksfxd U;k;kfèdj.k dks bl

funs'k ds lkFk lanfHkZr fd;k tkrk gS fd U;k;ewfrZ Jh nhid lkgk js

bl ekeys esa ml voLFkk ls vkxs dk;Zokgh djsaxs tgka ij bls U;k;ewfrZ

Jh ekf.kd eksgu ljdkj us NksM+k Fkk vkSj rnuqlkj mldk fuiVku

djsaxsA

[lañ ,y&22012@439@1995&vkbZvkj ¼lh&II½]

chñ,eñ iVuk;d] MsLd vfèdkjh

ORDER

New Delhi, the 10th January, 2014

S.O. 339.—Whereas the Central Government is of

the opinion that an industrial dispute existed between the

management of FCI and their workmen.

And whereas the Central Government is of the

opinion that the above dispute involved a question of

national importance and should be adjudicated by a

National Industrial Tribunal;

And whereas the Central Government 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-22012/439/1995-IR(C-II)

dated 15.12.1998 with headquarters at Kolkata and

appointed Justice Shri A.K. Chakraborty 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 A.K. Chakraborty

relinquished charge of the above National Industrial

Tribunal on 31.12.1999;

And whereas Central Government vide order dated

14.3.2002 reconstituted the National Industrial Tribunal and

appointed Justice Shri B.P. Sharma as its Presiding Officer;

And whereas Justice Shri B.P. Sharma relinquished

the charge of the said National Industrial Tribunal on

23.1.2003;

And whereas Central Government vide order dated

28.1.2004 reconstituted the National Tribunal and

904

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

appointed Justice Shri Hrishikesh Banerji as its Presiding

Officer;

And whereas Justice Shri Hrishikesh Banerji

relinquished the charge of the said National Industrial

Tribunal on 03.05.2006;

And whereas Central Government vide order dated

06.03.2007 reconstituted the National Tribunal and

appointed Justice Shri C.P. Mishra as its Presiding Officer;

And whereas Justice Shri C.P. Mishra relinquished

the charge of the said National Industrial Tribunal on

02.04.2009;

And whereas Central Government vide order dated

14.06.2010 reconstituted the National Tribunal and

appointed Justice Shri Manik Mohan Sarkar as its Presiding

Officer;

And whereas Justice Shri Manik Mohan Sarkar

relinquished the charge of the said National Industrial

Tribunal on his retirement;

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 Manik Mohan Sarkar

and dispose of the same accordingly.

[No. L-22012/439/1995-IR (C-II)]

B.M. PATNAIK, Desk Officer

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 340.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWQ egkjk"Vª

ds izcaèra= ds lac) fu;kstdks vkSj muds deZdkjksa ds chp vuqcaè

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

U;k;ky;] ukxiqj ds iapkV ¼07@2011½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 10-01-2014 dks izkIr gqvk FkkA

[lañ ,y&12011@54@2010&vkbZvkj ¼ch&II½]

jfo dqekj] vuqHkkx vfèdkjh

New Delhi, the 10th January, 2014

S.O. 340.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 07/2011 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

NAGPUR as shown in the Annexure, in the industrial

dispute between the management of Bank of Maharashtra

and their workmen, received by the Central Government on

10/01/2014.

[No. L-12011/54/2010-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/07/2011

Date: 02.12.2013

Party No. 1 :

The Asstt. General Manager,

Bank of Maharashtra, Chandrapur

Region, Opp. Police Mukhayalaya,

Mul Road, Distt. Chandrapur.

Party No. 2 :

The General Secretary,

Union of the Maharashtra Bank

Employees, 542, Congress Nagar,

Nagpur-12.

AWARD

(Dated: 2nd December, 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 Bank of Maharashtra, Chandrapur Region

and their workman, Shri K.V. Randive, for adjudication, as

per letter No. L-12011/54/2010-IR (B-II) dated 04.05.2011,

with the following schedule:—

"Whether the action of the management of Bank of

Maharashtra, Chandrapur Region in denying back

wags to Shri K.V. Randive for illegal termination for

the period from 28.06.2002 to 05.02.2009 is legal &

justified? What relief the workman is entitled to?"

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the union of Maharashtra Bank

Employees ("the union" in short) on behalf of the workman,

Shri K.V. Randive, ("the workman" in short), filed the

statement of claim and the management of Bank of

Maharashtra, ("Party No. 1" in short) filed their written

statement.

The case of the workman as presented in the

statement of claim by the union is that it (union) is a

registered trade union under the Trade Unions Act and the

workman is a member of the union and Party No. 1 is a

nationalized Bank and is therefore an industry and the

workman belongs to "Mana" community, which is

recognized as Scheduled Tribe and he was holding the

Caste Certificate issued by the Competent Authority and

the workman on the basis of his Caste Certificate applied

for the post of clerk, in response to the advertisement

released by the Banking Service Recruitment Board and

after appearing in the written examination as well as personal

interview conducted by the Banking Service Recruitment

Board, the workman was selected against the reserved post

of clerk for Scheduled Tribe and was appointed as such by

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

905

the Party No. 1 w.e.f. 03.12.1976 at its Bramhapuri Branch

and the services of the workman came to be confirmed by

Party No. 1 after successful completion of probationary

period and he came to be elevated to the post of special

Assistant and surprisingly, after completion of more than

20 years of service by the workman, the Party No. 1

unnecessarily conducted exercise of verification of his

caste certificate, which was in its (Party No. 1's) possession,

right from the year 1976 and on the basis of unreasonable,

unjustified and illegal interpretation about the case of the

workman, presumed for itself that the workman had

submitted false certificate about his belonging to scheduled

tribe and initiated disciplinary action against the workman

and the Enquiry Officer appointed for the purpose of

departmental enquiry, without due application of mind,

hastily declared the charge against the workman as proved

and the Disciplinary Authority vide order dated 26.06.2000,

awarded the punishment of compulsory retirement from

the services upon the workman and consequently, the

workman came to be retired from services w.e.f. 28.06.2002

from Mul Branch of the Bank, at the age of about 50 years

and the appeal preferred by the workman was dismissed

by the Appellate Authority without application of judicious

mind by order dated 30.11.2002.

The further case of the workman as presented by the

union is that the decision of the Caste Scrutiny Committee

to the effect that Mana Caste does not belong to Scheduled

Tribe was challenged by the workman before the Hon'ble

High Court by way of a Writ Petition, but the same was

dismissed by the Hon'ble High Court Court and the

workman carried the said Writ Petition before the Hon'ble

Apex Court in Civil Appeal No. 8191/2001 and the Hon'ble

Apex Court by order dated 16.01.2008 held that "Mana"

community comes under Scheduled Tribe and as per the

direction of the Hon'ble Apex Court, the workman

approached the Caste Scrutiny Committee for revalidation

of the Caste Certificate issued to him earlier, in the light of

the directions given by the Hon'ble Apex Court and the

Caste Scrutiny Committee reconsidered its own earlier

decision and declared Mana community as Scheduled Tribe

and necessary Caste Certificate to the said effect was also

given to the workman by the Caste Scrutiny Committee on

08.05.2008 and in the midst of the above events pertaining

to the caste of the workman, disciplinary action came to be

initiated by the Party No. 1 on the unfounded and incorrect

premise that there was suppression of caste at the time of

employment of the workman and consequently, punishment

of compulsory retirement came to be imposed upon the

workman vide final order dated 26.06.2002 and the order of

punishment came to be challenged by the workman before

the Hon'ble High Court, Nagpur Bench by way of Writ

Petition No. 2020/2003 and the said Writ Petition was

disposed of by the Hon'ble High Court vide order dated

01.04.2004 with specific directions that in the event that

the appeal filed by the petitioner (workman) is allowed by

the Hon'ble Apex Court and his tribe claim is upheld, it

would be open to the petitioner (unless any other directions

are issued by the Hon'ble Apex Court) to make a

representation to the respondent Bank for consequential

appropriate orders and in the events that the workman is

still aggrieved by any directions that would be arrived at

by the Bank consequent upon the disposal of the appeal

by the Hon'ble Supreme Court, it would be open to the

petitioner to adopt such proceedings if any, as are open in

law and in view of the order passed by the Hon'ble High

Court and the decision of the caste Scrutiny as per the

direction of the Hon'ble Supreme Court, the workman

represented the Party No. 1 vide his representation dated

11.05.2008 demanding his reinstatement in the services with

full back wages, but Party No. 1 did nothing for a period of

two months, therefore, the workman again approached

Party No. 1 vide his reminder dated 30.07.2008 and after

lapse of more than 7 months, the Party No. 1 came out with

the order dated 20.11.2008 reinstating the workman on the

same post at its Bramhapuri Branch and many

unreasonable, uncalled for, unnecessary and unjustified

stipulations came to be made by the Party No. 1 in the said

communication and being aggrieved by the said whimsical

action of Party No. 1, the workman made another

representation by way of notice dated 04.12.2008 and he

reported for duties at Bramhapuri Branch and submitted a

joining report to the Branch Manager on 03.12.2008, but he

was not allowed to join duties and despite of the notice of

the workman, Party No. 1 preferred not to lend its ears to

his grievances and practically and unreasonably sat tight

in the matter, so the workman moved the Hon'ble High

Court, Nagpur Bench by way of Writ Petition No. 525/2009

on 22.01.2009 and after filing of the Writ Petition, the Party

No. 1 came out with a communication dated 28.01.2009, by

which almost all the demands attached and incidental to

reinstatement in the services were agreed, but an

unreasonable condition was imposed that he would not be

entitled to any back wages for the period he was out of

service and in the manner in which, he was dragged out of

service for a period of six years and as Party No. 1 was

reluctant in allowing him to join duties for his remaining

period of less than two years, he was compelled to give

letter of acceptance on 06.02.2009 and only thereafter, he

was allowed to join duties and the said letter was given by

him because of the undue pressure and intimidation made

by the Party No. 1 and as all the prayers made in Writ

Petition 525/2009 filed by the workman except the issue of

back wages were resolved, an amendment to the petition

was made and since alternate remedy under the Act for

back wages was available, the writ Petition was withdrawn

by the workman with the leave of the Hon'ble High Court.

It is further pleaded by the union on behalf of the

workman that the disciplinary action for which punishment

of compulsory retirement was imposed against the workman

was based on incorrect and unfounded premise and

906

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

unreasonable exercise was conducted by the Party No. 1

about the caste of the workman and that too after more

than a period of 20 years and after making a farce of

departmental enquiry, the Party No. 1 compulsorily retired

the workman, 9 years ahead of his age superannuation and

thereby virtually and illegally thrown the workman on the

street and since the workman was not gainfully employed

after his termination, he is legally entitled to receive full

back wages, once the Party No. 1 took the decision for his

reinstatement in the services and there was therefore, no

logic much less any reason not to pay the back wages to

the workman.

Prayer has been made by the union to direct the

Party No. 1 to pay the wages to the workman for the period

from 28.06.2002 to 05.02.2009.

3. The Party No. 1 in the written statement, denying

all the adverse allegations made in the statement of claim

has pleaded inter-alia that the statement of claim has been

filed by the union, but the union has not filed any document

showing its registration and the workman to be its member

and that it was authorized by the workman to espouse the

claim, the reference is liable to be rejected.

It is further pleaded by the Party No. 1 that the

workman joined its services as a clerk, being a Schedule

Tribe candidate belonging to "Mana" community under

the reserved quota for S.T. candidate and on 01.11.1993, it

had asked the workman to give informations in the

prescribed format, for onward submission of the same to

the committee, for scrutiny and verification of his claim

that "Mana" community comes under Schedule Tribe, but

the workman did not submit such information, so on

20.01.1994, the workman was again asked to submit the

informations, but still then, the workman failed to supply

the informations, so it referred the case of the workman to

the committee for scrutiny and verification of his tribe claim,

vide letters dated 28.01.1994, 07.08.1997 and 03.10.1997, as

per the guide line issued by the Government of India and

the committee after giving the workman personal hearing

on 28.04.2000 and after due verification of all the documents

produced by him, invalidated the caste claim of the workman

and as the Caste Scrutiny Committee cancelled the Caste

Certificate of the workman, as per the guide lines issued by

the Government of India, the disciplinary action was

initiated by it against the workman for the charge of

"knowingly submitting a false document in connection with

his appointment", which was an act of gross misconduct

under clause 19.5 (m) of the Bipartite Settlement and after

conducting a full fledged enquiry, the workman was found

guilty of the misconduct and punishment of compulsory

retirement from services of the Bank was imposed on him

with superannuation benefits, vide order dated 26.06.2002.

Party No. 1 in the written statement has admitted

about the workman filing an appeal against the order of

punishment before the Appellate Authority and rejection

of the said appeal on 30.11.2002, filing of Writ Petition No.

2283/2000 before the Hon'ble High Court, Nagpur Bench

for redress, dismissal of the said Writ Petition by the

Hon'ble High Court by order dated 18.08.2000, filing of SLP

No. 16841/2000 before the Hon'ble Supreme Court, filing of

Writ Petition W.P. No. 2020/2003 before the Hon'ble High

Court, Nagpur Bench by the workman against the order of

rejection of his application for voluntary retirement under

the VRS scheme, 2000 and the order of compulsory

retirement and the Hon'ble High Court passing the order in

the said Writ Petition that, "In these circumstances the

appropriate order that should be passed in this proceedings

is that in the event that the appeal filed by the petitioner

before Supreme Court is allowed and the Tribe claim of the

petitioner is upheld, it would be open to the petitioner

(unless any other directions are issued by the Supreme

Court) to make a representation to the respondent Bank for

consequential appropriate orders. Since the Court is

informed that Bank is Party to the proceedings before the

Supreme Court, the Bank as indeed other parties shall be

bound by the directions of the Supreme Court. In the event,

petitioner is still aggrieved by any decision that would be

arrived at by the Bank consequent upon the disposal of

the appeal by the Supreme Court, it would be open to the

petitioner to adopt such proceedings if any, as are open in

law. The petition is accordingly disposed of."

In the written statement, it is also admitted by the

Party No. 1 that the Hon'ble Apex Court allowed the appeal

filed by the workman by order 16.01.2008 and it was

concluded by the Hon'ble Apex Court that "Mana"

community comes under Schedule Tribe and that the

Hon'ble Apex Court set aside the order of the High Court

and on the basis of the direction of the Hon'ble Apex Court,

the Caste Scrutiny Committee revalidated the Caste

Certificate of the workman on 08.05.2008, after hearing both

the parties and that the workman made representations

vide his letters dated 11.05.2008 and 04.12.2008 for his

reinstatement in the services of the Bank with full back

back wages.

However, it is pleaded by the Party No. 1 that by

letter dated 28.01.2009, it showed its readiness to reinstate

the workman in service, subject to certain reasonable and

justifiable conditions and there was no compulsion or

pressure from the Bank and the joining report submitted

by the workman on 06.02.2009 was voluntary and it had

nothing to do with the filing and withdrawal of Writ Petition

No. 525/2009 and its action in imposing the punishment of

compulsory retirement on the workman was just and proper

and in accordance with law and as such, the workman is

not entitled to any back wages and after the order of

reinstatement, the workman joined in service, accepting

the conditions put by the Bank management, which were

according to the Rules and also legal, proper and justified

and as the workman was not in employment of the Bank

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

907

from 28.06.2002 to 05.02.2009, he is not entitled to any back

wages for the said period.

4. Besides placing reliance on documentary evidence,

both the parties have led oral evidence in support of their

respective claim.

The union has examind the workman as a witness. In

his examination-in-chief, which is on affidavit, the workman

has reiterated the facts mentioned in the statement of claim.

In his cross-examination, the workman has stated

that he was appointed in the Bank as a member of S.T.

category and though he had submitted his Caste Certificate,

he had not submitted his caste validity certificate and vide

letter dated 01.01.1993, the Bank had asked him to submit

his caste validity certificate and in 1994, while he was

working in Aheri Branch, Bank had asked him to produce

the caste validity certificate and he did not produce the

same, as he was not in possession of the same and then

Bank sent the informations submitted by him regarding his

belonging to S.T. category to the Caste Scrutiny Committee

and the said Committee cancelled his Caste Certificate

holding the same to be invalid and in view of the order of

the Caste Scrutiny Committee, the Bank initiated the

departmental enquiry and after the enquiry, imposed the

punishment of compulsory retirement, as per order dated

26.06.2002 and he did not work in the Bank from 28.06.2002

to 05.02.2009.

5. Besides the workman, the union has examined one

Shri Shyam V. Hudaar as the other witness.

6. Shri Chittaranjan Bhuradas Chaure, the Branch

Manager of Brahmapuri branch of party No. 1 has been

examined as a witness on behalf of Party No. 1. The witness

for the Party No. 1 has reiterated the facts mentioned in the

written statement, in his examination-in-chief on affidavit.

In his cross-examination, witness for the Party No. 1

has admitted that the workman was selected and appointed

in the Bank on the basis of the Schedule Tribe Certificate

submitted by him and after number of years of service, the

workman was given the post of Special Assistant.

7. At the time of argument, it was submitted by the

learned advocate for the workman that after a lapse about

20 years of entering of the workman into services of the

Party No. 1, the Party No. 1 referred the Caste Certificate of

the workman to the Caste Scrutiny Committee, and the said

committee erroneously declared the said Caste Certificate

as invalid and ultimately, the Hon'ble Apex Court in Civil

Appeal No. 8191/2001 came to the conclusion that "Mana"

community to which the workman belongs comes under

Schedule Tribe and the Hon'ble Apex Court were pleased

to set aside the order of the Caste Scrutiny Committee and

the Hon'ble High Court and as per the direction of the

Hon'ble Apex Court, the Caste Scrutiny Committee

revalidated the Caste Certificate of the workman. It was

further submitted by the learned advocate for the workman

that without waiting for the finality of the case pending in

the Court, the Party No. 1 initiated the disciplinary action

leveling charge under chaluse 19.5 (m) of the Bi-partite

settlement on the allegation of submitting false document

in connection with his appointment and by order dated

26.06.2002, the punishment of compulsory retirement w.e.f.

28.06.2002 was imposed against the workman and as far no

fault of the workman, the departmental action was initiated

against him and the entire action of Party No. 1 in imposing

the punishment of compulsory retirement is due to patent

wrong and the illegal decision taken by the Bank and as

the workman was reinstated in service, the condition of

non-payment of back wages for the period of 28.06.2002 to

05.02.2009 was ab-initio illegal and unjustified and as the

workman was not gainfully employed during the relevant

period, he is entitle for back wages for the period from

28.06.2002 to 05.02.2009.

8. Per contra, it was submitted by the learned advocate

for the Party No. 1 that the appointment of the workman as

a clerk in the Bank was as a Schedule Tribe candidate and

by letters dated 01.01.1993 and 21.01.1994, the Bank directed

the workman to submit the informations in the prescribed

format for onward submission of the same to the caste

scrutiny committee, but the workman failed to submit such

informations, so the Bank referred the case of the workman

vide letters 28.01.1994, 07.08.1995 and 03.10.1997 to the

caste scrutiny committee for verification of the claim of the

workman, as per the guide lines issued by the Government

of India and after verification, the said committee

invalidated the Caste Certificate of the workman and in

view of the cancellation of the Caste Certificate of the

workman, Party No. 1 initiated the disciplinary proceeding

against the workman for submission of false document for

employment and after due enquiry, the punishment of

compulsory retirement was imposed against the workman

on 26.06.2002 and as per the direction of the Hon'ble Apex

Court in SLP 16841/2000, the Caste Scrutiny Committee

revalidated the Caste Certificate of the workman on

08.05.2008 and in view of the direction of the Hon'ble High

Court in W.P. No. 2020/2003, the Party No. 1 issued the

communication dated 28.01.2009 to continuation to its

earlier communication dated 20.11.2008, to the workman

for his reinstatement in service with the some conditions

including that he would not be entitled to back wages for

the period for which he was out of service and he has to

give an unconditional acceptance of all the terms and

conditions before joining and the workman gave an

undertaking on 06.02.2009 accepting the terms and

conditons as laid down in communication dated 28.01.2009

and joined in service and as the workman was not in

employment of the Bank from 28.06.2002 to 05.02.2009 and

in view of the specific agreement between the Bank and

the workman, the workman is not entitled to any back

wages.

908

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

In support of the submission, the learned advocate

for the Party No. 1 placed reliance on the decision in the

case of State of U.P. Vs Madhav Prasad Sharma (Appeal

2009) and the Ruling of the Hon'ble Apex Court.

9. Before delving into the merit of the case, I think it

proper to mention about the decisions cited by the learned

advocate for the Party No. 1. The first decision (in the case

of State of U.P. Vs. Madhav Prasad Sharma) is regarding

the effect regularization of unauthorized absence from duty

treating the period of absence as leave without pay in a

departmental enquiry conducted against a delinquent

employee for the misconduct of unauthorized absence.

Likewise, the Ruling of the Hon'ble Apex Court (Even

though the learned advocate for the Party No. 1 has not

filed the full text of the judgment and has also not mentioned

the case number or name of the parties or the name of the

journal in which the decision was reported) is that an

employee who has remained absent from duty for a long

time in an unauthorized manner is not entitled to any back

wages and the principle of "no work no pay" comes into

play.

However, the case in hand is not at all a case of

unauthorized absence of the workman or imposition of

punishment against the workman for the misconduct of

remaining unauthorized absence. Hence, with respect, I am

of the opinion that the decision and Ruling cited by the

learned advocate for the Party No. 1 have no application to

the case in hand.

10. In this case, on perusal of the pleadings of the

parties and the evidence on record, it is found that all most

all the facts are admitted by the parties. According to the

workman, the condition imposed by the Party No. 1

regarding his disentitlement for back wages is quite illegal

and unjustified in as much as the entire action taken by

Party No. 1 in terminating his services by way of

compulsory retirement was due to patent wrong and illegal

decision taken by Party No. 1 and there was no possibility

of Party No. 1 taking him back in service without his

furnishing the undertaking and as the condition was

imposed by Party No. 1 in the order of reinstatement itself,

the acceptance of the said condition by him was under

compulsion and as the departmental enquiry was conducted

not due to his fault and in view of the order of the Hon'ble

Apex Court, his Caste Certificate was revalidated and he

was re-instated in service, he is entitled for back wages.

According to the Party No. 1, as per communication

dated 28.01.2009, the workman was intimated about his

reinstatement in service with some conditions including

the condition that he would not be entitled for back wages

for the period for which, he was out of service and the

workman was also asked to give an unconditional

undertaking to abide by the conditions before his joining

the service again and accordingly, the workman submitted

the undertaking at the time of his rejoining service and as

the workman was not in service from 28.06.2002 to

05.02.2009, the workman is not entitled to any relief.

11. As already stated above, the workman was

reinstated in service by Party No. 1 after revalidation of his

Caste Certificate as per the direction of the Hon'ble Apex

Court and the workman joined the service of Party No. 1 on

06.02.2009. In view of the reinstatement of the workman in

service by Party No. 1, the logical conclusion is that the

punishment of compulsory retirement imposed against the

workman did not remain in existence and for that the

workman became entitled for back wages also. So, the

condition imposed by Party No. 1 that the workman was

not entitled for back wages was not justified. In view of the

conditions imposed by Party No. 1 for the reinstatement of

the workman, the workman was bound to give the

undertaking.

The workman in the statement of claim has pleaded

that after his compulsory retirement from services, he was

not gainfully employed. In his evidence on affidavit also,

the workman has stated that he was not gainfully employed

after termination of his services by way of compulsory

retirement. Such evidence of the workman has not been

challenged in the cross-examination.

In view of the materials on record and the discussions

made above, it is found that the workman is entitled for full

back wages for the period from 28.06.2002 to 05.02.2009.

Hence, it is ordered:—

ORDER

The workman is entitled for full back wages for the

period from 28.06.2002 to 05.02.2009. The Party No. 1 is

directed to pay the back wages for the said period to the

workman within a month of publication of the award in the

Official Gazette.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 10 tuojh] 2014

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New Delhi, the 10th January, 2014

S.O. 341.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 147/2004 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Chandigarh as shown in the Annexure in the Industrial

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

909

Dispute between the management of Punjab National Bank

and their workman, received by the Central Government

on 10/01/2014.

[No. L-12012/209/2003-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE SHRI SURENDERA PRAKASH SINGH,

PRESIDING OFFICER, CENTRAL GOVT.

INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT-I, CHANDIGARH

Case No. ID No. 147/2004

Shri Surinder Kumar S/o Sh. Pritam Chand, near Govt.

Hospital Village Lahra, P.O. Galore, Tehsil Nadaun, Distt.

Hamirpur (HP)-177026. (Died during proceedings,

substituted by Legal Representatives Mrs. Neena Khawla

(wife), Abhirnta Khawla (doughter) and Sajal Khawla (son).

...Applicant

Versus

1. The Regional Manager, Punjab National Bank,

Regional Office Hamirpur.

....Respondents/Employer

APPEARANCES:

For the workman:

Shri Kuldeep Bhatia

(Advocate)

For the management:

Shri N.K. Zakhmi (Advocate)

AWARD

(Passed on:—05-12-2013)

Central Govt. vide notification No. L-12012/209/2003-

IR(B-II) Govt. of India, Ministry of Labour, New Delhi, dated

08.03.2004 has referred the following dispute to this Tribunal

for adjudication:

"Whether the action of the management of Punjab

National Bank, Hamirpur (HP) in dismissing Sh.

Surinder Kumar, Ex-Clerk-cum-Cashier from the

Bank's services w.e.f. 01.07.2002 is just and legal? If

not, what relief the workman is entitled to?"

2. On receipt of the reference notices were issued to

the parties. Workman filed claim statement in which he

pleaded that he was working as Clerk-cum-Cashier at Punjab

National Bank Galore Branch and his work and conduct

was satisfactory. But in spite of his good record he was

placed under suspension on 11.11.1999 on account of

alleged fraud. He was issued charge sheet dated 12.6.2001

after more than 18 months of the alleged fraud fabricating

the case against the workman, and enquiry was conducted

in slip short manner and no action was taken against the

other staff including the Branch Manager. An FIR was also

lodged against the workman on the same set of facts and

the workman was put on trial before the Additional Chief

Judicial Magistrate, Barsar District Hamirpur (H.P.), who

acquitted the workman on 28.6.2003, but the management

still continued with the departmental enquiry. The workman

was not allowed to examine certain accounts and

documents in the disguise of initiation of the departmental

enquiry. The workman was also not allowed to be defended

by the representative of the Union and curtailed the right

of the employee by holding the departmental proceedings

hastily. Workman was not allowed to defend himself during

the enquiry properly and documents were not supplied

and enquiry was adjourned to next date without offering

him the opportunity of defence. Workman's request for

recalling the management witness Sh. H.S. Lamba also

declined by the enquiry officer. It is further alleged by the

workman that enquiry was not conducted as per set

procedure and the workman was not allowed proper

opportunity of defence and the alleged misconduct does

not fall within the provisions of misconduct, in view of

provisions of Sastry Awards/Bipartite settlements. It is also

alleged by the workman that his appeal against the order of

the disciplinary authority was not given due consideration

and dismissed on 22.10.2002. The orders of disciplinary

and appellant authority are not speaking orders and are

unjust, unlawful and illegal and without applying their

minds. It is further submitted by the workman that no

financial loss was suffered by the Bank from any of the

alleged instances. More over the workman was also

acquitted by the criminal court on the same set of facts. It

is further submitted by the workman that the punishment

awarded to the workman is quite harsh, illegal, unlawful,

discriminatory and disproportionate to the alleged

misconduct and the workman is liable to be reinstated in

service with full back wages and other consequential benefit

of service.

3. In written statement the management has taken

primary objection that the claim of the workman was not

maintainable as the workman himself admitted his guilt/

misconduct in his admission and confession. It is further

submitted by the management that the action against the

workman was taken in terms of provisions of Chapter 19 of

the Bipartite Settlement and proper opportunity of defence

was provided to the employee during the departmental

proceeding which was conducted fairs & properly. It is

specifically prayed by the management that issue of fairness

and justness of the enquiry may be decided first. On merits

it was denied by the management that workman has

rendered good services. He was issued charge sheet which

is so follows:—

I. While crediting the DICGC Guarantee Fee

Refund in October, 1997 refund of upfront fee

on 12.11.1998, Interest subsidy received from

DRDA on 18.02.1999 & 20.08.1999,

misappropriation was made by not crediting in

910

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

eligible accounts. The details of these accounts

were advised vide annexure A, B & C to the

charge sheet.

II. It has been also detected that wherever

subsidy/refund etc. were credited in the correct

accounts that has been inflated or deflated to

make it in the round figures. The comparison of

these accounts pass books (wherever available)

with ledger reveals that the same was adjusted

by you against cash/installments tendered by

the borrowers. Case was covered under

Annexure D to the Charge Sheet.

III. Comparison of loan passbooks with ledgers

reveals that you use to inflate the amount of

interest in the pass book of loanees and at the

time of receipt of installments. You have credited

the pass book with the exact amount of cash

tendered by the borrower (to you at the loan

seat) but later on the amount send to Cashier

was reduced by that inflated amount (interest).

The details of these accounts were covered

under Annexure D to the Charge Sheet.

IV. You use to inflate the balances of Demand Loan

either by passing the voucher of interest of

lesser amount than that posted in the ledger or

inflated the balance by extracting the balance

after levy of interest at the time of adjusting of

account. In some cases at the time of closure/

adjusting of accounts you have altered the

interest levied of previous quarter and

summated the accounts under your own initials,

thus, inflated the balances & got them adjusted

with higher amounts thus leaving credit in the

ledger. The details of such accounts was

covered under Annexure E to the Charge Sheet.

V. The excess credit available in the ledger was

adjusted by you by crediting fictitious credit

entries in your own demand loan account &

some other account. The details were covered

Annexure F to the Charge Sheet.

VI. All the entries in the pass-books/ledgers have

been in your own handwriting.

VII. Two of the borrowers namely Barfi Devi and

Garib Dass have tendered the money to you for

depositing in their loan accounts. Receipts for

the same were also issued by you but these

were not deposited in the Bank. The details of

such cases/instances were covered under

Annexure G to the Charge Sheet.

VIII. For some of the fraudulent entries you have

given confession letters, which formed

annexure I to J to the Charge Sheet.

4. It is stated by the management that FIR was lodged

against the workman but not on the same set of facts. It is

denied that the workman was not allowed to examine certain

document and record. It is also denied by the management

that any prejudice has been caused to the workman. The

enquiry was conducted in fair and proper manner and there

is no violation of clause 19.12 of bipartite settlement. The

appeal of the workman was also dismissed vide order dated

22.10.2002. The penalty imposed upon the workman is quite

legal lawful and proportionate and the workman is not

entitled to any relief.

5. The workman also placed on record the criminal

case judgement passed by Additional CJM Barsar, District

Hamirpur.

6. The management also placed on record affidavit

of one J.S. Jaswal who has also filed documents which

contains enquiry proceedings. The management also

placed on record the final conclusion arrived at by the

enquiry officer. The management also placed on record

affidavit of Y.K. Chauhan. The workman also placed on

record the judgment in Civil Suit No. 712/2003, Punjab

National Bank vs. Surender Kumar where by the suit filed

by the management of the Bank against the workman was

dismissed.

7. During the course of the proceedings the workman

Surinder Kumar expired and his LR's Neena Khawla (wife)

age 38 years, Abhirnta Khawla (daughter) age 13 years old,

Sajal Khawla (son)age 9 years, were brought on record as

LRs of the deceased workman.

8. On behalf of the workman, written argument also

placed on record & learned counsel for the workman also

made submission in oral arguments.

9. The learned counsel for the workman submitted

that the workman was served with the charge sheet

containing 8 charges after one & half year of the alleged

incident which is after thought of the management and the

enquiry was also conducted hastily and the workman was

not allowed to lead defence properly and the workman's

letter written to Shri H.S. Lamba about the incident and he

never admitted the charges before Mr. H.S. Lamba who

dishonstely shown this letter as confession letter and the

workman was proceeded against on the basis of this alleged

confession. During enquiry the workman was not allowed

to examine certain record and document which caused great

prejudice to the workman. Major penalty of dismissal was

awarded to the workman without notice which is against

the settled principal of law. The workman never admitted

the charges. Besides this, he was acquitted by the

additional chief Judicial Magistrate in criminal case on

28.6.2003 and in view of above he should have been let off

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

911

from the disciplinary proceedings. Document of the

management which are alleged to be confessions of the

workman Ex. M244 and 245 have not been proved by any

witness of the management.

10. It is further submitted by the learned counsel for

the workman that punishment awarded to the workman is

disproportionate to the charged as workman was not

involved in any offence which constituted moral turpitude.

Management has not taken any disciplinary action against

the other officials who are also part and parcel of these

transactions. It is further submitted that departmental

enquiry was not conducted as per provisions of chapter 19

of the Bipartite Settlement dated 19.10.1966 and charge

sheet was served upon the workman by concocting false

case and by fabricating false evidence. The punishment is

shockingly disproportionate. It is prayed by the learned

counsel for the workman that the order of punishment may

be set aside and the legal heirs of the deceased workman

may be granted back wages and other benefits from the

date of dismissal. His one legal heir may be provided with

bank service.

11. In the rebuttal the learned counsel for the

management during arguments submitted that the workman

has confessed to his guilt in the letters Ex. M244 and M25

and during the enquiry proceedings also he made

confession and once the workman confess to his guilt he

cannot claim that enquiry was not held fairly and properly.

Enquiry was held following the principles of natural justice.

The workman is not entitled to relief. It is further submitted

by the learned counsel that acquittal in criminal case does

not entitle the workman for reinstatement as he was held

guilty in domestic enquiry. The workman was provided full

opportunity to defend himself during enquiry and the

enquiry was conducted in accordance with the principle of

natural justice. He was allowed copies of each and every

document which he demanded. He was also given personal

hearing by the disciplinary authority as well as by the

appellant authority. The punishment awarded to the

workman is not disproportionate and in such situations

where the workman has committed fraud as admitted by

him, the punishment of dismissal is only suitable

punishment for such kind of fraud and misconduct.

Therefore the workman is not entitled to any relief and the

reference may be answered against the workman.

12. I have heard the counsel for the parties and also

gone through the record, enquiry proceedings, as well as

others passed by the disciplinary authority and appellant

authority.

13. First and foremost question to be decided is

whether the enquiry conducted against the workman was

fair, proper and in accordance with the principles of natural

justice?

14. So far as the charges against the workman are

concerned the workman (since deceased) was given the

charge sheet containing 8 charges against him as mentioned

in the charge sheet and in annexures. The workman (since

deceased) was given opportunity to participate in the

enquiry proceedings and he participated as well. From the

perusal of the enquiry report it is clearly revealed that

opportunity was provided to the workman to defend himself

through the union representative of his choice. Workman

himself participated in the enquiry till the end. Workman

was also afforded opportunity to defend himself. Workman

examined 2 witnesses in defence and 14 defence documents

were also submitted by him where as the management

examined 5 witnesses and submitted 245 documents. The

list of witnesses and copies of the prosecution documents

were also provided to the workman. During the enquiry

proceedings workman admitted that "all entries in ledgers

and pass books are in his own hand writing". Workman

submitted the written briefs during enquiry proceedings.

Enquiry officer in his detailed enquiry reported mentioned

that "all entries have been done by Shri Khawla and this

has already been admitted by Shri Khawla that all entries in

ledger accounts and pass books have been done by him".

15. Enquiry officer given his finding that the charges

leveled against the workman from charges No. 1 to 8 have

been proved.

16. The disciplinary authority after considering the

enquiry proceedings and enquiry report and after

considering the facts and circumstances of the case

dismissed the workman from service. The workman

preferred departmental appeal against the order of the

disciplinary authority to the appellate authority which was

also rejected by the appellate authority after considering

the same.

17. So far as the enquiry is concerned, from the

enquiry proceedings and enquiry report, order of the

disciplinary authority and appellant authority, it is revealed

that the workman was given full opportunity to defend

himself. The workman was allowed to produce his witnesses

in defence. He was given the opportunity to defence himself

through the representative of the union of his choice. He

continues to defend himself in the enquiry till the end. The

workman failed to show that he was denied to examine

documents during enquiry, workman also failed to point

out any infirmity in the enquiry proceedings conducted by

the enquiry officer. There is nothing to show that enquiry

conduct was not in accordance with the principles of

natural justice.

18. On behalf of the workman it is submitted during

arguments that the criminal trial on the same set of charges

was initiated by the management in the court of Additional

Chief Judicial Magistrate Barsar, District Hamirpur (HP)

and the workman was acquitted of the charges under

section 409, 420 and 473 of IPC. The copy of judgment of

Additional Chief Judicial Magistrate dated 28.6.2003 has

also been filed on behalf of the workman. It is further

912

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

submitted on behalf of the workman that management filed

a recovery suit in the civil court which was also dismissed

by the Civil Court.

19. The management submitted that parameters for

conducting the enquiry and criminal trial are different. In

departmental enquiry different principles are followed. In

2013 Labour Law reporter page 843, Deputy General

Manager Indian Bank Versus Presiding Officer Central Govt

Industrial Tribunal-cum-Labour Court Chennai and another

Hon'ble Madras High Court has held that standard of

evidence in criminal trial and the disciplinary proceedings

is entirely different as the rigid rule of evidence are not

applicable in the disciplinary proceedings hence the

acquittal of the employee in the criminal trial will have no

bearing upon the punishment imposed by the disciplinary

authority.

20. On behalf of the workman it is submitted during

arguments that punishment is disproportionate to the

charges leveled against the workman. In 2013 LLR page

180 Canara Bank Versus Naresh Kumar Gupta, the Hon'ble

Delhi High Court held that:—

"Dismissal—When justified—Respondent was a

clerk/cashier—He failed to credit the amounts

deposited by two customers in their S/B accounts

on the same day—Amounts were credited in

respective accounts on the next day—In one case,

he credited the amount in the respective account

after more than 20 days—Charge-sheet was issued

to him—Enquiry was held—Out of three charges

two were proved Respondent was dismissed from

service—Tribunal awarded reinstatement with full

back-wages to the respondent holding that charges

were not proved against the respondent—

Negligence of respondent was a minor typographical

error-Petitioner challenged Award passed by the

Tribunal by filing writ petition-held, temporary

embezzlement of customer's money is a serious

misconduct which cannot be lightly brushed aside—

Punishment of dismissal is neither harsh nor

disproportionate—Hence, impugned Award is set

aside".

21. In view of the discussion made above it is held

that enquiry was conducted against the workman in fair

and proper manner and in accordance with the principles

of natural justice and the punishment of dismissal is neither

harsh nor disproportionate to the charges. Resultantly the

action of the management of Punjab National Bank, District

Hamirpur (HP) in dismissing Shri Surinder Kumar (since

deceased) clerk-cum-cashier from Bank services w.e.f.

01.07.2002 is just and legal and he is not entitled to any

relief. The reference is answered accordingly. Hard copy

as well as soft copy be sent to the Central Govt. for

information & publication.

Chandigarh

5.12.2013

S.P. SINGH, Presiding Officer.

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 342.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsUVªy cSad vkWQ

bf.M;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

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vfèdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼11@2004½ izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 10-01-2014 dks izkIr gqvk FkkA

[lañ ,y&12011@270@2003&vkbZ vkj ¼ch&II½]

jfo dqekj vuqHkkx vfèdkjh

New Delhi, the 10th January, 2014

S.O. 342.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 11/2004) of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the industrial dispute

between the management of Central Bank of India and their

workmen, received by the Central Government on

10/01/2014.

[No. L-12011/270/2003-IR(B-II)]

RAVI KUMAR Section Officers

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/11/2004

PRESIDING OFFICER: SHRI R.B. PATLE

General Secretary,

Daily Wages Bank Employees Association,

Hardev Niwas, 9, Sanwer road,

Ujjain

....Workman/Union

Versus

Regional Manager,

Central Bank of India,

Regional Office, 6/3,

Race Course Road,

Indore

....Management

AWARD

(Passed on this 10th day of December, 2013)

1. As per letter dated 8-3-2004 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section-10 of I.D. Act, 1947 as per Notification No L-12011/

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

913

270/2003-IR(B-II). The dispute under reference relates

to:

"Whether the action of the management of Regional

Manager, Central Bank of India, Indore in terminating

the services of Shri Manoj Likhar and not regularizing

his services is justified? If not, what relief the

workman is entitled for?"

2. After receiving reference, notices were issued to

the parties. Ist party workman submitted statement of claim

at Page 2/1 to 2/6, Case of Ist party workman is that he was

working as casual employee for 60 days in 1984, 90 days in

1985, 60 days in 1987-88 in different branch of the Bank at

Indore. That as per Bipartite settlement dated 6-4-93, the

employees working for 90 days or more during 1982 to 1990

are entitled for appointment on permanent basis. That Ist

party workman was called for written test on 9-3-93. He

further submits that the answer-sheet given to him was

indicating for Schedule Caste. Vide letter dated 26-9-93,

was informed for his selection as peon. He was called for

personal interview on 12-7-93. He further submits that after

his personal interview, panel list was published. His name

was appearing at Sl. No 3 in the panel list. In the year 1987,

Ist party workman was employed on regular pay scale for

60 days. He was again called for employment from 1-8-99 to

28-8-99. Despite his name appeared in selection list, he was

not appointed as permanent employee. He had submitted

representations to ALC, Bhopal.

3. Ist party workman further submits that he and other

employee Rajesh and Pankaj were not appointed as

permanent employees. Despite of their selection after the

interview and written test conducted by IInd party. That

letter dated 7-7-2003 by General Manager, Mumbai was

informed that the list is alive. That his services are

discontinued from 29-9-99 in violation of Section 25-F, G.N

of I.D. Act. He was not given one months notice,

retrenchment compensation is not paid to him. The list of

employees is not displayed on notice board. For violation

of statutory provisions of Ist party submits that termination

of his service is illegal. He prays for reinstatement with

consequential benefits.

4. IInd party field Written Statement denying claim

of Ist party. That Shri Ram Nagwanshi claiming to be General

Secretary of Daily Wage Employees Union has not filed

any document about his authorization. That Ist party has

not produced resolution authorizing him to represent

workman. The document of membership are not produced.

Shri Ram Nagwanshi has no locus standi to represent

workman. That as he is a dismissed employee. That as per

Section-6,21 of Table Union Act, the dismissed employee

cannot represent co-employee. It is submitted that Ram

Nagwanshi is carrying his profession under rise of Trade

Union Activities.

5. IInd party filed Written Statement at Page 5/1 to 5/

3. Claim of Ist party is denied. Letter dated 12-3-91 was

received as per the settlement with Union dated 24-12-90.

That circular dated 20-9-93 provided the employees

sponsored through Employment Exchange were

considered. The employees working for 90 days during

1982 to 1986 and employees working for 60 days in 1987 to

90 were also considered. The successful candidates were

included in the panel list. The panel list will continue to

remain in force till its life is over. IInd party denied that Ist

party workman worked for 60 days in 160 days during any

of the year. It is therefore submitted that workman is not

entitled to the relief prayed by him.

6. Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:—

(i) Whether the action of

In Affirmative

management of Regional

Manager, Central Bank

of India, Indore in

terminating the services

of Shri Manoj Likhar and

not regularizing his

services is justified?

(ii) If not, what relief the

Workman is not entitled

workman is entitled to?"

to any relief.

REASONS

7. Ist party workman is challenging his termination

from services as per his contentions He was not regularized

despite of selection after Written Test and interview for

permanent peon. The services were discontinued from

29-9-99 in violation of Section 25-F, G, N of I.D. Act. workman

has produced documents Exhibit W-I letter by General

Manager (P) providing absorption of temporary employee

working for 90 days during 1-1-90 to 24-12-90 and temporary

employees working for 60 days during 1987 to 1990.

Document Exhibit W-2 is letter calling for Written Test for

recruitment of peon. Exhibit W-3 is letter given to Ist party

workman for personal interview on 12-9-1953. It also refers

to the recruitment of peon. Exhibit W-4 is list of successful

candidates. name of Ist party workman is appearing at Sl.

No. 3 of candidates belonging to SC, ST. Exhibit W-5 is

letter given to workman informing that he was appointed

for the period 5-8-99 to 28-8-99 as sweeper. Said document

clearly shows that his appointment was for specific period.

Workman has not produced documents of his appointment

as on the post of permanent sweeper. Document Exhibit

W-6 is copy of application submitted to ALC, Bhopal in

support of his claim. Exhibit W-7 is copy of reply filed

before ALC by IInd party. IInd party has submitted that the

Ist party workman was called for Written Test and oral

interview alongwith Rajesh Kalyani, Pankaj Bundela. That

actiona s per rules shall be taken. Exhibit W-8 is copy of

reply submitted by IInd party before ALC that the claim of

Ist party is not admitted. Exhibit W-9 is letter given by Shri

914

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Ram Nagwanshi so called Secretary of Daily Wage

employee Union to Labour Ministry of Government of India

requesting inspection of Central Bank. Exhibit W-10 is copy

of payment of wages. W-11 is copy of letter given by Union

to the Manager of the Bank. Exhibit W-2 is letter given by

ALC calling report from the management. Exhibit W-13 is

letter given by Secretary of Daily Employees Union pursuing

claim in the matter. Exhibit W-14 is also the similar letter

given by management. Management had issued

instructions that the work has been taken from the workers

instead of other persons continued to employee. Exhibit

W-15 is letter given by Secretary of the Union. Exhibit

W-16 is letter given by management. It is admitted that the

candidates were interviewed.

8. Ist party workman filed affidavit of his evidence

contending that he had worked for 60 days in 1984, 90 days

in 1985, 60 days in 1986, 1987, 1988 & 1989. He has also

stated that he was called for Written Test on 14-3-93. His

name was appearing at Sl. No. 3 of SC, ST candidates. That

he was not given appointment as permanent employee. In

his cross-examination, workman says that in 1985, he

worked for 60 days , from 1986, he worked continuously in

different branches of the Central Bank. He was working on

daily wages. He worked maximum 60 days. That he had

passed Written Test, he belong to SC. He claims ignorance

how many post are vacant in the Bank. He admits that

appointments are made only when the post are vacant.

That any of the candidates selected after interview are not

given appointment. He denies that the post are not vacant

in the Bank.

9. Management has not adduced evidence. The

documents and evidence produced by workman are not in

respect of the selection made for permanent appointment.

Rather the evidence shows that panel list of daily wage

employee was prepared. The evidence of the workman is

not sufficient to prove that he was continuously working

for more than 240 days during any of the year. Therefore

the workman is not covered under Section 25-B of I.D. Act.

He is not entitled to protection under Section 25-F of I.D.

Act. Therefore appointment of Ist party workman as per

Document Exhibit W-5 was for specific period of 23 days.

Therefore termination of his services in violation of Section

25-F cannot be said illegal. Workman himself admits that

any of the candidates in the panel list were not given

appointment. Only Ist party workman cannot claim

appointment on the post of permanent peon. His claim in

that regard is not justified. For above reasons, I record my

finding in Point No. 1 in Affirmative.

10. In the result, award is passed as under:—

(1) Action of IInd party in terminating the services of

Shri Manoj Likhar and not regularizing his services

is proper.

(2) Workman is not entitled to relief prayed by him.

R.B. PATLE, Presiding Officer

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 343.—vkS|ksfxd fookn vfèfu;e&1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsUVªy cSad vkWQ

bf.M;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky; tcyiqj ds iapkV ¼130@02½ izdkf'kr djrh

gS tks dsUnzh; ljdkj dks 8-01-2014 dks izkIr gqvk FkkA

[lañ ,y&12012@92@2002&vkbZ vkj ¼ch&II½]

jfo dqekj] vuqHkkx vfèdkjh

New Delhi, the 10th January, 2014

S.O. 343.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 130/02) of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Jabalpur as shown in the Annexure, in the industrial dispute

between the management of Central Bank of India and their

workmen, received by the Central Government on 10.01.2014

[No. L-12012/92/2002-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/130/2002

PRESIDING OFFICER: SHRI R.B. PATLE

Shri Prakash Rao,

S/o Late Ramu Dange,

opp Sharma Garage,

H.No. 7, C/o Naidu, Hatampura,

Khandwa (MP)

.......Workman

Versus

Regional Manager,

Central Bank of India,

Regional Office,

Above city Post office,

Mangalwara,

Hoshangabad

.......Management

AWARD

(Passed on this 4th day of December 2013)

1. As per letter dated 6-9-2002 by the Government of

India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under

Section-10 of I.D. Act, 1947 as per Notification No. L-12012/

92/2002-IR(B-II). The dispute under reference relates to:

"Whether the action of the management of Regional

Manager, Central Bank of India, Hoshangabad in

terminating the services of Shri Prakash Rao, S/o

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

915

Late Ramu Dange w.e.f. 31-8-2001 is legal and

justified? If not to what relief the workman is entitled

to?"

2. After receiving reference, notices were issued to

the parties. Workman filed Statement of Claim at Page 4/1

to 4/3. Case of Ist party workman is that he was engaged as

peon on daily wages by IInd party from 10-1-91. He was

working in Shivaji Square Branch Khandwa till 31-8-2001.

His services were orally terminated from 1-9-2001. That he

was working on daily wages from Monday to Saturday. He

was regularly engaged by the IInd party. However in order

of suppress the facts, the wages were paid in different

names. That he was continuously working with IInd party

as peon. He was not paid wages for weekly holidays. From

1-9-2000 till 31-8-2001, he had worked for 302 days. He was

working from 10.30 AM till end of the day. He had completed

240 days continuous service. His services were terminated

without notice, pay in lieu of notice was not paid to him. he

was not paid retrenchment compensation. On such ground,

he submits that his services are terminated in violation of

Section 25-F of I.D. Act. He prays for reinstatement with

back wages.

3. IInd party filed Written Statement at Page 8/1 to 8/3.

IInd party totally denied claim of workman.

IInd party submits that workman was engaged on daily

wages. He cannot be said regular employee, provisions of

I.D. Act are not applicable to him. In the matter, the dispute

is not tenable. Workman has submitted misleading facts.

The material facts were supplied by him. That workman

had not completed 240 days continuous service. He was

engaged casually on daily wages. His appointment was

ending at end of the work. Violation of Section 25-F

is denied contending that provisions of I.D. Act are

not applicable as the workman are not working as

employee.

4. Considering pleadings on record, the points which

arise for my consideration and determination are as under.

My findings are recorded against each of them for the

reasons as below:—

(i) Whether the action of the

In Negative

management of Regional

Manager, Central Bank

of India, Hoshangabad in

terminating the services

of Shri Prakash Rao,

S/o Late Ramu Dange

w.e.f. 31-8-2001 is legal?

(ii) If not, what relief the

Relief prayed by workman

workman is entitled to?"

is rejected.

REASONS

5. Though workman is challenging termination of his

services for violation of Section 25-F of I.D. Act, claiming

that he was regularly working as peon from 10-1-91 till

31.8.01. He has not adduced evidence since support of his

claim. The evidence of workman was closed on 14-1-2011.

Management also did not advance evidence. The evidence

of management was closed on 16-8-2013. As such both

parties failed to adbduce evidence. Both parties did not

properly participate in reference proceedings as workman

has not abduced evidence to substantiate his contentions,

that his services were terminated in violation of section 25-

F of I.D. Act. I record my finding in Point No. 1 in Negative.

6. In the result, award is passed as under:—

(1) Action of the management of Regional Manager,

Central Bank of India, Hoshangabad in terminating

the services of Shri Prakash Rao, S/o Late Ramu

dange w.e.f. 31.8.2001 is proper.

(2) Workman is not entitled to relief as claimed by him.

R.B. PATLE, Presiding Officer

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 344.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dkuMyk iÙku

U;kl ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd okn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky; vgenkckn ds iapkV ¼104@2010½ dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 10-01-2014 dks izkIr gqvk

FkkA

[lañ ,y&37011@06@2008&vkbZ vkj ¼ch&II½]

jfo dqekj] vuqHkkx vfèdkjh

New Delhi, the 10th January, 2014

S.O. 344.—In pursuance of Section 17 of the

Industrial Disptues Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 104/2010)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Ahmedabad (Gujarat) as shown in the Annexure, in the

industrial dispute between the management of Kandla Port

Trust and their workmen, received by the Central

Government on 10.01.2014

[No. L-37011/06/2008-IR(B-II)]

RAVI KUMAR, 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 22nd October, 2013

Reference: (CGITA) No-104/2010

Reference (I.T.C.) No. 1690/08(Old)

916

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

The Chairman

Kandla Port Trust,

Post Box No. 50

Gandhidham (Kutch)

...First Party

And

Their Workman

Ramesh H. Gehani

Through the General Secretary,

Transport & Dock Workers Union, Kandla

21, Yogesh Building, Plot No. 586,

Gandhidham (Kutch)

...Second Party

For the 1st Party

Shri K.V. Gadhia, Advocate

Shri Yogi K. Gadhia, Advocate

For the 2nd party

None

AWARD

The Central Government/Ministry of Labour, New

Delhi vide adjudication order No. L-37011/6/2008-IR(B-II)

dated 22.10.2008 referred the dispute for adjudication to

Industrial Tribunal, Ahmedabad (Gujarat) on the terms of

reference in the Schedule:

SCHEDULE

"Whether the action of the Chairman, Kandala Port

Trust, P.O. Box No. 50, Gandhidham, Kutch in not

paying salary as per designation Superintendent

(Accounts) to Shri Ramesh H. Gehani, Supt.

(Accounts) w.e.f. 01.08.2007 to31.08.2007 is legal and

justified? What relief the workman concerned is

entitled to?"

2. Even upon notice by the Tribunal (Industrial

Tribunal, Ahmedabad) the 2nd party neither appear nor

filed statement of claim when the case record received in

thsi C.G.I.T-cum-Labour Court on transfer by order of MOL,

New Delhi again fresh notice were sent to the parties and

the 1st party (K.P.T.) appeared and filed Vakilpatra in favour

of Gadhia Associates vide Ext. 4 but the 2nd party failed to

appear in this case.

3. The 2nd party who raised the Industrial dispute is

duty bound to file statement of claim since burden of

providing that the action of the Management of K.P.T. is

illegal is not paying salary as per designation is upon the

2nd party Union. The 2nd party has lost interest in this

case. So the reference is fit to be dismissed.

The terms of reference is answered in favour of the

1st party that the action of the Chairman, K.P.T. in not

paying salary as per designation (Superintendent

Accounts) to Shri Ramesh H. Gehani with effect from

01.08.2007 to 31.08.2007 is legal and justified.

The reference is, therefore, dismissed.

Let a copy of Award be sent for publication u/s 17 (1)

to the appropriate Government.

BINAY KUMAR SINHA, Presiding Officer

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 345.—vkS|ksfxd fookn vfèfu;e&1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k eas dsUnzh; ljdkj cSad vkWQ bafM;k

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè

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U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 33/1999½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 10-01-2014 dks izkIr gqvk FkkA

[lañ ,y&12011@38@1994&vkbZvkj ¼ch&II½]

jfo dqekj] vuqHkkx vfèdkjh

New Delhi, the 10th January, 2014

S.O. 345.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. 33/1999) of

the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur as shown in the Annexure, in the Industrial

Dispute between the management of Bank of India and

their workmen, received by the Central Government on

10.01.2014.

[No. L-12011/38/1994-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/33/1999

Date: 11.12.2013

Party No. 1

The Zonal Manager,

Bank of India, Nagpur Zone, Kingsway,

Nagpur.

Party No. 2

Joint General Secretary,

Bank of India Workers Organization,

521, Congress Nagar, Nagpur.

AWARD

(Dated: 11th December, 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 of the

management of Bank of India and their workmen, for

adjudication, to the Central Governmnet Industrial Tribunal-

cum-Labour Court, Jabalpur as per letter No. L-12011/38/

94-IR (B-II) dated 30.12.1994, with the following schedule:—

"Whether the demand of the Bank of India Workers'

Organization, Nagpur on the management of Bank of

India, Nagpur for regularization of the services of 14

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

917

workmen (as per list attached) is justified? If so, what

relief is the said workmen entitled to?"

Subsequently, the reference was transferred by the

Central Government to this Tribunal for disposal in

accordance with law.

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, on behalf of the 14 workmen

(as per list furnished with the letter of reference), ("the

workmen" in short), the union, Bank of India Workers'

Organization, ("the union" in short) filed the statement of

claim and the management of Bank of India, ("Party No. 1"

in short) filed their written statement.

The case of the workmen as presented by the union

in the statement of claim is that party no. 1 is a nationalized

bank and it (union) is a registered trade union and the

service conditions of the employees of the bank are inter-

alia governed by the provisions of Sastry Award, Desai

Award and bipartite settlements signed under the Act and

the workmen are working as sub-staff at different branches

of Party No. 1 since last so many years and they were

sponsored from respective Employment Exchange to the

Bank and each of them has put in more than 100 days of

employment in the Bank and from the nature of duties

extracted from the workmen, it can be found that the same

is of permanent nature. It is further pleaded by the union

on behalf of the workmen that Sastry Award has classified

the employees working in the Bank into three categories,

viz., permanent, temporary and probationary and there is

no other category of employee provided for in the Sastry

Award and naturally therefore, the party No. 1 is under

mandate to employ persons in any one of the aforesaid

categories and there is restriction for appointment of

employees on temporary basis for a period of three months

and in the light of the aforesaid provisions of Sastry Award

if the facts of this case are perused, it will be observed that

the services of each of the workmen has been utilized since

seven to eight years and the breaks given in their services

were artificial breaks to avoid obligation of law and all of

them have put in more than 240 days of work preceding the

12 months of the date of termination and therefore,

provisions of Sections 25-B and 25-F of the Act are attracted

and by virtue of having put in more than six months of

service, they are entitled and by virtue of having put in

more than six months of service, they are entitled for the

status of permanent employee and the party No. 1 is

adopting such practice of using employees for years

together as per their whims and without giving them the

status of permanency much less regularisation in services

and the action of party No. 1 is violative of para 10 of

schedule V to the Act.

The union has prayed for a direction to the party no.

1 to regularize the services of the workman in sub-staff

cadre on permanent basis, with all consequential benefits

and to pay apporpriate wages as per bipartite settlement

with retrospective effect.

3. The party No. 1 in the written statement has

pleaded inter-alia that the workmen have been working

from time to time as budlee sepoys on leave vacancies or

when additional staff is required for coping up with the

temporary increase in the work and none of them has put in

more than 1000 days of work as alleged and since a budlee

sepoy works in place of a regular employee, who may be

on leave or absent due to any other cause, there could not

be any difference in the work performed by the budlee

sepoy and the permanent staff and there was no breach of

provisions of Section 25-B and 25-F of the Act as alleged

and there is no provision under which a budlee sepoy, who

puts in more than six months of service is entitled to status

of permanent employee and budlee sepoys are not

automatically entitled to permanency by merely putting in

a particular number of budlee days and their absorption in

permanent service is clearly dependent upon availability

of appropriate number of vacancies at the particular Zone/

Region as the case may be and as a matter of fact, except

workmen, Shri R.M. Purohit and Shri Rambhau Nakade,

The other workmen are on the approved panel of the Bank

and it was stated even before the Conciliation Authority

that they would be finally absorbed in regular service of

the bank as and when vacancies would arise, on the basis

of seniority depending upon the number of budlee working

days and as workmen, Shri R.M. Purohit and Shri Rambhau

Nakade were engaged by the respective branches purely

on casual basis, they cannot claim any regularisation and

there was no violation of para 10 of the schedule V of the

Act and the Union/Workmen are not entitled to any relief.

4. In support of the claim, the union has examined

nine witnesses including five of the workmen. The

witnesses examined by the union are-(1) Shri Vinayak Joshi,

(2) Shri Shirish A. Damle, (3) Shri Arvind M. Tamhaney, (4)

Shri Rajendra M. Dahikar (5) Shri Prakash U. Awarde, (6)

Shri Manohar G. Khadgi, (7) Shri Rambhau Nakade, (8) Shri

Sahebrao N. Dware and (9) Shri Kishore Kisan Chavan.

It is to be mentioned here that though the evidence

of workman, Shri Purosottam W. Domne on affidavit had

been filed, the said workman was not produced for his

cross-examination, so his evidence cannot be taken into

consideration.

On the other hand, two witnesses, namely, Shri

Rajkumar T. Naik and Shri Lakshmichand S. Kharole have

been examined as the two witnesses on behalf of the party

No. 1.

5. At the outset, I think it necessary to mention that

it is settled beyond doubt by the principles enunciated by

the Hon'ble Apex Court in a string of decisions that the

Tribunal cannot travel outside the terms of reference and

the jurisdiction of the Tribunal in industrial disputes is

918

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

limited to the points specifically referred for its adjudication

and to matters incidental there to.

6. During the course of argument, it was submitted

by the union representative that the workmen were engaged

as peons at various branches of party No. 1 and the

appointment of the workmen was made by the administrative

office of party No. 1 after due interview and their names

were called for from the Employment Exchange and they

were transferred to different branches as per the orders of

the Regional and Zonal Office of party No. 1 and the

workmen were required to perform the duties of full time

peons, although they were paid on daily wages basis from

the first date of their respective appointment and out of the

14 workmen, eight workmen were regularized during the

pendency of the reference and the six workmen, namely,

Prakash U. Awarde, Manohar G. Khadgi, Rambhau Nakade,

Sahebrao No. Dware, Purosottam W. Dhomne and Kishore

K. Chavan, who joined the services of party No. 1 on

01.04.1985, 25.01.1984, 02.08.1986, 28.09.1985, 30.06.1986 and

02.02.1986 respectively were not regularized by the Bank,

despite the existence of permanent vacancies and there

was violation of the mandatory provisions of Sections 25-

F, 25-G and 25-H of the Act and the Party No. 1 adopted

unfair labour practice. It was further submitted by the union

representative that Party No. 1 has virtually admitted the

allegations made in the statement of claim, in their written

statement and from the oral evidence adduced by the union,

which has not been challenged seriously in the cross-

examination and the documentary evidence produced by

the union, it can be held that the claim of the workmen has

been fully proved and as such, the remaining six workmen

as mentioned above are entitled for regulisation in service

with continuity, full back wages and all consequential

benefits.

It was further submitted by the union representative

that Shri Nakade was terminated from services by the party

No. 1 during the pendency of the reference and before his

discontinuance from services, Shri Nakade had completed

nearly 17 years of service and every year he had completed

240 days of service and from the evidence of the workman

and documents produced, such facts have been proved

beyond doubt and the discontinuance of Shri Nakade was

without any notice or reason and juniors to Shri Nakade

were retained and regularized in service by party No. 1 and

therefore, the workman, Shri Nakade is entitled for

reinstatement in service and for regularisation and all the

workmen are entitled to be regularized from the first date of

their engagement.

7. Per contra, it was submitted by the respresentative

for the party No. 1 that the workmen came to be appointed

as sepoy on casual basis and against the leave vacancies,

due to the absence of the permanent staff posted in the

respective branches and the workmen, namely, R.M.

Purohit, Y.C. Yedke, Bhagde, Gujbhiye, Tembhekar, Tohde,

Khadgi, S.N. Ateand R.N. Kurve have already been

absorbed in services and workmen, Kishan, Chavan, S.N.

Dware, Prakash Awarde, Purosottam Dhomne and Rambhau

Nakade have contested the present reference. It was further

submitted by the management representative that in the

written statement, it has been specifically pleaded that

workmen, R.M. Purohit and Rambhau Nakade were

appointed on casual basis and they are not entitled for

regularisation and none of the said workmen had completed

240 days of work in any calendar year and the affidavits of

the witnesses examined by the union are general affidavits

and no reliance can be placed on the same and no document

has been produced by the workmen to demonstrate that

they had worked for 240 days in any calendar year, so the

provisions of the Act are not applicable and Party No. 1 did

not adopt any unfaire labour practice. It was also submitted

by the management representative that workmen R.M.

Purohit failed to adduce any evidence, so as to demonstrate

his case and to prove the same and he also failed to enter

into the witness box and therefore, he is not entitled for

any relief and workman Rambhau Nakade in his evidence

has admitted that he was terminated from services in 2002

and as the statement of claim was not amended seeking the

relief of reinstatement in service by setting aside the order

of termination, he is not entitled for any relief much less the

relief of regularisation and workman, Rambhau in his cross-

examination has admitted that he has not filed on record

any document to demonstrate that he was sponsored

through the Employment Exchange and he had received

any call letter issued by the party No. 1 to him and he has

also admitted that no appointment letter was issued to him

and as he had not questioned his termination, the question

of granting of any relief to him does not arise.

In support of the submissions, reliance was placed

by Party No. 1 on the decisions reported in (2006) 1 SCC -

106 (R.M. Yellatti Vs Asstt. Executive Engineer), (2006) 9

SCC - 697 (Krishna Bhagya Jal Nigam Ltd. Vs Mohd. Raffi),

(2006) 9 SCC - 132 (Surendra Nagar District Panchayat Vs

Gangaben), writ Petition No. 1072/2002 of Hon'ble Bombay

High Court, Nagpur Bench, (2006) 6 SCC - 221 (Reserve

Bank of India Vs Gopinath Sharma) and 2006 AIR SCW. -

1991 (Secretary Vs. Umadevi).

8. Though the reference has been made by the Central

Government for adjudication of the legality or otherwise of

the demand of the union for the regularisation of the

workman in the services of the Bank, the union, in the

guise of raising the dispute on behalf the workman has

tried to challenge the policy adopted by the party No. 1 of

engaging persons on temporary basis, inspite of having

number of permanent vacancies in the cadre of sub-staff at

different branches of the Bank. In view of the settled

principles that the Tribunal cannot travel beyond the terms

of reference as already mentioned above and in view of

the fact that such specific terms of reference has not been

made by the Government, such claim cannot be

adjudicated.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

919

9. At this juncture, I think it necessary to mention the

principles enunciated by the Hon'ble Apex Court in the

decision reported in (2006) 6 SCC - 221 (supra). The Hon'ble

Apex Court have held that:—

"Labour Law-Dialy wager-Disengagement of-Validity-

Workman not appointed to any regular post but

engaged on the basis of need of work on day to day

basis, held had no right to post."

10. At this juncture, I also think it necessary to

mention about the principles enunciated by the Hon'ble

Apex Court in catena of decisions including the decision

reported in 2006 AIR SCW-1991 (Secretary, State of

Karnataka Vs. Umadevi & others) (Constitutional Bench).

It is settled beyond doubt by the Hon'ble Apex Court

that:—

"Rules of recruitment cannot be relaxed and the

court/Tribunal cannot direct regularisation of

temporary appointees de hors of rules-State owned/

operated corporations-Appointment-Modes of

appointment- Held regularization cannot be a mode

of appointment- Public Sector - Appointment - Mode

of appointment- Held, regularization cannot be a

mode of appointment- Labour Law - Appointment -

Mode of appointment - Held, regularization cannot

be a mode of appointment - Regularization - Held,

not a permissible mode of appointment."

It is also settled by the Hon'ble Apex Court that:

"The term 'termporary employee' is a general category

which has under it several sub-categories e.g. casual

employee, daily-rated employee, ad hoc employee,

etc. A daily-rated or casual worker is only a termporary

employee, and it is well settled that a termporary

employee has no right to the post, or to be continued

in service, to get absorption, far less of being

regularized and getting regular pay. No doubt, there

can be occasions when the state or its

instrumentalities employee persons on temporary or

daily wage basis in a contingency as additional hands

without following the required proceudre, but this

does not confer any right on such persons to continue

in service or get regular pay. Unless the appointments

are made by following the rules, such appointees do

not have any right to claim permanent absorption in

the establishment. The Court cannot direct

continuation in service of a non-regular appointee.

Even if an ad hoc or casual appointment is made in

some contingency the same should not be continued

for long, as was done in the present case. A casual or

temporary employment is not an appointment to a

post in the real sense of the term. The argument that

since one has been working for some time in the

post, it will not be just to discontinue him, even

though he was aware of the nature of the employment

when he first took it up, is one that would enable the

jettisoning of the procedure establish by law for

public employment."

It is also settled by the Hon'ble Apex Court that:—

"Employment on daily wage - Confers no right of

permanent employment - Daily wager appointed on

less than minimum wages - Not forced labour -

Continued on post for long period - Daily wagers

from a class by themselves - They cannot claim parity

vis-a-vis those regularly recruited on basis of relevant

rules and cannot be made permanent in employment.

Employees were engaged on daily wages in the

concerned department on a wage that was made

known to them. There is no case that the wage agreed

upon was not being paid. Those who were working

on daily wages formed a class by themselves, they

cannot claim that they are discriminated as against

those who have been regularly recruited on the basis

of the relevant rules. No right can be founded on an

employment on daily wages to claim that such

employee should be treated on a par with a regularly

recruited candidate and made permanent in

employment even assuming that the principle could

be invoked for claiming the equal wages for equal

work. There is no fundamental right in those who

have been employed in daily wages or temporally or

on contractual basis, to claim that they have a right

to be absorbed in service. They cannot be said to be

holders of a post, since, a regular appointment to be

made only by making appointments consistent with

the requirements of articles 14 and 16 of the

Constitution. The right to be treated equal with the

other employees employed on daily wages, cannot

be extended to a claim for equally treatment with

those who were regularly employed. That would be

treating unequals as equals. It cannot also be relied

on to claim a right to be absorbed in service even

though they have never been selected in terms of

relevant recruitment rules."

Keeping in view the settled principles as mentioned

above, now, the present case in hand is to be considered.

11. In this case, the schedule of reference is regarding

the justification or otherwise of the demand of the union

for regularisation of the services of the 14 workmen, as per

the list attached with the letter of reference.

The union in the statement of claim has also made

prayer for regularisation of the workmen immediately.

As from the materials on record, specifically, the

suggestion given to Shri Rajkumar T. Naik, the witness No.

1 for the party No. 1 in his cross-examination and the

evidence of workman, Shri Manohar G. Khadgi, it is found

that the workmen, namely, 1. Khadgi, 2. R.M. Purohit, 3.

Y.C. Yedke, 4. Bhagade, 5. Tembhekar, 6. Gajbhiye, 7. Rokde

920

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

alias Tohde, 8. S.N. Ate and 9. R.N. Kurve have already

been regularized by the party No. 1.

Now, in this reference, the industrial dispute in regard

to the rest five workmen, namely, (i) P.U. Awade, (ii)

Rambhau Nakade, (iii) S.N. Daware, (iv) Dhomne and

Kishore Kishan Chavan is to be considered.

12. Persued the record including the pleadings made

by the parties, evidence produced on record and

submissions made in the written notes of argument.

The Party No. 1 in the written statement has pleaded

that, "There was an understanding dated 10.02.1988 reached

between the Federation of the union and the management

and the said understanding, it was provided that the Budlee

Sepoys on the approved panels, who have completed 240

budlee days service as on 01.02.1988 in a block of 12 months

or a calendar year be continued on panels and deployed

on leave vacancies on need basis and be absorbed in future

permanent vacancies that may arise during the year 1988

and those Budlee Sepoys on approved panels, who have

not completed 240 days of budlee service in a block of 12

months or a calendar year are to be continued on panel and

be engaged on need basis in leave vacancies that may

arise from time to time at branches where no budlee sepoys,

who have not completed 240 days are avialable on panels

and their case for absorption in permanent service of the

Bank be considered in permanent vacancies that may arise

in subsequent years."

It is further pleaded by the Party No. 1 in paragraph

6 of the written statement that, "Except Shri R.M. Purohit

and Shri Rambhau Nakade, the other sepoys are on the

approved panel of the Bank and it was stated even before

the Canciliation Authority that these persons be finally

absorbed in regular service of the Bank as and when

vacancy arises basing on seniority depending on the

number of budlee days worked."

In view of the above pleadings of Party No. 1, the

workmen, namely, P.U. Awarde, S.N. Dware, Dhomne and

Kishore Kishan Chavan are entitled for their permanent

absorption in the services of Party No. 1 and the Party No.

1 is bound to absorbed them on permanent basis.

Now, the question for consideration is as to from

what date these said four workmen are entitled for permanent

absorption. It is clear from the materials on record that

number of permanent vacancies in sub-staff in the Bank

were are there since long. So, the four workmen namely,

P.U. Awarde, S.N. Dware, Dhomne and Kishor Kishan

Chavan are entitled for regularization in permanent service

from the date on which the last workmen out of the nine

workmen involved in this reference and who have already

been regularized in the permanent service of the Bank, was

regularized in the permanent service of the Bank. The above

named four workmen are also entitled for the differential

back wages due to such regularization and all consequeutial

benefits from the date of such regularization of their services.

13. So far the case of workman, Rambhau Nakade is

concerned, it is the admitted case that he was not engaged

by the Bank since May, 2002 and since May, 2002 he is not

engaged by the Party No. 1 even on casual daily wages

basis. The workman, Rambhau in his evidence on affidavit

has categorically stated that he was discontinued without

any reason and later on 29.05.2002.

As already mentioned earlier, this is a reference for

adjudication of the Industrial Dispute regarding the

justification or otherwise of the demand of the union for

regularization of the services of the 14 workmen. After the

disengagement of the workman, Rambhau, the union

neither raised any dispute challenging the discontinuance

of the said workman by Party No. 1 either before the

Conciliation Authority or by making suitable amendment

of the statement of claim filed in this case.

It is the admitted case that the engagement of the

workman, Rambhau was on casual basis on daily wages as

and when required. Even though it is pleaded by the union

and stated by the workman in his evidence on affidavit

that he worked continuously from 1986 till 29.05.2002 and

had completed 240 days of work on every calendar year, no

reliable documentary evidence has been produced to prove

such facts. The workman, Rambhau in his cross-examination

has admitted that no document has been filed by him to

show that his name was sponsored by the Employment

Exchange and he received a call letter from the Bank to

attend the interview and he has furhter admitted that no

appointment letter was issued in his favour by the Bank.

As the disengagement of the workman, Rambhau

Nakade has not been challenged, it is not possible to pass

any order for his reinstatement in service and for his

regularization in service of Party No. 1. The workman,

Rambhau Nakade is not entitled to any relief. Hence, it is

ordered:—

ORDER

The damand of the Bank of India Workers'

Organization, Nagpur on the management of Bank of India,

Nagpur for regularization of the services of 14 workmen (as

per list attached) except the workman, Rambhau Nakade is

justified. As the nine workmen, namely, 1. Khadgi, 2. R.M.

Purohit, 3. Y.C. Yedke, 4. Bhagade, 5. Tembhekar, 6.

Gajbhiye, 7. Rokde alias Tohde, 8. S.N. Ate and 9. R.N.

Kurve have already been regularized by the party No. 1, no

specific order is passed regarding their regularization.

The four workmen namely, P.U. Awarde, S.N. Dware,

Dhomne and Kishore Kishan Chavan are entitled for

regularization in permanent service from the date on which

the last workmen out of the nine workmen involved in this

reference and who have already been regularized in the

permanent service of the Bank, was regularized in the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

921

permenent service of the Bank. The above named four

workmen are also entitled for the differential back wages

due to such regularization and all consequential benefits

from the date of such regularization of their services.

The workman, Rambhau Nakade is not entitled to

any relief.

The Party No. 1 is directed to implement the award

within one month of the date of the publication of the

award in the official gazette.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 10 tuojh] 2014

dkñvkñ 346.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj U;w bafM;k balksjsul

daiuh fyñ ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds

chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky;] p.Mhx<+ ds iapkV ¼lanHkZ la[;k

1075@2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 10-01-

2014 dks izkIr gqvk FkkA

[lañ ,y&17012@4@99&vkbZ vkj ¼ch&II½]

jfo dqekj] vuqHkkx vfèdkjh

New Delhi, the 10th January, 2014

S.O. 346.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 1075/2005)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,-II,

Chandigarh as shown in the Annexure in the Industrial

Dispute between the management of New India Assurance

Company Limited and their workmen, received by the

Central Government on 10.01.2014.

[No. L-17012/4/99-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

CHANDIGARH

PRESENT: SRI KEWAL KRISHAN, Presiding Officer

Case No. I.D. No. 1075/2005

Registered on 20.09.2005

Shri Anil Kumar Bansal S/o Shri Ravnak Chand Bansal,

R/o House No. 1063, Jind House, Ambala

....Petitioner

Versus

New India Assurance Company Limited, The

Divisional Manager, NIA Co. Ltd. Divisional Office, The

Mall Road, Ambala.

....Respondents

APPEARANCES:

For the Workman

Shri R.P. Rana, Adv.

For the Management

Shri N.K. Zakhmi, Adv.

AWARD

(Passed on 2.12.2013)

Central Government vide Notification No. L-17012/

4/99/IR(B-II) Dated 12.8.1999, by exercising its powers under

Section 10 Sub-Section (1) Clause (d) and Sub-Section

(2-A) of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'Act') has referred the following Industrial

dispute for adjudication to this Tribunal:—

"Whether the action of the Divisional

Management, New India Assurance Co. Ltd., Ambala

Cantt and Branch Manager New India Assurance

Co. Ltd. Amba Market Ambala City in terminating

the services of Shri Anil Kumar Bansal S/o Shri

Raunak Chand w.e.f. 1.12.1987 is just and legal? If

not, what relief the workman is entitled to?"

In response to the notice, workman appeared and

submitted the statement of claim pleading that he was

appointed as Water Boy-cum-Peon w.e.f 1.8.1933 by the

respondent No. 2 on contract basis paying consolidated

salary of Rs. 250/- per month. He continuously worked

from 1.8.1983 to 30.11.1987 when his services were suddenly

terminated. That the termination is illegal as he has

completed more than 240 days of continuous service and

the provisions of Section 25F of the Act were not complied

with. That no inquiry was conducted prior to the termination

of his services and the post is still in existence and the

persons junior to him were retained in service.

He filed a Civil Suit in Ambala which he withdrew.

That the order of termination dated 1.12.1987 be set aside.

Respondent management filed written reply pleading

that the workman was engaged on purely contract basis

and there was no relationship of an employer and employee

between the parties and as such the reference is to be

dismissed. It is further pleaded that the workman filed Civil

Suit in the Court at Ambala which was dismissed and the

appeal preferred by him withdrawn and as such the present

reference is barred by the principles of res judicata.

In support of his case the workman appeared in the

witness box and filed his affidavit reiterating his case as

stated in the claim petition.

On the other hand the management has examined

Shri Vasudev Sharma who filed his affidavit reiterating the

case as stated in the written statement.

922

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

I have heard Shri R.P. Rana counsel for the workman

and Shri N.K. Zakhmi counsel for the management.

It was contended by the learned counsel for the

workman that the workman was appointed on 1.8.1983 on

consolidated salary of Rs. 250/- per month and his services

were illegally terminated on 30.11.1987 without complying

with the provisions of the Act and as such the termination

is illegal. He has further carried me through the consolidated

statements Mark 'A' and letter dated 14.3.1989 Mark 'B' to

submit that the workman has continuously withdrawn the

salary and even the Branch Manager had written a letter to

the Divisional Office that they were considering the

appointment of the workman on regular basis, and these

documents show that workman was a regular employee of

the respndents whose services have been illegally

terminated and he is entitled to reinstatement with all the

consequential benefits.

I have considered the contention of the learned

counsel.

It is the case of the workman himself that he was

appointed as Peon-cum-Water Boy on contract basis

paying consolidated salary of Rs. 250/- per month. Thus

the workman himself admits that he was working on

contract basis. When he was employed on contractual

basis, he cannot claim any right to continue on the post

after the contract comes to an end and in this respect

reliance may be placed on Harminder Kaur and Others Vs.

Union of India and Others 2006(1) S.C.T. 64. Thus the

workman who was working on contract basis cannot claim

any right to the post on which he was working and his

services came to an end when his contract was terminated

or the same was not renewed. Mark 'A' is the chart showing

the salary paid to the workman. Since it is not denied that

the workman worked on contractual basis and he was paid

the salary as agreed above and the same do not establish

by any stretch of imagination that he was employed on

regular basis by the management. The respondent is an

Assurance Company and it is nowhere the case of the

workman that any regular procedure was adopted for giving

appointment to him. Even no appointment letter was issued

to the workman by the respondents nor it is claimed so by

the workman. If the Branch Manager has written the letter

dated 14.3.1989 Mark 'B', the same do not again confer any

right on the plaintiff to continue in service or to invoke the

provisions of the Act.

Thus it is to be concluded that he was not a regular

employee of the respondents and his services were not

terminated and he is not entitled to any relief and the

reference is answered accordingly against him. Let hard

and soft copy of the award be sent to the Central

Government for further necessary action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

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New Delhi, the 13th January, 2014

S.O. 347.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 15/2006) 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 Indian Railway Welfare

Organisation, and their workman, received by the Central

Government on 13.01.2014.

[No. L-41012/138/2005-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, DELHI

I.D. No. 15/2006

Shri Tejbir Sagar

C/o Delhi Labour Union,

Aggarwal Bhawan, G.T. Road,

Tis Hazari, Delhi-110054.

...Workman

Versus

The Managing Director,

Indian Railway Welfare Organisation,

Railway Complex, Shivaji Bridge,

Behind Shankar Market,

New Delhi-110001.

...Management

AWARD

Indian Railway Welfare Organisation (hereinafter

referred to as the management) was formed and got

registered with the Registrar, Societies Registration Act,

1860 (herein after referred to as the Societies Registration

Act), to promote social welfare schemes with a view to

acquire accommodation for serving railway personnel,

retired railway personnel, spouses of deceased railway

personal, personnel of public undertaking under Ministry

of Railways, Central/State Government services, defence

services personnel, public sector undertakings under the

Central/State Government, salaried persons in private

sector, such as companies, banks and schools etc. and to

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

923

do such things as are incidental or considered conducive

to attainments and objectives or any of them. The

management strives to carry out aforesaid objectives for

its members. It functions on 'no proft no loss' basis to

promote housing schemes all over India for its eligible

allotees. For that purpose, the management employs

required staff on tenure basis.

2. Shri Tejbir Singh was appointed as a driver by the

management on 16.04.1991. On 22.06.1991, he fell ill and his

services were discontinued. When he approached the

management again, he was engaged as a motor khalasi

with effect from 01.09.1991, to work at its housing project

at NOIDA. His term of appointment was extended from

time to time. On 21.02.1994, he was again appointed as

driver of three wheeler scooter No. DL 1 CB 9047, to work

at Indirapuram, Housing Project of the management. His

term of appointment was extended from time to time. His

services were disengaged on 31.10.2000. Aggrieved by that

act, he filed a civil suit before the High Court of Delhi

against the management. When pecuniary jurisdiction of

subordinate courts was enhanced, the civil suit was

transferred to district court, Tis Hazari, Delhi. On legal

advice, the claimant withdrew that suit. He raised an

industrial dispute before the Conciliation Officer. Since his

claim was contested by the management, conciliation

proceedings failed. On consideration of failure report,

submitted by the Conciliation Officer, the appropriate

Government referred the dispute to this Tribunal for

adjudication, vide order No. L-41012/138/2005-IR(B-I), New

Delhi dated 22.05.1996, with following terms:

"Whether termination of Shri Tejbir Singh by the

management of IRWO with effect from 31.10.2000 is

just, fair and legal? If not, to what relief the workman

is entitled to and from which date?"

3. Claim statement was filed by Shri Tejbir Singh

pleading therein that he joined employment with the

management as driver on daily wage basis with effect from

16.04.1991. His designation was changed as motor khalasi,

vide letter dated 30.08.1991. However, he continued to work

as driver with the management. His designation was again

changed as that of driver vide letter dated 17.02.1994. He

was granted pay in the scale of Rs. 950-1500. He

continuously worked with the management since 16.04.1991

and rendered services to entire satisfaction of his superiors.

He was working on a job, which was of permanent in nature.

However, the management was giving extension to term of

his appointment from time to time with a view to circumvent

law. On 11.10.2000, a letter was issued wherein it was

mentioned that his services would no longer be required

beyond 31.10.2000. His services were terminated with effect

from 31.10.2000.

4. He pleads that a civil suit was filed by him alongwith

his co-employee for regularization of their services. When

his services were terminated on 31.10.2000, an interim

application was moved before the High Court assailing

action of illegal termination of his service. However, no

specific order was passed on that application. When

pecuniary jurisdiction of subordinate courts was enhanced,

his civil suit was transferred to district court, Tis Hazari,

Delhi. Ultimately, he withdrew his civil suit and sought

liberty from the court to raise an industrial dispute.

5. Claimant projects that termination of his services

was wholly illegal, bad, unjust and malafide. He assails

action of termination of his services on following counts:

(i) The job against which he was working is of a regular

and permanent nature, which still continues with the

management.

(ii) He was a regular and permanent employee and could

not be thrown out of job in the manner it has been

done.

(iii) Action of the management in terminating his services

amounts to unfair labour practice as provided in

section 2(ra) read with Item No. 5 of the Fifth Schedule

appended to the Industrial Disputes Act, 1947 (in

short the Act).

(iv) Action of the management is also violative of Article

21 of the Constitution of India.

(v) He was quite innocent and had not committed any

misconduct and in case of any alleged misconduct

no memo or charge sheet was served upon him and

no domestic inquiry was conducted against him. He

was not afforded any opportunity of being heard.

His services were terminated arbitraily and without

following principles of natural justice.

(vi) In case of his retrenchment, no seniority list was

displayed, nor any notice or pay in lieu thereof was

offered and no service compensation was either

offered or paid to him at the time of termination of

services.

(vii) He has completed more than 240 days of continuous

employment prior to his illegal termination.

(viii) He has been meted out with hostile discrimination as

juniors to him have been retained in service while he

was thrown out of job. Even otherwise, fresh hands

were taken into employment after terminating his

services.

(ix) Even otherwise, impugned termination of his services

is violative of section 25-F, G and H of the Act, read

with rules 76, 77 and 78 of the Industrial Disputes

(Central), 1957.

6. He presents that action of termination of his

services being illegal, is liable to be set aside. He claims

reinstatement in service with continuity and full back

wages.

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

7. Claim was demurred by the management pleading

that it is a private society registered under Societies

Registration Act. It is neither part of the Ministry of Railway

nor an authority under the administrative control of Indian

Railways. The Central Government was not the appropriate

Government to make reference of the dispute to this Tribual

for adjudication. This Tribunal has no jurisdiction to

adjudicate the dispue between the claimant and the

management.

8. The management pleads that it has been

established as a welfare measure to acquire dwelling units

for serving and retired personnel as well as their widows

on 'no profit no loss' basis. The management promotes

housing schemes all over India for eligible allotees. For

promoting housing complexes at various stations all over

India, the management employs required staff on fixed term

and temporary basis. All employees from the post of

khalasis to managing director are appointed for temporary

and fixed tenure basis, since their requirement is solely on

need basis. Such employees work with the management till

the housing project is completed and handed over to the

maintenance society of the members/allotees of the dwelling

units or till such time the welfare activity of the management

may require their services.

9. The management asserts that the claimant was

appointed on fixed tenure as daily wager driver at its Noida

Housing Project on 16.04.1991. When he fell ill on 22.06.1991,

his employment was discontinued. He was again appointed

at Noida Housing Project as a casual motor khalasi on

01.09.1991. He joined his services as such on 03.09.1991.

He was given a fixed tenure for a period of 6 months, which

was extended thrice till 02.03.1994. However, he was

employed as a three wheeler scooter driver with effect from

21.02.1994 at its Indirapuram Housing Project, Distt.

Ghaziabad, Uttar Pradesh. A three wheeler scooter was

procured by the management for ferrying staff and records

of the housing project. Tenure of service of the claimant

was extended from time to time. When his tenure of service

as three wheeler scooter driver came to an end on

31.10.2000, he was relieved from the employment. The said

three wheeler scooter, which was being driven by the

claimant, was extensively used on various project sites at

Noida and Indirapuram. As engine of the three wheeler

scooter outlived its life and became uneconomical, it was

condemned. The three wheeler scooter was sold by way of

public action to one Shri Satnam Singh on 13.11.2000. Since

there was no requirement of three wheeler scooter driver

any more, there was no job for the claimant for continuance

of his term of employment. As such, employment of the

claimant came to an end on 31.10.2000.

10. The management contends that the claimant was

engaged on fixed tenure, which was not extended any

further. Action of the management does not fall within the

ambit of retrenchment as defined by setion 2(oo)(bb) of

the Act. Since action of the management does not amount

to retrenchment, provisions of section 25F and 25G of the

Act have no application. For want of availability of job of

three wheeler scooter driver, term of engagement of the

claimant was not extended any further. It has been pleaded

that the claim put forth by the claimant is not maintainable.

His claim may be dismissed and an award may passed in

favour of the management and against the claimant.

11. Claimant had examined himself in support of his

claim. Shri Chander Bhan, Personnel Officer, entered the

witness box to testify facts on behalf of the management.

No other witness was examined by either of the parties.

12. After hearing the parties, an award was passed

by the Tribunal on 07.06.2010 announcing therein that the

appropriate Government to make a reference of dispute for

adjudication, was the Government of NCT of Delhi. The

Tribunal refrained its hands from entering into the merits

of the matter.

13. The award was assailed by the claimant before

the High Court of Delhi, vide writ petition No. 5094 of 2011.

The writ petition was granted by the High Court vide its

order dated 06.02.2013 declaring therein that the

management can be said to be under the control and

authority of the Central Government and, therefore the

appropriate Government for making a reference of the

dispute is the Central Government and not the Government

of NCT of Delhi.

14. On remittance of the matter by High Court of

Delhi, arguments were heard at the bar. Shri Surender

Bhardwaj, authorized representatives, advanced arguments

on behalf of the claimant. Shri A.K. Tiwari, authorized

representatives, raised submissions on behalf of the

management. Shri Surender Bhardwaj, authorized

representative for the claimant as well as Shri Kamal Kumar

Goswami, office superintendent (Legal) for the management,

filed their written submissions also. I have given my careful

consideration to arguments advanced at the bar and

cautiously perused the record. My findings on issues

involved in the controversy area as follows.

15. Out of facts testified by the claimant, it emerges

that he was engaged as a car driver on 16.04.1991. He asserts

that after three months of service, his designation was

changed to motor Khalasi. However, he continued to work

as a driver. Claimant declares that his designation was again

changed to that of driver in 1994. He was getting his wages

in the scale of Rs. 950-1500. Appointment letter Ex. WW1/1

has been brought over the record by the claimant. He

unfolds that vide letter dated 09.03.1992, his services were

regularized, copy of which letter is Ex. WW1/2. His term of

appointment was extended by the management from time

to time, vide letters Ex WW1/3-to Ex. WW1/14. He served

the management till 31.10.2000, when his services were

dispensed with.

¹Hkkx II—[k.M 3(ii)º

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925

16. Shri Chander Bhan deposed that the management

engages services of some employees on temporary basis

for fixed period. The claimant was engaged as a casual

staff car driver on 16.04.1991. When he fells sick in June

1991, his services were discontinued. On 03.09.1991, he

was engaged again as motor khalasi for a fixed period. In

September 1994, he was again appointed as three wheeler

scooter driver at Indirapuram Housing Project of the

management. He remained in service of the management

till 31.10.2000. His contract of service was not renewed any

further since the project at Indirapuram had been completed

and three wheeler scooter had outlived its life. It was

condemned and disposed off. Thereafter, there was no

vacancy of three wheeler scooter driver with the

management.

17. Facts unfolded by the claimant as well as those

deposed by Shri Chander Bhan are appreciated in the light

of the documents brought over the record. Ex. WW1/1 is

the initial order of appointment issued in favour of the

claimant. On perusal of those documents, it emerged over

the rocord that the claimant was appointed as a motor

Khalasi on wages of Rs. 34.00 per day, purely on temporary

basis with effect from 01.09.1991. It was stipulated therein

that his services were purely temporary and could be

terminated at any time without any notice. His headquarters

was to be at NOIDA. He was required to perform his duties

diligently, sincerely and to entire satisfaction of the

management. Therefore, out of Ex. WW1/1 it came to light

that the claimant was appointed as motor khalasi purely on

temporary basis on wages of Rs. 34.00 per day. Regular

scale of pay was granted in his favour vide letter Ex. WW

1/2. It is detailed therein that the competent authority has

approved grant of regular grade of Rs. 750-940 in favour of

the claimant with effect from 03.03.1992 on terms and

conditions, which are extracted thus:

"1. That your appointment will be purely temporary for

six months from 03.03.1992 and your service can be

terminated at any time without giving any notice.

2. That you will be required to pass medical examination.

3. That your headquarters will be at NOIDA

4. That you will be entitled for TA/DA while on duty

out of your headquarter as per rules in vogue in

IRWO."

18. Temporary service as motor khalasi was extended

for another period of six months, vide letter Ex. WW1/3.

However, it was specified therein that terms and conditions

contained in letter dated 09.03.1992 shall hold good for the

extended period of engagement. Another extension of 6

months was given to the claimant vide letter 13.08.1999,

proved as Ex. WW1/4. However, in this letter too, terms

and conditions contained in letter dated 09.03.1992 were

held to be good for the extended period. Out of these

documents, it emerged that the claimant was engaged

initially as a motor khalasi on daily rates of wages. He was

again engaged for a fixed term of six months as motor khalasi.

He was engaged for a fixed term of 6 months as motor

khalasi vide Ex. WW1/2, which terms of engagement were

extended for another two spells of 6 months, vide letters

Ex. WW1/3 and Ex. WW1/4 respectively. Order of extension

and terms of appointment remained constrained with

stipulation that his services were purely temporary, which

could be terminated at any time without giving any notice.

It was also specified therein that his headquarter was at

NOIDA. This fact brings it to the light of the day that the

claimant was engaged by the management as a motor

khalasi at its housing project at NOIDA.

19. The management took a decision to appoint the

claimant on a post of driver at its Indirapuram Housing

Project. Letter dated 17.02.1994, proved as Ex. WW1/5, was

issued in his favour. In the said letter, it was made clear that

his appointment was temporary for a period of 6 months. In

case his performance is found not to be satisfactory, he

would be reverted as motor khalasi at any time. His term of

engagement was extended for a period of one year, vide

letter dated 12.08.1994. Letter dated 12.08.1994, proved as

Ex. WW1/6, makes it clear that terms and conditions

contained in letter dated 09.03.1992 shall hold good for the

extended period of engagement. Furhter extension for a

period of one year was granted to him vide letter dated

18.07.1995, proved as Ex WW1/7. His services were again

extended for a period of one year vide letter dated 04.08.1996,

proved as Ex. WW1/8. Another extension of 6 months was

granted to him vide letter, proved as Ex. WW1/9. His services

were again extended upto 29.02.1999 vide letter dated

23.10.1998, proved as Ex. WW1/10. In the same manner, his

terms of appointment was extended upto 30.04.1999, then

upto 31.10.1998, for another period of 6 months at two

spells vide letters dated 12.10.1999 and 11.04.2000, which

documents are proved as Ex. WW1/11 to Ex. WW1/14. In

all these letters the management has reiterated that terms

and conditions contained in letter dated 09.03.1992 shall

hold good for extended periods of engagement. Thus, it

emerged over the record that it was emphasized by the

management that the claimant has been engaged purely on

temporary basis and his services were liable to be terminated

at any time without any notice.

20. His engagement as driver was at Indirapuram

Housing Project of the management. On 11.10.2000, the

claimant was informed that due to non-availability of further

work of driver at Indirapuram housing projects, his

temporary contractual service would no longer be required

beyond 31.10.2000. He was put to notice that his contractual

service would stand terminated on 31.10.2000, in accordance

with terms and conditions contained in letter dated

09.03.1992, 17.03.1994, 12.08.1994 and 11.04.2000, which

were accepted by him. It is an admitted case of the parties

that services of the claimant came to an end on 31.10.2000,

when his contract of employment was not renewed any

further.

926

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

21. Shri Chander Bhan testified that Indirapuram

Housing Project of the management had been completed,

hence contract of service of the claimant was not renewed

any futher. He further explains that three wheeler scooter,

which was being driven by the claimant, had outlived its

life, hence it was condemned and disposed off. Since there

was no vacancy of three wheeler scooter driver, his services

were not extended any further. Facts unfolded by Shri

Chander Bhan were not assailed by the claimant. The above

documents as well as testimony of Shri Chander Bhan bring

it to the light that the claimant was working at Indirapuram

Housing Project of the management, which stood

completed. Three wheeler scooter, which was being driven

by the claimant had out lived its life, hence it was

condemned and disposed off. Thus, it stood established

over the record that the vehicle which was being driven by

the claimant was disposed off and there was no other

vehicle available with the management on which services

of the claimant could be availed. Question for consideration

would be as to whether action of the management in not

renewing contract of employment of the claimant would

amount to retrenchment? For an answer, definition of the

term 'retrenchment' is to be construed. Clause (oo) of

section 2 of the Act defines terms "retrenchment". For sake

of convenience, the said definition 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;

ground of continued ill-health".

22. 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).

23. Sub Clause (bb) purports to exclude from the

ambit of the definition of retrenchment (i) termination of

the service of a workman as a result of non-renewal of the

contract of employment between the employer and the

workman concerned, on its expiry, or (ii) termination of the

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf. The first part

relates to termination of service of a workman as a result of

non-renewal of the contract of employment between the

employer and the workman concerned on its expiry. Thus

"non-renewal of contract of employment" pre-supposes

an existing contract of employment, which is not renewed.

When services of an employee is terminated on account of

non-renewal of contract of employment, between the

employer and the workman, it does not amount to

tretrenchment. The second part refers to "such contract"

being terminated under a stipulation in that behalf contained

therein. The cases contemplated, under this part too, would

not amount to retrenchment. However this sub-clause,

being in the nature of an exception to clause (oo) of section

2 of the Act, is reuled to be construed strictly when

contractual agreement is used as modus operandi to

frustrate claim of the employee to become regular or

permanent against a job. The adjudicator has to address

himself to the question whether the period of employment

was stipulated in the contract of employment as a device

to escape the applicability of the definition of retrenchment.

See Shailendra Nath Shukla (1987 Lab. I.C. 1607), Dilip

Hanumant Rao Shrike (1990 Lab. I.C. 100) and Balbir Singh

(1990 (1) LLJ. 443). On review of law laid by the Apex Court

and various High Courts, a single Judge of the Madhya

Pradesh High Court, in Madhya Pradesh Bank Karamchari

Sangh (1996 Lab. I.C. 1161) has laid following principles of

interpretation and application of sub-clause (bb) of clause

(oo) of section 2 of the Act:

"(i) that the provisions of section 2(oo)(bb) are to be

construed benevolently in favour of the workman,

(ii) that if the workman is allowed to continue in service

by making periodic appointments from time to time,

then it can be said that the case would not fall under

section 2 (oo)(bb),

(iii) that the provisions of section 2 (oo)(bb) are not to

be interpreted in the manner which may stifle the

main provision,

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927

(iv) that if the workman continues in service, the non-

renewal of the contract can be deemed as mala fide

and it may amount to be a fraud on statute;

(v) that there would be wrong presumption of non-

applicability of section 2(oo)(bb) where the work is

of continuous nature and there is nothing on record

that the work for which a workman has been appointed

had come to an end".

24. Whether provisions of retrenchment, enacted in

the Act, provide for any security of tenure? Answer lies in

negative. Provisions of retrenchment provide for certain

benefits to a workman in case of termination of his service,

falling within the ambit of definition of retrenchment. On

compliance of the requirements of sections 25F or 25N and

25G of the Act, it is open to the employer to retrench a

workman.

25. Termination of service of an employee during the

period of probation was held to be covered by the exception

contained in sub-clasue (bb) of section 2(oo) of the Act, in

C.M. Venugopal (1994 (1) LLJ 597). As per fact of the case

Regulation 14 of the Life Insurance Corporation of India

(Staff) Regulation, 1962 empowered the Corporation to

terminate the service of an employee within the period of

probation. The employee was put on probation for a period

of one year, which was extended by another year. Since he

could not achieve the target to earn confirmation, his service

was terminated in terms of Regulation 14 as well as order of

appointment. The Apex Court ruled that the case was

covered by the exception contained in sub-clause (bb),

hence it was not retrenchment.

26. In Morinda Co-operative Sugar Mills Ltd. (1996

Lab. I.C. 221) A sugar factory used to employ certain number

of workmen during crushing season and at the end to the

crushing season their employment used to cease. The

Supreme Court held that despite the fact that the workmen

worked for more than 240 days in a year, cessation of their

employment at the end of crushing season would not amount

to retrenchment in view of the provisions of sub-clause

(bb) of section 2(oo) of the Act. It was observed as follows:

"4. It would thus be clear that the respondents were

not working throughout the season. They worked

during crushing seasons only. The respondents were

taken into work for the season and consequent to

closure of the season, they ceased to work.

5. The Question is whether such a cessation would

amount to retrenchment. Since it is only a seasonal

work, the respondents cannot be said to have been

retrenched in view of what is stated in sub-clause

(bb) of section 2(oo) of the Act. Under these

circumstances, we are of the opinion that the view

taken by the Labour Court and the High Court is

illegal. However, the appellant is directed to maintain

a register for all workmen engaged during the seasons

enumerated herein before and when the new season

starts the appellant should make a publication in

neighbouring places in which the respondents

normally live and if they would report for duty, the

appellant would engage them in accordance with

seniority and exigency of work."

27. Above legal position was reiterated by the Apex

Court in Anil Bapurao Kanase (1997 (10) S.C.C 599) wherein

it was noted as follows:

"3. The learned counsel for the appellant contends

that the judgement of the High Court of Bombay

relied on in the impugned order dated 28.3.1995 in

Writ Petition No. 488 of 1994 is perhaps not applicable.

Since the appellant has worked for more than 180

days, he is to be treated as retrenched employee and

if the procedure contemplated under Section 25-F of

the Industrial Disputes Act, 1947 is applied, his

retrenchment is illegal. We find no force in this

contention. In Morinda Coop. Sugar Mills Ltd. v.

Ram Kishan in para 3, this Court has dealt with

engagement of the seasonal workman in sugarcane

crushing, in para 4, it is stated that it was not a case

of retrenchment of the workman, but of closure of

the factory after the crushing season was over.

Accordingly, in para 5, it was held that it is not

'retrenchment' within the meaning of Section 2 (oo)

of the Act. As a consequence the appellant is not

entitled to retrenchment as per sub-clause (bb) of

Section 2(oo) of the Act. Since the present work is

seasonal business, the principles of the Act have no

application. However, this Court has directed that

the respondent mangement should maintain a register

and engage the workmen when the season starts in

the succeeding years in the order of seniority. Until

all the employees whose names appear in the list are

engaged in addition to the employees who are already

working, the management should not go in for fresh

engagement of new workmen. It would be incumbent

upon the respondent management to adopt such

procedure as is enumerated above."

28. In Harmohinder Singh (2001 (5) S.C.C. 540) an

employee was appointed as a salesman by kharga canteen

on 1.6.74 and subsequently as a cashier on 9.8.75. The

letter of appointment and Standing Orders, inter alia,

provided that his service could be terminated by one

month's notice by either party. He ws served with a notice

to the effect that his service would be relinquished with

effect from 30.06.1989. Relying precedent in Uptron India

Ltd. (1998 (6) S.C.C. 538) the Apex Court ruled that contract

of service for a fixed term are exclused from the ambit of

retrenchment. Decision in Balbir Singh (Supra) was held to

be erroneous. It was also ruled that principles of natural

justice are not applicable where termination takes place on

expiry of contract of service.

928

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

29. In Batala Coop. Sugar Mills Ltd. (2005 (8) S.C.C.

481) an employee was engaged on casual basis on daily

wages for specific work and for a specific period. He was

engaged on 1.4.1986 and worked upto 12.2.94. The Labour

Court concluded that termination of his services was

violative of provisions of section 25-F of the Act, hence

ordered for his reinstatement with 50% back wages. Relying

precedents in Morinda Coop. Sugar Mills (supra) and Anil

Bapurao Kanase (supra) the Apex Court ruled that since

his engagement was for a specific period and specific work,

relief granted to him by the Labour Court can not be

maintained.

30. The Apex Court dealt with such a situation again

in Darbara Singh (2006 LLR 68) wherein an employee was

appointed by the Punjab State Electricity Board as peon

on daily wage basis from 8.1.88 to 29.2.88. His service were

extend from time to time and finally dispensed with in June

1989. The Supreme Court ruled that engaged of Darbara

Singh was for a specific period and conditional. His

termination did not amount to retrenchement. His case was

found to be covered under exception contained in sub-

clause (bb) of section 2 (oo) of the Act. In Kishore Chand

Samal (2006 LLR 65), same view was maintained by the

Apex Court. It was ruled therein that the precedent in S.M.

Nilajkar (2003 (II) LLJ 359) has no application to the

controversy since it was ruled therein that mere mention

about the engagement being temporary without indication

of any period attracts section 25 F of the Act, if it is proved

that the concerned workman had worked continuously for

more than 240 days. Case of Darbara Singh and Kishan

Chand Samal were found to be relating to fixed term of

appointment.

31. In BSES Yamuna Power Ltd. (2006 LLR 1144)

Rakesh Kumar was appointed as Copyist on 29.9.89, initially

for a period of three months as a daily wager. His term of

appointment was extended up to 20.9.90. No further

extension was given and his services were dispensed with

on 20.9.90. On consideration of facts and law High court of

Delhi has observed thus:

"... In the present case, the respondent was appointed

as a copyist for totaling the accounts of ledger for

the year 1986-87 and then for 1987-88. His initial

appointment was for the period of three months. It

was extended from time to time and no extension was

given after 20th September, 1990. He was appointed

without any regular process of appointment, purely

casual and on temporary basis for specific work of

totaling of ledger. When this work was over, no

extension was given. I consider that appointment as

that of the respondent is squarely convered under

section 2 (00) (bb) of the Act. Giving of non extension

did not amount to termination of servive, it was not a

case of retrenchment".

32. Precedents, handed down by Allahabad High

Court in Shailendra Nath Shukla (supra), Bombay High

Court in Dilip Hanumantrao Shirke (supra), Punjab &

Haryana High Court in Balbir Singh (supra) and Madhya

Pradesh High Court in Madhya Pradesh Bank Karamchari

Sangh (supra) castrate sub-clause (bb) of section 2(oo) of

the Act. Ratio decidendi in these precedents abrogates

statutory provisions of sub-clause (bb) of section 2 (oo) of

the Act without even discussing the legality or

constitutional validity of the clause. On the other hand the

Apex Court in C.M. Venugopal (supra), Morinda Co-

operative Sugar Mills Ltd. (supra), Anil Bapurao Kanase

(supra), Harmohinder Singh (supra), Batala Coop. Sugar

Mills Ltd. (supra), Darbara Singh (supra) and Kishore Chand

Samal (supra) and High Court of Delhi in BSES yamuna

Power Ltd. (supra) spoke that case of an employee,

appointed for a specific period which was extended from

time to time, would be covered by the exception contained

in sub-clause (bb) of section 2 (oo) of the Act, in case his

services are dispensed with as a result of non-renewal of

the contract of employment between him and his employer,

on its expiry or termination of the contract of employment

in terms of a stipulation contained in the contract of

employment in that behalf. The law, so laid, holds the water

and would be applied to the case of the claimant.

33. Now tuming to facts, the claimant was engaged

for a period of 6 months vide Ex. WW1/2. His engagement

was held to be temporary and liable to be terminated at any

time without giving any notice. The said term of engagement

was extended twice. Thereafter, vide letter dated 17.02.1994,

he was engaged as driver temporarily for a period of 6

months at Indirapuram Housing Project of the management.

His engagement was extended from time to time and lastly

the management opted not to renew his contract of service,

since housing project at Indirapuram stood completed. The

three wheeler scooter, on which the claimant was engaged

as driver, outlived its life, hence it was condemned and

disposed off. On account of these facts, further extension

in the term of engagement was not granted to the claimant

by the management. Thus, it is evident that non-renewal of

term of contract of service does not amount to

retrenchment. Provisions of section 25-F of the Act does

not come into play.

34. During the course of his arguments, claimant

places reliance on the precedent in S.M. Nilajkar (supra)

wherein termination of service of workmen engaged in a

scheme or project was held not to amount to retrenchment

within the meaning of clause (oo) of section 2 of the Act,

subject to following conditions being specified:

(i) that the workman was employed in a project or

scheme of temporary duration;

(ii) the employment was on a contract, and not as a daily-

wager simpliciter, which provided inter alia that the

employment shall come to an end on the expiry of

the scheme or project; and

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

929

(iii) the employment came to an end simultaneously with

the termination of the scheme or project and

consistently with the terms of the contract.

35. When facts of the present controversy were

scanned, as detailed above, it came to light that the

engagement letter Ex. WW1/5 highlights that he was

engaged as driver at Indirapuram Housing Project of the

management. Documents Ex.WW1/1 to Ex.WW1/4 were

clear to the effect that he was engaged as motor khalasi in

temporary capacity at NOIDA Housing Project of the

management. Extension letters Ex.WW1/6 to Ex.WW1/14

make it apparent that the claimant was serving as

contractual driver at Indirapuram Housing Project of the

management. Thus, it is evident that the aforesaid

documents put the claimant on notice that he was being

engaged at Indirapuram Housing Project, which was to

last for a particular length of time. He was well aware that

his employment was short lived. His contract of employment

consciously entered into, resulted in a notice on the date

of commencement of his employment itself that his

employment would be short lived and as per terms of

contract, the same was liable to be terminated on expiry of

the contract and the housing project coming to an end.

Therefore, it is evident that all ingredients laid down by the

Apex Court in S.M. Nilajkar (supra) stood satisfied. Claimant

cannot question applicability of sub clause (bb) of clause

(oo) of Section 2 of the Act to the present controversy.

36. Since non reneweal of the terms of contact of the

claimant does not amount to retrenchment, the management

was not under an obligation to comply with provisions of

section 25-F of the Act. Action of the management in

dispensing with his services with effect from 31.10.2000 is

found to be just, fair and legal. Claimant is not entitled to

any relief, muchless relief of reinstatement in service with

continuity and full back wages. His claim statement is liable

to be brushed aside. According, his claim is discarded. An

award is passed in favour of the management and against

the claimant. It be sent to the appropriate Government for

publication.

Dated : 03.12.2013

DR. R.K. YADAV, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 348.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,u ,Q jsyos 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]

xqokgkVh ds iapkV ¼lanHkZ la[;k 14@2002½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 13@1@2014 dks izkIr gqvk FkkA

[lañ ,y&41012@08@2012&vkbZ vkj ¼ch&I½]

lqefr ldykuh] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 348.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 14/2002)

of the Cent. Govt. Indus.Tribunal-cum-Labour Court,

Guwahati as shown in the Annexure, in the industrial dispute

between the management of N.F. Railway and their workman,

received by the Central Government on 13/01/14.

[No. L-41012/08/2012-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, GUWAHATI, ASSAM

Present:

Shri L. C. Dey, M.A., LL.B.,

Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

Ref. Case No. 14 of 2012

In the matter of an Industrial Dispute between:

The Workman Sri Birendra Goala, Ex-Mason under N.F.

Rly. Karimganj, Assam.

-Vrs-

The Management of N.F. Railway, Lumding Division,

Lumding.

APPEARANCES

For the Workman :

Mr. M. K. Mishra, Advocate

For the Management :

Mr. K. C. Sarma, Advocate

Date of Award: 27.11.2013

AWARD

1. This Reference has been initiated on an Industrial

Dispute exists between the employer in relation to the

Management of N.F. Railway and their workman Sri Birendra

Goala, which was referred to by the Ministry of Labour,

Government of India, New Delhi vide their order No. L-

41012/08/2012-IR(B-I) dated 22.03.2012. The Schedule of

this Reference is as below.

SCHEDULE

"Whether the action of the Divisional Railway

Manager (P), N. F. Railway, Lumding Division, P.O.

Lumding-782447, Assam in deducting the damage

rent w.e.f. 28.02.2002 to 25.12.2004 and recovering

from the Retirement Gratuity and also whether the

action of overlooking the Application dated

29.08.2002 for retention of Quarter for 08 (Eight)

months w.e.f. 29.08.2002 for which damage rent has

been recovered in respect of Shri Birendra Goala is

legal and justified? To what relief the workman is

entitled to?"

930

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

2. On receipt of the order of reference from the

Ministry of Labour, this reference was registered and

notices were issued to both the parties for filing their written

statement and documents along with the direction to the

parties to exchange their copies of written statement/claim

statement and documents between them. Accordingly the

workman has furnished zerox copies of 7 numbers of

documents by post but no written statement has been

submitted by him. The Managment appeared through their

learned Advocate and prayed for time for filing written

statement due to non filing of claim statement by workman.

Thereafter the workman was issued notice afresh with

direction to appear and submit his claim statement. The

workman appeared and verbally prayed for time showing

cause of his failure to engage the lawyer. On 11.6.2013 the

workman again appeared but he did not submit his claim

statement. Subsequently on 25.6.2013 the workman

appeared and his engaged Advocate Mr. M. K. Mishra and

submitted petition with prayer for time for filing claim

statement, which was allowed. Thereafter the workman

remained absent without any step. The Management also

found absent with effect from 20.8.2013. Theareafter the

reference was fixed on 3 consecutive dates i.e. 20.9.2013;

17.10.2013; and 18.11.2013 allowing the parties to submit

their claim statement/written statement but both the parties

are found absent without any step, which reveals that the

parties more particularly the workman is not sincere and

interested to proceed with the reference. Finding no

alternative, hearing of this reference is closed vide order

dated 27.11.2013 and the reference is disposed of on the

basis of the documents available on record.

3. I have perused the record, it appears that the

workman vide his letters dated 4.8.2012 addressed to the

Hon'ble Minister, Government of India, Ministry of Labour

with a copy to this Tribunal acknowledging receipt of the

order of reference dated 22.3.2012 and alleging that the

dispute has been referred to this Tribunal for adjudication

and to pass Award within a period of 3 months but no

action taken from any corner inspite of forwarding of the

copy to the concerned authority by the Ministry. On receipt

of the said letter the workman was again issued notice vide

order dated 1.4.2013 asking him to appear and submit W.S.

Thereafter the workman vide his letter dt. 8.9.12 sent by

Post along with the zerox copies of pay slips, the application

submitted by him to the SSE/Works/BPB, N.F. Railway, by

Post, for retention of quarter for 8 months due to illness of

his wife along with the supporting medical prescriptions;

and a copy of the report of the Assistant Labour

Commissioner (C), Silchar, Cachar. But without bringing

those documents on record by way of evidence these

documents could not be considered. As such, the notice

was issued upon the workman afresh asking him to appear

before this Court and to submit W.S. Then the workman

appeared on 9.5.13 and prayed for time and again on

11.6.2013 the workman appeared but he did not submit any

claim statement. Thereafter, the workman remained absent

and accordingly the proceeding is closed vide the order

dated 27.11.2013.

4. The Management although appeared through their

learned Advocate but they did not submit any written

statement subsequently they also remained absent with

effect from 20.8.2013. Thereafter the hearing of this reference

has been closed.

5. From the above discussion it has become crystal

clear that although the Ministry has referred this dispute

to this Tribunal for adjudication but the parties did not co-

operate with the Court in spite of repeated steps taken by

this Tribunal as well as allowing sufficient time to both the

parties and hence, it has become difficult on my part to

adjudicate the reference on merit and to grant any relief to

the workman.

6. In the result, this reference is disposed of without

granting any relief. Send the no relief Award to the Ministry

as per provision of the law.

Given under my hand and seal of this Court on this

27th day of November, 2013, at Guwahati.

L.L. DEY, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 349.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ikyoku xzkek

cSad ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k] psUubZ ds iapkV ¼lanHkZ la[;k 46/2011½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&12012@07@2011&vkbZ vkj ¼ch&I½]

lqefr ldykuh] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 349.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 46/2011)

of the Central Government Industrial Tribunal-cum Labour

Court, Chennai as shown in the Annexure, in the Industrial

Dispute between the management of Pallavan Grama Bank,

Head Office, and their workmen, received by the Central

Government on 13.01.2014.

[No. L-12012/07/2011-IR(B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

931

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Friday, the 13th December, 2013

Present : K.P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 46/2011

(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 Pallavan Grama Bank and their

workman)

BETWEEN

Sri S. Saravanan :

1st Party/Petitioner

AND

The Chairman :

2nd Party/

Pallavan Grama Bank, Head Office

Respondent

No. 6, Yercaud Road

Hasthampatti

Salem-636007

Appearance:

For the 1st Party/Petitioner

: M/s. K.M. Ramesh,

Advocates

For the 1st Party/Respondent : M/s. L. Jayakumar &

Associates, Advocates

AWARD

The Central Government, Ministry of Labour &

Employment, vide its Order No. L-12012/07/2011-IR(B-I)

dated 03.06.2011 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the action of the management of Pallavan

Grama Bank in not allowing Sri S. Saravanan, Ex-

Sweeper-cum-Messenger, to continue to work in

terms of the appointment and posting order, is legal

and justified? To what relief the workman is entitled?"

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 46/2011 and issued notice to both

sides. Both sides have entered appearance through their

respective counsel and filed Claim and Counter Statement

respectively. The First Party has later filed a rejoinder.

3. The averments in the Claim Statement filed by the

petitioner in brief are these:

The First Party was engaged as Sweeper-cum-

Messenger on daily wages at Dharmapuri branch of the

Respondent Bank and was working in this capacity from

1994. Later he was acting as Driver also. By order dated

31.12.2008 the Second Party absorbed the First Party into

its permanent service as Sweeper-cum-Messenger. The First

Party was to be on probation for one year, as per the order.

A posting order was issued to the First Party and in

compliance with the order the First Party has joined duty at

the Head Office at Salem on 13.09.2009. On 30.01.2009, the

First Party was instructed to submit his original order of

appointment and the posting order to the Chairman to carry

out some correction. After the First Party has submitted

the above orders, the Chairman told him that he need not

report for duty until further orders. He was assured that he

would be taken back in service within a short time. However,

nothing was heard from the Second Party even after 8

months. The First Party had caused to issue a notice to the

Second Party claiming reinstatement in service. Since he

was not taken back in service even after this, the First

Party has raised dispute before the Labour Commissioner,

Chennai. The stand of the Second Party before the Labour

Commissioner was that the order of appointment was given

to the First Party without any authorization or approval of

the sponsor bank who is having administrative control

over the Second Party Bank. The action of the Second

Party in disengaging the First Party from service is arbitrary,

illegal and unjustified. The First Party had worked

continuously for more than 15 years with the second party.

While terminating his service, the First Party was not given

the prescribed notice. His termination is in violation of

Section-25F of the Industrial Disputes Act. The First Party

is entitled to be reinstated into service of the Second Party

with back wages, continuity of service and all other

attendant benefits.

4. The Second Party has filed Counter Statement

contenting as follows:

The Second Party came into being on 31.08.2006 by

merger of Adhiyaman Grama Bank and Vallalar Grama Bank,

two rural banks. The Second Party is sponsored by the

Indian Bank. It is true that the First Party was engaged as a

casual labourer to render odd services and run sundry

errands of and on, during the past years. However, it is

incorrect to state that he was engaged as Sweeper-cum-

Messenger initially and then as Driver in the Head Office

of the Second Party continuously from 1994. The Chairman

of the Second Party has taken a sympathetic view of the

conditions of the First Party and has issued a provisional

order of appointment to the First Party. But while doing so,

he has failed to follow the statutory procedures under the

Pallavan Grama Bank (Officers and Employees) Service

Regulations, 2007. As per Regulation no. 4 of the above

the Chairman can appoint persons in consultation with the

sponsor bank and that also on casual basis for a period not

exceeding 90 days. So, the letter conveying the provisional

932

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

selection was withdrawn by the Second Party. However,

the Second Party has offered engagement as casual

labourer to the First Party. But the First Party refused to

accept it and failed to turn up for work. Since the provisional

selection itself was not valid, there was no question of

termination of service of the First Party. The First Party is

not entitled to any relief.

5. After the Second Party has filed Counter Statement,

the First Party has filed a rejoinder denying the averments

made therein.

6. The evidence in the case consists of the oral

evidence of WW1 and MW1 and documents marked as

Exs. W1 to Ex.W11 and Exs. M1 and Ex. M2.

7. The points for consideration are:

(i) Whether the action of the Second Party in terminating

the services of the First Party is legal and justified?

(ii) What is the relief to which the First Party is entitled?

The Points

8. The First Party has given Proof Affidavit reiterating

his case in the Claim Statement. He has been cross-examined

by the Second Party. The Second Party in its turn has

examined one of its Senior Manager on its behalf.

9. The facts of the case are not very much in dispute.

It is the case of the First Party that he was engaged as

casual labourer in the service of the Second Party Bank.

Though, the case of the First Party that he used to be

engaged by the Second Party from the year 1994 is not

admitted by the Second Party in its Counter Statement, the

very Counter Statement states that the First Party was

engaged for several years continuously, though, nothing

is stated in the Counter Statement about the claim of the

First Party that at the later stage he was engaged as Driver

also, the documents produced would show that he was

given payment in this capacity as well. Again, Ex.W7, the

details given by the Second Party to the First Party on

application under Right to Information Act reveals

engagement of the First Party by the Bank at least from

October 2001. So it is very much clear that the First Party

has been in the service of the second Party for several

years continuously.

10. The case of the First Party is that after such

continuous engagement for several years as a casual

labourer, the Second Party had given him a permanent

appointment as Sweeper-cum-Messenger, by order dated

31.12.2008. This case of appointment of the First Party as

Sweeper-cum-Messenger is admitted by the First

Respondent also. The documents pertaining to this are

produced by the First Party as well. Ex.W1 is the order

recruiting the First Party as Sweeper-cum-Messenger. By

Ex.W2 order dated 12.01.2009 he was given posting at the

Head Office at Salem. He was asked to report for duty on

13.12.2009. Accordingly, the First Party has joined duty.

This is also not in dispute.

11. It is the case of the First Party that after he has

joined the Head Office at Salem on 13.01.2009 in compliance

with Ex.W2 order, he has worked here till 30.01.2009. On

this date he is said to have been instructed to hand over

the appointment and posting orders to the Chairman who

on receipt of these is said to have asked him not to report

for duty until instruction from him.

12. It is clear that the First Party was not given any

order cancelling his appointment. Ex.W6 the reply received

by the First Party on application under the Right to

Information Act states that the appointment order was

issued to him without approval by the sponsor bank and in

violation of Government of India guidelines and therefore

the order was withdrawn and he was paid wages applicable

to casual labourers for the number of days he had worked

after his appointment. The details of payment for utilizing

his service as Driver by the Chairman also are given in

Ex.W6. The stand of the Second Party in its Counter

Statement also is that the order of appointment is without

any authority since the appointment was made without

consultation by the sponsor bank. A reference is made to

Regulation No. 4 of Pallavan Grama Bank (Officers and

Employees) Service Regulation which stipulates that the

Chairman in consultation with the sponsor bank may

appoint persons in Group "C" on casual basis for a period

not exceeding 90 days.

13. The Counsel for the First Party has referred to the

decisions of the Apex Court to content that once a person

has been taken in service, he could not be thrown out

unceremoniously in such a manner. The counsel has

referred to K.L. SHEPHERD AND OTHERS VS. UNION OF

INDIA AND OTHERS reported in AIR 1988 SCC 686 in this

respect. It was a case where on amalgamation of three banks,

certain employees were excluded from employment by the

transferee banks. The Apex Court has held that there was

no justification to throw them out of employment and then

give them opportunity of representation when the

requirement is that they should have got opportunity of

representation as a condition precedent to the action. The

Apex Court has found that the rules of natural justice apply

to administrative actions also. The counsel has also referred

to the decision SHRAVAN KUMAR JHA AND OTHERS

VS. STATE OF BIHAR AND OTHERS reported in AIR 1991

SCC 309 also. It was a case where appointment of certain

persons as Teachers has been cancelled. The Apex Court

has held that the affected persons should have been given

opportunity of hearing before cancelling their

appointments. The Apex Court also found that no order to

the detriment of the employees should have been passed

without complying with the rules of natural justice. The

cancellation order was set aside for the very reason.

14. It is a case where the First Party had worked with

the Second Party as a casual labourer for several years and

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

933

in recognition of his service as a casual labourer the Second

Party had absorbed him in its service by appointing his as

a permanent employee. Of course, the case of the Second

Party is that the appointment of the First Party was

provisional in nature and he was in probation for a period

of one year. The stand of the Second Party seems to be

that it is entitled to terminate the service of the First Party

for no reason during the period of probation. Such a stand

of the Second Party is an erroneous one. Only because the

appointment is to be confirmed only on expiry of the period

of probation, it does not mean the employer is entitled to

terminate his service during the period of probation for no

reason and for no fault of the employee. A person is put on

probation in his employment only to watch his performance

as an employee, to see that he is capable of doing the

duties and responsibilities put on him as an employee. The

employer is not expected to take advantage of the provision

of probation to throw out the employee from service

without any reason. In fact a period of probation is with

reference to the performance of the employee in his

employment. So just because he was on probation, the

First Party could not have been thrown out on the ground

that his appointment was not in order.

15. In any case in the light of dictum laid down by the

Apex Court in the judicial pronouncement referred to earlier,

the Second Party was not at all justified in terminating the

services of the First Party without specifying any reason.

It is clear that no order of termination has been given to the

First Party. His service was discontinued orally. This is in

total violation of the principles of natural justice. The First

Party has earned his employment by working with the

Second Party as a casual employee for several years

together. He is entitled to be reinstated into service.

16. The First Party has stated that after he was turned

out from service, he was not gainfully employed anywhere.

This case of the First Party as given in his Proof Affidavit

is not challenged by the Second Party. In the circumstances,

I find that the First Party is entitled to half the wages he

would have been entitled to as a permanent Sweeper-cum-

Messenger in the service of the Second Respondent. The

Second Party is liable to pay this amount also to the First

Party. The First Party is entitled to continuity of service

and other attendant benefits also.

17. Accordingly, the Second Party is directed to

reinstate the First Party in service within one month with

50% back wages from the date of termination, and

continuity of service with other attendant benefits.

(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

WW1, Sri S. Saravanan

For the 2nd Party/Management

MW1, Sri R. Karunakaran

Documents Marked:

On the petitioner's side

Ex. No.

Date

Description

Ex.W1

31.12.2008

Appointment Order issued to the First Party by the Second Party

Ex.W2

12.01.2009

Office Order issued by the Second Party giving posting to the First Party

Ex.W3

28.10.2009

Petition filed before the Asstt. Labour Commissioner (Central), Chennai

Ex.W4

03.03.2010

Remarks filed by the Second Party before the Asstt. Labour Commissioner (Central), Chennai

Ex.W5

03.12.2010

Rejoinder filed by the First Party before the Asstt. Labour Commissioner (Central), Chennai

Ex.W6

09.12.2009

Information furnished by the Information Officer of the Second Party Bank

Ex.W7

15.02.2010

Letter from Public Information Office of the Second Party Bank furnishing information

Ex.W8

03.04.2010

Information furnished by the Information Officer of the Second Party bank

Ex.W9

03.04.2010

Information furnished by the Information Officer of the Second Party Bank

Ex.W10

1994

Wage receipts for the month of August, September and October, 1994

Ex.W11

09.12.2009

Information sought under Right to Information Act.

On the Management's side

Ex.No.

Date

Description

Ex.M1

Pallavan Grama Bank (Officers and Employees) Service Regulations 2007

Ex.M2

29.07.1998

Gazette of India Notification

934

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 350.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkbZlhvkbZlhvkbZ

cSad ds izcaèra= ds lac) fu;ktdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k] psUubZ ds iapkV lanHkZ la[;k 55@2011 dks izdkf'kr djrh

gS tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&12012@75@2010&vkbZvkj(ch-I)]

lqefr ldykuh] ] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 350.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award Ref. No. 55/2011

of the Central Government Industrial Tribunal-cum-Labour

Court, Chennai as shown in the Annexure, in the Industrial

Dispute between the management of the HRMG, ICICI Bank

Ltd., 4th Floor, 24 South Phase, Regional Office, 8/4 Siema

Building, Race Course, and their workman, received by

the Central Government on 13/01/2014.

[No. L-12012/75/2010-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Wednesday, the 18th December, 2013

Present:

K.P. PRASANNA KUMARI,

Presiding Officer

Industrial Dispute No. 55/2011

[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 ICICI Bank Ltd. and their workman]

BETWEEN

Sri S. Mohammad Hussain :

1st Party/Petitioner

AND

E.R. Manager :

2nd Party/1st Respondent

HRMG, ICICI Bank Ltd.

4th Floor, 24 South Phase

Ambattur Industrial Estate,

Ambattur, Chennai-58

The Regional Head

2nd Party/2nd Respondent

ICICI Bank Ltd,

Regional Office

8/4, Siema Bldg.,

Race Course

Coimbatore-641016

Appearances :

For the 1st Party/Petitioner :

M/s S. Ravi, T. Ramkumar,

Advocates

For the 2nd Party/1st and

M/s S. Ramasubramaniam &

2nd Management

Associates, Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/75/2010-IR (B-I)

dated 27.05.2011 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the action of the management of ICICI

Bank Ltd. in termination services of Sri S. Mohammad

Hussain w.e.f. 12.10.2009, is legal and justified? To

what relief the workman is entitled?"

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 55/2011 and issued notice to both

sides. Both sides have entered appearance through their

counsel and have filed their claim and counter statement

respectively.

3. The averments in the Claim Statement filed by the

petitioner are as below:

The petitioner has joined the service of ICICI Bank

Ltd. on 03.03.2008. The petitioner was placed under

probation for one year and was confirmed in the service of

the bank having completed the probation period

satisfactorily. Though the petitioner was designated as

Officer, the duty assigned to him was neither managerial

nor supervisory. He has no power to appoint or dismiss an

employee or take disciplinary action against an employee.

So the petitioner is a workman coming within the meaning

of Section 2(s) of the Industrial Disputes Act. The

management has issued a memo dated 14.05.2009 to the

petitioner calling for explanation from him for certain

allegations. The petitioner had given an explanation

denying the allegations made against him. However, to the

surprise of the petitioner, the management had issued order

of termination dated 12.10.2009 on the petitioner. After this,

the petitioner had repeatedly approached the Respondents

asking them to reinstate him in service. However, they have

refused to comply with this request. The termination of the

petitioner amounts to retrenchment within the meaning of

Section 2(oo) of the Industrial Disputes Act. The petitioner

was not issued any notice nor was given any compensation

before he was terminated from service. The Management

had not initiated domestic enquiry to prove the allegations

against him. He was not afforded any opportunity to

produce evidence in respect of the allegations against him

and to disprove the same. The termination of the petitioner

is illegal and without any justification. The petitioner is

entitled to be reinstated in service with back wages,

continuity of service and attendant benefits.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

935

4. The Respondents have filed Counter Statement

contending as follows:

The petitioner joined the service of the ICICI Bank

on 03.03.2008 in the cadre of Officer. It is incorrect to state

that the work assigned to the petitioner was not managerial

or supervisory. While the petitioner was working as an

Officer in Idappadi branch, he has misappropriated a sum

of Rs. 500/- belonging to bank customer. In addition to that

he had committed serious error in jewel loan transaction

also. A Charge Memo was issued to the petitioner on

04.05.2009 calling for him explanation for the allegations

made against him. He had submitted explanation admitting

the allegations. Since the petitioner has indulged in serious

misconducts he was terminated from service by letter dated

12.10.2009. The petitioner is not entitled to any relief.

5. The evidence in the case consists of the evidence

of WWI and MWI and documents marked as Exs. W1 to

Ex.W3 and Exs. M1 to Ex.M9.

6. The points for consideration are:

(i) Whether the termination of service of the petitioner

from the service of the ICICI Bank Ltd. is legal and

justified?

(ii) Whether the petitioner is entitled to reinstatement in

service? If not what if any is the relief to which he is

entitled?

The Points

7. The petitioner has admittedly joined the service of

ICICI Bank on 03.03.2008. Ex.W1 is the order of appointment.

8. According to the petitioner though his appointment

was as an Officer, his status in the bank is that of a workman

only. He has stated that in spite of his posting as an

"Officer", he had no managerial or supervisory powers. He

has no power to appoint or dismiss employees or take

disciplinary action against any employees. He has no power

to write confidential report of an employee also. His work

in the bank was clerical in nature.

9. In the Counter Statement, the Respondents have

disputed the case that the petitioner was though posted as

an Officer never had any powers of an Officer. However, it

could be seen from the evidence given by the petitioner

and also that of MW1, a Regional Head of the Management,

that the work of the petitioner was not of the nature of an

Officer. MW1 has stated during his cross-examination that

the petitioner has no power even to sanction leave for

other employees. He also admitted that the petitioner has

no powers to take disciplinary proceedings against an

employee also.On the other had he was expected to

discharge his duties on the basis of instructions given by

the Manager of the branch in which he is working and also

in accordance with circulars. Thus it could be seen that the

work of the petitioner was Clerical in nature, in spite of

nomenclature given to his post as Officer. In fact no

argument has been advanced by the counsel for the

Respondents to the effect that the petitioner is not one

who comes under the category of workman under Section

2(s) of the Industrial Disputes Act.

10. Ex. W2 is a letter given by the Assistant General

Manager, a Human Resource Management Group

addressed to the petitioner on 12.10.2009 terminating the

petitioner from service. The letter states that the service of

the petitioner is not required by the Bank and therefore his

service is terminated with immediate effect in terms of

contract of employment. There is no case for the

Management that notice of termination has been given to

the petitioner. There is also no case that compensation on

account of termination has been given to him also. Though,

in the Counter Statement the Respondents have got a case

that the petitioner was terminated from service on account

of his misconduct while he was working in Idappadi branch,

there is no reference of any such misconduct in Ex.W2. It is

not state in Ex. W2 that it is by way of punishment that the

service of the petitioner was been terminated.

11. As referred to earlier the Respondents have set

up a case in the Counter Statement that the petitioner has

indulged in misconduct while he was working in Edapaddy

branch. The allegation as seen from the Counter Statement

is that he had misappropriated a sum of Rs. 500/- belonging

to bank customer and had also committed serious error in

jewel loan transation. Ex. M1 is the copy of the letter sent

by the Management to the petitioner referring to the

misconducts attributed to him. In this it is stated that on

24.01.2009, one Mathivanan, a customer of the bank had

visited Edapaddy branch for depositing Rs. 20,000/- and

while paying the amount for the deposit he had handed

over 41 notes of Rs. 500/- denomination instead of 40 notes,

but the petitioner who was the cashier did not inform the

customer nor make any entry towards excess cash fund

but retained the amount for more than a month. It is further

stated that approvals were given for passing cash entries

of Rs. 1.00 crore jewel loan without supporting documents

Ex.M2 is the reply given by the petitioner. In this the

petitioner has admitted to have received excess cash of Rs.

500/-. He has stated that it was because of his negligence

he failed to make entry that he had tried to contact the

customer when he found out that he had excess cash and

had also informed Vijaya Sankar, his colleague. According

to him he had tried to get the mobile number of the customer

but he had not succeeded. Later he had gone to the house

of the customer and had returned the amount to him.

Regarding Jewel Loan issue he has stated that the Branch

Manager was utilizing his innocence.

12. Even though, by Ex.M2 reply the petitioner has

pleaded innocence and has explained under what

circumstances, the incidents resulting in allegations against

him occurred, the Management has not conducted a

936

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

domestic enquiry against him. Of course there is a claim in

the Counter Statement that a Charge Memo was issued to

the petitioner and an enquiry was also conducted. But the

document that is referred to in the Charge Memo is Ex.M1,

the notice issued to the petitioner calling for explanation.

Ex.M9 is produced as investigation report regarding the

matter. MW1 has stated that he has prepared the report.

However, Ex.M9 does not contain the name of the person

who investigated. The signature of the person or the name

of the person who prepared the report also are not there.

On a perusal of Ex.M9 it could be seen that this is only a

report on a routine visit made by a superior officer to the

branch and has nothing to do with enquiry on the

allegations made against the petitioner.

13. Probably aware of the lacuna in the case due to

the absence of conduct of a domestic enquiry, the

Respondents have stated in the Counter Statement that

the Management may be allowed to let in evidence to

establish the acts of misconducts of the petitioner without

prejudice to the case that the petitioner had admitted the

acts. It is in the attempt to establish the allegations against

the petitioner that MW1 has been examined on behalf of

the Respondents.

14. Before dealing with the evidence, it is to be

referred to that the respondents have not even specifically

stated in the Counter Statement what actually are the

charges against the petitioner. There is a vague reference

in the Counter Statement that the petitioner had

misappropriated Rs. 500/- belonging to a bank customer. It

is further stated that in addition to this he had committed

serious error in jewel loan transaction also. The details of

the allegations are not given in the Counter Statement.

Rather than doing this, Ex.M1 is extracted in the Counter

Statement describing it as a Charge Memo.

15. Even now the attempt of the Management is to

treat Ex.M2 as admission made by the petitioner regarding

the misconducts alleged against him. MW1 examined on

behalf of the Respondents has nothing to do with the acts

of misconduct alleged against the petitioner except that he

has purportedly given Ex.M9 report. The case that is alleged

against the petitioner is that even though he has received

excess amount of Rs. 500/- he has failed to report it to the

superiors and return it to the customer. What is stated in

the Counter Statement is that only when the customer made

an oral complaint to the Bank the petitioner returned the

same. As already referred to the case in Ex.M2, the

explanation given by the petitioner is that immediately he

had reported the matter to Vijay Shankar, an Officer. It could

be seen from Ex.M9 report that MW1 himself had been

aware that the matter was not kept discreet by the petitioner

but he has informed of the same to the other Officer of the

bank. What is stated in the report is that it is the petitioner

who has found out that there were 41 notes instead of 40

notes Rs. 500/- denomination and he had asked Mr. Vijaya

Shankar to follow up with the customer for confirming the

same. Thus it could be seen that there was no concealment

on the part of the petitioner at all. Again, there is no case

even for the Respondents that the petitioner did not return

the amount. The case is that the retained it for than a month

before returning it. The case of the petitioner is that the

particular customer could not be contacted as his phone

number was not available and consequently the petitioner

had visited the customer at his house and had returned the

amount. It is the management who is alleging misconduct

on the petitioner to prove his case. However, the particular

customer has not been examined in this respect. There is

nothing to show that he made any complaint before the

amount was returned.

16. The counsel for the Respondents has made an

attempt with reference to Ex.M5 and Ex.M6 to prove the

Mathivanan, the particular customer had visited the bank

twice within one month before the petitioner had returned

the amount. According to the counsel this would prove

that the case of the petitioner that he was not able to contact

the customer during the period is not correct. Ex.M5 and

Ex.M6 are pay-in-slips in the name of Mathivanan for

deposit of amount in the Bank. These documents have

been put to the petitioner during his cross-examination.

Showing Ex.M5 to the petitioner it was extracted from him

that the statement in Ex.M2 that he waited for a month but

the customer did not come to the bank is not correct. When

Ex. M6 was put to the petitioner, he has stated that the

handwriting in the documents is that of Mathivanan and

that the signature in that is of his colleague. He was not

able to identify the signature in the space of signature of

depositor. The argument of the counsel of the Respondent

is that Exs.M5 and Ex.M6 would categorically reveal that

the customer had been to the bank twice within one month

after excess amount was received. However, these two

documents certainly would not show that it was the

customer himself who had been to the bank to deposit

amount in his name. The deposit could have been made by

someone else on behalf of the customer. MW1 has stated

that by looking at Ex.M6 he could not say who passed it.

He has further stated that for making cash deposit a

customer or his representative could come to the bank. He

has stated that he could not say if Mathivanan has been to

the Bank on 24.02.2009 for depositing amount. Same must

be the case on 29.01.2009 the date of Ex.M5 also. The only

person who could have stated specifically about this, apart

from the concerned Officer who signed Ex.M5 and Ex.M6

is Mathivanan, the customer himself. The Management

has not though it necessary to examine him to prove that

he had been to the bank twice before the petitioner had

returned the amount to him. Thus it could be seen that the

attempt of the Respondents to show that the customer had

been to the bank and yet the petitioner had not returned

the amount has not succeeded. The Management has not

proved that the petitioner has deliberately and willfully

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

937

retained the excess amount of Rs. 500/- and utilized the

same by himself and thereby committed the misconduct

alleged.

17. So far as the allegation that an error was committed

in jewel loan transaction is concerned, it is not even

attempted to be established. The explanation given by the

petitioner in Ex.M2 could not be treated as admission on

his part of commission of the misconduct alleged against

him. On the other hand what he has stated is that at the

time of inspection he had made a complaint regarding this

and they had enquired about this to the Branch Manager

and he had accepted his fault. Ex.M9 does not accuse to

the petitioner for jewel loan sanction without approval. On

the other hand what is stated is that the sanction was

given by the Branch Manager without approval from the

competent authority. Thus apart from the fact that the

charges are not specific, those are not established by the

Respondents also.

18. The counsel for the Respondents has placed

before me a plethora of judicial pronouncements by the

Apex Court to the effect that an Officer of a bank is required

to exercise higher standards of honesty and integrity and

in the absence he is not entitled to continue in service.

However, the Respondents having failed to establish the

case against the petitioner, these are not relevant. In the

very decision referred to by the counsel for the

Respondents, MICHAEL AND ANOTHER VS. JOHNSON

FARMS LTD. reported in AIR 1975 SCC 661 it is held that in

the absence of substantial material termination from service

was not bonafide and workman has to be reinstated with

back wages. The Respondents having failed to establish

the case against the petitioner the petitioner is entitled to

be reinstated in service.

19. The petitioner has been in the service of the

Respondents for 20 months. He was unceremoniously

turned out from work by way of termination from service

without conducting any enquiry. He was not given any

notice of termination nor was he given any compensation

as contemplated under the Section-25(F) of ID Act. The

petitioner has given evidence that after he was terminated

from service he was not gainfully employed. The salary of

the petitioner at the time of termination was more than

Rs. 20,000/- Considering this, I assess the compensation

payable to the petitioner in lieu of reinstatement as Rs. 5.00

lakhs. The Respondents has the option either to take back

the petitioner in service or to pay him compensation of

Rs. 5.00 lakhs.

20. Accordingly, the Respondents are directed to

reinstate the petitioner within one month with 25% of back

wages and also continuity of service and other attendant

benefits. In the alternative the respondents are directed to

pay Rs. 5.00 lakhs to the petitioner as compensation with

one month.

The reference is asnswered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 18th December, 2013)

K.P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined

For the 1st Party/Petitioner

MW1, Sri S. Mohammad Hussain

For the 2nd Party/Management

MW1, Sri S. Srikanthan

Documents Market:

On the petitioner's side

Ex.No.

Date

Description

Ex.W1

29.12.2007

Order of appointment issued to the petitioner

Ex.W2

12.10.2009

Order of termination issued to the petitioner by the respondent management

Ex.W3

27.05.2011

Reference for adjudication issued by the Government of India, Ministry of Labour

On the Management's side

Ex.M1

14.05.2009

Copy of the letter sent to S. Mohammad Hussain seeking explanation to the charge against him

Ex.M2

22.05.2009

Copy of the explanation letter sent by S. Mohammad Hussain

Ex.M3

30.12.2009

Copy of the petition filed by the petitioner before ALC

Ex.M4

09.04.2010

Copy of the counter statement filed by the Respondent before ALC

Ex.M5

29.01.2009

ICICI Bank Savings Bank Pay-in-Slip for Rs. 20,000/-

Ex.M6

24.02.2009

ICICI Bank Saving Bank Pay-in-Slip for Rs. 20,000/-

Ex.M7

27.12.2009

SB Account Statement of Sri K. Mathivanan from 01.01.2009 to 30.06.2009

Ex.M8

30.01.2013

Relevant extract from the master circular dealing with how to handle excess cash

Ex.M9

—

Investigation Report

938

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 13 tuojh] 2014

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izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa

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[lañ ,y&41011@12@2012&vkbZvkj ¼ch&I)]

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New Delhi, the 13th January, 2014

S.O. 351.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 22/2012

of the Central Government Industrial Tribunal-cum-Labour

Court, Chennai as shown in the Annexure, in the Industrial

Dispute between the management of Southern Railway,

and their workmen, which was received by the Central

Government on 13/01/2014.

[No. L-41011/12/2012-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Thursday, the 19th December, 2013

Present :

K.P. PRASANNA KUMARI

Presiding Officer

Industrial Dispute No. 22/2012

(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 Southern Railway and their workman)

BETWEEN

The President

: 1st Party/Petitioner Union

Socialist Labour Union

29/4, K.M.P. Koil Street

Ayanavaram

Chennai-600023

AND

The Divisional Railway Manager : 2nd Party/

Southern Railway

Respondent

Chennai Division

Chennai-600003

Appearance:

For the 1st Party/

M/s S. Bhathavatsalam,

Petitioner Union

Authorised Representative

For the 1st Party/

M/s K. Muthamil Raja,

Respondent

Advocate

AWARD

The Central Government, Ministry of Labour &

Employment, vide its Order No. L-41011/12/2012-IR (B-I)

dated 23.03.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the demand of Union, Socialist Labourer

Union, Chennai, for payment of notice pay, difference

of wags, compensation, terminal pension, leave

benefits and other consequential benefits to the

thirteen workers namely (1) Yesodha (2) Agilandam

(3) Dhanalakshmi (4) Yegavalli (5) Kuppa (6)

Ponnammal (7) Perianayagam (8) Govindammal (9)

Chellammal (10) Ammani Ammal (11) Rani Ammal (12)

Irusammal & (13) Annakili who were retrenched from

service w.e.f. 31.05.1980 is legal and justified? To what

relief the workman is entitled?"

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 22/2012 and issued notice to both

sides. The petitioner has entered appearance in person

and the Respondent through its counsel and filed Claim

and Counter Statement respectively.

3. The averments in the Claim Statement in brief are

as below:

The women Khalasis by name Yesodha, Akhilandam,

Dhanalakshmi, Yegavalli, Kuppa, Ponnammal, Perianickem,

Govindammal, chellammal, Ammaniammal, Raniammal,

Irusammal and Annakili who were members of the Socialist

labour Union of which the petitioner is the President were

engaged as Khalasis by the Respondent in ash pit for

cleaning and cinder picking work in the Loco Shed under

the Mechanical Department of Southern Railway at Basin

Bridge. These women were paid based on quantity of cinder

picked by them. They are deemed to be permanent

employees on completion of 240 days work, as

contemplated under the Industrial Disputes Act. Wages

for these women were paid from the Central Government

fund of Southern Railway Administration, Madras Division.

These women were serving the Railway continuously for

more than 21 years. They were retrenched from service on

introduction of electrification system in the Railway. These

women were paid gratuity but denied pension in violation

of Railway Pension Rules. They were given wages on the

basis of Contract Labour Central Rules, 1971 and awards

announced by the Central Pay Commission. But difference

in back wages were not paid to them. There may be an

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

939

order directing the Respondent to pay the above Khalasis

difference in back wages and statutory benefits upto the

date of their superannuation on 31.12.2000 since they were

not gainfully employed from the date of retrenchment to

the date of superannuation.

4. The Respondent has filed Counter Statement

contending as follows:

The petition is not maintainable either in law or on

facts. The 13 persons referred to in the Claim Petition have

filed Claim Petition No. 16 and 17 of 1982 before the Central

Government Labour Court claiming about Rs. 50,000/- under

various heads. These petitions were dismissed finding that

they were not directly employed under the Railway

Administration and there is no employer-employee

relationship between them and the Railway. They have

preferred appeal before the High Court Madras and the

case has been remanded to the Labour Court. The Labour

Court, on fresh consideration of the cases has dismissed

the petitions by order dated 08.06.1999. Yesodha,one of

those referred to in the Claim Petition raised Industrial

Dispute before the Labour Conciliation Officer and the

Conciliation Officer gave a failure report. Consequently,

the Ministry of Labour issued order stating that the dispute

is not fit for adjudication. She filed a Writ Petition

challenging this. This is still pending before the High Court

of Madras. The Legal Heirs of Dhanalakshmi, Annakili,

Irusammal and Yegavalli named in the Claim Petition field

Claim Petition Nos. 35/2000 and 38 to 40/2000 respectively

before the Labour Court and these were dismissed by a

common order on 28.02.2007. Another Claim Petition

Numbered as 28/2000 filed by 9 of the 13 persons referred

to in the Claim Statement also was dismissed by the Labour

Court on 28.11.2005. A claim application filed by them before

the authority under the Minimum Wages Act and numbered

as 12/11 was dismissed by order dated 05.10.2011. The

claims having been already adjudicated, the present dispute

is hit by the principle of resjudicata. The Southern Railway

was owning steam locos until 1980s. Contractors were

engaged by Railways to clear the cinders which were found

in the ash pits and around the yard. The workers who did

the work were paid by the Contractors depending upon

the number of baskets of cinders picked up daily. The

Contract for the work was awarded each year. The 13

workers named in the Claim Statement were engaged by

Railway Labour Contract Society, a Contractor which was

engaged by the Railways from the year 1964. The Railway

administration had dieselized the Railways and

consequently steam locos were withdrawn from operation

in a phased manner. The Loco Sheds were also closed in

the years 1981 and 1982 in phased manner. The Cooperative

labour contract society Ltd. was given notice terminating

the contract. As per the terms of the contract, compensation

was paid to the Society by the Railway Administration for

the remaining period. The 13 workers were among the piece

rate workers engaged by the Contractor for picking up ash

and cinder. They were not issued with any appointment

order by the Railway. They were not even casual labourers

or temporary workers of the Railway. They were not

enjoying any of the benefits enjoyed by railway servants.

The petitioner is not entitled to any relief on behalf of the

workers named in the Claim Petition.

5. The evidence in the case consists of oral evidence

of WW1 and documents marked as Ex. W1 to Ex. W9 and

Exs. M1 to Ex. M6.

6. The points for consideration are:

(i) Whether the claim in the petition is barred by the

principal of resjudicata?

(ii) Whether the 13 persons named in the Claim Petition

are entitled to notice pay, difference of wages,

compensation, terminal pension, leave benefits and

other consequential benefits as claimed in the

petition.

(iii) What if any is the relief to which the petitioner is

entitled?

Point No. 1

7. The petitioner, in his capacity as President of

Socialist Labour Union has raised the dispute on behalf of

13 women workers who were engaged in cinder picking

work at the Railway Yard of the Southern Railway at Basin

Bridge. The case that is advanced by the petitioner is that

the 13 workers named in the reference by the Government

and in the Claim Petition are to be deemed to be permanent

employees of the Railway as they completed of work of 240

days in the Calandar Year as contemplated under Section

25(B)(2) of Industrial Disputes Act. It is stated in the Claim

Statement that their wages were paid by the Central

Government Expenditure Fund for Southern Railway

Administration. It is further stated in the Claim Petition

that they were retrenched by the Railway without paying

notice pay, compensation, etc. and therefore they are

entitled to back wages until 31.12.2000, the date on which

they would have retired on superannuation.

8. The respondent has filed Counter Statement

contending that the issue raised by the petitioner before

this Tribunal has been raised earlier at different forums and

were answered against the workers on whose behalf the

dispute is raised and those decisions have become final

and therefore the present, case is hit by the principle of

resjudicata.

9. On going through the documents produced on

behalf of the Respondent it is seen that the matter has

been previously agitated at different formus and were

answered against the concerned workers. Ex. M1 is the

order in the Writ Petition filed by the concerned workers

challenging the order in CCP 16/82 and CCP 17/82 on the

file of Principal Labour Court, Madras. The Hon'ble High

940

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Court has remanded the matter back to the Labour Court

for considering the matter afresh. Ex. M2 is the copy of the

combined order of the Central Government Labour Court,

Chennai in CP 16/82 and 17/82. It could be seen on going

through the order that they have claimed amount towards

difference between daily rates paid to them and monthly

wages, retrenchment compensation and gratuity from the

Railway. On considering the contention of these workers,

the Labour Court has found that they are not Railway

Servants and are not governed by the Railway

Establishment Manual and so the Railway is not liable to

pay the benefits claimed by them. Ex. M5 is the copy of the

common order in CCP 35/2000 filed by the Legal Heir of

Dhanalakshmi, CCP 38/2000 filed by the Legal Heir of

Annakilli, CP 39/2000 filed by the Legal Heir of Irusuammal

and CCP 40/2000 filed by the Legal Heir of Ekavalli claiming

difference in wages under the provisions of the Equal

Remuneration Act, pensionary benefit from the date of

retrenchment till the date of death of the concerned worker

and family pension for the Legal Heirs, before the Central

Government Labour Court, Chennai. By the common order,

the Court has found that the workers referred to in the

petitions were not the workers of Railway and therefore

they are not entitled to any relief from the Railway. Ex. M6

contains the order of the authority under the Minimum

Wages Act in Claim Application no. 12/2011 filed by

Yasodha and 12 Others represented by the President of

Socialist Labour Union itself claiming wages under

Minimum Wages Act under the Railway. This also is seen

dismissed. Thus, it could be seen that each and every

benefit claimed in the present petition has been claimed by

the concerned workers at different forums earlier and were

answered against them in all those formus. Those decisions

have become final also. The issue having been decided

earlier, the present claim is barred by principle of resjudicata.

Points (ii) and (iii)

10. Point No. 1 having been found against the

petitioner, the petition is liable to be answered against the

petitioner on that ground itself. However, in spite of this I

am proceeding to consider the claim on merits also.

11. The case is that the workers referred to in the

Claim Petition were workers of the Railway and were directly

paid by the Railway. In spite of this claim, no documents

are produced to prove this case. Ex. W1 is only a

notification by the Railway Board regarding progress made

under contract or departmental labour in respect of

reclamation and utilization of cinder, etc. Ex. W2 is also

regarding this. Ex. W5 is a letter from the Southern Railway

which would show that even in 1981, the stand of the

Railway was that the work of cinder picking was being

done by the labourers of Cooperative Labour Contract

Society. Ex. W8 is regarding utilization of surplus staff on

closure of Steam Loco Sheds. Ex. W9 is a direction for

payment of gratuity to a worker. The order directing payment

of gratuity is also attached to Ex. W9. In this order itself it

is stated that the worker who is the applicant is not a

Railway Servant. No document has been produced by the

petitioner to prove that the workers named in the Claim

Petition were directly employed by the Railway. So in any

case, no relief could be granted on the basis of the claim in

the petition.

12. In view of my findings on Points (i) to (iii), the

petitioner is not entitled to any relief.

The reference is answered against the petitioner.

(Dictated to the P.A., transcibed and typed by him,

corrected and pronounced by me in the open court on this

day the 19th December, 2013)

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined:

For the 1st Party/Petitioner Union

WWW1, Sri S. Bhakthavatsalam

For the 2nd Party/Management

None

Documents Marked:

On the Petitioner's side

Ex.No.

Date

Description

Ex. W1

08.05.1957

Railway Board Order No. 57/116/8/Coal Direction to appoint departmental labour for Cinder

picking works in Railways

Ex. W2

04.07.1957

Railway Board Order No. 57/116/8/Coal Direction to utilize cinder picked for use of Railway

purposes.

Ex. W3

11.11.1980

Recognized Union Letter No. ESC/50 addressed to CPO Southern Railway to extend the benefits

to women Khalasis.

Ex. W4

11.08.1981

Recognized Union Letter No. ESC/86 demanding minimum wages for women khalasis based on

agreement reached with General Manager, Southern Railway, item No. 26 of 18 and 19.05.1981

Ex. W5

21.09.1981

Division Railway Manager Letter No. MM/TT/65/1/Vol. III addressed to General Manager giving

particulars of payment made to the workers

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

941

Ex. W6

19.05.1981

Copy of Agreement reached between Union and General Manager

Ex. W7

13/16.11.1981

Letter No. P(L)/363/P. Vol. V addressed to Divisional Railway Manager to contact Additional

Legal Adviser and submit results

Ex. W8

21.04.1989

Railway Board E.No. 106/89 direction to absorb surplus staff in alternative post having affected

by diesalisation in Railways

Ex. W9

26.03.1997

Copy of Award No. M.48(36)/94/D2 passed for a sum of Rs. 12,115.38 towards the payment of

Gratuity for each worker

On the Respondent's side

Ex. No.

Date

Description

Ex. M1

10.12.1998

Order passed in WP No. 4767/1990

Ex. M2

08.06.1999

Order passed in CP No. 16 & 17/1982

Ex. M3

17.12.1999

Failure report to Yesodha

Ex. M4

31.08.2012

Order passed in WP No. 29245/2002

Ex. M5

28.02.2007

Order passed in CCP No. 35/2000 and 38 to 40/2000

Ex. M6

05.10.2011

Order passed in C.A. No. 12/2011

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New Delhi, the 13th January, 2014

S.O. 352.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 41 of

2013 of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Guwahati as shown in the Annexure, in the industrial dispute

between the management of Railway Contractor, and their

workmen, received by the Central Government on 13/01/2014.

[No. L-41011/88/2011-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, GUWAHATI, ASSAM.

Present

Shri L.C. Dey, M.A., LL.B.

Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

Ref. Case No. 41 of 2013.

In the matter of an Industrial Dispute between:-

The Workman represented by the President/Secy.

Asom Mozuri Srameek Union (A.M.S.U.), Bihara, Cachar,

Assam.

-Versus-

The Management of M/s Railtrack Concrete Products

Pvt. Ltd., (Railway Contractor), Bihara Railway Station,

Cachar, Assam.

Date of Award: 27.12.2013

AWARD

1. This Reference has been initiated on an Industrial

Dispute between the Management of M/s Railtrack

Concrete Products Pvt. Ltd., Railway Contractor, and their

workmen represented by the President/Secretary Asom

Mozuri Srameek Union, on the ground of willful denial in

giving at least @ 8.33% Bonus for the year 2009-2010 to

their factory workers by the Management, which was

referred by the Ministry of Labour, Government of India,

New Delhi vide their order No. L-41011/88/2011-IR(B-I)

dated 22.08.2013. The Schedule of this Reference is as under.

SCHEDULE

"Whether the willfull denial on the part of M/S

Railtrack Concrete Products Pvt. Ltd. in giving at

least @ 8.33% Bonus for accounting year 2009-2010

to their factory workers are justified? To what relief

the factory workers are entitled?"

2. The fact of the case of the workmen of M/s Railtrack

Concrete Products Pvt. Ltd., Railway Contractor, Bihara

Railway Station represented by the President/Secretary,

Asom Mozuri Srameek Union, Bihara, in brief, is that

originally there were 50/60 workmen working in the Industry

of M/s Railtrack Concrete Products Pvt. Ltd., (Railway

Contractor), Bihara Railway Station, Cachar, which was

increased to 165/170 in the year 2007 with the increase of

the production. Thereafter a number of workmen decreased

gradually to about 100 due to various reasons including

the meager wages of the worker. Recently another group of

942

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

about 60 workmen joined the factory. In spite of various

constraints and meager wages the workers have been

working sincerely and as such, production increased day

by day resulting in huge profits of the management from

selling the products of the factory. The Assom Mojuri

Shramik Union is the only Union representing of the

workmen of the Management factory and it has been

discharging its duties and obligation towards all concerned.

The Management has been paying bonus each year to its

ministerial staff since 2008 but refused to pay the same to

the workmen inspite of persistent demands. The

Management declared to pay ex-gratia to the workers but

refused to pay any bonus, while the Union on behalf of the

workmen refused to accept such offer of the Management.

Then the Union raised the dispute before the Assistant

Labour Commissioner (C), Silchar and on failure of

conciliation the dispute was referred to by the Ministry.

The Management is in different towards the workmen with

respect to the ministerial staff who were getting increment

year wise and also enjoying the bonus every year while

the wages of the workers found below the notified minimum

wages which had been hiked only after strong battle and

negotiation each time. Subseqently during the year

2010-11, 2011-12 the Management did not pay any bonus

to the workers and only in the year 2012-13 the bonus was

given to the workmen @ statutory minimum bonus i.e. @

8.33% of the wages earned by each worker. Thus the

Management willfully denied to pay the bonus to their

workmen for the period 2009-10, 2010-11 and 2011-12 @

8.33% inspite of making huge profits by selling the only

product produced by the workmen in the Management

factory. Hence, the workmen prayed for a Award granting

bonus @ 8.33% of their actual wages earned during the

year 2009-10, 2010-11 and 2011-12 along with compensation/

interest and cost against the O.P./Management.

3. The Management appeared alongwith their

Advocate but did not submit any written statement against

the claim statement submitted by the workmen. Thereafter

the reference has been put up before the Lok Adalat today.

4. In course of conciliation of this reference in the

Lok Adalat, with the sincere, endeavour and initiative taken

by the learned conciliators the dispute has been settled up

amicably on the terms and conditions that the Management

shall pay a sum of Rs. 1,70,000/- (One lakh Seventy

thousand) to the workmen in full and final settlement of

bonus for the period of financial year 2009-10 in 2 (two)

equal installments, one before 10.3.2014 and the another

before 20.4.2014 and the said amount shall be paid to the

workmen as per their respective attendance for the said

period.

5. In view of the above settlement this reference is

disposed of on compromise. A Memorandum of Settlement

is prepared and duly signed by both the parties along with

the learned Conciliators and the Presiding Officer which is

kept on record and it will form a part of the record as well as

the Award.

6. Send the Award along with a copy of the

memorandum of settlement to the Ministry as per law.

Given under my hand and seal of this Court on this

27th day of December, 2013, at Guwahati.

L.C. DEY, Presiding Officer

BEFORE THE LOK ADALAT IN RELATION TO

THE CGIT-CUM-LABOUR COURT, KENDRIYA

SHRAM SADAN, BIRUBARI, GUWAHATI.

Date:- 27.12.2013.

Ref Case/Misc Case No:- 41 of 2013

Management of M/s Railtrack Concrete Products. Pvt. Ltd.

-Vs-

Workmen, President/Secy. Asom Mozuri Srameek Union

(AMSU).

May it please your honour,

We the parties above named have arrived at a

compromise/conciliation/settlement in the above Referred

Reference Case/Misc Case/dispute as per terms and

conditions mentioned below. No coercion or force/

temptation/influence has been made to any of the parties

to arrive at the compromise/conciliation.

We therefore request to record the compromise/

conciliation/settlement made before the Lok Adalat and

pass order/award accordingly today itself.

Terms of compromise/conciliation. Settled on the

terms and conditions that the Management shall

pay a sum of Rs. 1,70,000/- (Rupees one lakh seventy

thousand) to the workmen in full and final settlement of

Bonus for the period of financial year of 2009-2010; in 2

(two) equal instalments, one before 10-3-2014 and another

before 20-4-2014 and the said amount shall be paid to the

workmen as per their respective attendance for the said

period.

-Sd- illegible

Signature of Management/

Signature of Union/

Opposite Party/

Workman/Petitioner/

Respondent.

Applicant.

-Sd- illegible

Signature of Advocate

Signature of

for the Management/

Advocate for the Union/

Opposite Party/Respondent.

Workman/Petitioner/

Applicant.

-Sd- illegible

Signature of conciliators.

Presiding Officer, CGIT-Cum-Labour Court, Guwahati.

¹Hkkx II—[k.M 3(ii)º

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943

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New Delhi, the 13th January, 2014

S.O. 353.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 18/2002

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Nagpur as shown in the Annexure, in the industrial dispute

between the management of The Sr. Divisional Electrical

Engineer, (TRD), South and their workmen, received by the

Central Government on 13/01/2014.

[No. L-41012/71/2001-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/18/2002

Date: 13.12.2013.

Party No. 1

The Divisional Railway Manager,

South Eastern Railway,

Kingsway, Nagpur-440001

Maharashtra

Versus

Party No. 2:

Shri Sachin Singh Laxman,

S/o Laxman Singh Rathod,

Near Hanuman Mandir,

Shastri Nagar, Nagpur (Maharashtra)

AWARD

(Dated: 13th December, 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 Divisional Railway Manager, South Eastern

Railway, Nagpur and their workman, Shri Sachin Singh

Laxman, for adjudication, as per letter No.L-41012/71/2001-

IR (B-I) dated 17.01.2002, with the following schedule:-

"Whether the action of the management of Divisional

Railway Manager, South Eastern Railway, KingsWay,

Nagpur in terminating from the job as Hot Weather

waterman to Shri Sachin Singh Laxman w.e.f. 1988,

onwards alongwith others enlisted employee in their

circular dated 12.05.1988, is justified? If not, to what

relief the said workman is entitled?"

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Sachin Singh

Laxman, ("the workman"in short), filed the statement of

claim and the management of South Eastern Railway, Nagpur

("Party No. 1"in short) filed the written statement.

The case of the workman as presented in the

statement of claim is that he had worked as a Hot Weather

Waterman in Nagpur Division in S.E. Railway from

16.04.1986 to 15.07.1986 and 03.05.1987 to 30.06.1987 for a

total period of 150 days at Barkuhi Railway Station and for

working at the station, orders were being given to him

through the Commercial Inspector, Headquarters by way

of provisional orders and the said orders were being taken

by the respective Station Masters, for records and authority

to draw salary and for working as such, no working

certificate was given to him by the authority and at that

time, there was a convention that only those casual labours/

candidates, whose names were being listed in the live

Nagpur were to be engaged again and no fresh faces were

being enlisted for appointment/engagement and in the year

1988, he was not given any order for work and he came to

know from his colleagues that his name was enlisted at

serial no. 15 with a direction to work at Tumsar Road under

the P.W.I. Tumsar Road in the office order no. DPO/NGP/

CON/EMP/Asstt/88/HW dated 12.05.1988, issued by the

DPO, SE Railway, Nagpur, but the said order was not

communicated to him by any approved mode of

communication, as a result of which, he could not able join

his duty in the year 1988 and thereafter, no further order

was received from the party No. 1 and he was also not

given opportunity of service in the future year, as per

procedure and Rules and due to deprivation of such job

opportunity, he met the DPO, Nagpur in 1989, 1991 and

1993 in person, besides submitting written representations

dated 06.01.1990, 10.12.1994, 07.04.1995, 20.03.1996,

26.02.1997, 21.09.1998, 28.12.1998 and 25.02.1999 to the

different authorities of Party No. 1 and lastly, he also sent

pleader's notice dated 31.05.1999 for his engagement in the

job, but the Party No. 1 remained deaf and dumb and the

appearance of his name in the order dated 12.05.1988 itself

shows that he had worked previously, in absent of which,

his name should not have been mentioned in the list.

Prayer has been made by the workman for his

appointment in suitable post and cadre and for all other

consequential benefits.

3. The Party No. 1 in written statement has pleaded

inter-alia that as the workman has not submitted any

document in support of his claim that he worked at Barkuhi

944

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Station from 16.04.1986 to 15.07.1986 and 03.05.1987 to

30.06.1987 as Hot Weather Waterman, his claim cannot be

entertained and new faces were not being engaged as casual

labourer, without the prior approval of the General Manager

and the order dated 12.05.1988 was properly displayed in

the notice board in the place of positing i.e. at SS'Kamptee,

but the workman failed to report for work and as per extent

rules, there was no provision of sending or serving the

order in the home address of the candidate and the order

dated 12.05.1988 was not an offer of appointment against

open market recruitment, but was an order for engagement

of Hot Weather Staff and as per its records, the notice

dated 31.05.1999 from advocate, Shri Rajesh Tripathi was

received on 07.06.1999 and as there was no records in the

office regarding the engagement of the workman and the

workman failed to produce any evidence of his working as

Hot Weather Waterman during 1986-87, the conciliation

proceedings failed and the workman is not entitled to any

relief.

4. The workman has examined himself as a witness in

support of his claim, besides placing reliance on documents.

In his examination in chief, which is on affidavit, the

workman has reiterated the facts mentioned in the statement

of claim. The workman has also proved the copies of

representations and the advocate's notice and other

documents as Exts. W-7 to W-25 respectively.

In his cross-examination, the workman has admitted

that he has not filed any document to show that he had

worked as a Hot Weather Waterman from 16.04.1986 to

15.07.1986 and 03.05.1987 to 30.06.1987.

5. One Shri Prashant Tulsiram Naik has been

examined as a witness on behalf of the Party No. 1. The

evidence on affidavit of this witness is also in the line of

the stands taken by Party No. 1 in the written statement.

In his cross-examination, the witness for the Party

No. 1 has stated that the employees engaged as per Ext. W-6

were not intimated individually regarding their engagement

and there was no practice of intimating individually. This

witness has admitted the suggestion that the workman

filed applications before the Railway authorities raising

dispute regarding his engagement in the year 1988 itself.

6. At the time of argument, it was submitted by the

learned advocate for the workman that by order dated

12.05.1988, Ext. W-6. the Divisional Personnel Officer, S.E.

Railway, Nagpur passed order for engagement of Hot

Weather Waterman and in the said order, the name of the

workman was at serial number 15 and the said order was

not communicated to the workman in any manner and as

such, he could not able to join his duties as per the order

Ext. W-6 and subsequent to the year 1988 also, the workman

was not provided with any work and the workman coming

to know about the order, Ext. W-6 from his colleagues,

made several representation to the different authorities of

Party No. 1 as per Ext. W-7 to W-22 and also sent a pleader's

notice, still then, so action was taken by the Party No. 1 in

the matter of giving employment to the workman. It was

further submitted by the learned advocate for the workman

that as per the claim of Party No. 1, the workman failed to

produce any document regarding his engagement in 1986

and 1987 and working for 150 days, his claim cannot be

entertained, but the Party No. 1 was in possession of all

the documents and Party No. 1 did not provide the workman

any document, such as the service card and Party No. 1 did

not produce the documents in respect of the workman with

a plea of destruction of the documents and when it is

admitted by the witness for Party No. 1 that the workman

raised protest about his non-engagement in the year 1988

itself, the Party No. 1 should not have destroyed the

documents and otherwise also, as there was and is

prohibition of engagement of fresh faces as casual labour,

without the personal authorization of the General Manager,

as per rules and the name of the workman appeared at

serial no. 15 of the order of engagement of Hot Weather

Waterman in 1988 as per Ext. W-6, it can be held that the

workman was engaged by Party No. 1 from 16.04.1986 to

15.07.1986 and 03.05.1987 to 30.06.1987. It was also

submitted by the learned advocate for the workman that as

the workman had completed 120 days of continuous

employment, he was eligible for temporary status and so

also for permanent recruitment and the workman is entitled

for appointment to the deserving suitable post and cadre

with continuity from the date of his initial engagement and

all consequential benefits.

7. Per contra, it was submitted by the learned advocate

for the Party No. 1 that the order dated 12.05.1988 regarding

engagement of Hot Weather Waterman as per Ext. W-6 was

pasted in the notice board as per rules and there was no

provision to communicate such order personally to the

persons concenred and the workman did not come forward

to join duty and as the workman has failed to produce any

document in support of his working for the periods from

16.04.1986 to 15.07.1986 and 03.05.1987 to 30.06.1987 i.e. for

a total period 150 days, his claim cannot be enterained and

the documents regarding engagement of casual labourers

in 1986 and 1987 were destroyed as per rules and there was

no need to keep them alive, as no case was filed or no

dispute was raised before the Competent Authority within

the time limit of three years, which was the time limit for

destruction of records regarding engagement of casual

labourers and the workman is not enitled to any relief?

8. First of all, I think it necessary to mentioned about

the schedule of reference in this case. The schedule of

reference is, "Whether the action of the Management of

Divisional Railway Manager, South Eastern Railway,

Kingsway, Nagpur in terminating from job as Hot Weather

Waterman to Sunil Kumar Laxman w.e.f. 1988 onwards

alongwith others enlisted employee in their circular dated

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

945

12.05.1988, is justified? If not, what relief the said workman

is entitled & From what date?

However, on perusal of the order dated 12.05.1988 as

referred in the schedule of reference, which has been marked

as Ext. W-6, it is found that the same is not an order of

termination of the job. Rather, the same is an order regarding

the engagement of the workman as Hot Weather Waterman

for 1988. Hence, the scheduled of reference appears to be

patently wrong.

9. So far the non-production of documents by Party

No. 1 is concerned, it is to be mentioned that the Party No. 1

has taken the plea that the documents relating to

engagement of casual labourers were destroyed as per rules

and for that the said documents were not produced. It is

found from record that the workman started making

representation in writing on 06.01.1990. However, the

dispute was raised by the workman before the ALC,

Chhindwara in 1999 and before the ALC, Nagpur in 2001.

Though it is settled by the Hon'ble Apex Court that there

is no limitation for raising an Indsutrial Dispute, it is also

settled by the Hon'ble Apex Court that the delay should

not be unreasonable and the fact that the workman was

making repeated representations is not sufficient

explanation for the unreasonable delay. In this case, there

is at least delay of 11 years in raising the dispute before the

ALC by the workman. As there was no case pending in

relation to the engagement of casual labourers by Party

No. 1 for the years 1986, 1987 and 1988, the destruction of

the documents relating to the some after the period of

limitation, i.e. three years as per rules of retention of records

by Party No. 1 cannot be said to be illegal. In this case, the

delay in raising the dispute is culpable to the workman.

10. The next contention of the workman is that the

order dated 12.05.1988 was not communicated to him

through any of the approved mode of service, as a result of

which, he could not able to join duty in the year 1988. The

claim of the Party No. 1 is that as per the Rules, the order

dated 12.05.1988 was pasted on the notice board and the

workman himself did not come forward to join duty.

According to the statement of claim and evidence of

the workman, he came to know about the order dated

12.05.1988 from his colleagues. However, nothing has been

mentioned by the workman as to when i.e. the date of his

knowledge of the said order either in the statement of claim

or in his evidence. According to the workman, in 1988 itself,

he had met the concerned authority in person regarding

his engagement. The said fact indicates that the workman

know about the order in 1988 itself. In his first

representation dated 06.01.1990, Ext. W-7, the workman did

not mention about his coming to know about the order

dated 12.05.1988, Ext. W-6 from his colleagues, the date of

his such knowledge and so also, his approaching the

concerned authority in person in 1988 or 1989. Moreover,

in the statement of claim, it is mentioned by the workman

that for working at the station in 1986 and 1987, the orders

were given to him through Sectional Commercial Inspector,

Headquarters at Chhindwara. If actually orders for working

in 1986 and 1987 were given to the workman, then the

workman should have filed the same to prove that actually

orders for working as Hot Weather Waterman were being

given to the persons concerned enlisted for the same and

order dated 12.05.1988 was not given to him. It is found

that the the Rules of Party No. 1 provide for pasting of

such order on the notice board. Hence, it cannot be said

that any illegality was committed by Party No. 1 by

displaying the order on the notice board and not sending

the order to the workman in person.

11. According to the workman, as he had already

worked for more than 120 days, he had acquired temporary

status and even though, no document has been filed in

support of his claim for working more than 120 days in 1986

and 1987, the same can be presumed to be true, as because,

as per Rules, no fresh faces can be engaged by Party No. 1

as casual labourers and his name was in the order dated

12.05.1988. However, from the order, Ext. W-6, at best, it can

be presumed that the workman was not a fresh face, but

from the same, it cannot be presumed that he had completed

120 days of work and had acquired temporary status. The

workman has failed to prove that he had worked for more

than 120 days in total, in the years, 1986 and 1987 and thus

had acquired the temporary status. Admittedly, the

workman did not join duty in 1988. So, there was no question

of assigning the job of Hot Weather Waterman to the

workman in the subsequent years by Party No. 1.

In view of the materials on record and the discussions

made above, it is found that the workman is not entiled to

any relief. Hence, it is ordered.

ORDER

The reference is answered in the negative and against

the workman. The workman is not entitled to any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k iwoZ jsyos

izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa

fufnZ"V vkSn~;ksfxd fookn esa dsUnzh; ljdkj vkSn~;ksfxd vfèdj.k

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[lañ ,y&41012@72@2001&vkbZ vkj ¼ch&I½]

lqefr ldykuh] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 354.—In pursuance of section 17 of the

Industrial Disputes Act, 1947 (14 of 1947) the Central

946

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Government hereby publishes the Award (Ref. No. 09/2002)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Nagpur as shows in the Annexure, in the indusutrial dispute

between the management of South Eastern Railway and

their workmen, received by the Central Government on

13/01/2014.

[No. L-41012/72/2001-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case N\o. CGIT/NGP/09/2002

Date: 13.12.2013

Party No. 1

The Divisional Railway Manager,

South Eastern Railway,

Kingsway, Nagpur-440001

Maharashtra

Versus

Party No.2

Shri Sunil Kumar Laxman,

S/o Laxman Singh Thakur,

C/o Chandrapal Singh Rathod,

Near Hanuman Mandir,

Shastri Nagar, Nagpur (Maharashtra)

AWARD

(Dated: 13th December, 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 Divisional Railway Manager, South Eastern

Railway, Kingsway, Nagpur and their workman. Shri Sunil

Kumar Laxman, for adjudication, as per letter No. L-41012/

72/2001-IR (B-I) dated 17.01.2002, with the following

schedule:—

"Whether the action of the management of the

Divisional Railway Manager, South Eastern Railway,

Kingsway, Nagpur in terminating from the job as Hot

Weather Waterman to Shri Sunil Kumar Laxman w.e.f.

1988, onwards alongwith others enlisted employee

in their circular dated 12.05.1988, is justified? If not,

to what relief the said workman in entitled?

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Sunil Kumar

Laxman, ('the workman" in short), filed the statement of

claim and the management of South Eastern Railway, Nagpur

("Party No. 1" in short) filed the written statement.

The case of the workman as presented in the

statement of claim is that he had worked as a Hot Weather

Waterman in Nagpur Division in S.E. Railway from

01.05.1986 to 30.06.1986 and 01.05.1987 to 30.06.1987 for a

total period of 122 days at Gangiwara Railway Station and

for working at the said station, orders were being given to

him through the Commercial Inspector, Headquarters by

way of provisional orders and the said orders were being

taken by the respective Stations Masters, for records and

authority to draw salary and for working as such, no

working certificate was given to him by the authority and

at that time, there was a convention that only those casual

labours/candidates, whose names were being listed in the

live register maintained in the office of D.P.O S.E. Railway,

Nagpur were to be engaged again and no fresh faces were

being enlisted for appointment/engagement and in the year

1988, he was not given any order for work and he came to

know from his colleagues that his name was enlisted at

serial No. 14 in the office order no. DPO/NGP/CON/EMP/

Astt./88/HW dated 12.05.1988 issued by the DPO, SE

Railway, Nagpur and he was ordered to work as Hit Weather

Workman at Kamptee Railway Station under the S.S.,

Kamptee, but the said order was not communicated to him

in any of the approved modes of communication, as a result

of which, he could not able to join his duty under the

Station Superintendent, Kamptee and he was also not given

opportunity of service in the future year, as per procedure

and Rules and due to deprivation of such job opportunity,

he met the DPO, Nagpur in 1989, 1991 and 1993 in person,

besides submitting written representations dated

06.01.1990, 10.12.1994, 07.04.1995, 20.03.1996, 26.02.1997,

21.08.1998 and 28.12.1998 to the different authorities of

Party No. 1 and lastly, he also sent pleader's notice, for his

engagement in the job, but the Party No. 1 remained deaf

and dumb and the appearance of his name in the order

dated 12.05.1988 itself shows that he had worked

previously, or otherwise, his name should not have been

mentioned in the list.

Prayer has been made by the workman for his

appointment in suitable post and cadre and all other

consequential benefits.

3. The Party No. 1 in the written statement has

pleaded inter-alia that as the workman has not submitted

any document in support of his claim that he worked at

Gangiwara Station from 01.05.1986 to 30.06.1986 and

01.05.1987 to 30.06.1987 as Hot Weather Waterman, such

claim cannot be entertained and new faces were not engaged

as casual labourer, without the prior approval of the General

Manager and the order dated 12.05.1988 was properly

displayed in the notice board in the place of posting i.e. at

Kamptee, but the workman failed to report for work and as

per extent rules, there was no provision of sending or

serving the order in the home address of the candidate and

the order dated 12.05.1988 was not an offer of appointment

against open market recruitment, but was an order for

engagement of Hot Weather Staff and as per its records,

the notice dated 31.05.1999 from advocate Shri Rajesh

Tripathi was received on 07.06.1999 and as there was no

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

947

records in the office regarding the engagement of the

workman and the workman failed to produce any evidence

of his working as Hot Weather Waterman at Gangiwara

Station during 1986-87, the conciliation proceedings failed

and the workman is not entitled to any relief.

4. The workman has examined himself as a witness in

support of his claim, besides placing reliance on documents.

In this examination in chief, which is no affidavit, the

workman has reiterated the facts mentioned in the statement

of claim. The workman has also proved the copies of

representations and the advocate's notice as Exts. W-III to

XII respectively.

In the cross-examination, the workman has admitted

that he has not filed any document to show that he had

worked as a Hot Weather Waterman from 01.05.1986 to

30.06.1986 and 01.05.1987 to 30.06.1987.

5. One Shri Prashant Tulsiram Naik has been

examined as a witness on behalf of the Party No. 1. The

evidence on affidavit of this witness is also in the line of

the stands taken by Party No. 1 in the written statement.

In the cross-examination, the witness for the Party

No.1 has stated that the employees engaged as per Ext. W-

II were not intimated individually. regarding their

engagement and there who no practice of intimating

individually. This witness has admitted the suggestion that

the workman filed applications before the Railway

authorities raising the dispute regarding his engagement

in the year 1988 itself.

6. At the time of argument, it was submitted by the

learned advocate for the workman that by order dated

12.05.1988, Ext. W-II, the Divisional Personnel Officer, S.E.

Railway, Nagpur passed order for engagement of Hot

Weather Waterman and in the said order, the name of the

workman was at serial number 14 and the said order was

not communicated to the workman in any manner and as

such, he could not able to join his duties as per the order

Ext. W-II and subsequent to the year 1988 also, the workman

was not provided with any work and the workman coming

to know about the order, Ext. W-II from his colleagues,

made several representation to the different authorities of

Party No. 1 as per Ext. W-III to W-XI and also sent a

pleader's notice as per W-XII, still then, no action was

taken by the Party No. 1 in the matter of giving employment

to the workman. It was further submitted by the learned

advocate for the workman that as per the claim of Party No.

1, the workman failed to produce any document regarding

his engagement in 1986 and 1987 and working for 122 days,

his claim cannot be entertained, but the Party No. 1 was in

possession of all the documents and Party No. 1 did not

provide the workman any document, such as the service

card and Party No. 1 did not produce the documents in

respect of the workman, with the plea of destruction of the

documents and when it is admitted by the witness for Party

No. 1 that the workman raised protest about his non-

engagement in the year 1988 itself, the Party No. 1 should

not have destroyed the documents and otherwise also, as

there was and is prohibition for engagement of fresh faces,

as causal labour, without the personal authorization of the

General Manager, as per rules and the name of the workman

appeared at serial no. 14 of the order of engagement of Hot

Weather Waterman in 1988 as per Ext. W-II, it can be held

that the workman was engaged by Party No. 1 from

01.05.1986 to 30.06.1986 and 01.05.1987 to 30.06.1987. It

was also submitted by the learned advocate for the

workman that as the workman had completed 120 days of

continuous employment, he was eligible for temporary

status and so also for permanent recruitment and the

workman is entitled for appointment to the deserving

suitable post and cadre with continuity from the date of his

initial engagement and all consequential benefits.

7. Per contra, it was submitted by the learned advocate

for the Party No. 1 that the order dated 12.05.1988 regarding

engagement of Hot Weather Waterman as per Ext. W-II

was pasted in the notice board, as per rules and there was

no provision to communicate such order personally to the

persons concerned and the workman did not come forward

to join duty and as the workman has failed to produce any

document in support of his working for the periods from

01.05.1986 to 30.06.1986 and 01.05.1987 to 30.06.1987 i.e. for

a total period 122 days, his claim cannot be entertained and

the documents regarding engagement of casual labourers

in 1986 and 1987 were destroyed as per rules and there was

not need to keep them alive, as no case was filed or no

dispute was raised before the Competent Authority within

the time limit of three years, so, destruction of records

regarding engagement of casual labourers was done and

the workman is not entitled to any relief.

8. First of all, I think it necessary to mention about

the schedule of reference in this case. The schedule of

referece is, "Whether the action of the Management of

Divisional Railway Manager, South Eastern Railway,

Kingsway, Nagpur in terminating from job as Hot Weather

Waterman to Sunil Kumar Laxman w.e.f. 1988 onwards

alongwith others enlisted employee in their circular dated

12.05.1988, is justified? If not, what relief the said workman

is entitled & from what date?

However, on perusal of the order dated 12.05.1988,

as referred in the schedule of reference, which has been

marked as Ext. W-II, it is found that the same is not an order

of termination of the job. Rather, the same is an order

regarding the engagement of the workman as Hot Weather

Waterman for 1988. Hence, the schedule of reference

appears to be patently wrong.

9. So far the non-production of documents by Party

No. 1 is concerned, it is to be mentioned that the Party No. 1

has taken the plea that the documents relating engagement

of casual labourers were destroyed as per rules and for

948

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

that the said documents were not produced. It is found

from record that the workman started making representation

in writing w.e.f. 06.01.1990. However, the dispute was raised

by the workman before the ALC, Chindwara in 1999 and

before the ALC, Nagpur in 2001. Though it is settled by the

Hon'ble Apex Court that there is no limitation for raising an

Industrial Dispute, it is also settled by the Hon'ble Apex

Court that the delay should not be unreasonable and the

fact that the workman was making repeated representations

is not sufficient explanation for the unreasonable delay. In

this case, there is delay of at least 11 years in raising the

dispute before the ALC, by the workman. As there was no

case pending in relation to the engagement of casual

labourers by Party No 1 in the year 1986, 1987 and 1988, the

destruction of the documents relating to the same, after

the period of limitation, i.e. three years, as per rules of

retention of records by Party No 1 cannot be said to be

illegal or unjustified. In this case, the delay in raising the

dispute is culpable to the workman.

10. The next contention of the workman is that the

order dated 12.05.1988 was not communicated to him

through any of the approved modes of service, as a result

of which, he could not able to join duty in the year 1988.

The claim of the Party No. 1 is that as per the Rules, the

order dated 12.05.1988 ws pasted on the notice board and

the workman himself did not come forward to join duty.

According to the statement of claim and evidence of

the workman, he came to know about the order dated

12.05.1988 from his colleagues. However, nothing has been

mentioned by the workman as to when i.e. the date of his

knowledage of the said order, either in the statement of

claim or in his evidence. According to the workman, in 1988

itself, he had met the concerned authority in person

regarding his engagement and the said fact indicates that

the workman knew about the order in 1988 itself. In his first

representation dated 06.01.1990, Ext. W-III, the workman

did not mention about his coming to know about the order

dated 12.05.1988 Ext. W-II from his colleagues, the date of

his such knowledge and so also, his approaching the

concerned authority in person in 1988 or 1989. Moreover,

in the statement of claim, it is mentioned by the workman

that for working at the station in 1986 and 1987, orders

were given to him through Sectional Commercial Inspector,

Headquaters at Chhindwara. If actually orders for working

in 1986 and 1987 were given to the workman, then the

workman should have filed the same to prove that actually

orders for working as Hot Weather Waterman were being

given to the persons concerned enlisted for the same, but

order dated 12.05.1988 was not given to him. It is found

that the Rules of Party No. 1 provide for pasting of such

order on the notice board. Hence, it cannot be said that

any illegality was committed by Party No. 1 by displaying

the order on the notice board and not sending the order to

the workman in person.

11. According to the workman, as he had already

worked for more than 120 days, he had acquired temporary

status and even though no document has been filed in

support of his claim for working more than 120 days in 1986

and 1987, the same can be presumed to be true, as because,

as per Rules, no fresh faces can be engaged by Party No. 1

as casual labourers and his name was in the order dated

12.05.1988. However, from the order, Ext. W-II, at best it can

be presumed that the workman was not a fresh face, but as

because, his name was in Ext. W-II, it cannot be presumed

that he had completed 120 days of work and had acquired

temporary status. The workman has failed to prove that he

had worked for 120 days in total in the year 1986 and 1987

and thus had acquired the temporary status. Admittedly,

the workman did not join duty in 1988. So, there was no

question of assigning the job of Hot Weather Waterman to

the workman in the subsequent years by Party No. 1.

In view of the materials on record and the discussions

made above, it is found that the workman is not entitled to

any relief. Hence, it is ordered:

ORDER

The reference is answered in the negative and against

the workman. The workman is not entitled to any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

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ds izcaèra= ds lac) fu;kstdksa vkSj muds deZpkjksa ds chp vuqcaè

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New Delhi, the 13th January, 2014

S.O. 355.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 38/08 of

the Kanpur as shown in the Annexure, in the industrial

dispute between the management of State Bank of India,

Regional Office, State Bank of India, Kahoo Kothi Branch,

State Bank of India, Local Head Office, and their workmen,

received by the Central Government on 13/01/2014.

[No. L-12012/111/2005-IR (B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

949

ANNEXURE

BEFORE SRI RAM PARKASH, HJS, PRESIDING

OFFICER, CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, KANPUR.

I.D. Nos. 38/08

Pramod Kumar Dubey,

So Late Sri Ram Gopal Dubey,

C/o Sri Ganesh Shanker Tripathi, UTUC,

128/102, Yashodanagar, Kanpur.

And

Regional Manager,

State Bank of India,

Regional Office,

Civil Lines,

Kanpur.

AWARD

1. Central Govt. Mol, New Delhi vide notification

no. L-12012/111/2005-IR B.I. dated 02.06.08 has referred

the following dispute for adjudication to this tribunal—

2. Whether the action of the mamagement of State

Bank of India, Kanpur, in terminating the services of Sri

Pramod Kumar Dubey (Guard) with effect from 12.06.04 is

just fair and legal. To what relief is the workman concerned

is entitled?

Brief facts are—

1. It has been alleged by the claimant that he was

engaged as guard w.e.f. 16.09.03 at Branch Office

Kahoo Kothi Kanpur in State Bank of India and

worked there till 11.06.04 with honestly. His

attendance was marked at Guard Register. He was

being paid his wages every month after obtaining

his signature on the attendance sheet.

2. All of a sudden he was removed by an oral order

dated 12.06.04, without informaing any reason. He

has completed 270 days and at the time of

retrenchment compensation.

3. Accordingly it has been prayed that the workman be

reinstated in service with full back wages and all

consequential benefits.

4. Opposite party has filed written statement refuting

the entire claim of the workman on the ground that

there never existed any relationship of master and

servant between the contesting parties, although the

claimant was engaged by the opposite party to

perform casual work but he never completed more

than 240 days of continuous service, the branch

manager was not having any authority or power to

engage such persons like the workman, therefore,

there was no cause of action for the workman to

raise the present dispute, therefore, the workman is

not entitled for any relief as claimed by him. Claim of

the workman is liable to be rejected and should be

rejected.

5. Both the parties have adduced oral as well as

documentary evidence. Claimant has adduced himself

as W.W.1. Opposite party has adduced M.W.1 Sri

Shyam Dhar Dubey who is the branch manager of

the bank.

6. Heard and perused the whole evidence.

7. Opposite party has specifically admitted the

engagement of the workman Sri Pramod Kumar

Dubey in the written statement as well as in his oral

evidence.

8. Only denial is that the W.W.1 has not completed 240

days. Whereas W.W.1 has specifically stated on oath

that he had worked with the opposite party branch

with effect from 16.09.03 till 11.06.04 He has been

thoroughly cross-examined on this point. Nothing

has come out in his statement which may disbelieve

has statement. He also stated that during duty hours

his attendance was marked properly. He has filed the

photocopies of attendance register which are paper

no. 9/5-14. I have examined these documents. The

name of the workman is written over there and the

last date has been shown as 07.06.04. Moreover, it

has been contended by the claimant that the original

of these document is in the custody of the opposite

party, who has failed to file these documents.

9. M.W.1 has also been cross examined on this point.

He stated that on these documents there are some

initials of some officers of the branch but he is not in

position to explain the same.

10. Claimant did his best to summon the documents from

the opposite party. Initially the opposite party did

not file the documents and filed an affidavit saying

that the documents are not traceable, but later on

filed bankers cheque in original which relate to the

workman right from 03.10.03 till 12.06.04, which are

paper no. 19/3-10.

11. It has been contended by the workman that they

have filed paper no. 17/7 which is a statement of

salary and allowances paid to Sri Peramod Kumar

Dubey, though the veracity of this document has

been made doubtful by the opposite party, but I do

not find any reason to disbelieve this document

because the original of this document is in the

custody of opposite party, it bear some stamp of the

bank. The dates which are mentioned in this

document also correspondingly relates to the bankers

cheques which have been filed by the opposite party.

It appears one or two original cheques have not been

950

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

filed by the opposite party like 01.01.04 for the reason

best known to the opposite party. When M.W.1 was

cross examined on several points, he simply stated

that he had never been posted in the branch at

Kahookothi, therefore, he does not have any record

showing how many days the workman has worked

in the branch.

12. When a specific question was put that the workman

has worked in the branch right from 16.09.03 to

11.06.04, he did not deny this suggestion, but showed

his ignorance.

13. It is also stated by M.W.1 that no compensation or

notice was given to him as per the record. He also

stated that there is no other record of the branch

Kohookothi.

14. Therefore, considering all the facts and documentary

evidence filed by both the parties the statement of

the workman coupled with the documentary evidence

appears to be believable. There is no reason to discard

his statement. The statement of M.W.1 does not

inspire confidence, firstly he was never posted at

branch office Kahookothi, he does not having any

personal knowledge of the case.

15. Therefore, the workman has been able to prove his

case that he was engaged as guard at Kahookothi

branch and worked there since 16.09.2003 till 11.06.04.

Admittedly he was not offered any notice, notice

pay or retrenchment compensation at the time of

termination of his services by the bank.

16. It is contended by the AR of the opposite party that

the Kahookothi branch has not been in existence

now. If at all it is found that the workman had worked

for more than 240 days, the claimant may be given

some compensation for that. He has placed his

reliance on the following decisions—

1. 2012 Lab IC 231 Alld. High Court, Zila Panchayat

Mathura and another versus Dy. Labor

Commissioner Agra Region and another. It has

been held by the Hon'ble Court, that relief for

lump sum amount towards back wages and

compensation could be awarded and

reinstatement in given circumstances must be

declined.

2. 2012 Lab IC 255 Alld. High Court, Ram Ji Pandey

and others versus PO Labor Court U.P. Gorakhpur

and others. In this case also the Hon'ble High

Court found that the workman has completed

240 days in a calendar year, as such he would be

entitled to lump sum compensation.

17. Considering the facts and over all aspect of the

present case that the Kahookothi branch is not in existence

at this time. Moreover this branch was also non chest

branch where normally security guards are not employed.

18. Therefore, considering all these aspects and the

decision laid down by the Hon'ble High Court that a

reasonable compensation of Rs. 40000/- will be sufficient

instead of directing reinstatement of the workman to meet

the ends of justice.

19. Hence reference is decided accordingly in favour

of the workman and against the opposite party.

Dt. 30-7-2013

RAM PRAKASH, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,e ,l fnYyh

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lqefr ldykuh] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 356.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 91/2013

of the Cent. Govt. Indus. Tribunal-cum-Labour Court, No.

1, Delhi as shown in the Annexure, in the industrial dispute

between the management of M/s. Delhi Nagri Sehkari Bank

and their workmen, received by the Central Government on

13.01.2014.

[No. L-12025/01/2014-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 91/2013

Shri Naresh Kumar Tyagi

185/15-A Moujpur

Delhi-110053.

......Workman

Versus

M/s Delhi Nagri Sehkari Bank,

720, Near Ghanta Ghar,

Subzi Mandi, Delhi-07.

.......Management

AWARD

A Branch Manager, working in Delhi Nagri Sehkari

Bank (in short the bank) allegedly committed gross

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

951

misconduct. He was suspended. Charge sheet was served

upon him. His reply to the charge sheet was found not to

be satisfactory. A domestic enquiry was constituted against

him. He participated in the domestic enquiry. Enquiry Officer

returned the findings against the Branch Manager. This

Disciplinary Authority concurred with the findings of the

Enquiry Officer and served notice of show cause calling

upon the Branch Manager to explain as to why punishment

of 'removal from service' should not be awarded to him. On

consideration of record of Enquiry Officer and facts

presented by the Branch Manager, the Disciplinary

Authority removed the latter from service of the bank, vide

order dated 26.04.2012.

2. The Branch Manager, namely, Shri Naresh Kumar

Tyagi approached the Conciliation Officer seeking redressal

of his grievance. The Conciliation Officer called upon the

bank to participate in the conciliation proceedings. Since

the bank opted not to participate in the conciliation

proceedings, proceedings before the Conciliation Officer

ended into a failure. The Branch Manager projects that a

period of 45 days, from the date of moving an application

before the Conciliation Officer, stood expired. He raises the

dispute under sub-section (2) of section 2A of the Industrial

Disputes Act, 1947 (in short the Act) for adjudication,

without being referred for adjudication by the appropriate

Government.

3. Documents viz., notice dated 26.11.2011, reply to

the said notice by the claimant, memo dated 12.12.2012,

charge sheet dated 23.12.2011, reply dated 29.12.2011, order

dated 04.01.2012 appointing the Enquiry Officer, written

submissions filed before the Enquiry Officer, enquiry

proceedings dated 19.01.2012, 25.01.2012, 30.01.2012,

01.02.2012, report of the Enquiry Officer, representation

dated 06.04.2012 submitted by Shri Tyagi, and order dated

26.04.2012, are filed alongwith the claim statement. These

documents project that Shri Naresh Kumar Tyagi was

working as Branch Manager with the bank. Contra to it,

certificate issued by the Conciliation Officer (Central) on

07.05.2013 highlight that Shri Naresh Kumar Tyagi was

working as clerk cum Cashier.

4. When Shri Naresh Kumar Tyagi was heard over

the matter, he projects that he was working as a Branch

Manager with the bank. He explains that there were 22-23

employees, who were working under his supervision and

control. Therefore, question for consideration would be as

to whether Shri Tyagi enjoys status of workman, as defined

under section 2(s) of the Act. For an answer, definition of

the term 'workman' is to be construed, which definition is

reproduced thus:

"(s) Workman means any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute,

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but does not include any such person—

(i) who is subject to the Air Force Act, 1950 (45 of 1950),

or the Army Act 1950(46 or 1950) or the Navy Act,

1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer

or other employee of a prison; or

(iii) who is, employed mainly in a managerial or

administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws

wages exceeding one thousand six hundred rupees

per mensem or exercises, either by the nature of the

duties attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature;

5. The first part of the definition gives statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an "industry" to do any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward. This part determines

what a "workman" means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with an

industrial dispute, or (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the definition

of "workman". This part gives extended connotation to

the expression ''workman''. The third part specifically

excludes the categories of persons specified in clauses (i)

to (iv) of this sub section. The third part connotes that

even if a person satisfies the requirements of any of the

first two parts but if he falls in any of the four categories in

the third part, he shall be excluded from the definition of

'workman'. Not only the persons who are actually employed

in an industry but also those who have been discharged,

dismissed or retrenched in connection with or as a

consequence of an industrial dispute, and whose dismissal,

discharge or retrenchment has lead to that dispute, would

fall within the ambit of the definition. In other words, the

second category of persons included in the definition would

fall in the ambit of the definition, only for the purpose of

any proceedings under the Act in relation to an industrial

dispute and for no other purposes. Therefore, date of

reference is relevant and in case a persons falls within the

definition of workman on that day, the Tribunal would be

952

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

vested with jurisdiction to entertain it and the jurisdiction

would not cease merely because subsequently the

workman ceases to be workman.

6. For an employee in an industry to be a workman

under this definition, it is manifest that he must be employed

to do skilled or unskilled manual work, supervisory work,

technical work or clerical work. If the work done by an

employee is not of such a nature, he would not be a

workman. The specification of the four types of work

obviously is intended to law down that an employee is to

become a workman only if he is employed to do work of

one of those types, while there may be employees who,

not doing any such work, would be out of the scope of the

word 'workman', without having resort to the exceptions. It

cannot be held that every employee of an industry was to

be a workman except those mentioned in the four exceptions

as in that case these four classifications need not have

been mentioned in the definition and a workman could

have been defined as a person employed in an industry

except in cases where he was covered by any one of the

exceptions.

7. In cases where an employee is employed to do

purely skilled or unskilled manual work, or supervisory

work or tehnical work or clerical work there would be no

difficulty in holding him to be a workman under the

appropriate classification. Frequently, however, an

employees is required to do more than one kind of work. In

such cases, it would be necessary to determine under which

classification he will fall for the purpose of finding out

whether he does not go out of the definition of 'workman'

under the exceptions. The principle is now well settled

that, for this purpose, a workman must be held to be

employed to do that work which is the main he is required

to do even though he may incidentlly doing other type of

work.

The words 'managerial or administrative capacity'

have not been defined in the Act, therefore have to be

interpreted in their ordinary sense. In an establishment,a

person may be in a managerial capacity or administrative, if

the work assigned to him require a degree of initiative

command and control which are usually associated with

the position of managerial or administrative capacity. In

deciding such a question, one has to consider the functions

and duties assigned to the person. Several tests, laid down

by the Apex Court in Prem Sagar [1964)(1) LLJ 47] for

deciding the question as to whether a person is employed

in managerial capacity, are as follows:

''It is difficult to lay down exhaustively all the tests

which can be reasonably applied in deciding this

question as several considerations would naturally

be relavant in dealing with this problem. It may be

inquired whether the person had a power to operate

on the bank account or could he make payments to

third parties and enter into agreements with them on

behalf of the employees, was he entitled to represent

the employer to the worlds at large in regard to the

dealings of the employer with strangers, did he have

authority to supervise the work of the clerks

employed in the establishment, did he have control

and charge of the correspondence, could he make

commitments on behalf of the employer, could he

grant leave to the members of the staff and hold

disciplinary proceedings against them, has he power

to appoint members of the staff or punish them: these

and similar other tests may be usefully applied in

determining the question about the status of an

employee...''

8. Operation of bank account, controlling of

staff,carrying on correspondence, disbursing salary and

convening meetings, were held to be managerial jobs in

Sunil Kumar Ghosh [1978 (37) FLR 247]. The mere fact that

the employee was designated as a manager or that he

represented the management in prior adjudication

proceedings cannot by itself prove that he was performing

'managerial duties' within the meaning of section 2(s)(ii) or

2(s)(iii) of the Act. Reliance can be placed on precedent

P.A.S. Press [1960 (1) LLJ 792]. For determination of such a

question, no abstract or rigid formula can be employed.

His main and substantial work is to be looked into.

Reference can be made to precedent in the management of

Scindia Potteries [1974(29) FLR 325]. In order to take an

employee out of definition of 'workman', it is necessary to

show that he is employed, in fact and in substance, mainly

in a managerial or administrative capacity. See Syndicate

Bank Ltd. [1966 (11) LLJ 194] and Ved Prakash Gupta (1984

Lab. I.C. 658).

9. Merely performing some supervisory duties will

not take out an employee out of the ambit of definition of

workman. The work 'supervision' means to oversee or to

look after. Supervision which is relevant in this connection

is the supervision done by an employee in a higher position

over the employees in the lower position. Supervision may

be in relation to the work or in relation to the person. The

word 'supervisory' as used in section 2(s) of the Act does

not relate to supervision of an automatic plant. Many

machines run automatically on power. they do not have to

be run by human energy. There running and functioning

has to be watched and repaired if anything goes wrong. A

person who attends to such machines may either do

technical or manual work within the meaning of section

2(s) of the Act. But he does not do supervisory work merely

because he looks after the machine. The essence of

supervisory nature of work under sections 2(s) of the Act

is the supervision by one person over the work of another.

See Blue Star Ltd. (1975 (31) FLR 102).

10. A person can be said to be a supervision if there

are persons working under him. over whose workhe has to

keep a watch. In other words, he is that person who

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

953

examines and keeps a watch over the work of his

subordinates and if they err in any way, corrects them. It is

his duly to see that the work in any industrial unit is done

in accordance with the manual, if there is one, or in

accordance with the usual procedure. It is not his function

to bring about any innovation. It is not his function to take

any managerial decision but it is his duly to see that the

persons over whom he is supposed to supervise the work

assigned to them, they work according to rules and

regulations. The central concept of supervision is the fact

that there are certain persons working under him. The

essence of supervisory work is the supervision by one

person over the work of others. For exercising supervisory

powers, it may often be necessary that the supervisor

himself must have technical expertise, otherwise he may

not be in a position to exercise proper supervision of the

workmen handling sophisticated plants and machines. A

supervisor need not be a manager or an administrator. He

can be a workman so long as he does not exceed the wage

limit of Rs. 1600.00 per month and irrespective of his salary,

is not a workman who is to discharge functions mainly of

managerial nature by reason of the duties attached to his

office or power vested in him.

11. A person cannot be said to be working in a

supervisory capacity merely because he used to supervise

a person who helpd him in doing the work, which he himself

is to perform. Fro instance, a clerk who has been given the

assistance of the peon cannot be said to be working in a

supervisory capacity. When one talks of a person working

as supervisor, one understands it to mean a person who is

watching the work being done by others to see that it is

being done properly. See Mathur Aviation [1977 (II) LLJ

225]. thus in determining the status of an employee, his

designation is not decisive. What determines the status is

the consideration of the nature of his duties and functions

assigned to him. A supervisor should occupy a position of

command or decision and should be authorised to act in

certain matters within the limits of his authority without

the sanction of the manager or other supervisors. In the

absence of precise and positive evidence to prove the exact

nature of work which the employee was performing, it

cannot be helf that he was doing adminstrative or

supervisory work.

12. As projected by documents referred above,

Shri Naresh Kumar Tyagi was working as Branch Manager

with the bank. It is not his case that this designation was

merely decorative. He concedes that he used to perform all

functions of the Branch Manager. To carry out his duties,

there were 22-23 employees to assist him. He presents that

he used to supervise the work and conduct of 22-23

employees working under his control and supervision. He

nowhere disputes that managerial and administrative

functions were being performed, besides supervisory

duties, while working as Branch Manager. Therefore,it is

apparent that the claimant was employed mainly in

managerial or administrative capacity. Besides, working in

that capacity, he used to exercise supervision on the

employees working under his command and control.

Consequently, it is crystal clear that Shri Naresh Kumar

Tyagi does not adorn status of a workman, as defined under

section 2(s) of the Act.

13. The Conciliation Officer wrongly describes

designation of the claimant as Clerk cum Cashier. It emerges

that the failed to apply his mind to the facts, presented

before him. He recorded wrong designation of the claimant

in his certificate dated 07.05.2013. This wrong designation

is contrary to the stand of the claimant, as to his status in

the bank. Consequently, it is crystal clear that certificate

issued by the Conciliation Officer nowhere espouse cause

of the claimant. This certificate is brushed aside.

14. In view of the reasons detailed above, it is

apparent that Shri Naresh Kumar tyagi is not a workman

within the meaning of section 2(s) of the Act. When Shri

Tyagi is not a workman, dispute which he wants to raise

cannot answer the ingredients of an industrial dispute,

defined under section 2(k) of the Act. For the sake of

convenience, definition of industrial dispute is extracted

thus:

''industrial dispute'' means any dispute or difference

between employers and employers or between

employers and workmen, or between workmen and

workmen,which is connected with the employment

or non-employment or the terms of employment or

with the conditions of labour, of any person''.

15. The definition of ''industrial dispute'' referred

above, can be divided into four parts, viz. (i) factum of

dispute, (2) parties to the dispute, viz.(a) employers and

employers, (b) employer and workmen,or (c) workmen and

workmen, (3) subject matter of the dispute,which should

be connected with—(i) employment or non employment,

or (ii) terms of employment, or (iii) condition of labour of

any person, and (4) it should relate to an ''industry''.

16. Since the claimant is not a workman, dispute

which he wants to raise before this Tribunal does not answer

the definition of ''industrial dispute''. This Tribunal cannot

invoke its jurisdiction to enter into adjudication of the

dispute. The dispute raised by the claimant is, accordingly,

discarded. An award is passed against the claimant and in

favour of the bank. It be sent to the appropriate Government

for publication.

Dated: 10.06.2013

Dr. R.K. YADAV, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSd

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè

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954

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

èuckn ds iapkV lanHkZ la[;k 265@2001 dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 13@1@2014 dks izkIr gqvk FkkA

[lañ ,y&12012@22@2001&vkbZ vkj ¼ch&I½]

lqefr ldykuh] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 357.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 265 of

2001 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,

Zonal Office, Renigunta Road and their workmen, received

by the Central Government on 13/1/2014.

[No. L-12012/22/2001-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.

Reference No. 265 of 2001.

Parties

Employers in relation to the management of

State Bank of India, Patna.

AND

Their Workmen

Present :

Shri H.M. Singh,

Presiding Officer.

Appearances:

For the Employers

Shri R.N. Chatterjee, Advocate.

For the Workman

Shri P.R. Rakhit, Advocate.

State: Bihar

Industry: Bank.

Dated, the 9th Jan., 2010.

AWARD

By Order No. L-12012/22/2001-IR (B-I) dated

26.11.2001 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 dispute

for adjudication to this Tribunal:

"Whether Sri Lalan Kumar Jha, workman had been

appointed by the Branch Manager, State Bank of

India, Morsanda Branch, Katihar vide letter date

4-10-86 & worked upto 21.9.1997 on various capacity

including canteen boy, if so, whether the action of

the management in terminating the services of

workman on 22.9.1997 without regularising him is

justified? If not, what relief the workman is entitled?"

2. The case of the concerned workman, in brief, is

that he was engaged by the management as canteen boy

in Morsanda Branch of State Bank of India in the year

1985-86 issued by Branch Manager. He joined the duty as

canteen boy on the said date. The work of the concerned

workman was assigned to look after the office canteen

room carefully and serve the officials of the Branch Office

in usual manner. The duty hours of the concerned

workman was fixed by the Bank from 10.00 AM to 5 PM

and the concerned workman was following the instruction

and guidelines of the management very honestly and

dedicatedly. The wages/remuneration of the concerned

workman was fixed by the Bank at Rs. 500/- per month. The

concerned workman has also served with the management

as Messenger Boy for total period of 95 days and the Bank

used to pay the wages for the job of Messenger boy at

the rate of Rs. 5/- initially and later on at the rate of Rs. 8.50

and Rs. 10/- daily basis. He completed all formalities for his

regularisation and submitted the required application to

the management. The management considering the

application of the workman called him for interview on

13.2.97 at 11.00 AM. After the interview of the daily wagers,

the management prepared lists of 234 daily wagers for

their regularisation. The concerned workman's position

was at sl. No. 234. Bank regularised the service of 233

daily wagers and left the concerned workman without

assigning any reason. Ultimately, canciliation proceeding

was held but without any effect. It has been submitted

that the concerned workman is deprived of the legitimate

claim being weaker section of the Society and the Bank

is bound to regularised his service in the regular Bank

service from the date of interview i.e. w.e.f. 13.2.1997.

It has been prayed before this Tribunal to pass an

award in favour of the concerned workman directing the

management to regularise the service of the concerned

workman as regular employee of the Bank w.e.f. 13.2.97

with full back wages.

3. Written statement has been filed by the

management stating that Sri Lalan Kumar Jha was engaged

by the local Implementation Committee, which runs and

manages such canteens, an independent and separate

entity for the staff welfare. The Committee engaged the

canteen boy as required by them on their own behalf and

not on behalf of the Bank. The concerned workman filed a

writ petition (CWJC No. 78/98) before the Ho'n'ble High

Court, Patna. The Bank filed its counter-affidavit seeking

negating the writ petition. The Hon'ble High Court vide

its Order dated 8.12.98 on being the prayer of learned

counsel for the concerned workman, permitted to withdraw

writ petition with liberty to raise an industrial dispute.

The grievance of the concerned workman in the said writ

petition was non-regularisation of his service by the Bank,

which should have been an industrial dispute under the

Industrial Disputes Act and for that the espousal by a

trade union to which the concerned workman was a member

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

955

was necessary. However in the instant case there was no

espousal from trade union. There canteens are being run

by the LIC to cater to the staff tea snacks etc. and as such

it has nothing to do with the Bank's activities and business

of the Bank. Thus, the dispute raised by petition does not

fall within the ambit of Section 2(k) reads with Section 25

of the Industrial Disputes Act, 1947, so far as the Bank is

concerned. The claim of the petitioner is also stale and

devoid of any merit.

In rejoinder to the written statement of the

concerned workman, it has been stated that the concerned

workman was never appointed by the Bank as canteen

boy. The concerned workman was called for an interview

on13.2.94 to examine the suitability for the absorption in

the Bank's service. But the Interview Board found him

unsuitable for absorption in the Banks service. On perusal

of previous records it had revealed that while working as

canteen boy in the Local Implementation Co. Canteen at

Morsanda Branch the concerned workman used to accept

illegal gratification from the rural borrow of the bank. The

borrowers lodged a complaint in writ: with the bank, which

reflected doubtful integrity of the petitioner. The

allegations that the petitioner was working as a middle

man in disbursement of Bank's advances were enquired

into by one of the senior office of the Bank and found the

same to be true. The Bank also initiated disciplinary

proceedings against the then Branch Manager, Morsanda

Branch. It has also been state that the Interview Board

had found Sri Lalan Kumar Jha and 5 other candidates

unsuitable for the Bank's service. So it is false to say that

the Bank had regularised all candidates except Lalan Kumar

Jha.

It has been prayed that the Hon'ble Tribunal be

pleased to pass an award holding that the action of the

management in terminating the service of workman on

22.9.1997 without regularising him is justified and the

concerned workman is not entitled to any relief.

4. The workman has filed rejoinder to the written

statement of the management stating almost same facts as

have been stated in the written statement.

5. The concerned workman, Lalan Kumar Jha,

examined himself as WW-I and he has proved documents

Exts. W-1 to W-4.

The management has produced MW-1, S.K. Das,

who has proved documents as Exts. M-1 to M-9. The

management has also produced MW-2, Arbind Kumar

Mishra, who has also proved documents, Exts. M-3, M-5,

M-8 and M-9.

6. Main argument argued on behalf of the concerned

workman is that he has been called for interview alongwith

234 candidates, but others have been regularised and

selected but he was not selected and regularised. In this

respect it has been argued that the criminal case which was

instituted against the concerned workman had already been

ended in acquittal.

The management argued that the concerned workman

used to take bribe for grant of loan from the rural borrowers

of the Bank with the connivance of the Branch Manager.

The Bank initiated disciplinary proceeding against the then

Branch Manger and the F.I.R. was lodged against the

concerned workman. He was called for interview, but he

was not found fit by the Interview Committee for

regularisation. In this respect it has been argued that Local

Implementation Committee appointed the concerned

workman in the Canteen as canteen boy. But the

representative of the workman argued that the local

Implementation Committee was not appointing authority

and he was appointed by the Bank Branch Manager,

Morsanda Branch on 4.10.96 as per Ext. W-1 and W-1/2. It

has also been argued that the Local Implementation

Committee has got no role for running the canteen regarding

work performed by the concerned workman. It has also

been argued that the Branch Manager recommended for

his regularisation, but even then he was not regularised

and other persons have been regularlised though letter

was issued by the Branch Manager, as per Ext. W-2/4, for

his regularisation and good workings.

7. In this respect the management argued that the

concerned working with the connivance of the Branch

Manager used to accept illegal gratification from the rural

borrowers of the Bank. Though the concerned workman

was called for interview only on the ground that he had

worked for sometime on casual basis, but this cannot be

disputed that it is upon the interview Selection Committee

to select or not to select a person. A person cannot claim

that he should be selected by the Committee though there

is vacant post, as per Ext. M-6, of messenger and the Bank

has regularised against those posts some persons.

8. From the side of the management the decision of

Hon'ble Supreme Court reported in 2001(I) LIJ (SC) 1441

has been referred in which Hon'ble Supreme Court laid

down Bipartite Agreement Sastri Award—Handbook—

Nieither award nor Hand-book cast on obligation on SBI to

run canteens. Union raised industrial dispute that canteen

employees be absorbed as Bank employees—Tribunal

awarded in favour of employees—Bank filed writ in High

Court—During pendency of appeal for settlements were

arrived at between union and Bank—Branches where total

employees are a minimum of 100 canteen taken over by

Bank and employees absorbed after due selection

process—Rest of canteens where total employees are less

than 100, run by Local Implementation Committee, only

facilities provided—Case in High Court settled as per

settlement—Left out employees claimed absorption—

Tribual rejected appeal—High Court on appeal allowed

appeal—Aggrieved Bank filed this appeal—Held no

obligation on bank to run canteens.

956

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

The management also referred 1999(II) LLJ 59

(Abhimanyu Mandal Vs. State Bank of India) Orissa High

Court in which the Hon'ble High Court laid down that

Regularisation—In post of Messenger—State Bank of

India—Panel of temporary employees and daily wagers

and casual labour—Modalities about drawing name from

either panel to be decided administratively in consultation

with federation's affiliate by Civil Management according

to local requirements— pleadings of petitioners that

modalities must be followed in future also—panel ceased

to be operation with effect from March 31, 1997—question

of regularisation does not arise thereafter.

Regarding whether the canteen run by the

management it does not matter because on the basis of

casual work done by the concerned workmen the

management considered him to call for interview alongwith

other candidates for appointment. The Interview Committee

did not find him fit for appointment or to select him for

regularisation. This cannot be challenged in any way by

the concerned workman.

9. Ext. W-3 only shows that the concerned workman

was acquitted under Sec. 420, 120-B and 384 I.P.C. The

criminal case lodged against the concerned workman was

regarding his conduct for grant of loan by Morsanda

Branch and getting some money from the borrowers in

granting loan by the Bank and taking Rs.2000/ shows that

his conduct was not very much responsible for not

selecting by the Interview Board of the Management.

Papers filed by the management as per Ext.M-2 shows that

payment is made to Local Implementation Committee,

Morsanda Branch Secretary for running of the canteen. It

shows only that the Secretary. Staff Welfare Implementation

Committee, Morsanda Branch maintained the concerned

canteen where the concerned workman was working and

the payment is made by the management to the Secretary,

Local Implementation Committee. Ext. M-4 shows that the

payment is made to the concerned workman as he is working

as canteen boy, so he was not the employees of the Bank

so that he may be regularised. He is working with the

Canteen which is run by the Secretary, Local

Implementation Committee for welfare of the employees

and as officers and employees of the Bank taking benefit

of the canteen and on that basis the concerned workman

was given opportunity and called for interview for

absorption in the Bank. But he was not found fit for

regularisation by the Interview Board.

In view of the above facts and circumstances, I hold

that the concerned workman is not entitled to any relief.

10, Accordingly, I render the following award—

The action of the management in terminating the

services of the workman, Lalan Kumar Jha, on 22-9-1997

without regularising him is justified and hence the

concerned workman is not entitled to any relief.

H.M. SINGH, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 358.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,Q lh

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vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky; y[kuÅ ds iapkV ¼lanHkZ la[;k 07@2004½

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13@1@2014 dks izkIr

gqvk FkkA

[lañ ,y&22012@336@2000&vkbZ vkj ¼lh ,e&II)]

chñ ,eñ iVuk;d] MsLd vfèdkjh

New Delhi, the 13th January, 2014

S.O. 358.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref.07/2004 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Lucknow as shown in the Annexure, in the industrial

dispute between the management of Food Corporation of

India and their workmen, received by the Central

Government on 13/1/2014.

[No. L-22012/336/2000-IR(CM-II)]

B.M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT

Dr. Manju Nigam, Presiding Officer

I.D. No. 07/2004161/2001

Ref. No. L-22012/336/2000-IR(CM-II) dated 23.12.2003

BETWEEN

The State Secretary Bharitya Khadya Nigam Karmchari

Sangh

5/6, Habibullah Estate

Lucknow-226001

(Espousing cause of Shri Pratap Singh)

AND

The Sr. Regional Manager

Food Corporation of India

5/6, Habibullah Estate

Lucknow-226001

AWARD

1. By order No. L-40012/87/2001-IR(DU) dated

11.09.2001 the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by clause

(d) of sub-section (1) and sub-section(2A) of Section 10 of

the Industrial Disputes Act, 1947 (14 of 1947) referred this

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

957

industrial dispute between the State Secretary, Bharitya

Khadya Nigam Karmchari Sangh, 5/6, Habibullah Estate,

Lucknow and the Sr. Regional Manager, Food Corporation

of India, 5/6. Habibullah Estate, Lucknow for adjudication.

2. The reference under adjudication is:

"Whether the Action of the Management of Food

Corporation of India in not granting selection grade

from 1992 to Sh. Pratap Singh and imposing penalty

vide order dated 7.7.1999 were legal and justified? If

not, to what relief the workman is entitled to?"

3. The case of the workman's union, in brief, is that

the workman, Pratap Singh was appointed on 03.05.71 as

Assistant Grade-III (Depot) and was promoted in April,

1972 as Assistant Grade-II(D) and thereafter further

promoted to the post of Assistant Grade-I (D) in December,

1980. It is alleged that the workman was entitled for selection

grade after completion of 12 year's service in a grade i.e.

after completing 12 years service in Assistant Grade-I (D)

in December, 1992; but the management did not grant the

same to the workman. Further it is submitted by the

workman's union that the workman as issued a charge

sheet dated 28.12.98 for alleged shortage/excess of stock

in the stacks; and thereafter, was penalized vide impugned

order dated 07.7.99 without considering his reply.

Accordingly the workman's union has prayed that the

management of FCI be directed to grant selection grade to

the workman and set aside the impugned order dated

07.07.99.

4. The management of the FCI has disputed the claim

of the workman by filling its written statement; wherein it

has submitted that the workman was granted selection

grade against the panel year 1993; and thereafter, the same

was withdrawn due to recasting of seniority of AG I (D) as

per court order. It is further submitted that the workman

was charge sheeted for his misconduct and after conducting

the formal inquiry and considering all the material on record

i.e. evidence, inquiry report and reply of the charged official

etc. the penalty order dated 07.07.99 was issued. It is

submitted by the management that the impugned order

dated 07.07.99 is in accordance with the principals of natural

justice; and there is nothing illegal in it. Accordingly, the

management of the FCI has prayed that the claim of the

workman's union be rejected without any relief to the

workman concerned.

5. The workman's union has filed its rejoinder,

wherein it has not brought any new fact apart from reiterating

the averments already made by him in the statement of

claim.

6. The workman has held photocopy of certain

documents vide list dated 04.02.2005. paper No. C-17 and

in rebuttal the management has filed none. The workman's

union examined the workman in support of its case on

08.12.2005, but the workman did not turn up for his cross-

examination in spite of ample opportunities being given to

him and ultimately it was presumed vide order dated

07.05.2007 that the workman does not want to get cross-

examined and accordingly. 11.07.2007 was fixed for

management's evidence. When the management of FCI did

not produce any evidence on serveral dates accordinlgy, it

was presumed vide order dated 08.06.2009 that the

management does not want to lead any evidence and the

case was fixed for arguments on 10.08.2009. The parties

filed their respective written arguments in support of their

cases; but did not forwarded any oral argument are

remaining absent for long time; accordingly, the case was

reserved for award, keeping in view the long pendency of

the case and reluctance of the parties of contest their case.

7. It was the case of the workman's union that the

management of the FCI did not grant the selection grade

to the workman after completion of 12 year's service in a

grade; and further that it illegally penalized the workman

by issuing impugned order dated 07.07.99 without

complying with the settled principles of natural justice.

The workman has field photocopy of certain documents in

support of his case; and has tried to prove them through

the evidence of the workman; but since the workman did

not turn up for his cross-examination, the evidence

forwarded by the workman's union become futile. Thus,

the version of the workman's union stands unproved.

8. Per contra, the management of the FCI has disputed

the claim of the workman's union with pleading that the

thouht the selection was granted to the workman but the

same was withdrawn consequent to recasting of seniority

of AG-1(D) as per directions of the Court. Further it is also

the case of the management that the impunged dated

07.07.99 was issued after due consideration of the reply of

the workman and affording him all reasonable opportunity

to defend himself, accordingly, there is no infirmity it and

the same is liable to be upheld along with the order dated

07.07.99.

9. It is well settled that if a party challenges the legality

of order, the burden lies upon him to prove illegality of the

order and if no evidence is produced by the party, invoking

jurisdiction of the court, must fail. In the present case burden

was on the workman's union to set out the grounds to

challenge the validity of the action of the management in

granting the selection grade to the workman and that of

order dated 07.07.99 of the management, whereby the

workman was imposed penalty; and to prove that the action

of the management in not granting him selection grade and

issuing the impugned order dated 07.07.99 was illegal. It

was the case of the workman's union that the workman

was not granted selection grade and was penalized by the

impugned order dated 07.07.99. This claim has been denied

by the management; therefore, it was for the workman's

union to lead evidence to show that alleged injustice was

done to the workman by the managment.

958

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

10. In M/s. Uptron Powertronics Employees' Union.

Ghaziabad through its Secretary vs. Presiding Officer,

Labour Court (II), Ghaziabad & others 2008 (118) FLR 1164,

Hon'ble High Court relied upon the law settled by the Apex

Court in Sanker Chakravarti vs. Britannia Biscuit Co. Ltd.

1979 (39) FLR 70 (SC), V.K. Raj Industries vs. Labour Court

and others 1979 (39) FLR 70 (SC), Airtech Private Limited

vs. State of U.P. and others 1984 (49) FLR 38 and (AIId.)

Mertiech India Ltd. vs. State U.P. and others 1996 (74) FLR

2004; wherein it was observed by the Apex Court:

"that in absence of any evidence led by or on

behalf of the workman the reference is bound to be

answered by the Court against the workman. In such

a situation it is not necessary for the employers to

lead any evidence at all. The obligation to lead

evidence to establish an allegation made by a party

is on the party making the allegation. The test would

be, who would fail if no evidence is led."

11. In the present case the workman's union failed to

prove its case as the workman did not turn up for his cross-

examination; and accordingly his evidence could not taken

into account. Mere pleadings are no substitute for proof. It

was obligatory on the part of workman's union to come

forward with the case that the workman had illegally been

denied with the selection grade and the impugned order

dated 07.07.99 was issued without observing the due

procedures of natural justice but the workman's union failed

to forward any evidence in support of its claim, as its witness

did not turn up for cross-examination before this Tribunal.

There is no reliable material for recording findings that the

alleged injustice was done to the workman or the action of

the management of FCI in not granting selection grade

from 1992 to the workman and imposing penalty vide order

dated 07.07.99 was either illegal or unjustified.

12. Accordingly, the reference under adjudication is

adjudicated against the workman's union; and as such. I

come to the conclusion that the workman, Pratap Singh is

not entitled to any of the relief(s) claimd.

13. Award as above.

Lucknow.

Dr. MANJU NIGAM, Presiding Officer

1st October, 2013

ubZ fnYyh] 13 tuojh] 2014

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dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj , ,l vkbZ ds

izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa

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

U;k;ky; uñ 2] ubZ fnYyh ds iapkV ¼lanHkZ la[;k 61@2001½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,yñ&42012@90@2001&vkbZ vkj ¼lh ,e-II½]

chñ ,eñ iVuk;d] MsLd vfèdkjh

New Delhi, the 13th January, 2014

S.O. 359.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 61/2001 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 2,

New Delhi as shown in the Annexure, in the industrial

dispute between the management of Archaeological Survey

of India, and their workmen, received by the Central

Government on 13/01/2014.

[No. L-42012/90/2001-IR(CM-II)

B.M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM- LABOUR COURT-II, DELHI

Present:— Shri Harbansh Kumar Saxena

ID No. 61/2001

Smt. Usha Rani

Versus

Archaeological Survey of India N.D.

AWARD

The Central Government in the Ministry of Labour

vide notification No. L-42012/90/2001-IR(CM-II) dated

10.10.2001 referred the following industrial Dispute to this

tribunal for the adjudication:—

"Whether the action of the managment of

Archaeological Survey of India in terminating the

services of Smt. Usha Rani, daily wages sweeper

w.e.f. 6.6.2000 is legal and justified? If not, to what

relief she is entitled to?"

On 29-10-2001 reference was received in this tribunal.

Which was register as I.D. No. 61/2001 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 on 09.11.2001. Wherein he stated as follows:—

1. That I was employed by the Management as a Peon-

cum-Sweeper, w.e.f. 1st of January, 1999, and was

getting the salary on the basis of the total days

worked in a calendar month. Necessary documents

to this effect i.e. the sheet Showing the certain

amount of arrear paid to the undersigned workman,

proving the above fact is enclosed herewith.

The fact of appointment of the workman has also

been admitted by the Management, in their letter dt.

24.10.2000 duly signed by the Dy. Director

(Accounts) and addressed to the ALC (copy

enclosed.)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

959

It is perstinent to mention here that the undersigned

workman continued to work with the Department for

more than 240 days i.e. 254, and this fact can very

well be established from the details of the arrears

paid to the workman copy of the arrear sheet are

already annexed. As such the basic and fundamental

principle of Employer and employee relationship is

established on record.

2. That suddenly on 6.06.2000 the undersigned workman

was dismissed from the services without any

justifiable excuse or reason, and instead of serving

any written communication, she was simply asked

not to come on the next date, since her services are

no more required, with the management. It is pertinent

to mention here that the removal of the workman

from the service in the above manner is clearly

against the settled principles of laws, and is also

against the natural justice.

3. That it is alleged by the Management that she was

terminated because of the alleged misbehavior with

one Janki Hinduja, Incharge of the Central Library.

In this connection it is submitted that the

Management took the action (uncalled for) only when

the workman made a complaint of harassment and

physical torture, as well as not acceding to the

compulsion of the said Hinduja to the sexual advance/

proposals as made by one Sh. RSP Singh, through

her.

4. The removal of the workman is unjustified and illegal

on the following points:

(i) Had there been any complaint of misbehavior of

otherwise, the management should have given

an opportunity to the workman to explain here

conduct, but the same is not done in the present

case?

(ii) No enquriy of whatsoever nature has been

conducted, and no opportunity has been

provided to the workman.

(iii) No order of termination/removal from service

has been passed.

(iv) Hon'ble Supreme Court in catena of judgments

has held that before passing any such order,

reasonable opportunity has to be given to the

workman, and if no opportunity has been given,

the order is unjustified and illegal.

Since the order of removal is unjustified, without

any reasonable cause, and is illegal, the workman is entitled

to:

(i) reinstatement with immediate effect;

(ii) release of salary from May, 2000 to till date with

all consequential benefits;

It is further submitted that the order is further illegal

especially in view of the fact that the workman has worked

for more than 240 days, and had been getting the wages

regularly, and the action of the management is uncalled for

and is biased one, since the workman made a detailed

complaint against the attitude and behavior of one Hinduja,

Librarian (Asst.) who was also posted there, and was

pressurizing the workman to succumb to the proposal of

sexual relationship with one Sh. RSP Singh, who was also

working in the same department.

Further the employer-employee relationship is clearly

establishment on record.

Reply on behalf of the respondent to the claim filed

by the claimant.

1. That the present petition is misuse of the process

of law and the same is liable to be rejected on this ground

alone.

Reply on Merits:—

1. That in reply to the contents of para No. 1 of the

claim/petition, it is submitted that the applicant was

engaged purely as a Daily wages Sweeper in the Central

Archeological Library National Archives Buildings, New

Delhi Few Months. It is vehemently denied that the claimant

working as Peon also.

2. That in reply to the contents of para No. 2 of the

claim/petition, it is submitted that the workman/claimant

was engaged purely as daily wage sweeper as and when

required. However, it is wrong to say that her services were

illegally terminated on 06.06.2000.

3. That the contents of para No. 3 of the claim/petition

are wrong and denied. It is vehemently denied that the

claimant has ever completed 240 days of continuous

services in a year with the respondent. However, the

applicant be put to strict proof of the averments made

therein.

4. That the contents para No. 4 of the claim/petition

need no reply from the respondent being matter of record.

5. That the contents of para No. 4 of the claim/petition

are wrong and concocted, therefore, the same are

vehemently denied. It is worng to say that Ms. Janki Hinduja,

Librarian has ever called any workman at her residence. It

is relevant to note that the claimant has never made such

type of allegations against her superior before her services

were dispensed with.

6. That the contents of para No. 6 of the claim/petition

are vehemently denied. It is humbly submitted that Ms.

Janki Hinduja had submitted here point of view on the

allegations of defamatory nature by the claimant to the

Under Secretry (vig). It is further submitted that in the said

explanation she has denied each and every allegation made

by the claimant. It is quite unfortunate on the part of the

960

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

daily wages employee to make such type of allegations on

a person who is holding the Senior Position in the

Department. It is relevant to note here that the claimant

misbehaved and used unparliamentary language against

said Ms. Janki Hinduja, Librarian.

7. That in reply to the contents of para No. 7 of the

claim/petition, it is submitted that whenever, a

representation is made by the claimant, action was taken

on them by the respondent/management.

8. That the contents of para No. 8 of the claim/petition

are not only wrong but by the same she has tried to do

character assassination of not only Ms. Janki Hinduja but

also of Mr. R.P. Singh, Librarian of another institute. This

itself shows what type of a person the claimant is, therefore,

her services were righty terminate by management/

respondent.

9. That the contents of para No. 9 of the claim/petition

are wrong and denied. It is wrong to say that the termination

of the services of the claimant is not against any provisions

of industrial Disputes Act, therefore, there is no ground

for quashment of the said order of the management/

respondent. It is further wrong to say that the claimant is

entitled for reinstatement of her service with back wages. It

is pertinent to mention here that in a recent judgment, the

Hon'ble Apex Court has said that a daily wage employee or

temporary employee has no right to claim regularization or

continuation in service even if he/she worked a number of

years.

10. That the contents of para No. 10 of the claim/

petition are denied for want of knowledge. However, it is

submitted that once the services of a daily wage employee

is terminated, then it is not duty of the earlier employer to

see whether he/she is unemployed or not.

On the Basis of which he prayed that the claim of the

claimant may kindly be rejected being without merit with

cost.

Rejoinder to the reply of the management of behalf of

workman.

1. That the para No. 1 of the preliminary objection is

wrong and denied. It is denied that the present petition is

the misuse of the process of law or the same is liable to be

dismissed on this ground.

Rejoinder on Merits.

1. That the para No. 1 of the reply needs no

replication as the same is the matter of record. However, it

is wrong and denied that the workman was not working as

Sweeper-cum-peon with the management. It is further

denied that the workman was working as Daily Wager

Sweeper with the management. The contents of the

corresponding para of the claim petition in this regard is

reaffirmed as true and correct.

2. That the para No. 2 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

It is denied that the workman has never completed her 240

days of continues service or was engaged purely as daily

wager as and when required. It is submitted that the

workman was engaged as a regular temporary employee

with the management w.e.f. 01.01.1999 and worked with

the management till 06.06.2000 when her services were

illegally terminated by the management on the false

complaint of Smt. Janki Hinduja, Assistant Librarian. It is

submitted that the workman has also being paid the arrear

of salary as per the recommendations of the various Govt.

orders.

3. That the para No. 3 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

4. That the para No. 4 of the reply needs no

replication being matter of record.

5. That the para No. 5 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

It is submitted that the workman was working at the

residence of Ms. Janki Hinduja as she was her superior

and there was no occasion for making any complaint in

this regard with the management.

6. That the para No. 6 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

It is vehemently denied that Ms. Janki Hinduja has

submitted the true facts before the Under Secretary

(Vigilance) at the time of her inquiry on the complaint of the

workman. It is submitted that no wrong doer shall ever

admit his or her mistake before his or her superiors and the

workman being a weaker section has been made the escape-

goat at the whims and fancy of Ms. Janki Hinduja. It is

submitted that the inquiry conducted by the management

on the complaint of the workman was conducted in a very

biased and predetermined manner, which is clear from the

language of the para under reply itself. It is vehemently

wrong and denied that the claimant/workman has ever used

unparliamentry language or misbehaved with Ms. Janki

Hinduja during her entire tenure of service.

7. That the para No. 7 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

It is submitted that though the management has taken action

on the complaint of the workman by initiating and enquiry

against Ms. Janki Hinduja, but the same was conducted in

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961

a predetermined and a biased manner to save Ms. Janki

Hinduja and the workman was made to pay the price for the

same by way of termination of her services.

8. That the para No. 8 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

It is submitted that the workman has stated only true facts

in the para under reply. It is vehemently denied that the

services of the workman were rightly terminated by the

management as alleged in the para under reply.

9. That the para No. 9 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

It is submitted that as admitted by the management itself

the termination of the workman was against the provisions

of Industrial Disputes Act, therefore, the said order is liable

to be quashed by this Hon'ble Court. It is reaffirmed and

reasserted that her services with full back wages and

continuity of service. However, the management has tried

to twist the judgment of the Hon'ble Apex Court to their

benefit.

10. That the para No. 10 of the reply is wrong and

denied and the contents of the corresponding para of the

claim petition in this regard is reaffirmed as true and correct.

On the Basis of which she prayed that the ward may

kindly be passed in terms of the prayer made in the claim

petition, in the interest of justice.

My Ld predecessors has not framed any issued but

proceed to adjudicate the present reference on the basis of

schedule wherein questions of determination were as

follows:

"Whether the action of the management of

Archeological Survey of India in terminating the

services of Smt. Usha Rani, daily wages sweeper

w.e.f. 6.6.2000 is legal and justified? If not, to what

relief she is entitled to?

In support of its case workman filed affidavit of Smt.

Usha Devi,. Which having following contents:—

1. That I affirm that I am the claimant in the above

petition and an competent to swear the present

affidavit as I am well conversant with the facts and

circumstances of the case.

2. That I affirm that the deponent had been employed

by the management as a Peon-cum-Sweeper w.e.f

01.01.1999. her last drawn salary was Rs. 2,268/- per

month.

3. That I affirm that the deponent was in the continuous

employment of the management since that date till

she was illegal teminated from her services on

06.06.2000.

4. That I affirm that inspite of the fact, the deponent

had completed 240 days of continuous service with

the management, the complainant was not confirmed

in the service by the Management to deprive the

deponent from other benefits such as regular pay

scale P.F., Bonus etc.

5. That I affirm that the deponent was posted at Indian

Archeological Library under the direct control of Ms.

Janki Hinduja, Assistant Librarian.

6. That I affirm that the said Ms. Janki Hinduja, used to

call the deponent at her residence situated at D-2,

Sector-2, Goal Market, New Delhi as a help in her

domestic work and the deponent done till the work

even at the residence of the said Ms. janki Hinduja

without any complaint.

7. That I affirm that one day when the deponent went

to the residence of the said Ms. Janki Hinduja after

receiving a call from her, she found one another

person present there and the deponent was asked to

have illicit relations with him by said Ms. Janki

Hinduja and when the deponent refused to follow

her instructions the said Ms. Said Ms. Janki Hinduja

openly threatened the deponent that if the deponent

will not follow her order, she will not allow her to

continue in her job and only because of this reason

the deponent was terminated from her services by

the management on the false complaint of Ms. Janki

HInduja in which she leveled the false allegations of

gross insubordination against the deponent without

assigning any reason or holding any enquiry in the

matter. Even the deponent has not been served with

any order of termination, but has verbally been

instructed by the management not to come on job

from the next date i.e. from 07.06.2000.

8. That I affirm that the deponent also made several

representations to the various officials of the

management, but of no use. After that a demand

notice was served upon the management by the

deponent, but the said notice has not been even

replied by the management till date. The copy of the

representation made to the Hon'ble Minister Culture

and Sports on 01.01.1999 is Ex. WW1/A and postal

receipt of the same is Ex. WW1/B and the AD card is

EX. WW1/C. The copy of the complaint made to the

Chairman National Commission for SC/ST dated

13.6.2000 is Ex. WW1/D and the postal receipt of the

same is Ex. WW1/E and the AD card is Ex. WW1/F.

9. That I affirm that the management has dismissed the

services of the deponent illegally, arbitrarily and by

putting all the laws and rule on one side only because

of the reasons that the deponent has refused to

surrender to the illegal demand of her superior Ms.

Janki Hinduja to have illicit relations with Sh. R.P.

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Singh, Librarian of the Indian Archaeological Library,

Delhi.

10. That I affirm that the said termination of the deponent

by the management is against the provisions of

Section 25F, 25G & 25H of Industrial Dispute Act,

1947 and hence, is liable to be quashed and the

deponent is entitled for reinstatement of her services

with continuity in services and with back wages.

11. That I affirm that after the termination from the

services with the management the deponent could

not get any other employment in spite of the best

efforts and is still un-employed and is not having

any source of income to meet with the demands of

herself and her family.

12. That I affirm that I have stated all the true facts in my

statement of claim in respect of the incident occurred

with me at the residence of Ms. Janki Hinduja. I further

affirm that the inquiry conducted by the management

against Ms. Janki Hinduja on my complaint was a

sham inquiry and was conducted in a biased and

predetermined manner. I further affirm that I have

completed 240 days of my continuous service with

the management and I have also been paid the arrears

of the salary for the year 1999-2000 as per the Govt.

Notifications. The copy of the register of the arrears

of salary is annexed as Ex. WW1/G.

13. That my claim petition is correct, which bears my

signature at point A and I am entitle for reinstatement

in the services with immediate effect, with continuity

of the service and full back wages.

Her affidavit was tendered on 10.01.2008. She was cross-

examined on the same day.

I tender my affidavit by way of evidence and the

same is exhibited as Ex. WW1/1 and bears my

signatures at Point A and ?B. I also rely upon

documents exhibit WW1/A to WW1/I.

Cross-examination is as follow:

It is correct that was engaged by the management as

daily wager sweeper.

I was posted at Archaeological Library.

I was transferred from Central Archaeological Library

to Old Fort.

While I was posted at Library, I was working under

the supervision of Ms. Janki Hinduja.

It is wrong to suggest that Ms. Janki Hinduja made

any complaint either orally or in writing against me.

It is wrong to suggest that I have ever misbehaved

or abused Ms. Janki Hinduja.

It is wrong to suggest that I have made the complaints

against Ms. Janki Hinduja & Shri R.S.P. Singh only after I

was removed from the services.

However it is correct to say that prior to the said

complaint I have never complained against them in writing

but orally informed the Higher Officials. (Vol.) Only because

of my complaint in Head quarter I was transferred from the

Archaeological Library to Old Fort.

It is wrong to suggest that I was transferred from the

library because of my misbehavior with Ms. Janki Hinduja.

It is wrong to say that on the basic of the counter

complaints, an inquiry was conducted by the director

(antiquities and Museums).

It is wrong to suggest that any report on the counter

complaints and discontinuation of my services was ever

submitted by him.

The copy of the inquiry report submitted by me

alongwith my statement of claim before this tribunal dated

4/10/2002 is not correct.

The copy of the inquiry report exhibit WW1/R1 is a

forged inquiry report.

It is wrong to suggest that I have not worked for

complete 240 days in a year

It is wrong to suggest that I am deposing falsely.

In support of its case management filed affidavit of Smt.

Ranbir Kaur. Which having following contents:-

1. That I am well conversant with the facts and

circumstances of the case in my official capacity and

also competent to swear the present affidavit on

behalf of the management/respondent.

2. That the applicant was engaged purely as a Daily

Wages Sweeper in the Central Archaeological

Library, National Archieves Building, New Delhi for

few months.

3. That the claimant never worked as peon in the office

of the management.

4. That the workman/claimant was engaged purely as

daily wage sweeper as and when required and her

services were not illegally terminated on 6.6.2000.

5. That the claimant/workman has never completed 240

days of continuous service in a year as per records

available with the respondent/management.

However, the claimant/workman be put to strict proof

of the averments made in that respect.

6. That Ms. Janki Hinduja Librarian has never called

any workman at her residence. It is relevant to note

here that the claimant has never made such type of

allegations against her superior before her services

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963

were dispensed with, which has also been proved

by conducting an inquiry to that effect.

7. That Ms. Janki Hinduja had submitted her point of

view on the allegations of defamatory nature by the

claimant to the Under Secretary (Vig). It is further

submitted that in the said explanation she had denied

each and every allegation made by the claimant. It is

quite unfortunate on the part of the daily wages

employee to make such type of allegations on a

person who is holding Senior Position in the

Department

8. That the claimant misbehaved and used

unparliamentarily language against said Ms. Janki

Hinduja, Librarian.

9. That whenever, a representation is made by the

claimant, action was taken on them by the

respondent/management.

10. That the claimant tried to do character assassination

of not only Ms. Janki Hinduja but also of Mr. R.P.

Singh, Librarian of another institute. This itself shows

what type of a person the claimant is, therefore, her

services were rightly terminated by the management/

respondent.

11. That the termination of the services of the claimant

is not against any provisions of Industrial Dispute

Act, therefore, there is no ground for quashment of

the said order of the management/respondent.

12. That the claimant is not entitled for reinstatement of

her service with pack wages. It is pertinent to mention

here that in a recent judgment, the Hon'ble Apex Court

has said that a daily wage employee or temporary

employee has no right to claim regularization or

continuation in service even if he/she has worked a

number of years.

13. That the action of the management/respondent by

terminating the services of the claimant is not against

the provisions of any section of Industrial Disputes

Act, 1947. Therefore, the same are not liable to be

quased and she is not entitled for reinstatement of

her services.

14. That the claimant/workman has not completed 240

days in a year. Therefore, she is not entitled for any

relief whatsoever from this Hon'ble Tribunal and the

claim of the claimant be rejected without any merit.

She was cross-examined by Sanjay Kumar.

I am working with the management since last 30 years

and since last five years I am on the present post.

I have the knowledge of the present case as the

official record.

I know the workman as per record she was working

with us.

The workman was appointed as a sweeper with our

department but I cannot tell the exact date month and year

of her appointment.

I cannot tell whether the workman was appointed

with our department on 1st January, 1999.

It is wrong to suggest that the workman has regularly

and continuously worked till 6th June, 2000 when her

services were terminated. Vol. she has never completed

regular 240 days work.

We maintain the muster roll of the daily wagers at

their working place which is prepared as per their attendance

marked by them in the attendance register. We have to

check whether any muster roll was prepared regarding the

services of the workman.

In case the muster roll is available the same shall be

produced on the next date.

Smt. Janki Hinduja was posted at Central

Archaeological Library as Librarian.

It is wrong to suggest that Smt. Janki Hinduja was

misusing her post and used to take personal work at her

residence from the workman.

It is wrong to suggest the Smt. Janki Hinduja forced

the workman that in case she want to become confirm she

has to make a illustrate relation with Sh. R.P. Singh.

It is wrong to suggest that since the workman has

refused to go before the illegal direction of Smt. Janki

Hinduja she got her terminated by making false

complaints.

It is correct that no complaint of Smt. Janki Hinduja

regarding the misbehavior of the workman in writing has

been filed in the Court.

I cannot say whether any written complaint was made

against the workman by Smt. Janki Hinduja regarding her

misbehavior.

I cannot say whether any memo was issued to

the workman regarding her misbehaviour with her

superiors.

It is wrong to suggest that the workman was

terminated because she has refused to go to illegal demands

of Smt. Janki Hinduja and therefore, she made false

complaint against the workman rather she was terminated

because of her misbehavior with his superiors.

It is correct that the document marked from A1 to A3

are the photocopies of the muster roll of our department

for the workman and the same is now exhibited MW1/1

(Colly).

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

I have no knowledge that Smt. Usha Rani has made

any complaints to various authorities regarding the

aforesaid incident with her.

I have no knowledge that one of the complaint was

made to the Hon'ble Minister of Culture and Sports, GOI

and after which a department inquiry was set up after

incident.

It is wrong to suggest that I am deposing falsely to

benefit the case of the management.

Written Arguments on behalf of the workman are as

follow:-

A reference was made by the ministry of Labour,

Govt of India, Delhi vide order dated 10.10.2001, thereby

referring the aforementioned dispute to this Hon'ble

Tribunal for adjudication and to decide that whether the

action of the management of Archeological Survey of India

in terminating the services of Smt. Usha Rani, Daily Wages

Sweeper w.e.f. 06.06.2000 is legal and justified? If not to

what relief she is entitled to?

After entering into reference the Hon'ble Tribunal

issued notices to the parties and directing the workman to

file its claim which was filed by her on 2nd of January, 2006.

As per the statement of claim filed by the workman

the brief facts of the case are as under:-

A. That the workman was employed by the

management as Peon-Cum-Sweeper w.e.f. 1.1.1999 on Daily

wages and her last drawn salary was Rs. 2268/- when she

was illegally terminated by the management on 06.06.2000

till then the workman remained in the continuous

employment of the management.

B. That inspite of the fact the workman has completed

240 days in continuous service with the management did

not confirm the workman, the managemen did not confirm

the workman was deprived with her legal rights such as

regular pay-scale, P.F., Bonus, Leave encashment etc. The

workman was posted at Indian Archeological Library and

was under the direct control of Ms. Janki Hinduja, Assistant

Librarian of the said Library.

C.The workman used to tell her grievances to said

Ms. Janki Hinduja, who taking illegal and undue benefit of

her position used to call the workman at her residence for

her personal domestic works a D-2, Sector-2, Gole Market,

New Delhi and the workman used to do her duties at the

Library as well as the residence of Ms. Janki Hinduja with

full devotion and sincerity.

D. That one day the workman was called at her

residence by said Ms. Janki Hinduja where he found one

more person who was introduced by Ms. Janki Hinduja

where he found one more person who was introduced by

Ms. Janki Hinduja as Sh. R.P. Singh, Librarian of the said

Library where the workman was posted and asked the

workman that in case she wants to be confirmed in the

services of the management she has to establish illicit

relations with said Sh. R.P. Singh, who will help her in her

confirmation in the services with the management. The

workman was shocked to hear the said instructions from

Ms. Janki Hinduja and flatly refused to follow her

instructions. Hearing the refusal of the workman Ms. Janki

Hinduja became furious and she openly threatened the

workman that in case she will not follow her instructions,

she has to face illegal termination from the services, but

the workman refused to bow before her illegal orders and

only because of this reason the workman was terminated

from the services of the management on a false and frivolous

complaint made by Ms. Janki Hinduja leveling false

allegations of misbehavior and gross insubordination upon

the workman. The workman was illegally terminated by the

management wihtout assiging any reason or holding any

enquiry even the workman was served with the copy of the

termination order and was verbally asked by the

management not to come on duty w.e.f. 07.06.2000.

E. The workman made several representations to the

various officers of the management, Hon'ble Minister

Culture and Sports, Govt. of India, SC/ST Commission and

only then a fake enquiry was conducted by the management

and without affording any opportunity of being heard to

the workman the enquiry was closed. Thereafter, the

workman got issued demand notice upon the management

but she was not reinstated.

The termination of the workman is violative of Section

25-F, 25G, & 25H of Industrial Disputes Act, 1947 as the

management has terminated the service of the workman

without paying any retrenchment compensation to the

workman and the said termination is liable to be set-aside.

That the workman has completed continuous 240

days in the services of the management, therefore she is

entitled to be reinstated in the services as a confirmed

employee with full back wages, continuity of service and

other benefits.

The management has contested the said reference

by filing written statement and evidence and cross-examine

the workman. But the management has not even challenged

the allegations of the workman during her cross examination

or has taken place, thus the allegations of the workman

stands proved and the workman is entitled for the reliefs in

terms of the reference and the statement of claim filed by

her.

Even the management has fialed to examine Ms. Janki

Hinduja as its witness but has examined one Smt. Ranbir

Kaur, Adminsitrative officer who does not personally know

the facts of the case and has deposed as per the official

records of the case maintained by the management, thus

the evidence led by the said Smt. Ranbir Kaur is hear say

evidence and cannot be relied upon. During her cross-

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965

examination she has frankly admitted that she does not

have any personal knowledge of the case and giving

evidence at the instance of the management as per the

official records. Even in her examination-in-chief the said

Smt. Ranbir Kaur has not denied the allegations of the

workman merely a bald statement in the examination-in-

chief that the claimant has never made such type of

allegations before his alleged termination has no force and

cannot be looked into.

It is, therfore, most humbly prayed that the order

dated 06.06.2000 passed by the management thereby

illegally terminating the services of the workman may kindly

be quashed and the workman may be reinstated in the

service of the management with continuity of service and

full back-wages.

It is further prayed that since the workman has

completed 240 days of continuous services in the service

of the management, the management be directed to confirm

the workman on the post of Peon-cum-Sweeper.

Written Arguments on behalf of the management are as

follow:

1. That the claim of the claimant is misuse of the Process

of Law and the same is liable to be rejected on this

ground alone.

2. That the claimant was engaged Purely as a Daily

Wages Sweeper in the Central Archaeological

Library, National Archives Building, New Delhi for

few months. However, the claimant/workman had

never worked as Peon also, in the Office of

Management.

3. That the workman/claimant was engaged Purely as

Daily Wage Sweeper as and when required. Her

services were never illegally terminated by the

Management on 06.06.2000.

4. That the claimant has not ever completed 240 days

of Continuous Service in a year with the

Management/Respondent.

5. That Ms. Janki Hinduja, Librarian has never ever

called any workman at her residence. It is relevant to

note here that the claimant has never made such

type of allegation against her superio(s) before her

services were dispensed with.

6. That Ms. Janki Hinduja had submitted her point of

view on the allegations of defamatory nature by the

claimant to the Under Secretary (Vig.). It is relevant

to note here that in the said explanation, she has

denined each and every allegation made by the

claimant. It is quite unfortunate on the part of the

Daily Wage Employee to make such type of

allegations on a person, who is holding the Senior

Position in the Department, However, fact of the

matter was that the claimant misbehaved and used

unparliamentary language against said Ms. Janki

Hinduja, Librarian.

7. That whenever, a representation is made by the

claimant, action was taken on them by the

Respondent/Management.

8. That the claimant has tried to do character

assassination of not only Ms. Janki Hinduja but also

Mr. R.P. Singh, Librarian of another institute. This

itself shows what type of a person, the claimant is,

therefore, her services were rightly terminated by

the Management/Respondent.

9. That the termination of services of the claimant is

not against any provisions of Industrial Disputes

Act, therefore, there is no ground for quashment of

the said Order of the Management/Respondent. It is

humbly submitted that the claimant is not entitled

for reinstatement of her service with back wages. It

is pertinent to mention here that in a recent judgment,

the Hon'ble Apex Court has said that a Daily Wage

Employee or temporary Employee has no right to

claim regularization or continuation in service even

if he/she has worked for a number of years.

10. That once the services of a Daily Wage Employee is

terminated, then it is not the duty of the earlier

employer to see whether he/she unemployed or not.

On the Basis of which she prayed that the claim of

the claimant may kindly be rejected being without

merit with cost.

A/R for the workman placed reliance on following

rulings:—

1. Director, Fisheries Terminal Division

and

Bhikubhai Meghajibhai Chavda

[2009(123) FLR 875]

(Supreme Court)

2. Automobile Association of Upper India

P.O. Labour Court II and Anr.

2006 LLR 851

Delhi High Court

In the light of contentions and counter contentions

of Ld A/Rs of the parties I perused the pleading mentioned

in the claim statement, written statement and rejoinder as

well as evidence of the parties including principles laid

down in cited rulings, settled law and relevant provisions

of concerned law.

Workman case in that she was appointed as sweeper

cum peon by management on 1.1.1999. She worked for more

than 240 days continuously. She was terminated on 6.6.2000

without any enquiry. No notice of termination was given to

her before her termination cause shown by workman of her

termination is that she could not submit herself for sexual

966

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

lust to Shri R.S.P. Singh who made such offer through

Ms. Janki Hinduja Incharge of Central Library. Hence

Management became annoyed and terminated her.

Although management alleged that workman was

terminated because of the alleged misbehavior with Ms.

Janki Hinduja, Incharge of the Central Library.

In support of her case she filed her affidavit and

documents including copies of register to show that she

completed work of more than 240 days continuously and

paid for that for getting benefit of S.25-F of I.D. Act.

Ld. A/R for workman placed reliance on principles

laid down in the cited rulings.

While on the other hand Ld. A/R for the management

counter contented that workman was casual worker i.e.

Sweeper on daily rated wage. She never worked

continuously for 240 days in proceeding year or

proceedings twelve months hence she is not entitled for

any benefit. She misbehaved with Ms. Janki Hinduja

Incharge of the Central Library and made false allegations

against her that she compelled her to submit her before

Sh. R.S.P. Singh for sexual lust.

Management set up enquiry against her which was

conducted according to provisions of law and principles

of natural justice. Enquiry was decided against her on

4.10.2002 and consequently she was terminated. Copy of

Enquiry report is on record. Hence she is not entitled to

any relief.

Perusal of reference shown that she was mentioned

as Sweeper in it hence her averments relating to peon are

wrong and incorrect.

Perusal of statement of claim, rejoinder, and her

evidence shows that she could not dare to mention in it

that enquiry was conducted and decided against her on

4.10.2002.

It is relevant to mention here that she has not lodged

any F.I.R. or instituted any complaint against Ms. Janki

Hinduja and Mr. R.S.P. Singh, Non filing of such FIR/

complaint compels me to draw an adverse inference against

her.

Perusal of documents filed by workman to show that

she was paid payments towards her salary etc. Itself

indicates that there is break in working days between every

two months hence her work cannot be treated as

continuous work of 240 days which is required for benefit

of S. 25-F I.D. Act, 1947.

It addition to it management was justified to terminate

her on the ground of proved misbehavior with Ms. Janki

Hinduja, Incharge of the charge Library after conclusion

and decision of enquiry against her. Principles of cited

rulings are in-applicable in the instant case.

Hence termination order of workman is just, proper

and legal requires no interference.

On the basis of aforesaid discussion I am of

considered view that reference is liable to be decided against

workman Smt. Usha Rani and in favour of management.

Which is accordingly decided

Award is accordingly passed.

Dated: 19/12/2013

HARBANSH KUMAR SAXENA, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

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[lañ ,y&42012@106@2002&vkbZvkj¼lh,e&II½]

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New Delhi, the 13th January, 2014

S.O. 360.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 75/2002 of

the Cent. Govt. Indus. Tribunal-cum Labour Court No. 2,

New Delhi as shown in the Annexure, in the industrial

dispute between the management of Delhi Milk Scheme,

and their workmen received by the Central Government on

13.01.2014.

[No. L-42012/106/2002-IR(CM-II)]

B.M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, DELHI

Present:—Shri Harbansh Kumar Saxena

ID No. 75/2002

Sh. Suraj Kumar

Versus

Delhi Milk Scheme, New Delhi

AWARD

The Central Government in the Ministry of Labour

vide notification No. L-42012/106/2002-(IR CM-II)

dated 28.08.2002 referred the following industrial Dispute

to this tribunal for the adjudication:—

"Whether the action of the Manager, Delhi Milk

Scheme, West Patel Nagar, New Delhi-110008 in

treating Sh Suraj Kumar S/o Munshi as disengaged

¹Hkkx II—[k.M 3(ii)º

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967

w.e.f. 27.08.1999 and after his re-engagement on

29.01.2000, stopping his services verbally all of a

sudden w.e.f. 23.09.2000 is legal and justified? If not,

to what relief and benefits the workman is entitled

to?

On 04.09.2002 reference was received in this tribunal.

Which was register as I.D. No. 75/2002 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 on 10.12.2002. Wherein he stated as follows:—

1. That the above said reference was referred to this

Hon'ble Court by the order of Labour Ministry No.

L-42012/106/2002-IR(CM-II) dated 28.08.2002.

2. That the workman was appointed by the management

as Supply Man and he was working with the

management since 01.01.1999 on daily wages of

Rs. 96.

3. That the workman was working continuously without

any break. There was no complaint, whatsoever, with

regard to his work conduct and behavior to the

management.

4. That on dated 14.08.1999 workman met with an

accident in the due source of his employment on

Route No. 43, Bus (Gadi) No. 250, due to this accident

workman's left hand bone was broken. Workman was

on Medical Leave w.e.f. 14.08.1999 to 24.1.2000 due

to his injuries.

5. That on dated 25.01.2000 workman was joined his

services after giving Certificate to the management.

6. That Dr. Ram Manohar Lohia Hospital issued him

fitness certificate for Light duty, management was

annoyed with the workman on Light Duty Certificate.

That management confirmed the services of workman

Sh. Sushil Kumar, Ajay Kumar, Rajender Kumar and

Sunil Kumar, all they were appointed besides him,

when workman demand equal salary and arrears of

salary as they were getting, management terminated

the services of the workman on dated 23.09.2000

without any notice.

7. That the management was not paid the wage of

Medical Leave period w.e.f. 14.08.1999 to 24.01.2000

and nor any compensation of his injuries.

8. That the workman served a Registered/A.D. Demand

Letter dated 30-11-2000 to the management in which

he demanded reinstatement in service with full back

wages, and wages of Medical Leave period and

compensation of injuries but management neither

replied nor took him back on his duty.

9. That this act of the management is clear-cut violation

of Sec. 25F of I.D. Act 1947 as the management has

neither given any notice before terminating the

services of the workman nor one month salary in lieu

thereof.

10. That this act of the management is against the law

and principle of Natural Justice.

11. That the workman filed a statement of claim before

the Conciliation Officer, Carzon road, Delhi but

conciliation proceedings failed due to unco-operative

attitude of the management and now matter has been

referred to on the following terms of reference:—

"Whether the action of the manager, Delhi Milk

Scheme, West Patel Nagar, New Delhi 110008 in

treating Sh. Suraj Kumar S/o Munshi as disengaged

w.e.f. 27/08/1999 and after this re-engagement on

29-01-2000, stopping his services verbally all of a

sudden w.e.f. 23/09/2000 is legal and justified? If not,

to what relief and benefits the workman is entitled

to?

12. That the workman is totally unemployed and has no

source of income. He kept trying to get himself

gainfully employed but could not get any suitable

job despite his efforts.

13. That neither any enquiry nor any show cause notice

was served before terminating the services of the

workman.

On the Basis of which he prayed that this Hon'ble

Court may kindly be pleased to pass an award in favour of

the workman and direct the management to reinstate the

workman with full back wages and continuity in service

and with all terminal benefits thereto and to pay the wages

of Medical leave w.e.f. 14/08/1999 to 24/01/2000 to the

workman.

Any other order or direction which his Hon'ble Court

may deem fit and proper in the circumstances of the case

may also please be awarded in favour of the workman and

against the management.

Against claim statement management filed following

written statement on 24.07.03:—

Para 1 The case of Shri Suraj, V/s Delhi Milk Scheme

was referred by Hon'ble Court by the order of Labour

Ministry No. L. 42012/106/2002-IR(CM)-II dt. 28th August,

2002 and therefore, it is under consideration for

compensaiton etc.

Para 2 Shri Suraj was engaged as a Badli Worker in

Delhi Milk Scheme on the basis of certified standing orders

for the employees of D.M.S. issued in 1962 vide No. 185-

1(9)/49/60-LS dt. 15th June, 1962 w.e.f. 1.1.99. His daily wages

were paid on the basis of rates notified by Central

Government from time to time.

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Para 3 The contention of the Badli worker that he

worked regularly w.e.f. 1.1.99 without any break is not based

on facts. It can be seen from the following statement that

he has a habit of taking leave and remaining absent from

Office on one ground or the other:—

(a) January, 1999

Worked for 7 days

(b) February, 1999

Worked for 17 days

Worked for 9 days

(d) April, 1999

Worked for 15 days

(e) May, 1999

Worked for 29 days

(f) June, 1999

Worked for 26 days

(g) July, 1999

Worked for 5 days

(h) August, 1999

Worked for 4 days

(i) September, 1999

NIL

(j) October, 1999

NIL

(k) November, 1999

NIL

(l) December, 1999

NIL

(m) January, 1999

Worked for 2 days

(n) February, 1999

Worked for 20 days

(o) March, 1999

Worked for 2 days

(p) April, 2000

Worked for 6 days

(q) May, 2000

NIL

(r) June, 2000

Worked for 15 days

(s) July, 2000

Worked for 14 days

(t) August, 2000

Worked for 23 days

(u) September, 2000

Worked for17 days

Para 4 It is fact that Shri Suraj with met with an

accident on 14.08.99 while working in D.M.S. But no

intimation for this accident was sent by the worker till

20th Oct., 1999 i.e. after a gap of 66 days, which is considered

unreasonable and with a malafide intention and Shri Suraj

Kumar was not entitled for any kind of leave as he is Badli

worker and gets salary on the basis of number of days for

which he works. According to certified standing orders,

Rule 10 which provide that workers will be governed with

the provisions of the factories Act, 1948 and grant of leave

to a worker shall depend on the exigencies of the

establishment and shall be at the discretion of the Chairman.

The worker is required to apply for leave at least 7 days

before the day from which leave is to commence, except in

urgent cases or unforessen circumstances when it may not

be possible to do so. He sent intimation on 20.10.99 i.e.

more than 66 days and such a period cannot be considered

reasonable on any grounds. The first application was given

on 20th October, 1999 in respect of period 14th August,

1999 to 29th Jan., 2000, i.e. after an absence of 168 days.

The certified standing orders provided under Rule 10(E)

that's worker remaining absent beyond the period of leave

originally granted or subsequently extended shall be liable

to lose his lien on his appointment unless he returns witin

8 days of the expiry of the sanctioned leave and explains to

the satisfaction of the authority granting leave, his inability

to resume duty immediately on the expiry of the leave. In

case the workman looses his lien on his appointment, he

shall be kept on the Badli list. The Factories Act, 1948

provide under Rule 79 that-

"Every worker who has worked for a period of 240

days or more in a factory during a calendar year shall

be allowed during the subsequent calendar year leave

with wages for a number of days calculated @ 1 day

for every 20 days of work performed by him during

the previous calender year".

In 1999, Sh. Suraj Kumar has worked only for 112

days from 1st January, 1999 to 14th August 1999 and

therefore, would have been entitled for not more than 5

days leave. Therefore remaining absent for 168 days without

any avoid grounds and without any intimation is

considered illegal and Sh. Suraj is not eligible for benefit of

any kind of leave which is not admissible under the

Factories' Act, 1948 (Rule 79).

However, it is unfortunate that he met with an

accident and this period cannot be regularized by grant of

any kind of leave and he is not eligible for pay during this

period and DMS has taken him back as a Badli worker on

his becoming fit to resume duty on 28th January, 2000 as

per provisions of the certified standing orders of DMS.

Para 5 Sh. Suraj has wrongly stated that he joined

duty on 25th January, 2000. He reported for duty on

28th Jan, 2000 along with fitness Certificate and he was

allowed to continue as Badli worker in Delhi Milk Scheme.

Para 6 It is wrong to say that DMS was annoyed

with him on the basis of Medical Certificate which provide

that he should be allowed to do light duty in DMS. The

Government has removed the subsidy of milk from 1st

March, 2000 and Badli workers were removed from service

in large scale and finally, the services of Sh. Suraj were

terminated on 23.09.2000 along with other Badli workers of

DMS and only those Badli workers were allowed to work in

DMS who had completed 240 days in previous years to be

considered for regularization against regular vacancies.

Since Sh. Suraj had not worked for 240 days either in 1999

or in 2000, he was not eligible for regularization under the

Industrial Dispute Act, 1947 which provides under Section

25(b) that's a workman shall be in a continuous service for

a period of 12 calendar months preceding the date with

reference to calendar of 240 days is to be made."

¹Hkkx II—[k.M 3(ii)º

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969

Para 7 Shri Suraj has not applied for leave on medical

grounds within prescribed time limit under the certified

standing order as leave application for period of

14th August, 1999 to 24th January, 2000 was, made after a

lapse on 66 days which is considered unreasonable with

the malafide intention on the part of applicant and DMS

cannot be held responsible for such lapse on the part of

the candidate. Further, no benefit of leave is admissible to

Sh. Suraj under factories Act, 1948 beyond 5 days leave as

provided in Section 79 of factories Act, 1948. The question

of compensation for meeting with an accident and

physically loss was not brought to the notice of DMS

within a reasonable time. Therefore, DMS cannot he held

responsible for compensation of his injuries which could

have been due to some other reasons which were not

brought to the notice of DMS for a period of 66 days w.e.f.

14th August, 1999 to 20.10.99.

Para 8 Due to withdrawal of the subsidy by

Government w.e.f. 1st March, 2000 whereby sale of DMS

milk was reduced from 4 lakh Itrs./day to 2 lakh Ltrs./day

and thereby all the Badli Workers were not required and

their services were terminated except those who had

completed 240 days continuous service in DMS. No

discrimination to Shri Suraj has been made by the DMS

and therefore, there is no question of allowing him to

continue as Badli worker in DMS. Most of the Badli Workers

had gone to Central Administrative Tribunal, High Court

and Supreme Court and their cases have been implemented

based on the judgement given by the respective Court to

the full satisfaction of the Court. Sh. Suraj has filed a case

before the Labour Court and it is for Labour Court to decide

whether he is eligible for any benefit under the

circumstances and keeping in view the provisions of the

factories Act, 1948 and Industrial Dispute Act, 1947.

Para 9 The protection of Section 25F of I.D. Act,

1947 is available to those persons who have in continuous

service for not less than one year. Sh. Suraj Kumar has

only served 209 days service in DMS during January, 1999

to September, 2000, therefore, this protection is not available

to him.

Para 10 Principles of Natural Justice applies both to

the Management i.e. DMS and to the applicant and if

applicant is trying to have a malafide intention for not

intimating DMS for his absence for 67 days and than claims

before a Labour Court for compensation and regularization

is not coming with the cleans hands and therefore, he has

no right to ask for Industrial Justice. The Management has

acted as per provisions of Factories Act, 1948, and

Industrial Dispute Act, 1947 and if Labour Court thinks

something wrong has been done, they may give appropriate

directions mentioning the rules and regulations under which

such thing is permissible.

Para 11 It is a matter of fact and full proceedings are

available with the Labour Court and they may decide on

consider the case accordingly.

Para 12 DMS can employ Bedli workers on regular

jobs once they compete 240 days work and kept the

conditions laid down in Industrial Dispute Act, 1947

Factories Act, 1948. It is agreed that there is a large scale

unemployment in the market and DMS cannot solve

problem of all Badli workers who have not completed 240

days work in DMS and their services were terminated. It

may be indicated that around 150 Badli Worker's services

were terminated during 2000 on various dates due to

reduction of DMS sale who had not completed 240 days

work.

Para 13 No Show Cause Notice was served before

terminating the services of the workman was due to the

directions of Ministry of Agriculture to reduce the man-

power which is not required after withdrawal of the subsidy

w.e.f. 1st March, 2000 and consequential reduction of sale

of 4 lakh Ltrs./days to 2 lakh liters per day.

The services of 150 Badli workers were terminated

and they had gone to CAT, High Court and Supreme Court

and no Court has interfered on this ground that show Cause

was served.

It is, therefore, requested that DMS is unable to take

Sh. Suraj in service on regular basis as he has not completed

240 days work and also not liable for any compensation

due to the reasons of alleged accident on 4th Aug., 1999

for his absence without any intimation for a period of 66

days which is not considered proper unless he has a

malafide intention to hide factual thing from the Court as

well as from DMS.

However, DMS will abide by any direction given by

the Labour Court in this case.

Reply of the written statement on the behalf of the workman

filed on 20.10.03 as follows:—

1. Para The case of Sh. Suraj Vs. D.M.S. was reffered

by hon'ble court by the order of labour ministry

No. L-42012/106/2002-IR(CM)-2 dated 28.08.02 and

therefore, It is under consideration for illegal

termination, all terminal benefits, pay the wages of

medical leave w.e.f. 14.08.99 to 24.01.01 to the

workman. And the regularization.

2. Para. It is denied that Sh. Suraj was engaged as Badli

worker in D.M.S. It is stated that the workman was

appointment by the management as supply man

since 01.01.1999 on daily wages of Rs. 96/-.

3. Para It is denied that Sh. Suraj was engage as Badli

worker in D.M.S. It is stated that workman was

working continously without break and it is wrong

to say that workman has a habit of taking leave and

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

remaining absent from office. There was no

complaint. That on dated 14.08.99 workman met with

an accident in due course of employment, and

workman was on medical leave w.e.f 14.08.1999. to

24.01.2000 due to injuries.

4. Para It is wrong to say that Suraj had not informed

for his accident. He informed D.M.S time to time for

medical leave. As a result the workman was entitled

to reinstatement with full back wages. The accident

of workman was during the period 01.03.1999 to

18.03.1999 to 14.10.99, 14.10.1999 to 30.11.1999, and

30.11.99 to 24.01.2000 after that workman joind his

duty with fitness certificate on date 25.01.2000 for

the joining the duty. And the workman worked during

the period 25.01.2000 to 22.09.2000 after that

management terminated service of the workman on

dated 23.09.2000 without any notice and any enquiry.

5. Para It is wrong to say that workman reported for

duty on 28.01.2000 alongwith medical fitness

certificate. It is stated that workman reported for duty

on 25.01.2000 alongwith fitness certificate.

6. Para It is denied that workman had not completed

the 240 days in the year. It is stated that workman

had completed 240 days alongwith medical leave. He

entitled tor egularization under the ID Act. After

accident workman recommended Light work duty by

the Dr. R.M.L. Hospital. This time workman is totally

unemployed and also disable. But the management

terminated the service of workman on dated

23.09.2000. Management neither gave any

compensation for medical leave nor gave him for

regularization. Here is necessary to mention that

workman appointed after the workman Sh. Suraj and

Still working with the management and their service

has been regularize by the management. It is against

the Law's against the natural Justice.

7. Para. It is denied that workman has not applied for

leave on medical ground. It is stated that the workman

has applied for leave on medical ground and leave

application was duty received by DMS. The accident

of workman was during the employment that is why

DMS is responsible for this. And DMS is liable for

compensation for this accident and regularisation

once again.

8. Para Suraj had completed Morethan 240 days if his

service including medical leave with the management.

But the management did not accept this. Therefore

this case was referred on this Hon'ble Court by the

central labour commissioner for decision. This is clear

violation of 25 (F) I.D. Act 1947. Because of them

management terminated the service of workman

without giving any notice, compensation or domestic

enquiry.

9. Para the protection of section 25-F of I.D. Act is

available to those person who have illegal terminated

by the management without giving any notice,

compensation, workman had completed above 240

days service in a year.

10. Para of written Statement as mention is working and

denied. Principle of natural justice applied only the

applicant, that the management is trying to have a

malafide intention because of management was

harassing the workman when the workman able to

work that condition management offered the work,

when the workman disable to work that condition

management was terminated the workman (when the

workman during the course of employment accident)

this is the against the natural justice. It is vehemently

denied that workman did not applied for leave, so

there is no malafide exhited of the workman.

11. Para It is matter of fact and full proceeding are

available with the labour court and they may decide

and consider the case accordingly. That para is not

contradicted so there is no need to reply.

12. Para This para is wrong and denied and the contents

of the corresponding para of statement of claim are

reaffirmed being correct.

13. Para this para is wrong and denied and the contents

of the corresponding para of statement of Claim are

reaffirmed being correct. No show cause notice was

served before terminating the services of the

workman by the management.

On the basis of contents mentioned in aforesaid

paragraphs Labour/Claimant prayed that this Hon'ble Court

may kindly be pleased to grant relief as has been prayed

for in the statement of claim.

Out of pleadings of parties following issue has been

framed by my Ld. Predecessor on 16/06/05:—

1. As in terms of Reference.

Workman in support of his case filed evidence where-in

he stated as follows:—

1. That the deponent being the workman in the above

noted matter and well conversant with the facts of

the case and competent to swear the same.

2. That the deponent was appointed by the management

as Supply Man and he was working with the

management since 1.01.1999 on daily wages of

Rs. 96/-.

3. That the deponent was working continuously without

any break. There was no complaint whatsoever with

regard to his work and behaviour to the management.

4. That on dated 14.08.1999 deponent met with an

accident in the due course of his employment on

¹Hkkx II—[k.M 3(ii)º

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971

Route No. 43, Bus (Gadi) No. 250. Due to this accident

deponent's left hand bone was broken. Deponent

was on Medical Leave w.e.f. 14.08.99 to 24.01.2000

due to his injuries.

5. That on dated 25.01.2000 deponent was joined his

service after giving fitness Certificate to the

management.

6. That Dr. Ram Manohar Lohia Hospital issued him

fitness certificate for Light duty. Management was

annoyed with the deponent on Light Duty Certificate.

That Management confirmed that service of colleague

workmen Sh. Sushil Kumar, Ajay Kumar, Rajender

Kumar and Sunil Kumar, all they were appointment

besides him. When deponent demanded equal salary

and arrears of salary as they were getting

management terminated the service of the deponent

on dated 23.09.2000 without any Notice and reason.

7. That the management did not pay the wage of

Medical Leave period w.e.f. 14.1.2000 and nor any

compensation of his injuries. The management did

not include the Medical Leave in its Attendance

When the deponent filed the case in C.W.C. Act,

then the management accepted that accident was

occurred during the employment and management

paid the compensation Rs. 9468/- according to C.W.C.

Order dated 05.04.2004.

8. That the deponent filed the List of Document Hon'ble

Court, which are detailed given below:—

That the deponent was on Medical Leave on dated

1.03.1999 to 19.03.1999 which is exhibit WW1/1.

Accident form fill up by the management on dated

17.08.1999 which is exhibit WW1/2, Letter of Staphana

Anubhag-III on dated 28.09.1999 which is exhibit

WW1/3, Medical Leave on dated 14.08.1999 to

14.10.1999 which is exhibit WW1/4, Ram Manohar

Lohia Hospital's OPD Slip dated 4.09.1999 which is

exhibit WW1/5, Medical Leave dated 14.10.1999 to

46 days which is exhibit WW1/6, Meidal Leave on

dated 30.11.999 to 25.1.2000 which is exhibit WW1/7,

Fitness Certificate dated 18.01.2000 which is exhibit

WW1/8, Letter dated 24.01.2000 which is exhibit

WW1/9, Letter of workman for G.M. for Light Duty

on Dated 3.3.2000 which is exhibit WW1/10. Casual

Leave on during 24.07.2000 to 31.07.2000 which is

exhibit WW1/11, Application for Medical

Compensation during the Medical Leave which is

exhibit WW1/12, Letter of workman for D.G.M. for

Light Duty on dated 21.09.2000 which is exhibit

WW1/13, Letter of workman for G.M. for Light Duty

on dated 22.09.2000 which is exhibit WW1/14, Slip if

Statement which exhibit WW1/15, Statement

showing of workman for going and coming which is

exhibit WW1/16, Copy of Demand Notice on dated

30.11.2000 which is exhibit WW1/17, Copy of A.D.

Card and Receipt which is exhibit WW1/18, and

WW1/19, Copy of Statement of Claim of Conciliation

which is exhibit WW1/20, Reply of Management

which is exhibit WW1/21, Rejoinder of workman on

dated 26.04.2001 which is exhibit WW1/22, Rejoinder

of Management Which is exhibit WW1/23, Reply on

the Rejoinder of Management on dated 19.06.2001

which is exhibit WW1/24, Reply on dated 19.06.2001

from management which is exhibit WW1/25, Reply

form workman on dated 23.07.2001 which is exhibit

WW1/26, List of Document of details on dated

18.08.2001 which is exhibit WW1/27, Disability

Certificate of workman on dated 08.05.2002 which is

exhibit WW1/28.

9. That the deponent served a Registered/A.D. Demand

Letter dated 30.11.2000 to the management in which

he demanded reinstatement in service with full back

wages and wages of Medical Leave period and

compensation of injuries but management neither

replied nor rook him back to his duty.

10. That this act of the management is clear-cut violation

of Section 25F and 2[00] of the I.D. Act 1947 as the

management has neither given any notice before

terminating the service of the deponent nor one

month salary in lieu thereof.

11. That this act of the management of against the law

and principal of Natural Justice.

12. That the deponent filed a statment of claim before

the Conciliation Officer, Carzon Road, Delhi but

conciliation proceedings failed due to uncooperative

attitude of the management and now matter has been

referred to on the following terms of reference:—

"Whether the action of the Manager, Delhi Milk

Scheme, West Patel Nagar, New Delhi 110008 in

treating Sh. Suraj Kumar S/o Munshi as disengaged

w.e.f. 27/08/1999 and after his re-engagement on

29-01-2000, stopping his services verbally all of a

sudden w.e.f. 23/09/2000 is legal and justified? If not,

to what relief and benefits the workman is entitled

to?

13. That the deponent is totally unemployed and has no

source of income. He kept trying to get himself

gainfully employed buy could not get any suitable

job despite his best efforts because of injury in his

left hand.

14. That neither any enquiry nor any show cause notice

was served before terminating the service of the

deponent.

972

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

He was cross-examined by Sh. Bhisham Dev Mund A/R

for the management on 20.02.06 as follow:—

I was not given any appointment letter. It is

correct that I have worked for two days in a month

sometimes 17 days in a months and sometime 10 days

in a month. It is correct that I was assigned duties/

work as per the requirement of the management and

payment was made accordingly. It is incorrect to

suggest that I was not required to move an application

for leave as and when I wanted to be on leave. It is

incorrect to suggest that I did not inform the

management of the accident immediately. I did not get

myself examined from the Doctor of them management

when I received the injuries. Vol. that I got myself

medically treated from Ram Manohar Lohia Hospital. I

was admitted in the hospital through the management.

I remained admitted in the hospital for about 20 days

and I received treatment from the said hospital for five

month and 14 days. I do not posses any other document

except the fitness certificate files in this case. (at this

stage deferred for further cross-examination).

Further cross-examination was conducted on

08.08.2006 by Sh. Bhisham Dev Mund A/R for the

management.

Cross examination as follows:—

I cannot produce any document showing that I

remained admitted in R.M.L. for treatment as stated by

me on previous. Vol. that I have already filed relevant

documents including M.L.C. from R.M.L. Hospital and

the same be read in evidence. I cannot show any

document that I have worked continuously as deposed

to in my affidavit. I did not move any application for

medical leave as I suffered accident on duty. It is

incorrect that I was engaged on daily wages. It is

incorrect to say that daily wager is required to submit

leave application on medical ground at least 5 to 7 days

before going on leave, as per rule. I have informed the

respondent D.M.S. on 14.08.99 by way of filling form. I

have suffered fracture in my Arm (left arm). It is correct

that I did not file joining report before 25.01.2000 Vol. I

was not medically fit to joint duty as per the opinion of

the Doctor concerned. I do not know if many workers

were disengaged by the management respondent on

1.03.2000 on account of withdrawal of subsidy of milk.

It is incorrect to suggest that I have not completed

240 days of work in any year including the year 1999

and 2000. It is incorrect to suggest that I have not

worked for 240 in the year 1999 or in the year 2000. I am

not doing any work at present I am without work and

remain at home. Vol. I am in search of the job. My father

is maintainaing me. It is wrong to suggest that I am

deposing falsely or that I am not entitled to the relief

claimed.

In support of its case management filed affidavit of

Shri Ashok Bansal. Dy. General Manager (Admn.) West

Patel Nagar. DMS. New Delhi on 6.1.2007 is as follow:—

1. That the deponent is an officer, working as Dy. G.M.

(Admn.) of the management at the above said address

and is well conversant with the facts and

circumstances of the case as per documents and

record available as well as duly authorized and

competent to swear this affidavit.

2. That the deponent states on solemn affirmation that

Sh. Sujar was employed as a Badli Worker in Delhi

Milk Scheme on the basis of certificated standing

order for the employers of D.M.S. issued in 1962

vide No. 185-119/49/6-0-LS dt. 15th June, 1962 w.e.f.

01.01.1999. Certified standing orders in Exhibit

MW1/1.

3. That the deponent states on solemn affirmation that

the contention of Badli workers that he worked

regularly w.e.f. 01.01.99 without any break is not

based on fact. It can be seen from the following

statement that he has a habit of taking leave and

remaining absent from office on one ground or the

other.

(a) January, 1999

Worked for 7 days

(b) February, 1999

Worked for 17 days

Worked for 9 days

(d) April, 1999

Worked for 15 days

(e) May, 1999

Worked for 29 days

(f) June, 1999

Worked for 26 days

(g) July, 1999

Worked for 5 days

(h) August, 1999

Worked for 4 days

(i) September

NIL

(j) October

NIL

(k) November, 1999

NIL

(l) December, 1999

NIL

(m) January, 1999

Worked for 2 days

(n) February, 1999

Worked for 20 days

(o) March, 1999

Worked for 2 days

(p) April, 2000

Worked for 6 days

(q) May, 2000

NIL

(r) June, 2000

Worked for 15 days

(s) July, 2000

Worked for 14 days

(t) August, 2000

Worked for 23 days

(u) September, 2000

Worked for 17 days

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973

Copy of Statement of his engagement is Exhibit

MW1/2.

4. That the deponent states on solemn affirmation that

it is a fact that Sh. Suraj met with an accident on

14.08.99 while working in D.M.S. but no intimation

for his accident was sent by the worker till

20th October, 1999 i.e. after a gap of 66 days which is

considered unreasonable and with malafide intention

and Sh. Suraj Kumar was not entitled for any kind of

leave as he is a Badli worker and gets salary on the

basis of number of days for which he works.

Accordingly to certified standing Order, Rule 10

which provide that workers will be governed with

the provisions of the Factories Act, 1948 and grant

of leave to a worker shall depend on the exigencies

of the establishment and shall be at the discretion of

the Chairman. The workers is required to apply for

leave at least 7 days before the day from which leave

is to commence, except in urgent case or unforeseen

circumstances when it may not be possible to do so.

He sent intimation on 20.10.1999 i.e. more than

66 days and such period cannot be considered

reasonable on any ground. The first application was

given on 20th October, 1999 in respect of period

14th August, 1999 to 14 October, 1999 but the

candidates has not reported for duty. Next leave

application was received on 25th January, 2000 for

the period of 30.11.1999 to 25.01.2000 during which

he has not reported for duty. He reported for duty

finally on 29th January, 2000, after being absent from

14 August, 1999 to 29th Jan. 2000 i.e. after an absence

of 168 days. The certified standing orders provides

under Rules 10 (E) that's worker remaining absent

beyond the period of leave originally granted or

subsequently extended shall be liable to lose his lien

on his appointment unless, he returns within 8 days

of the expiry of the sanctioned leave and explain to

the satisfaction of the authority granting leave, his

inability to resume duty immediately on the expiry of

the leave. In case the workman looses his lien on his

appointment he shall be entitled to be kept on the

Badli list. The Factory Act 1948 provide under Rule

79 that, "Every worker who has worked for a period

of 240 days or more in a Factory during a Calendar

Year, shall be allowed during the subsequent Calendar

year, leave with wages for a number of days

calculated @ 1 day for every 29 days of work

performed by him during the previous calendar year.

5. That the deponent states on/solemn affirmation that

in 1999, Shri Suraj Kumar has worked only for

112 days from 1st January , 1999 to 14th August,

1999 and therefore would have been entitled for not

more than 5 days leave. Therefore, remaining absent

for 168 days without any valid grounds and without

any intimation is considered illegal and Sh. Surajpal

is not eligible for benefit of any kind of leave which

is not admissible under the factories Act. 1948

(Rule79).

6. That the deponent states on solemn affirmation that

he met with an accident and this period cannot be

regularized by grant of any kind of leave and he is

not eligible for pay during this period and DMS has

taken him back as a Badli worker on his becoming fit

to resume duty on 29th January, 2000, as per

provisions of entitled standing order of DMS.

7. That the deponent states on solemn affirmation that

Shri Suraj has wrongly stated that he joined duty on

25th January, 2000. He reported for duly on

29th January, 2000 along with fitness certificate and

he was allowed to continue as Badli workers in Delhi

Milk Scheme.

8. That the deponent states on solemn affirmation that

it is wrong to say that DMS was annoyed with him

on the basis of Medical Certificate which provide

that he should be allowed to do light duly in DMS.

The Government has removed the subsidy of Milk

from Ist March, 2000 and Badli workers were removed

from services in large scale and finally the services

of Shri Suraj were terminated on 23.9.2000 along with

other Badli workers of DMS and only those Badli

workers were allowed to work in DMS who had

completed 240 days in previous years to be

considered for regularization against regular

vacancies. Since Sh. Suraj had not worked for

240 days either in 1999 or 2000, he was not eligible

for regularization under the Industrial Dispute Act.

1947 which provides under Section 25(b) that's a

workman shall in a continuous service for a period of

12 calendar months proceedings the date with

reference to calendar of 240 days is to be made.

9. That the deponent states on solemn affirmation that

Sh. Suraj has not applied for leave on medical ground

within prescribed time limit under the certified

standing order as leave application for period of

14th August, 1999 to 24th January, 2000 was made

after a lapse of 66 days which is considered

unreasonable with malafide intention on the part of

applicant and DMS cannot be held responsible for

such lapse on the part of the candidate. Further no

benefit of leave is admissible to Sh. Suraj under

Factories Act, 1948 beyond 5 dyas leave as provided

in Section 79 of Factories Act, 1948. The question of

compensation for meeting with an accident and

physically loss was not brought to the notice of DMS

within a reasonable time. Therefore, DMS cannot be

held responsible for compensation of this injuries,

Which could have been due to some other reasons

which were not brought into the notice of DMS for a

period of 66 days w.e.f 14th August, 1999 to subsidy

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

by Government w.e.f 1st March, 2000 whereby the

sale of DMS Milk was reduced from 4 lakh ltrs./day

to 2 lakh ltrs./day and thereby all the Badli Workers

were not required and their services were terminated

except those who had completed 240 days

continuous service in DMS. No discrimination to

Shri Suraj has been made by the DMS and therefore,

there is no question of allowing him to continue as

Badli worker in DMS. Most of the Badli workers had

gone to Central Administrative Tribunal, High Court

and Supreme Court and their cases have been

implemented based on the judgment given by the

respective Courts to the full satisfaction of the Court.

Sh. Suraj has filed a case before the Labour Court

and it is for Labour Court to decide whether he is

eligible for any benefit under the circumstances and

keeping in view the provisions of the factories Act.,

1948 and Industrial Dispute Act, 1947.

10. That the deponent states on solemn affirmation that

the protection of Section 25 F of the ID Act, 1947 is

available to those persons who have in continues

service for not less than one Year. Shri Suraj Kumar

has only served 211 days service in DMS during

January, 1999 to September, 2000 therefore the

protection is not available to him.

11. That the deponent states on solemn affirmation that

the Principles of Natural Justice applies both to the

Management i.e. DMS and to the applicant and if

applicant is trying to have a malafide intention for

not intimating DMS for his absence for 67 days and

then claims before a Labour Court for compensation

and regularization is not coming with the cleans

hands and therefore, he has no right to ask for

Industrial Justice. The Management has acted as

per provisions of Factories Act, 1948 and Industrial

Dispute Act, 1947 and if Labour Court thinks

something wrong has been done, they may give

appropriate directions mentioning the rules and

regulations under which such thing is permissible.

12. Thal the deponent states on solemn affirmation that

it is a matter of fact and full proceedings are available

with the Labour Court and they may decide an

consider the case accordingly.

13. That the deponent states on solemn affirmation that

the DMS can employ Badli workers on regular jobs

once they complete 240 days work and kept the

conditions laid down in Industrial Dispute Act, 1947

and Factories Act, 1948. It is agreed that there is a

large scale unemployment in the market and DMS

cannot solve problem of all Badli workers who have

not completed 240 had not completed 240 days work.

14. That the deponent states on solemn affirmation that

No Show Cause Notice was served before terminating

the services of the workman was due to the directions

of Ministry of Agriculture to reduce the man-power

which is not required after withdrawal of the subsidy

w.e.f. 1st March, 2000 and consequential reduction

of sale of 4 lakh ltrs./day to 2 lakh litres per day.

15. That the deponent states on solemn affirmation that

the services of 160 Badli workers were terminated

and they had gone to CAT High Court and Supreme

Court and no court has interrupted on this ground

that Show Cause Notice was served.

17. That the deponent further states that the management

of DMS is unable to take Sh. Suraj Kumar in service

on regular basis due to the above stated facts and

also as he has not completed 240 days and also is

not entitled for any compensation due to the reasons

of the alleged accident on 04.08.1999 for his absence

without any intimation for a period of 66 days, which

is not considered proper as per rules.

In Support of his case workman filed following documents

as follows:—

1. Medical Leave's Photocopy on dated 1.03.1999 to

18.03.99 which is exhibit W-1.

2. Accident from fill up by the Management on dated

17.08.1999 Photocopy Ex. W-2.

3. Letter of Sthapana Anubhag- III on dated 28.09.1999-

Photocopy Ex. W-3

4. Medical Leave's Photocopy on dated 14.08.1999 to

14.10.1999 which is Ex. W-4.

5. Ram Manohar Lohia Hospital's OPD slip dated

04.09.1999 Photocopy which is Ex. W-5.

6. Medical Leave's Photocopy on dated 14.10.1999 to

46 days which is Ex. W-6.

7. Medical Leave's photocopy on dated 30.11.1999 to

25.1.2000 which is Ex. W-7.

8. Fitness Certificate dated 18.01.2000 -Photocopy

which Ex. W-8.

9. Letter dated 24.01.2000 in Original Which is Ex. W-9.

10. Letter of workman for G.M. for Light duty on dated

3.3.2000 Original which is Ex.-W-10.

11. Causal Leaves of the workman from 24.07.2000 to

31.07.2000 Photocopy which is Ex. 11.

12. Application for Medical compensation during the

medical leave on dated 19.08.2000 in original which

is Ex. 12.

13. Letter of workman for D.G.M. for Light duty on dated

21.9.2000 Original which is Ex- W-13.

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975

14. Letter of workman for G.M. for Light duty on dated

22.09.2000 in Original which is Ex. W-14.

15. Slip of Statement -Photocopy Ex. W15.

16. Statement showing of workman for going and coming

Photocopy which is Ex.-W-16.

17. Copy of Demand Notice on dated 30.11.2000 in

Original Ex. W-17.

18. Copy of A.D. Card and Receipt in Original Ex. W-18

& W- 19.

19. Copy of Statement of Claim of conciliation in original

Ex. W-20.

20. Reply of Management in Original Ex. W-2I.

21. Rejoinder of the management on dated 26.04.2001 in

original Ex. W-22.

22. Rejoinder of the management on dated 28.05.2001 in

Original Ex. W-23.

23. Reply on the Rejoinder of Management from the

workman on 19.06.2001 in Original Ex. W-24.

24. Reply on dated 19.06.2001 from the management on

dated 23.07.2001 in Original Ex. W-25.

25. Reply from the workman on dated 23. 07.2001 in

Original Ex. W-26.

26. List of Documents of details on dated 18.08.2001 filed

by the workman in conciliation Ex. W-27.

27. Disability Certificate of workman on dated 08,05.2002

-Photocopy Ex. W-28.

In Support of his case Management filed following

documents as Follows :—

1. Certified copied of Attendance Register from

1.01.1999 to 31.08.1999. (Page 1 to 8).

2. Certified copies of Attendance Register from

01.01.2000 to 30.09.2000. (Page 9 to 16).

3. Copy of Certified standing orders for the employees

of the D.M.S., Delhi (Page 17to29).

Workman/Claimant filed written submission in which

he mentioned as follows:—

1. He was maith supply man Since 1.01.1999 & was

paid Rs. 96/- per day. He is continuously working

since 1.01.1999.

2. On 14.08.1999 he became injured during loading &

unloading & his bone of left hand fractured.

3. That he remain on medical leave from 14.08.99 to

24.01.2000. Information of this was given to manager

regular.

4. Managers have not paid pay to Workman/Claimant

for a period of accident since 14.08.1999 to 24.1.2000.

Nor paid any compensation for his fracture in left

hand as compensation. He came again on duty on

25.01.2000 after producing fitness certificate.

5. After examine the workman Dr. of Ram Manohar Lohia

New Delhi. On 25.01.2004 only permitted light work.

Copy on which furnished to managers on which they

became annoyed.

6. Mananger's made permanent to co-workers Sushil

Kumar, Ajay Kumar, Rajender Kumar & Sunil Kumar.

When workman Claimed equal pay to them and claim

arrear then manager threatened him to expel him out.

7. Workman claimed appointment letter, ESI, Bonus,

Annual Increment, PF and minimum wages etc. When

workman claim aforesaid facilities then manager's

inrevengeful sprit expel him out on 23.09.2000. Thus

manager's violated the provisions of Sec. 25F, G, H

Industrial Dispute Act. Because it is not necessary

to prove that workman has completed 240 days of

work. Because manager's has violated the

retrenchment rule last come first go. In 1[2010] SLT

448 supreme court emphasized the aforesaid

principles.

8. Workman filed his claim before assistant Labour

Commissioner but there could not be any settlement.

Due to which reference has been made to this

Tribunal.

9. Workman filed claim Statement in this Tribunal

against which management tiled their Written

Statement wherein it is stated that workman has not

completed work of 240 days. Against written

statement workman filed rejoinder. On the basis of

which following issues have been framed:—

1. As for terms of reference.

2. Relief.

10. In support of his case workman filed affidavit WW1/

A & filed paper WW-1/1 to WW1/28. His examination

in chief was recorded & he was cross-examined on

20.02.2006 by Manager's 'S first line "I was not given

any appointment letter". And after that fourth Line It

is correct that I was assigned duties/work as per the

requirements of management and payment was made

accordingly. It is incorrect to suggest that I was not

required to move an application for leave as and when

I wanted to be on leave. It is incorrect to suggest

that I did not inform the management of the accident

immediately. I did not get myself examined from the

doctor of the management when I received the

injuries. Vol. That you got myself medically treated

from Ram Mahonar Lohia Hospital. I was admitted in

the hospital through the management. I remain

976

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

admitted in the hospital about 20 days and I received

treatment from the said hospital for five months and

15 days. I don't possess any other document except

the fitness certificate filed in this case.

Second page of cross-examination eight line "It is

correct that I was engaged on daily wages. It is incorrect to

suggest that I have not completed 240 days worked days

of work in any year including 1999-2000.

Kindly see the MW-1 cross examination of

Management Witness.

"I do not dispute the medical certificates issued by

RML Hospital, New Delhi to the workman and these

are Exh. MW1 to Exh MWl/W-6. Though certain

leave to the workman has been recommended by the

hospital but as regards our office, he was merely a

Badli worker and as such was not entitled to any

leave merely on the strength of the certificates issued

by the R.M.L Hospital. It is incorrect to suggest that

workman Suraj Kumar was continuously working in

our office from 1.1.1999 onwards. In fact, the number

of days he has worked in our office after joining on

1.1.1999 are all reflected in my affidavit which may

kindly be looked in to."

"It is not disputed that workman Suraj kumar met

with an accident while working with the management.

He gave the intimation of this accident quite late to

us. It is incorrect to suggest that workman was gave

intimation regarding the accident on the same day."

Second page fifth line" We never wrote any letter to

the workman asking him to join any duty since he was a

Badly worker and we never required his services. It is

incorrect to suggest that the workman had worked for more

than 240 days prior to this dis-engagement in September

2000."

"No show cause notice was given to the workman as

it not required to be given. No enquiry was needed

to be conducted in this case before telling the worker

not to come to the office any more. It the medical

leave is deemed to have been granted to the workman

then he will complete 240 days before he was dis-

engaged in September, 2000 in a calendar of

12 months preceeding the date of his continuance. It

is wrong to suggest that I have deposed falsely and

incorrectly. We had complied the order made by the

workman compensation commissioner Karma Pura

New Delhi and in execution of that order paid the

workman a sum of Rs, 9468/-.

25B

Definition of continuous service, 2*[25B. Definition

of continuous service. —For the purposes of this Chapter,

(1) A workman shall be said to be in continuous service

for a period if he is, for that period, in uninterrupted

service, including service which may be interrupted

on account or a strike which is not illegal, or a lockout

or a cessation of work which is not due to any fault

on the part of the workman.

(2) Kindly see the certified standing order for the D.M.S.

classification. The workers shall be classified as:—

1. Casual 2. Badli 3. Apprentice

Definiion of Badli worker:— Badli means a worker

who is employed for the purpose of working in place

of regular employees who are temporarily absent.

Provided that the badli worker who has actually

worked for not less than 240 days I any period of 12

months shall be transferred to regular establishment

governed by the fundamental and supplementary

rules.

11. That the workman during his evidence on 17.12.2008

moved an application through which he prayed that

managers be directed to produced the record in the

Tribunal M/s. Automobile Association of upper India

Vs. P.O.L.C.-2 & others 2006 LLR 581, Delhi High

Court kindly see the Para No. 14 through which it is

proved that managers knowingly has not produced

record relating to employees. That workman/Claimant

work with managers more than 240 days and

managers has not granted medical leave which was

demanded on Account of his accident. Although

provisions of Sec. 25-B Industrial Dispute Act there

is provision for medical leave. But managers ignored

it which is wrong. If which is counted then workman

attendance become more than 240 days. On the count

workman is entitled for reinstatement with full back

wages.

That workman since his termination is totally

unemployed and managers could not proved that workman

is not employed. Due to which workman entitled for

reinstatement with full back pay.

On aforesaid ground workman/claimant prayed that

award in favour of workman/claimant be passed that he be

reinstatement with full back wages,

Management filed written submission in which he

mentioned as follows:—

That the Suraj Kumar, was engaged as badly worker

in the year 1999. That during the period Jan. 1999 to

December 1999 i.e. during the 12 months he worked only

for 112 days for which he was duly paid. From Jan. 2000 to

September 2000 he worked for 99 days. The statement of

engagement is exhibited as WW1/2 Mr. Suraj Kumar is not

covered under the standing order under Rule 4 (iii) of the

DMS employees, already placed on record.

That the ex-badli worker, Suraj Kumar met with an

accident on 14.08.1999. But no intimation about the accident

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977

was sent by him till 20.10.1999. He submitted the intimation

about the accident after 66 days from the date of accident

which was found unreasonable and with malafide intention.

He was not entitled for any kind of leave as he was only a

badly worker. That he gets payment on daily basis for the

number of days he actually works as badly worker. That

according to certified standing order Rule 10 the worker

will be governed with the provisions of the factories act.

That the grant of leave to a worker is at the discretion of

the chairman. That the worker is required to apply for leave

at least 7 days before the day from the day from which

leave is to be commenced except in urgent or unforeseen

circumstances which it may not be possible to do so. He

submitted the intimation after 66 days from the date of

alleged accident and that the delay of 66 was found

unreasonable and was therefore not considered by the

management.

It is submitted that the ex-badli worker Suraj Kumar

applied for leave for the period from 14th August to 14th

October for the first time on 20th October after a gap of 66

days but did not reported for duty. The daily worker

submitted next leave application from 30th November, 1999

to 25th Jan., 2000 and finally he reported for duty only on

29th January, 2000. He remained absent from duty for 168

days from 14.08.1999 to 28.01.2000. It is submitted that as

per standing orders which provides under Rule 10(C) that

any worker remaining absent beyond the period of leave

originally granted or subsequently extended shall be liable

to loose its lien on his appointment unless he returns within

8 days of the expiry of sanctioned leave and explain to the

satisfaction of the authority granting leave, his inability to

resume duties immediately of his leave and explain to the

satisfaction of the authority granting leave, his inability to

resume duties immediately of his leave. It further provides

that in case the workmen looses his lien on his appointment

he shall be kept on the badly list.

It is further submitted that the worker was not illegible

for regularization under the Industrial Disputes Act, 1947

which provides under section 25(b) that a workmen shall in

a continuous service 12 calendar months proceedings the

date with reference to calendar of 240 days is to be made. It

is submitted that the condition was not fulfilled.

It is further submitted in Sep. 2000 all Badli workers

were dispensed with as there was no requirement of badli

worker and on account of change in Government policy. It

is further submitted that there is no vacancy of badly worker

as at present.

It is submitted that the ex-worker Suraj Kumar was

paid a sum of Rs. 9468/-as compensation on account of

accident claim filed as per order dated 5th April, 2004.

It is submitted that the Hon'ble Apex Court in reported

matter Jt 2005 (3) SC20 titles Secretary Karnataka State

Road Corporation Vs. SG Kotturappa & Another held that

the badli worker is nothing but a contractual employee and

does not enjoy the status status of a Government Employee

and his services are not protected by any provision of

status and they do not hold a civil post. So long as a

worker remains as badli worker. In view of the above settled

law the termination of badly worker cannot be called as

violation of mandatory provisions of the stature. It is

further submitted that practice of employing badly worker

has been dispensed since 30.09.2000 as per change in

Government policy.

In an order reported matter titled Secretary State of

Karnataka vs. Uma Devi 2006 (4) Scale 197 that the Hon'ble

apex court held' merely because a employee or casual wage

worker is continued beyond his term of appointment he

would not be entitled to be absorbed in regular service or

made permanent.

In an order reported matter titled Bank of India Vs.

Tarun Kumar Biswan & Other 2007 (9) SCA page 443 the

Apex Court held the scheme of badli worker is different are

in order to become entitled to benefit of certified order a

badli worker has to actually complete 240 days of

attendence.

It is submitted that in the present matter the ex-worker

has not completed 240 days and as such he is not entitled

for transfer to regular establishment of the D.M.S.

In support of aforesaid contentions my Ld. A/R for

the workman sited following rulings:-

1, HARJINDER SINGH VS. PUNJAB STATE

WAREHOUSING CORPN. I(2010)SLT 448

In aforesaid ruling their Lordship of Hon'ble Supreme

Court laid down following Principle:—

1. Industrial Dispute Act, 1947—Section 25 G-

Retrenchment. Applicability of Section 25G-

Workman not required to prove that he had worked

for a period of 240 days during twelve calendar

months preceding termination of his service- It is

sufficient for him to plead and prove that while

effecting retrenchment, employer violated rule of

'Last come first go' without any tangible reason.

2. He also filed copy of Judgment passed by their

Lordship of Hon'ble Supreme Court in Civil appeal

No. 6767 of 2013.

DEEPALI GUNDU SURWASE

VS.

KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA

(D. ED.) AND ORS.

DECIDED ON 12.08.2013.

Wherein their Lordship of Hon'ble Supreme Court

emphasized the relevant provisions of Service Law

including provision of Sec-25 Industrial Dispute Act.

978

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

In the light of contention and counter contentions I

perused the pleading and evidence of the parties on record

as well as settled law of Hon'ble Supreme Court on the

relevant points. Which show that it is admitted fact that

workman was Badli worker but on daily rated wages.

Only one question of determination is needed in the

instant case.

According to workman he performed continuous

work for 240 days in preceding 12 months including the

period in which he remained confined to bad due to injury

caused to him in accident during his employment. While

according to management period of 240 days work while

was not completed by workman during preceding 12

months.

According to management workman willfully

absented from duly for a certain period which cannot be

counted in his duty period.

Perusal of evidence on record shows that

management has paid Amount of compensation due to

accident. In which workman became injured during duty

hour.

It is relevant to mention here that definition of

continuous service defined in Clause (i) to Explanation of

sub-section (2) (b) of S. 25-B Industrial Dispute Act is as

follows:-

For the purposes of clause (2), the number of days

on which workman has actually worked under an employer

shall include the days on which—

(i) He has been laid off under an agreement or as

permitted by standing orders made under the

Industrial Employment (Standing Orders) Act, 1946

(20 of 1946) , or under this Act or under any other law

applicable to the industrial establishment;

(ii) He has been on leave with full wage, earned in the

previous year;

(iii) He has been absent due to temporary disablement

caused by accident arising out of and in the course

of his employment.

Which makes its crystal clear that management has

intentionally brushed aside the period of ailment. So that

workman may be deprived on the count of non-completion

of continuous work of 240 days by workman in preceding

12 months. Which is illegal & unjustified on the part of

management. Workman is found to have completed work

of 240 days in a preceding 12 months. Due to which

management has violated provisions of Sec-25-F of

Industrial Dispute Act while retrenching the workman.

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 48c6, 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."

Workman of the instant case was not appointed by

following due procedure and as per rules. He had rendered

service with the respondent as a casual worker, thus,

Compensation of Rs. 50,000 (Rs. Fifty thousand only) by

way of damages as compensation to the workman/claimant

by Management after expiry of period of limitation of

available remedy against Award. That will meet the ends of

Justice.

Thus Reference is decided in favour of workman and

against Management.

Award is accordingly passed.

Dated:-16/12/2013

HARBANSH KUMAR SAXENA, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 361.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,e lh

,y ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky;] Hkqous'oj ds iapkV ¼lanHkZ la[;k 28@2011½

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr

gqvk FkkA

[lañ ,y&22012@19@2011&vkbZ vkj ¼lh ,e&II½]

chñ ,eñ iVuk;d] MsLd vfèdkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

979

New Delhi, the 13th January, 2014

S.O. 361.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 28/2011)

of the Cent.Govt.Indus. Tribunul-cum-Labour Court,

Bhubaneswar as shown in the Annexure, in the industrial

dispute between the management of Lingaraj Area of MCL,

and their workmen, received by the Central Government on

13/01/2014.

[No. L-22012/19/2011-IR(CM-II)]

B.M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

BHUBANESWAR

PRESENT:

SHRI J. SRIVASTAVA,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 28/2011

Date of Passing Award—29th July, 2013

BETWEEN:

The General Manager, Lingaraj Area of MCL,

At./Po. Deulbera Colliery, Dist. Angul.

... lst Party-Management

(And)

The General Secretary, Talcher Coal

Mines Employees Union, At. Qrs. No. A/121,

PO. N.S. Nagar, Dist. Angul.

... 2nd Party-Union

APPEARANCES:

None.

... For the lst Party-Management

None.

... For the 2nd Party-Union

AWARD

The Government of India in the Ministry of Labour

has referred an industrial dispute existing between the

employers in relation to the management of Lingaraj Area

of MCL and their workmen 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 vide

its letter No. L-22012/19/2011-IR(CM-II), dated 11.05.2011

in respect of the following matter:—

"Whether the action of the management of Lingaraj

Area of MCL in creating wage disparity between

Shri P.C Sahoo and V.K. Upadhyay both JR DEO-

Gr-D and not giving promotion to them as per the

cadre scheme is appropriate and justified? To what

relief the workmen are entitled to"?

2. The 2nd Party-Union espousing the cause of the

workmen has filed statement of claim stating that both the

workmen namely Shri Pravakar Sahoo and Shri Vijay Kumar

Upadhaya are presently working as Junior Data Entry

Operator (DEO) in the office of the General Manager,

Lingaraj Area, At./PO. Deulabera Colliery in the District of

Angul, Orissa, Shri Pravakar Sahoo was appointed in the

MCL on 29.3.1996 as land oustee in Bharatpur O.C.P. and

then transferred to Kalinga O.C.P. on 1.4.1996, Shri Vijay

Kumar Upadhaya was appointed on 26.12.1996 on the death

of his father and later transferred to Lingaraj Area and

posted in Regional Store, Lingaraj Area. Shri Pravakar

Sahoo and Shri Vijay Kumar Upadhyay were later selected

on the post of E.D.P. (Tr.), Both of them worked as E.D.P.

(Tr.) for one and half year and then their designation was

changed to Junior Data Entry Operator (Tr.), Grade-E from

1.6.2004. Recently both of them have been promoted as

Junior Data Entry Operator and joined the post on 30.3.2010

on protest. They have been working in the post of Junior

Data Entry Operator (Tr.), Grade-E from 1.6.2004, but their

basic pay has not been fixed properly on promotion. They

were drawing more pay in their previous post, but their

basic pay has been fixed at the initial pay of the new post.

Both of them are eligible to get Grade "D"post in the same

discipline after working in the job after one year and then

they should get promotion as per the cadre scheme. In the

E.D.P. cadre they should be retained for one year as trainee

then they should get promotion to the next higher post

and thereafter promotion after three years. Interestingly

their pay which was reduced to the starting pay of the new

post has been regularized in adopting the basic of NCWA-

VIII with effect from 1.7.2006, but they were not paid arrear

wages of differential pay. Again the Management did not

consider their promotion as per cadre scheme and retained

them in Grade-E post till now despite making repeated

requests. This amounts to unfair labour practice. Therefore

both the workmen should be regularized in the post they

held on appointment as trainee after one year and their

promotions should be allowed after consideration as per

cadre scheme and their basic pay should be fixed at the

corresponding scale of new post on placement.

3. The Ist Party-Management did appear in the case

through its authorized representative, but did not file any

written statement. As such the case was ordered to proceed

exparte against the 1st Party-Management and the 2nd

Party-Union was called upon to adduce evidence in support

of its claim. But the 2nd Party-Union failed to file any oral

evidence. It has filed photostat copies of some documents

along with its statement of claim, but these documents

have not been proved and exhibited through oral

evidence.

980

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

3. As per the schedule of reference the dispute

consists of two parts:—

(i) Whether the action of the Management of Lingaraj

Area of MCL in creating wage disparity between

Shri P.C. Sahoo and V.K. Upadhyay both Jr. DEO,

Gr-D is appropriate and justified? and

(ii) Whether the action of the Management of Lingaraj

Area of MCL by not giving promotion to them as per

cadre scheme is appropriate and justified?

4. As regards the first part of the dispute the 2nd

Party-Union has not raised any pleadings in its statement

of claim. It has only alleged that the basic pay of both the

workmen has not been protected and fixation has not been

done properly. Their basic pay was fixed at the initial pay

of the new post, while they were drawing more basic pay in

the earlier post. It is very much clear from the averments

made in Para-6 of the claim petition. Besides, no evidence

on this point has been led by the 2nd Party-Union or the

disputant workmen. Hence it cannot be said or held that

the 1st Party-Management has done any discrimination or

disparity in pay fixation of the two workmen on promotion,

5. On the second point of dispute the main grievance

of the disputant workmen seems to have been that they

were not given promotion in the post of Junior Data Entry

Operator from due date as per cadre scheme. They were

promoted to the post of Junior Data Entry Operator (trainee)

Grade-E from the post of EDP (Trainee) on 1.6.2004 and

after working for nearly six years they were given promotion

to the post of Junior Data Entry Operator, Grade-D on

29.3.2010 while the cadre scheme stipulates two years

experience as Junior Punch Verifier/Junior Data Entry

Operator in Grade-II, It is not clear, nor the 2nd Party-Union

or the disputant workmen have clarified as to why their

promotion was delayed? No material or substantial

evidence could come before the court due to non-

appearance of the 1st Party-Management. Although the

Management preferred to refrain itself from the proceedings

of the case, but the principles of natural justice demand

due consideration by the Management of its action in not

promoting the disputant workmen as per cadre scheme.

However in absence of any material to substantiate the

case of the disputant workmen, no specific order can be

passed in this regard. The 2nd Party-Union or the disputant

workmen have not appeared in the witness box to depose

the true facts of the case and bring out material before the

court to justify the claim. Therefore the 2nd Party-Union or

the disputant workmen cannot be given any relief.

6. The reference is answered accordingly.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 362.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,e lh

,y ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky; Hkqous'oj ds iapkV ¼lanHkZ la[;k 28@2001½

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr

gqvk FkkA

[lañ ,y&22012@168@1996&vkbZ vkj ¼lh&II½]

chñ,eñ iVuk;d] MsLd vfèdkjh

New Delhi, the 13th January, 2014

S.O. 362.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947, the Central

Government hereby publishes the Award (Ref. No. 28/2001)

of the Cenl. Govt. Indus. Tribunal-cum-Labour Court,

Bhubaneswar as shown in the Annexure, in the industrial

dispute between the management of Ib Valley Area of MCL,

and their workmen, received by the Central Government on

13/01/2014.

[No. L-22012/168/1996-IR (C-II)]

B.M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, BHUBANESWAR

PRESENT:

SHRI J. SRIVASTAVA,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

Tr. INDUSTRIAL DISPUTE CASE NO. 28/2001

Date of Passing Award—30th April, 2013

Between:

The Management of the General Manager,

Ib Valley Area, Mahanadi Coalfields Ltd.,

Po. Brajarajnagar, Dist. Jharsuguda.

... 1st Party-Management.

(And)

Their workmen represented through the

Joint Secretary, Brajarajnagar Coal Mines

Workers Union, At./Po. Lamtibahal,

Via Brajarajnagar, Dist. Jharsuguda.

... 2nd Party-Union.

APPEARANCES:

M/s. G.K. Satpathy,

... For the 1st Party

Advocate.

Management

M/s. D. Mahanta,

... For the 2nd Party-

Advocate.

Union

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

981

AWARD

The Government of India in the Ministry of Labour

vide its Letter No. L-22012/168/96-lR(C-II) dated 5.6.1997

has referred an industrial dispute existing between the

employers in relation to the management of Ib Valley Area,

MCL and their workman in exercise of the powers conferred

by clause (d) of sub-section (1) of sub-section 2(A) of

Section 10 of the Industrial Disputes Act in respect of the

following matter.

"Whether the action of the Management of Ib Valley

Area of Mahanadi Coalfields Lid. in terminating the

services of S/Sh. Gokul Satpathy, Safet Kansarali,

Jay Gopal Podha, Raju Kisan, Sundar Pradhan and

Prafulla Kumar Besan is legal and justified? If not, to

what relief are the workmen entitled and from which

date?"

2. The 2nd Party-Union filed statement of claim and

stated that the disputant workmen named above were

engaged by the Management as labourers in Regional

Stores, Belpahar during July, 1993 and some of them were

also engaged for some time as peons, but the exact nature

of their duties was supervising the loading and unloading

operation, checking of packets and shelfing them in the

stores etc. All the above workmen continued their work/

duty up-to 30-10.1995 without any break. But suddenly

they were refused work from 31.10.1995 without any reason.

This act of the Management is illegal, arbitrary and amounts

to unfair labour practice. The Management had direct

supervision and control over these workmen. They were

being paid weekly wages directly by the Management. The

payment vouchers were made by the MCL, Ib Valley Area

in the name of one workman and the amounts sanctioned

was distributed equally among all the workmen. Therefore

there was master and servant relationship between the

Management and these workmen, These workmen were

not engaged by the contractor in the Regional Stores. The

sudden refusal of work to these workmen by the

Management amounts to retrenchment which is in violation

of Section 25-F of the Industrial Disputes Act Before refusal

of work to these workmen the Management has neither

given one months, notice in writing indicating the reasons

for retrenchment nor has paid compensation as required.

All the six workmen had rendered nearly two years four

months service which shows that there is need for regular

post and the Management should have taken immediate

steps to regularize them. The Union represented to the

General Manager, MCL, Ib Valley area to regularize these

six workmen vide letter dated 31.10.1995, but their claim

was refused. Then the grievance of the workmen was raised

by the Union before the Asst. Labour Commissioner

(Central), Rourkela who inspected the area and found that

the six workmen were engaged against the job which is

permanent and perennial in nature. But the Management

instead of regularizing them, has refused work to them.

Hence it has been prayed that the Management be directed

to take them bact and regularize them, in their jobs and pay

them differential wages of Category-I from the date of their

engagement.

3. The 1st Party-Management in its written statement

has stated that the disputant workmen were contract

workers being paid on the basis of the approved rate by

the competent authority for each item of work. Their wages

of each day was collected periodically by one of them on

behalf of all the workmen depending upon the quantum of

work done by them collectively. The payment so received

was distributed by themselves as per their respective

contribution to the work. There was no privity of contract

between the 1st Party-Management and the disputant

workmen. They were never assigned any duty of

supervising the loading and unloading operation or

checking of packets as has been alleged. It is also false to

allege that some of them were engaged as peons and they

were continuously engaged without any break up-to

30.10.1995. The Management had engaged these workmen

on contract basis as the nature of job involved was of

casual nature. Since there was no need of labourers and

peons after 31.10.1995 the allegations regarding approach

of these workmen to the Depot Officer and their

engagement in the Regional Stores are false. The job of

stacking, loading and unloading and checking of packets

etc. relates to the valuable articles of the 1st Party-

Management. Therefore the same was entrusted to private

agencies like the disputant workmen due to exigencies. A

record of the same had to be maintained for reference at

any time later in case of any shortage, breakage etc. Some

of the general mazdoors of the company were also deputed

along with these six workmen whose names were recorded

in such documents alleged to be the attendance register.

Such endorsements by putting signature were also

necessary to certify the quantum of work done by the

workers against which payment can be passed by the

concerned department. Therefore these documents cannot

be laken to show that the workers so engaged were under

direct supervision and control of the Management. The

payment vouchers filed by the 2nd Party-Union do not

disclose the relationship of master and servant between

the workers and the Management. The job performed by

these workmen cannot be treated as the job of perennial

nature as the consignments are not expected everyday

from outside. These workmen were engaged purely on rate

contract basis to do the casual job on exigencies as and

when necessary. Therefore their claim for regularization is

unfounded and the reference may be answered in favour

of the Management.

4. The 2nd Party-Union in its rejoinder has stated

that the disputant workmen are neither casual nor contract

labourers. The Management has not alleged the

engagement of any contractor. The Management has been

diverting the regular employees for getting the work done

982

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

earlier performed by these workmen. Therefore the work is

regular and perennial in nature and the termination of the

disputant workmen was unwarranted and illegal.

5. On the pleadings of the parties following issues

were framed.

ISSUES

1. Whether the action of the management in terminating

the services of Sri Gokul Satpathy, Safet Kansarali,

Jay Gopal Podha, Raju Kisan, Sundar Pradhan &

Prafulla Kumar Besan is legal and justified?

2. If not, to what relief are the workmen entitled & from

which date?

6. The 1st party-Management has adduced the

evidence of two witnesses namely Shri Santosh Kumar

Mohanty as M.W.-1 and Shri Hrudananda Majhi as M.W.-

2 and relied on four documents marked as Ext.-A to Ext.-D.

7. The 2nd Party-Union has examined two witnesses

namely Shri Arun Chandra Hota as W.W.-1 and Shri Prafulla

Kumar Besan as W.W.-2 and relied upon three documents

marked as Ext.-1, 2 and 2/1.

FINDINGS

ISSUE NO. 1

8. As per allegation of the workmen they were

engaged by the 1st Party- Management as labourers in the

Regional Store, Belpahar and worked there from July, 1993

to October, 1995 without any break, whereas the stand of

the 1st Party-Management is that the disputant workmen

were contract workers being paid on the basis of the

approved rate for each item of work. Their wages for each

day was collected periodically by one of them on behalf of

all the workmen which depended on the quantum of work

done by them collectively and distributed by themselves

as per their respective contributions to the work.

9. From the evidence adduced by the parties the stand

taken by the Management proves to be true and

substantiated by the statements given on oath by the

witnesses of both the sides. There is no dispute that the

workmen worked in the Regional Stores, Belpahar from

July, 1993 to October, 1995 as casual labourers for loading

and unloading operation, checking of packets, and shelfing

them in stores. W.W.-1 Shri Arun Chandra Hota could not

tell as to who engaged the 2nd Party-workmen and whether

they were working on rate contract basis? W.W.-2 Shri

Prafulla Kumar Besan has stated in his evidence that a

khata was supplied to each labourer in which the officer

was daily recording as to what work each of the labourers

had done and after verifying each khata payment was being

made. Ext-1 is the attendance register with allotment of

work and Ext-2 series is the payment/adjustment vouchers.

The money paid by the cashier was being distributed

amongst the six workers and two other outsider labourers.

The officer was giving instructions daily to each of the

labourers in their khata as to the work to be done by each

of them and that apart they were not giving their attendance

any-where. He has further stated that on receiving money

from the office these labourers were deciding among

themselves as to who will get how-much money depending

upon the work done by each of them. All these assertions

support the case of the 1st party-Management. MW.-1

Santosh Kumar Mohanty has virtually said the same thing

while stating that the workmen were working on the basis

of rate contract. According to him they were working

collectively and one of them was receiving the payment

and distributing it amongst the labourers. Ext-1 is not the

attendance register, it is a note prepared by him showing

the persons worked on a particular date being supervised

by him. This register was maintained to prepare bills for

making payment. The names of the disputant workmen do

not find place in Ext.-A, B & C which are the attendance

the Dy. C.M.M. on the bills submitted by him. This witness

has earlier stated that the services of the outside labourers

are taken when the work load becomes more. The workmen

concerned in this case were engaged when there was need

of work. MW.-2, Shri Hrudananda Majhi has also stated in

his evidence that "at the time of need basis we used to

engage outsiders on rate contract basis". He further stated

that "we never used to maintain the attendance of casual

labourers". These casual labourers according to him were

not working everyday. They worked on the dates when the

materials were sent through trucks.

10. From the perusal of Ext-1 and 2 filed on behalf of

the 2nd Party-workmen it cannot be said that these two

documents prove their regular engagement by the 1st

Party-Management. Ext.-1 cannot be named as attendance

who worked on those particular dates and did particular

work. Copies of the payment vouchers also do not show

their continuous employment. This goes to reflect that the

2nd Party-workmen had not worked continuously for 240

days during a period of 12 calendar months preceding the

date of their disengagement. The work performed by these

workmen is permanent or perennial in nature is not of any

importance as they were engaged on contract basis.

Payment of their work was to be made on the quantum of

work they had performed. Therefore they had not acquired

any right to be regularized or to continue in service when

there is no sufficient work for them with the Management.

11. Under these circumstances the action of the

Management in terminating the services of S/Shri Gokul

Satpathy, Safet Kansarali, Jay Gopal Podha, Raju Kisan,

Sundar Pradhan and Prafulla Kumar Besan is perfectly legal

and justified and no right lo get any relief accrue to them.

This issue is decided against the 2nd Party-Workmen and

in favour of the 1st Party-Management.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

983

ISSUE NO. 2

12. From what has been stated in Issue No. 1 above

the workmen are not entitled to anv relief whatsoever.

13. Reference is answered accordingly.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 363.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ lh vkbZ ih bZ

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè

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

U;k;ky;] Hkqous'oj ds iapkV ¼lanHkZ la[;k 17@2006½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@249@2005&vkbZ vkj ¼lh ,e&II½]

chñ,eñ iVuk;d] MsLd vfèdkjh

New Delhi, the 13th January, 2014

S.O. 363.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 17/2006 of

the Cent. Govt. Indus.Tribunal-cum-Labour Court,

Bhubaneswar as shown in the Annexure in the industrial

dispute between the management of Central Institute of

Plastics Engg. & Technology, and their workmen, received

by the Central Government on 13/01/2014.

[No. L-42012/249/2005-IR(CM-II)]

B.M. PATNAIK, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT BHUBANESWAR

Present:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar

INDUSTRIAL DISPUTE CASE NO. 17/2006

Date of Passing Award—8th August, 2013

Between:

1. The Director General, Central Institute of

Plastics Enggr & Technology, Corporate Office,

Guindy, Tamilnadu - 600 032.

2. The Deputy Director & Head, Central

Institute of Plastics Engg. & Technology,

B/25. CHI Complex, Bhubaneswar

(Orissa)—751 024

... 1st Party-Managements

(And)

Shri Sridhar Naik,

S/o. Late Bholi Naik, At./Po. Patia,

Ps. Chandrasekharpur, Bhubaneswar

(Orissa)-751 031

... 2nd Party-Workman

Appearances:

Shri K.S. Sodhi,

... For the 1st Party-

Manager (PAF)

Managements

Shri Sridhar Naik

For Himself the 2nd Party

Workman

AWARD

The Government of India in the Ministry of Labour

has referred an industrial dispute vide its letter No. L-42012/

249/2005 - 1R (CM-II) dated 17.8.2006 existing between the

employers in relation to the management of Central Institute

of Plastics Engg. & Technology and their workman 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 in respect of the following

matter:—

"Whether the action of the management of Central

Institute of Plastics Engineering and Technology in

terminating the services of Sri Sridhar Nayak w.e.f.

1.7.2003 is legal and justified? If not, to what relief is

the workman entitled?"

2. The 2nd Party-workman in his statement of claim

has averred that he was engaged as a casual worker under

the 1st Party-Management No. 1 and was assigned duties

in the boys hostel. Later he was engaged in Library and

Training Department. While working as such his services

were approved by the then Project Head with effect from

1.3.1992. He had been discharging his duties very sincerely,

efficiently and continuously having no adverse remarks

against him. His initial monthly pay was raised in the year

1997 from Rs. 500 to Rs. 2025 and then to Rs. 3050 with

effect from 16.8.2001. His name was cited at Sl. No. 5 in the

list showing details of casual/temporary employees. He

rendered continuous service from 1.3.1992 to 30.6.2003

without any break. From 1.7.2003 Shri Ajit Kumar Pattnaik,

Assistant of the 1st Party-Management No. 1 refused

employment to him verbally under the orders of the Chief

Manager, (Project) Dr. S.K. Nayak. His several requests for

giving employment were turned down and the security

guards of the Management did not allow him to enter inside

the campus. The 1st Party-Management has refused

employment to him without any reason and without

compliance of the provisions of Section 25-F of the Industrial

Disputes Act, 1947. The Ist Party-Management has

engaged Mr. Manoj Kumar Pattnaik as a contractor without

obtaining any license under the Contract Labour (R & A)

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Act, 1970, who in turn, has deployed personnel for

discharging the duties of the 2nd Party-workman. The 1st

Party-Management forced him to work under the contractor

after submission of resignation, but the 2nd Party-workman

refused to work under the contractor. He and his four senior

co-workers were drawing salary directly from the 1st Party-

Management by signing the vouchers. The 1st Party-

Management has issued four cheques of Syndicate Bank,

Bhubaneswar in the name of the 2nd Party-workman

towards payment of arrear wages. Hence the 2nd Party-

workman be reinstated in service with full back wages.

3. The 1st Party-Management has filed its written

statement and alleged that the Central Institute of Plastics

Engineering and Technology is a society registered under

the Societies Registration Act, 1860 for training highly

skilled personel in Plastics Processing, Plastics testing

design and also to train tool room, I.T.I etc. It is essentially

an educational institution. It is not engaged in any

commercial activities. As such it is not an industry under

the Industrial Disputes Act, 1947 and accordmgly this Court

has no jurisdiction to entertain the case. The 2nd party-

workman was engaged from November, 1994 to July, 1995

through House Keeping/Hotel Kitchen Contractor Shri Bata

Krishna Sahoo, from August, 1995 to September, 1996

through the hostel kitchen contractor Shri B.C. Das and

from October, 1996 to November, 1997 through the hostel

kitchen contractor Shri Batakrishna Sahu. From July, 1997

onwards the 2nd Party-workman was engaged by the hostel

mess committee for hoslel. The said committee was

independently run by the hostel students. The 2nd Party-

workman was receiving wages from the hostel mess

committee through the institute. Earlier to it he was also

engaged from 1.3.1992 through the contractor Shri Sridhar

Naik for House Keeping works. The 2nd Party-workman

worked till the month of July, 2003 and received the payment,

but he did not turn up after July, 2003. In the month of

June, 2004 he was engaged for gardening work on his

personal request and received payment till August, 2004

for the work done by him. He left the job on his own choice.

He has never worked continuously for 240 days in a year.

He was never appointed the CIPET against any sanctioned

permanent or regular post or vacancy. For the increasing

house keeping job the 1st Party-Management has for

engaged M/s. Manoj Enterprises to carry out the day to

day house keeping in the hotel and office premises. The

2nd Party-workman was engaged by the respective

contractors and mess committee as per their requirement

while four seniors named by the 2nd Party-workman have

been working in CIPET as casual/contract employees. The

2nd Party-workman was neither appointed against any

regular sanctioned/vacant post by CIPET nor he has any

vested right for his regularization in CIPET. Hence he is not

entitled to be reinstated. The question of victimization does

not arise since the 2nd Party-workman was neither

appointed not disengaged by the CIPET. The provisions

of Section 25 of the Industrial Disputes Act are not attracted

in this case. The 2nd Party-workman has also filed W.P.

No. 4600/2003 for regularination of his service in Hon'ble

High Court of Orissa which is still pending. Hence he cannot

be allowed to take shelter of two forums simultaneously

for the same relief.

4. On the pleadings of the parties, following issues

were framed:—

ISSUES

1. Whether the reference is maintainable?

2. Whether the workman was engaged by the

Management of Central Institute of Plastics

Engineering & Technology?

3. Whether the Management had ever refused

employment to the workman with effect from 1.7,2003

and if so, whether the action of the management is

justified and legal?

4. If, not to what relief the workman is entitled?

5. The 2nd Party-workman Shri Sridhar Nayak son

of Late Bholi Naik has examined himself as W.W.-1 in

evidence and relied upon fifteen documents marked as Ext.-

1 to 15. On the other hand the 1st Party-Management has

examined Shri Sridhar Naik son of Akura Naik as M.W.-1

and relied on several documents marked as ext.-A to S.

FINDINGS

ISSUE NO. 1

6. Although the 1st Party-Management has stated

that its establishment being an educational institution not

engaged in any commercial activities does not come under

the definition of "Industry" and therefore the reference is

not maintainable in this Tribunal/Court, yet it has not

seriously contested the issue and seems to have given up

the question of maintainability and jurisdiction of the court.

It has filed Ext.-F, photostat copy of judgement of the

Hon'ble High Court of Madras given in Writ Petition

No. 863/1984 wherein it was held that the Management of

Central Institute of Plastic Engineering and Tools, Madras

is exempt under section 32(v) (b) and (c) of the Payment of

Bonus Act. This judgement is no helpful in the present

context as the question involved herein is the applicability

of the Industrial Disputes Act, 1947, The 1st Party-

Management seems to have submitted to the jurisdiction

of the Central Government Industrial Tribunal-cum-Labour

Court for adjudication of industrial disputes as it has relied

on the judgement of the Hon'ble High Court of Punjab and

Haryana at Chandigarh given in Civil Writ Petition No.

7344 of 2007 and judgement of I.D, Case No. 97/1995 given

by the Labour Court, Bhubaneswar relating to the 1st Party-

Management. The photostat copies of these two

judgements have been filed along with Ihe written note of

¹Hkkx II—[k.M 3(ii)º

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985

argument by the 1st Party-Management. In these two cases

applicability of the Industrial Disputes Act has not been

challenged by the 1st Party-Management. In my view also

this Tribunal-cum-Labour Court has jurisdiction to

adjudicate upon the industrial dispute between the 1st Party-

Management and its employees being an industrial dispute

as the lsl Party-Management is a State-run establishment

and the present dispute relates to public employment. This

issue is accordingly decided against the 1st Party-

Management and it is held that the reference is maintainable

in this Tribunal/Labour Court.

ISSUE NO. 2

7. According to the 2nd Party-workman he was

engaged by the 1st Party-Management No. 1 with effect

from 1.3.1992 and he worked till 30.6.2003 without any break.

On the contrary the 1st Party-Management has alleged

that the 2nd Party-workman had worked from 1.3.1992 till

July, 2003 under different contractors for different kind of

work. He was receiving wages from the contractors through

the Institute. But the 1st Party-Management has failed to

prove by any cogent and reliable evidence that the

2nd party-workman was engaged by the contractors for

different spell of time. It has examined one of the contractors

named Shri Sridhar Naik as M.W.-l, who has stated in his

evidence that the 2nd party-workman has worked under

him for one year and disbursed his wages brought from the

Management. He got appointment in regular post under

the 1st Party-Management in the year 1994. Thereafter he

left the contract and the 2nd Party-workman was doing

various miscellaneous works under the Management. He

has further stated that the 2nd Party-workman was working

under the two contractors, namely Shri Batakrishna Sahu

and Shri B.C. Das and getting his wages as usual from the

office of the Management and the hostel. In his cross-

examination he has candidly admitted that "I cannot say

whether the workman was working with the contractor, but

I can say the workman was working directly with the

Management and receiving wages through voucher. The

1st Party-Management has filed four numbers of photostat

copies of contract agreement executed between the

contractor and the 1st Party-Management, but they do not

indicate that the 2nd Party-workman was engaged by these

contractors.

8. The 2nd Party-workman Shri Sridhar Nayak son of

late Shri Bholi Nayak has stated in his evidence that he

was engaged by the Management initially in the year 1992

as a sweeper and he continued to work till June, 2003 in

different fields of work. He has also stated in his cross

examination that he was engaged by Shri Sridhar Nayak,

Contractor during the absence of Shri Bai Nayak and for

that period Shri Sridhar Nayak, Contractor used to get his

remuneration from the Management and give it to him. He

has also admitted that he was sent to the hostel to assist

Shri Batakrishna Sahoo who was working as a cook in the

hostel in the year 1994. 50% of his wages and 50% of wages

of other workers was borne by the hostel committee and

the rest 50% was borne by the Management. From his

statement read as a whole, it cannot be concluded that he

was engaged by the contractor and shifted his employment

from one contractor to another with the change of

contractor. He has also filed several documents to prove

that he was working as a casual employee under the

1st Party-Management. Exts-1 to 3 show that the 1st Party-

Management has recommended his name along with four

other casual workers for regularization to its Head Office.

He was also given bonus along with other employees in

the year 1996-97 and 1998-99 as is reflected from Ext.-4 and

9. Delails of casual staff are given in Ext.-6 and 13. Although

this list has been denied by the 1st Party-Management,

but no one from the side of the lsl Party-Management has

come to state this thing on oath The 2nd Party-workman

was has also filed copies of vouchers. Ext.-5, 8 and 14 to

show the payment of wages and bonus by the

Management. The lsl Party-Management has also filed

photostat copies of several vouchers and one money

receipt towards payment of wages and other dues to the

2nd Party-workman, All these documents go to prove that

the 2nd Party-workman was engaged by the Management

of CIPET itself and not by the contractors. This issue is

accordingly decided in the affirmative and in favour of the

2nd Parly-workman.

ISSUE NO. 3

9. The stand of the 2nd Party-workman is that he was

refused employment on 1.7.2003 by Shri Ajit Kumar Pattnaik,

Assistant under the direction of the 1st Parly-Management

No. 1, but this stand of the 2nd Party-workman proves to

be false as he himself has admitted in his cross examination

that 1.7.2003 was a holiday on account of Rath Yatra. He

had worked in the month of July, 2003 and was also paid

his wages amounting to Rs. 3050. He also granted receipt

of that payment which has been filed as Ext.-A by the

1st Party-Management. Further he has admitted that "it is

a fact that I worked in the month of June, July and August,

2004 in the office of the Management and I have also

received salary for those months". However he has

voluntarily stated afterwards that the Management having

refused employment to him for about nine months called

him after receipt of an Advocate notice and engaged him in

June, July and August, 2004. It means that he was not

engaged after July, 2003 for about ten months and then

again engaged in June, July and August, 2004. The

Management's version is that the 2nd Party-workman did

not turn up for work after July, 2003. Thereafter he was

engaged on his personal request for gardening work in

June, 2004 and worked till August, 2004. He had left the job

on his own choice. There is no evidence on record on what

terms and conditions he was engaged. Likewise there is no

reliable and truthful evidence on record regarding

disengagement of the workman by the 1st Party-

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Management from 01.07.2003 whereas the 2nd Party-

workman has averred in the pleadings that he was refused

employment by the 1st Party-Management on 1.7.2003. In

his evidence he denies refusal of employment from 1.7.2003,

This stand of the workman cannot be believed. There is no

further allegation by the 2nd party-workman that the 1st

Party-Management has refused employment to him from

August, 2003. Hence the case of the 2nd Party-workman

regarding refusal of employment to him by the 1st Party-

Management does not stand true and it might be true that

he has himself left the job. Issue No. 3 is decided against

the 2nd Party-workman as to the point of refusal of

employment to the workman by the 1st Party-Management

w.e.f. 01.07.2003. Since the 1st Party-Management has not

refused employment to the 2nd Party-workman no question

of legality or illegality of the action of the Management

arises in this regard.

ISSUE NO. 4

10. As the 2nd Party-workman has failed to prove

the refusal of employment by the Ist Party-Management

and also to prove 240 days continuous service during a

period of 12 calender months preceding the date of his

alleged disengagement, he does not appear to be entitled

to any relief.

11. The reference is answered accordingly.

J. SRIVASTAVA, Presiding Officer

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New Delhi, the 13th January, 2014

S.O. 364.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D No. 31/2006)

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 General Manager, BSNL, Hyderabad and

their workman, which was received by the Central

Government on 10/01/2014.

[No. L-40012/108 /2005-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present: Smt M. Vijaya Lakshmi,

Presiding Officer

Dated the 21st day of May, 2013

INDUSTRIAL DISPUTE No. 31/2006

Between :

Smt. Y. Padma,

C/o L. Vijaya Kumar,

H.No. 5-6-9, Laxmidevipeta,

Anakapalle (PO).

Visakhapatnam.

....Petitioner

AND

The General Manager, BSNL,

Telecom, Dwarakanagar,

Visakhapatnam.

....Respondent

APPEARANCES:

For the Petitioner

M/s. K. Rama Reddy &

Y. Ranjit Reddy, Advocates

For the Respondent

Sri M.C. Jacob, Advocate

AWARD

The Government of India, Ministry of Labour by its

order No. L-40012/108/2005-IR(DU) dated 24/5/2006 referred

the following dispute under section 10(l)(d) of the l.D. Act,

1947 for adjudication to this Tribunal between the

management of Bharat Sanchar Nigam Limited and their

workwoman. The term of reference is as under:

SCHEDULE

''Whether the action of the Management of

M/s. Bharat Sanchar Nigam Limited, represented by

General Manager, Telecom District, Visakhapatnam

in terminating the services of Smt. Y. Padma, Ex-Part

Time Scavenger/Casual Labour, w.e.f. 8.10.2002 is legal

and justified? If not, to what relief she is entitled to?"

The reference is numbered in this Tribunal as ID No.

31/2006 and notices were issued to the parties.

2. Petitioner filed her claim statement with the averments

in brief as follows:

Petitioner worked as part time scavenger in DTO.

Anakapalli from July, 1997 to 7.10.2002 at the rate of 2 hours

per day continuously. She was removed from service on

8.10.2002 by an oral order. She was not served with any

notice of termination and the procedure for termination

was not followed. Thus, the said termination is illegal,

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987

arbitrary and in violation of Scc.25 F of Industrial Disputes

Act, 1947. Several persons who were juniors to the petitioner

and employed as casual labourers were regularized/

absorbed into the service of the respondent organization.

Petitioner made a representation dated 16.7.2004 to the

respondent marking copy of it to the Asst. Commissioner

of Labour (Central), Visakhapatnam requesting for her

absorption in respondent organization considering her

temporary service from July, 1997 to 7.10.2002, since, her

co-workers have been absorbed following the direction of

the office of CGM, Telecom, A.P.Circle, Hyderabad, vide

letter No. TA/STB/20-2/CO respondent/PTS/2000

dt 26.4.2001/ 1.5.2001. But she received copy of letter

addressed to the Assistant Labour Commissioner(C),

Visakhapatnam 20.8.2005 whereunder, it is stated that

petitioner was never appointed as part time scavenger, that

her services were utililzed for scavenging works for short

duration, only on contract basis but not against any

sanctioned post and that payments were made to her on

temporary vouchers but not on regular establishment bills.

Her representation, thus was rejected. The efforts made by

the ALC© for conciliation were in vain. Petitioner belongs

to a poor SC community and a divorcee having one

dependent daughter. Having no alternate employment, due

to illegal termination from service petitioner and her

daughter are starving. Hence, an award is to be passed

directing the respondent management to reinstate the

petitioner into service with continuity of service with full

back wages and all attendant benefits from 1.8.2002.

3. Respondent filed his counter with the averments

in brief as follows:

Petitioner was engaged as a scavenger for short

duration on contract basis in the respondent industry.

Payments were made on temporary vouchers. The services

of the petitioner were disengaged after the contract period.

Her contention that she was appointed as part time

scavenger and that her services were terminated are all

incorrect. She was never appointed and thus, termination

of her services does not arise. She never put in more than

240 days of the work with the respondent industry. Sec.25 F

of Industrial Disputes Act. 1947 is not applicable to her

case. Her contention that her juniors were employed and

their services were regularised are all incorrect. In view of

these divergent views of the petitioner and respondent

only, no conciliation could be effected. Petition is liable to

be dismissed.

4. To substantiate the contentions of the petitioner

she examined herself as WW1 and through her Ex.Wl to

W12 were marked. On behalf of the management MWI

Sri P. Krishna Rao was examined. No documentary evidence

is adduced for the management.

5. Heard the arguments of either party. Written

arguments were also filed by the respondent and the same

were received.

6. The points that arise for determination are:—

(I) Whether the petitioner has worked either as a part

time scavenger or as scavenger on contract basis

with the respondent industry?

(II) Whether the termination of the services of the

petitioner w.e.f. 8.10.2002 is illegal and justified?

(III) To what relief the petitioner is entitled?

7. Point (I):

As can be gathered from the material on record it is

an undisputed fact that petitioner has worked as scavenger

with the respondent industry. It is her contention that she

worked so from July, 1997 to 7.10.2002 at the rate of 2 hours

per day, continuously.

8. Whereas it is contention of the respondent that

she worked as scavenger but only on contract basis and

that her services were disengaged after the contract period.

But, the fact remains that respondent has not come forward

with the details of the alleged contract like, tenns of the

contract, duration of the contract, etc.. He vaguely claimed

that the services of the petitioner were taken on contract

basis. Thus, the same can nol be accepted. Even, the senior

section supervisor of the respondent organization who

deposed as MW1 did not state anything about the terms

and duration of the alleged contract between the petitioner

and the respondent.

9. Whereas petitioner has categorically stated that

she worked as part time scavenger continuously from July.

1997 to 7.10.2002 i.e. the date on which her services said to

have been terminated by the respondent. To substantiate

this contention she is relying upon Ex.W9 which is

evidently issued by the office of STM(Q)I/C, T,O,

Anakapally. This is the statement showing the number of

hours of work performed by the petitioner as part time

scavenger. As can be seen from this document from July,

1997 to 7.10.2002 petitioner has attended to the work almost

regularly, and at the rate of 2 hours per day. In view of this

contents of this document, which show that she worked at

the rate of 2 hours per day only, her oral contention as

WWI that she put in more working hours than 2 hours per

day, can not be accepted.

10. Further more she being an illiterate woman

petitioner's admission, while she was under cross

examination as WWI, that she worked on contract basis

also need not be considered. Further more, the entire

evidence of the witness is to be taken into consideration to

cull out her contentions. Though, she said that from July,

1997 to November. 2002 she worked on contract basis,

immediately (thereafter she denied the suggestions put to

her that she worked with the respondent whenever work

was available only. She asserted that she put in 240 days of

work with the respondent. While considering ihe

suggestion given to WW1 regarding contract between the

988

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

parties, one another suggestion put to the petitioner while

she was under cross examination as WW1 that she worked

for 8 hours per day is also to be considered. She admitted

the same when it was put to her for the respondent. But,

the documentary evidence, is to the effect that she worked

only for 2 hours per day. The documentary evidence will

prevail over the oral evidence and thus, it alone can he

considered, when such conflicting documentary and oral

evidence come up for consideration.

11. As already discussed above, Respondent failed

to establish that there was a contract between the petitioner

and the respondent and petitioner worked as per that

contract and that her services were terminated on expiry of

the any such contract period. Whereas the oral evidence

adduced on record, is considered together with the contents

of the Ex. W9, what one can reasonably understand is that

petitioner worked as part time scavenger with the

respondent industry and received payment from them

against vouchers. She put in 2 hours work per day only.

She worked so for considerable period that is from July.

1997 and upto 7.10,2002. Thus, it can reasonably be

concluded that she continuously worked for the

respondent as part time scavenger, all during this

considerable period. In view of the fore gone discussion, it

can safely he concluded . that petitioner has worked as

part time scavenger, with the respondent from July, 1997 to

7.10.2002 putting 2 hours work per day and that respondent

failed to establish that she worked as scavenger on contract

basis.

This point is answered accordingly.

12. Point No.(Il): In view of the finding given in Point

No.(l) it is very much clear that petitioner has been working

as part time scavenger with the respondent industry from

July, 1997 onwards and until the date of her termination

from service orally ie upto 7.10.2002. She put in 2 hours

work per day only as can be seen from Ex.W9.

13. Ex.W10 is the circular issued by the CGM: BNL,

telecom, A.P.Circle, Hyderabad dt.26.4.2001/1.5.2001,

whereunder guidelines for regularizing services of part time

casual labourers and Ayahs are given. As can be seen from

these guidelines, all part time casual labourers who are

working 4 or more hours per day and converted into full

time casual labours were to be given preference first and

later all part time casual labourers who are working less

than 4 per day and were converted into full time casual

labourers are to be preferred for regularization. Later the

aayahs and supervisors were to be considered. Thus, it is

clear that the part time casual labourers, who were putting

in the work for less than 4 hours per day were also to be

converted into full time casual labouers and later they were

to be considered for regularization. This circular was issued

while the petitioner was still working for the respondent

industry. Evidently, respondent failed to consider the

petitioner for conversion into full time casual labourers

and thereafter whenever vacancy arises for regularization,

though Ex.W10 circular warrants the same. Instead, to

wriggle out of the said responsibility, respondent has

chosen to claim before this tribunal that the petitioner

worked as scavenger for the respondent on some contract

basis without giving any details of any such alleged

contract. It amounts to denial of the rights accrued to the

petitioner, by virtue of Ex.W10 circular, which is not

permissible.

14. It is the contention of the petitioner that while

terminating her services, she was not served with any

notice and the procedure contemplated under Sec.25 F of

the Industrial Disputes Act, 1947 was not at all followed.

For this, the answer of the respondent is in two fold. One is

that petitioner has been working on contract basis which

is not acceptable for the reasons explained supra. The

second contention is that petitioner has not put in 240

working days in any calendar year, just preceded the date

of termination of her services. Petitioner is denying the

truth of this contention. As already discussed above, Ex.W9

is giving details of the work performed by the petitioner for

the respondent. When the same is considered, one can

clearly see that during the year 2001 petitioner has put in

more than 300 working days with the respondent. Thus,

the contention of the respondent in this regard also is not

acceptable.

15. Therefore, the contention of the petitioner that

though it is obligatory, on the part of the respondent to

comply with the provisions of Sec. 25F of the Industrial

Disputes Act, 1947, he failed to do so while terminating the

services of the petitioner. Therefore, it can safely be held

that termination of the services of the petitioner as part

time scavenger/Casual labourer w.e.f. 8.10.2002, on the part

of the respondent, is neither legal nor justified. This point

is answered accordingly.

16. In the result, petition is allowed. Petitioner shall

be reinstated into service as part time scavenger, by the

respondent industry, forth with. Respondent shall consider

her for conversion as full time casual labourer if vacancy is

available/whenever vacancy arises, considering her

seniority, as it stands by the date of termination of her

services. i.e. 7.10.2002. Further, respondent shall pay

forthwith Rs. 10000/- (Ten thousand rupees only) towards

compensation for the hardship to which petitioner has heen

put to, all these years from the date of her illegal termination

from services.

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989

Award is passed accordingly. Transmit.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

Witnesses examined for the

the Petitioner

Respondent

WW1: Smt. Y. Padma

MW1: Sri P. Krishna Rao

Documents marked for the Petitioner

Ex.Wl:

Copy of representation of petitioner dt 16.7. 2004

Ex.W2:

Copy of letter of ALC(C), Visakhapatnam to

respondent dt. 1 3.8.2004

Ex.W3:

Copy of the reply by respondent to ALC(C),

Visakhapatnam

Cx.W4:

Copy of conciliation of ALC(C)? Visakhapatnam

dt 13.7.2005

Ex.W5:

Copy of Conciliation notice dated 28.7.2005

Ex.W6:

Copy of Minutes of conciliation proceedings

dt.29,7.2005

Ex.W7: Copy of Failure report of ALC(C), to Government

of India dt.26.9.2005

Ex.W8: Copy of reference of dispute by Government of

India dt.24.5,2006

Ex.W9: Copy of statement showing the No. of days of

working by petitioner

Ex.W10:

Copy of circular of CGM, BSNL, dt.26.4.2001/

1.5.2001

Ex.Wll:

Copy of circular of Govt. of India, Dept of

Telecom Services, New Delhi dt. 25.8.2000

Ex. W12: Copy of caste certificate of the petitioner

dt.31.7.2003

Documents marked for the Respondent

NIL

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 365.—vkS|ksfxd fookn vfèfu;e 1947¼1947

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

eSustj gSoh okVj IykaV ¼euqxq#½ [kEee ds izcaèra= ds laca?k 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;] gSnjkckn ds

iapkV ¼lanHkZ la[;k 22@2011½ dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 10@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42011@86@2010&vkbZvkj¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 365.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 22/2011)

of the Central Government Industrial Tribunal-cum-Labour

Court, Hyderabad now as shown in the Annexure, in the

Industrial dispute between the employers in relation to the

management of Chief General Manager, Heavy Water Plant

(Manuguru), Khammam and their workman which was

received by the Central Government on 10.01.2014.

[No. L-42011/86/2010-IR(DU)]

P. K.VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : SMT. M. VIJAYA LAKSHMI, Presiding Officer

Dated the 19th day of August, 2013

Industrial Dispute No. 22/2011

Between:

Sri Syed Khasim Hussain,

(Rep. of workman)

Ex. Scientific Asstt. 'D',

H. No. 11-2-71, Sree Nagar Colony,

New Palvoncha (P.O.)-507115,

Khamman District,

....Petitioner

AND

The Chief General Manager,

M/s. Heavy Water Plant (Manuguru),

Aswapuram-507116,

Khammam District.

....Respondent

Appearances :

For the Petitioner

Sri M.V.L. Narasaiah, Advocate

For the Respondent

None

AWARD

The Government of India, Ministry of Labour by its

order No. L-42011/86/2010-IR(DU) dated 23.5.2011 referred

the following dispute under section 10(1)(d) of the I.D.

Act, 1947 for adjudication to this Tribunal between the

management of M/s. Heavy Water Plant and their workmen.

The reference is,

990

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

SCHEDULE

"Whether the demand of Shri T. Damodarachary and

32 others (List enclosed), Contract Labourer

employed by the H.W.P.(M) SC, BC and other Land

Loosers Contract Labour Cooperative Society Ltd.,

Aswapuram for Payment of Bonus as per provisions

of the Payment of Bonus Act, 1965, is legal and

justified? What relief the workers are entitled to?"

The reference is numbered in this Trinunal as I.D.

No. 22/2011 and notices were issued to the parties.

2. Case stands posted for filing claim statement and

documents by the Petitioner union.

3. Petitioner union or their counsel called absent and

there is no representation. Claim statement and documents

are not filed inspite of giving fair opportunity. Petitioner

union is not taking interest in the proceedings though the

matter is pending since the year 2011. In the circumstances,

taking that Petitioner union is not interested in the

proceedings, petition is dismissed.

Award passed accordingly. Transmit.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

the Petitioner

the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 366.—vkS|ksfxd fookn vfèfu;e] 1947¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Mk;jsDVj bu

pktZ lkykjtax E;wft;e] gSnjkckn 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;] gSnjkckn ds

iapkV ¼lanHkZ la[;k 47@2011½ dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 10@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@60@2011&vkbZvkj¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 366.—In pursuance of Section 17 of the

Industrial Disputee Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 47/2011)

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 The Director Incharge, Salarjung Museum,

Hyderabad and their workman, which was received by the

Central Government on 10.01.2014.

[No. L-42012/60/2011-IR(DU)]

P. K.VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT: SMT. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 19th day of August, 2013

Industrial Dispute No. I.D. 47/2011

Between :

Sri V. Vijaya Kumar,

H. No. 13-3-396/22/12A,

Sai Durga Nagar, Jiaguda,

Hyderabad-500006.

....Petitioner

AND

Sri A. Nagender Reddy,

Director Incharge, Salarjung Museum,

Darulsshifa Road,

Hyderabad-500002.

....Respondent

APPEARANCES:

For the Petitioner :

M/s. G. Vidya Sagar, K. Udaya Sri, P.

Sudheer Rao & D. Sunil Kumar,

Advocates

For the Respondent : Sri R.S. Murthy, Advocate

AWARD

The Government of India, Ministry of Labour by its

order No. L-42012/60/2011-IR(DU) dated 16.9.2011 referred

the following dispute between the management of Salarjung

Museum, Hyderabad and their workman under section

10(1)(d) of the I.D. Act, 1947 for adjudication to this Tribunal.

The referenece is,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

991

SCHEDULE

Whether the action of the management of Salarjung

Museum, Hyderabad in terminating the services of

Shri V. Vijaya Kumar, Casual employee w.e.f. 24.11.2010,

is legal and justified? What relief the workman is

entitled to?"

2. The case stands posted for filing of claim statement

and documents. Petitioner called absent and there is no

representation since long time. Inspite of giving fair

opportunity, claim statement was not filed by the Petitioner

and the matter is coming up since the year 2011. In the

circumstances, taking that Petitioners not interested in the

proceedings, petition is dismissed.

Award passed accordingly. Transmit.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

the Petitioner

the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 367.—vkS|ksfxd fookn vfèfu;e] 1947¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Mk;jsDVj bu

pktZ lkykjtax E;wft;e gSnjkckn ds izcaèra= ds laca?k 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; gSnjkckn ds

iapkV ¼lanHkZ la[;k 46@2011½ dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 10@01@2014 dks izkIr gqvk FkkA

[lañ ,y& 42012@61@2011&vkbZvkj¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 367.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 46/2011)

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 The Director Incharge, Salarjung Museum,

Hyderabad and their workman, which was received by the

Central Government on 10.01.2014.

[No L-42012/61/2011-IR(DU)]

P. K.VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT: Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 19th day of July, 2013

Industrial Dispute No. I.D. 46/2011

Between:

Sri Syed Habeeb,

H. No. 16-2-738/C, New Malakpet,

Asmangud, TV Tower,

Hyderabad-500036

....Petitioner

AND

Sri A. Nagender Reddy,

Director Incharge Salarjung Museum,

Darulsshifa Road,

Hyderabad-500002

...Respondent

APPEARANCES

For the Petitioner

M/s. G. Vidya Sagar, K. Udaya

Sri, P. Sudheer Rao & D. Sunil

Kumar, Advocates

For the Respondent

Sri R.S. Murthy, Advocate

AWARD

The Government of India, Ministry of Labour by its

order No. L-42012/61/2011-IR(DU) dated 30.8.2011 referred

the following dispute between the management of Salarjung

Museum, Hyderabad and their workman under section

10(1)(d) of the I.D. Act, 1947 for adjudication to this Tribunal.

The reference is,

SCHEDULE

Whether the action of the management of Salarjung

Museum, Hyderabad in terminating the services of Shri

Syed Habeeb, Casual employee w.e.f. 24.11.2010, is legal

and justified? What relief the workman is entitled to?"

2. The case stands posted for filing of claim statement

and documents. Petitioner called absent and there is no

representation since long time. Inspite of giving fair

opportunity, claim statement was not filed by the Petitioner

and the matter is coming up since the year 2011. In the

circumstances, taking that Petitioners not interested in the

proceedings, petition is dismissed.

Award passed accordingly. Transmit.

M. VIJAYA LAKSHMI, Presiding Officer

992

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Appendix of evidence

Witnesses examined for the

Witnesses examined for

Petitioner

the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 368.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj tujy esustj

ch ,l,u ,y fut+kekckn 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; gSnjkckn ds iapkVZ

¼lanHkZ la[;k 57@2006½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj

dks 10@01@2014 dks izkIr gqvk FkkA

[lañ ,y&40012@26@2006&vkbZvkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 368.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby published the award (I.D. No. 57/2006)

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 General Manager, BSNL, Nizamabad and

their workman, which was received by the Central

Government on 10/01/2014.

[No. L-40012/26/2006-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT AT HYDERABAD

PRESENT: Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of September, 2013

INDUSTRIAL DISPUTE No. I.D. 57/2006

Between:

Sri M. Krishna,

S/o M. Narasimha Murthy,

C/o K. Sailoo, H. No. 3-10-320,

Vivekanand Nagar, Nayalkal Raod,

Nizamabad.

....Petitioner

AND

The General Manager,

M/s. Bharat Sanchar Nigam Ltd.,

Telecom District, Subhash Nagar,

Nizamabad.

....Respondent

APPEARANCES

For the Petitioner:

M/s A. Raghu Kumar & B. Pavan

Kumar, Advocates

For the Respondent: Sri A. Ganapathi Ram, Advocate

AWARD

The Government of India, Ministry of Labour by its

order No. L-40012/26/2006-IR(DU) dated 16.10.2006 referred

the following dispute between the management of M/s.

Bharat Sanchar Nigam Ltd., and their workman under section

10(1)(d) of the I.D. Act, 1947 for adjudication to this Tribunal.

The reference is,

SCHEDULE

"Whether the action of the management of General

Manager, Bharat Sanchar Nigam Ltd., Nizamabad in

terminating the services of Shri M. Krishna, casual

worker w.e.f. 11.10.2005 is legal and justified? If not,

to what relief the workman is entitled to?"

The reference is numbered in this Tribunal as I.D.

No. 57/2006 and notices were issued to the parties.

2. Petioner filed claim statement and documents. It is

averred by the Petitioner in his claim statement that he has

joined as a casual labourer on the muster rolls of the

erstwhile Department of Telecommunications in Nizamabad

and worked as such from January, 1992 to December, 1994

under cable laying work of Sub Divisional Officer, Telecom

Armoor. Later he was renengaged as House Keeping office

boy in June, 2000 and was paid wages on ACG-17. The

Government of India established a company by name Bharat

Sanchar Nigam Ltd., w.e.f. 1.10.2000 and transferred all the

staff of Telecom and absorbed staff concerned on their

option. He was continued upto 31.8.2005 in Bharat Sanchar

Nigam Ltd., without any break and was paid wages @

Rs. 1430/- per month. He was continued with artificial breaks

and terminated from services on 11.10.2005 hence this

industrial dispute.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

993

3. Respondent filed counter. It is submitted that it

could not be verified at this stage that whether Petitioner

worked during the period from 1.9.1992 to 1994 as the

records pertaining to the said period are not available with

the department as weeded out. No letter of appointment

was given to him. His engagement for different periods is

only casual and he has not worked continuously for a

period of 240 days. The petition is liable to be dismissed.

4. Case stands posted for cross examination of

Petitioner as WW1. Petitioner called absent. No

representation since long time. In the circumstances,

WW1's evidence is eschewed. Thereafter, inspite of giving

fair opportunity Petitioner is not taking interest in the

proceeding. In the circumstances petition is dismissed.

Award passed accordingly. Transmit.

Dictated to Sri J. Vijaya Sarathi, UDC transcribed by

him and corrected by me on this the 30th day of

September, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri M. Krishna

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 369.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds

izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky; uañ 2] èuckn ds iapkV ¼lanHkZ la[;k

51@1999½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 13@01@2014

dks izkIr gqvk FkkA

[lañ ,y&20012@774@1997&vkbZñvkjñ ¼lh&I½]

,eñ dsñ flag] vuqHkkx vfèdkjh

New Delhi, the 13th January, 2014

S.O. 369.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 51/1999) of

the Central Govt. Indus. 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

workmen, received by the Central Government on

13/01/2014.

[No. L-20012/774/1997-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. 51 of 1999

PARTIES: The Vice President, Bihar Colliery Kamgar

Union, Jealgora, Dhanbad

Vs.

The Project Officer, Bararee Colliery of

M/s BCCL, Bhulanbararee, Dhanbad

APPEARANCES :

On behalf of the :

Mr. D. Mukherjee, Ld. Advocate

workmen/Union

On behalf of the Management:

On behalf of the :

Mr. D.K. Verma, Ld. Advocate

Management

State:

Jharkhand

Industry:

Coal

Dated, the 15th Oct., 2013.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Sec. 10(1)(d)

of the I.D. Act., 1947 has referred the following dispute to

this Tribunal for adjudication vide their Order No. L-20012/

774/97-IR(C-I) dt. 18.1.1999

SCHEDULE

"Whether the action of the management of Bararee

Colliery of M/s BCCL in superannuating

Sh. R.L. Pandey w.e.f. 01.07.1995 from the services of

the Company is legal and Justified? If not, to what

relief the workman is entitled?"

2.The case of the Bihar Colliery Kamgar Union for

the workman R.L. Pandey is that at the time of his

appointment on 22.10.1962, his date of birth as 01.07.1939

was recorded in the statutory record as also in the Provident

Fund and other records. But suddenly, the management

issued him a letter whereby, superannuated him. w.e.f.,

19.01.1995. In the year 1987, the Service Excerpt issued to

him by the management had also his date of birth, at his

objection to it, the Company Medical Board at his reference

had determined his age as 50 years as on 04.02.1987,

994

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

according to which the actual date of his

superannuation should be 4.2.1997. But the anti-labour

management victimized and humiliated him by

superannuating him on 01.07.1995. Finally, the failure due

to adamant attitude of the management in the conciliation

proceeding in the industrial dispute raised before the

A.L.C.(C), Dhanbad resulted in the reference for an

adjudication. Thus, the action of the management in

superannuating the workman, w.e.f., 01.07.1996 was illegal,

vindictive, unjustified and against the rules of natural

justice.

3. The Union in its rejoinder specifically denied all

the allegations of the O.P./Management as

misrepresentations and stated that the age

determined by the Medical Board is final and once the age

determined by the Medical Board then recorded

in the Matriculation Certificate will not be unconsiderable

as per the settled law and policy decision of the

management.

4. Whereas with categorical denials, the contra case

of the O.P./management is that the workmen was

Matriculate, so accroding to his Matriculation Certificate

bore his date of birth as 01.07.1935. The workman was

working as a Provident Fund Clerk since his appointment

on 22.10.1962. The same date of birth of the workman was

recorded in the Form B Register of the Company, and

accordingly, Service Excerpt was also issued to him by the

Management in the year 1987. But the workman raised the

objection to it that his Date of Birth (DOB) should be

1.7.1939 as recorded in the C.M.P.F. record. At the reference

of the workman to the Medical Board for assessment of his

age, the Medical Board assessed his age as 50 years on

4.2.1987. The tampering by the workman himself with his

date of birth as 01.07.1939 in the CMPF record while working

as a P.F. Clerk came to the knowledge of the management.

Thereafter workman submitted an application that he has

passed Matriculation Examination in the year 1954,

accroding to which his date of birth recorded as 01.07.1935

therein was correct and genuine, it was requested to treat it

but not so as assessed medically. Accordingly, the workman

retired w.e.f. 01.07.1995, thereafter the Union raised the

Industrial dispute in the year 1997 after two years of his

retirement.

5. In its rejoinder, the O.P./management has alleged

that the workman was superannuated in accordance with

his date of birth as 01.07.1935 as recorded in the statutory

record of the Company.

FINDING WITH REASONS

6. In the instant case, WW1 Ram Laxman Pandey,

the workman has been examined. The Management finally

declined to examine and witness on its behalf.

Highlighting the admitted fact of the determination

of the workman's age as 50 years on 4.2.1987 as also affirmed

in his cross-examination, Mr. D. Mukherjee, Ld. Counsel

for the Union/workman submitted that the statement of the

workman stands corroborated, but the averment of the

management in its written statement in lack of any evidence

can not take place of proof as held in the case of

National Insurance Co. Ltd., Kanpur Vs. Yogendra Nath

AIR/1982 (All) 385; likewise the pleading is no substitute

for proof as per the decision of the Hon'ble Apex Court

reported in 2005(105) FLR 1067, Management of RBI,

Bangalore Vs. S. Mani & Ors. the claim of the workman is

justified.

7. In response to it, Mr. D.K. Verma, the Learned

Counsel for the O.P./management has contended that the

very admission of the workman (WW1) in his cross

examination that factually his Date of Birth as 1.7.1935 is

recorded in his form "B" Register as also affirmed

by him in his declaration (dt. 5.1.1988-Ex.M.1) about his

Matriculate Certificate bearing the same date of birth after

being Matriculate in 1954, but he did not submit even the

Xerox copy of his Matriculation certificate as sought as

per the letter dt. 22.2.1988 of the Sr. P.O., Bararee

Colliery issued to him (Ext. M.2); and the workman accepted

in his declaration letter his aforesaid date of birth as

recorded in his Matriculation certificate, and not to consider

his age 50 years on 4.2.1987 as assessed by the

Medical Board on his representation in case of differences

in his Date of Birth Record in his Service Record

and PF Record require no proof; and it falsifies his

claim.

On perusal and consideration of the oral and admitted

documentary evidence of the workman (WW1), I find that

the statement of the workman about his Date of birth

01.07.1939 initially recorded at the time of his appointment

as an underground Munshi in the 1962 just as recorded in

his P.F. Record as contrasted with his claim for

superannaution on 4.2.1997 based on the Medical Report

prima facie suffers from vital contradictions. The Workman

had been posted as Bonus & PF Clerk since 1985. It stands

indisputable fact that the superannuation of the workman

in the year 1995 came about in accordance with his

DOB(Date of Birth) 01.07.1935 as recorded in his Form-B

Mr. Mukherjee, Learned Counsel for the union/workman

appears to be unpersuasive in view of the admission of the

workman.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

995

In result, response to the terms of the reference it is,

hereby

ORDERED

The action of the management of Bararee Colliery of

M/s. BCCL in superannuating Shri R.L. Pandey, w.e.f.,

01.07.1995 from the services of the Company is quite legal

and justified. Hence, the workman is not entitled to any

relief.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 370.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds

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FkkA

[lañ ,y&20012@741@1997&vkbZvkj ¼lh&I½]

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New Delhi, the 13th January, 2014

S.O. 370.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 198/1998)

of the Cent. Govt. Indus. 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

workmen, received by the Central Government on

13/01/2014.

[F. No. L-20012/741/1997-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 Sec. 10(1)(d)

of the I.D. Act, 1947

REFERENCE NO. 198 OF 1998

PARTIES : Employers in relation to the Management of

Govindpur Area No. II of M/s. BCCL and their

workmen.

APPEARANCE:

On behalf of the workmen :

Mr. S.C. Gaur, Ld. Adv.

On behalf of the management : Mr. D.K. Verma, Ld. Adv.

State :

Jharkhand

Industry : Coal

Dated, Dhanbad, the 18th April, 2013.

AWARD

The Government of India, Ministry of Labour in

exercise of the powers conferred on them under section

10(1)(d) of the I.D. Act, 1947 has referred the following

dispute to this Tribunal vide their Order No. L-20012/741/

97-IR (C-I) dt. 30.11.1998.

SCHEDULE

"Whether the action of the management of Govindpur

Area No. III of M/s. BCCL denying for regularisation

of S/Shri Manik Chand Singh and 104 others in the

Company's Rolls is justified? If not, to what relief the

concerned workman is entitled to?"

2. The case of the Bihar Colliery Kamgar Union for

workman Manik Chand Singh and 104 others is that they

had been working as permanent workmen against

permanent vacancy at Jogidih Colliery since long with

unblemished record of service. They had put in their

attendance for more than 240 days in each calender year.

The Standing Order does not provide for the designation

of delisted casual workmen as camouflaged by the

management with a view to deprive them of their legitimate

wages and legal dues. Though the management was also

maintaining the statutory records concerning the workmen

for deprivation of their legal right, it illegally arbitraily and

unreasonably stopped them form their service without

complying with the mandatory provision of law. Lateron,

the management appreciated the illegal fault, agreed to

employ similarly situated thousand workmen of different

collieries as underground minor loaders who had put in

their 75 days attendance during the calender year 1973 to

1976 as per its policy decision circular and accordingly

employed them. On representation of the workmen, despite

assurance of the Management made to the Union as well

as before the ALC(C) in course of discussion and

Conciliation Proceeding, when the management did not

provide them employment, the failure of conciliation in the

industrial dispute raised by the Union resulted in the

reference for an adjudication. The action of the management

denying their regularisation was illegal, discriminatory,

unjustified and against the principle of natural justice and

its Anti labour policy.

3. Not any rejoinder filed on behalf of the Union

Representative to the Written Statement cum rejoinder of

the Management.

996

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

4. The contra pleaded case of the management with

categorical denials is that the present reference is summarily

legally unmaintainable on the ground of the different issues

of regularisation as referred and that one raised by the

Union before the ALC(C), Dhanbad. During the period of

the year 1973-74, consequent upon the reorganisation of

the old working systems, various collieries were

amalgamated into one unit and the then existing Railway

Sidings were erratically utilised for systematic placement

of Railway Wagon. That necessiated engagement of

workmen whoever available for loading jobs on irregular

basis on a particular day. They were called as delisted

Casual Wagon Loaders. But the management discontinued

the practice of engagement of such casual wagon Loaders

from 1976, as they were not required after completion of

the job and the induction of Pay Loaders for loading of

wagons. Such persons were not kept on the roll of the

Company. However, the names of such delisted casual

wagon loaders were used to be entered in their wagesheet

and bonus Register maintained for their payment during

the period of 1973—76. The management in course of time

recruited Badli Miner Loaders and selected some of the

delisted casual wagon loaders for their appointment as

Badli Minder Loaders.

The Management as per its circular issued for a

limited purpose in the year 1986 provided aforesaid

casual wagon loaders to apply for their selection and

recruitment along with many others for absorption as

Miners/Loaders required at the particular time. The

aforesaid circular of 1986 was withdrawn in the year 1992,

so no scope existed for the demand of their employment.

The Union concerned never raised any demand for

enrollment of the persons concerned as Badli Miner

Loaders from 1976 to 1986 nor about the rejection of

their applications/cases by the Selection Committee they

had applied for their selection/recruitment, rather the

Union raised their false demand based on fabrications

for it in the year 1996. These persons were never on the

roll of the company and never worked as delisted/

unlisted casual loaders during the period of the years

1973—76. They are job seekers for their employment

with the help of the sponsoring union. Their demand for

regularisation never arose nor arises in absence of any

such rule. Raising the industrial dispute after more than

20 years is barred by Limitation.

As per the Mines Rules provide for maintenance of

such records the attendance, payment of wages and

bonus only for a period of one year from the last entry, it

has become difficulty for the management to preserve

their aforesaid huge records. They are not entitled to any

relief.

5. The Management in its rejoinder has specifically

denied the allegation of the Union and alleged that the

delisted casual wagon loaders were not appointed as per

the provisions of any Standing Order. They did not belong

to any specific cadre for future engagement. Such

engagement was purely temporary in nature during the

said period of reconstruction of collieries just after

nationalisation. The provisions of Standing Order was not

applicable to such persons. Since the persons concerned

being not on the roll of the company were never engaged

at any time on permanent regular status, the question of

their alleged termination neither arise nor ariseable even in

regard to their alleged stoppage from any service.

FINDING WITH REASONINGS

6. In this reference, three witnesses, namely WWI

Duryodhan Kumhar, WW2 Gopal Kumar and WW3

Deonandan Vishwakarma (Sl. Nos. 65, 14 & 29 respectively)

out of the 105 listed workmen for the Union and one MWI

B Khalko, Dy. Personnel Manager for the management have

been examined. WWI Duryodhan Kumhar, one of the

workmen, has stated to have continuously worked as

Mazdoor at Jogidih Colliery from 1971 to 1976 by completing

240 days of work in each calender year as he got

appointment from the erstwhile owner against permanent

vacancy; but the management stopped him and other 104

workmen from the work the management though

regularised many casual workers, yet refused them to do

so despite its assurance for their reinstatement in their

jobs by April, 1991.

Similar claim of WW2 Gopal Kr. is that they

continuously worked as wagon loader in the said colliery

by putting 240 days attendance in each calender year from

1971 to 1976 since their appointment in the former year, but

the management without any reason stopped their work

without any notice or any payment of compensation to

him, as per the Minutes of the meeting held with the Bihar

Colliery Kamgar Union and the Director Personnel (its

photocopy-marked as Ext. W.1), all male casual wagon

loaders lesser than 45 years of age who put in 240 days

attendance in the calender year upto 1987 would be

regularised as permanent wagon loaders. But the alleged

minute at a glance does provide for aforesaid proposal.

Lastly, WW3 Deonandan Vishwakarma has stated

about all workmen to have done the job of wagon

loader of permanent nature since their appointment by the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

997

Management of Jogidih Colliery in the year 1973 until they

were stopped from working in the year 1976; though out of

329 engaged workers, all the workers except 105 workmen

were regularised by the Management; the Registers of

Bonus, Attendance and Pay bore the receipts

of their wages and bonus as proof. But witness (WW3)

has admitted in his very chief to have worked for 3 to 4

months in each year under the management and that wagon

loading was effected on availability of the work, but

wagons were not stationed every day for loading of coal in

the Depot.

All the three aforesaid workmen witnesses have

affirmed that none of them have any papers to show their

appointment in the year 1973, their stoppage of work in the

year 1976, or their any Pay slip.

7. Whereas the statement of MWI B. Khalko, the

then Dy. Personnel Manager of Jogidih Colliery Crystal

clearly reveals that the management had issued a circular

in the year 1986 for regularisation of delisted casual

wagon loaders putting their attendances for 75 days

during the period from 1973 to 1976, but none of the

workmen submitted any petition for their regularisation

as wagon loaders, and the said circular was withdrawn

by fresh order issued in the year 1992; the workmen

concerned never worked under the roll of the

management, the Union raised the industrial dispute

for the claim of the workmen after about 20 years from

the alleged date of stoppage of their work, so the claim

of the workmen is no justified.

8. Mr. S.C. Gaur, the Ld. Advocate/Union

Representative for the Union as per his written

argument has to submit that as per policy decision of

the management issued in the year 1986, had to engage

the wagon loaders as U/G Miner Loaders who worked

and put in their 75 days attendance and above during

the period of 1973 to 1976, and in the case of females,

their husband/sons would be appointed as Badli M/

Loader for U/G Miner ones, and accordingly thousand

similar workers were regularised as wagon loaders or

as Badli M/Loaders after the said circular, but the

management arbitrarily refused these workmen as M/

Loaders.

Whereas the contention of Mr. D.K. Verma,

Learned Counsel for the O.P./Management is that

admittedly the management had issued the circular dt.

9.5.1986 for the engagement of workers casual wagon

loaders completing 75 days attendance in the calender

years 1973—76, but was withdrawn by the management

as per another circular dt. 28.9.92 and the industrial

dispute was raised in 1998, so no such claim of the

workmen is sustainable; moreover the evidence of the

workmen witnesses have admitted not to possess and

paper as a proof of their working as that their evidence

is not biased on their pleading.

9. On perusal and consideration of the materials

available on the case record, I find the facts as under:

(i) The Union/workmen have not been able to prove

how they had completed 75 days attendance in

the year 1973—76 as per the said admitted

circular;

(ii) According to the oral evidence of the

Management witness B. Khalko, then Dy.

Personnel Manager of Jogidih Colliery, though

the workmen were given opportunity for their

application for it, none applied for it; and that the

said circular was withdrawn by the Management

in the 1992. Since the fact of withdrawal of the

aforesaid circular of 1986 in lack of any cross

examination stands binding upon the workmen.

(iii) The alleged minutes of the alleged policy

of the Management as per Ext. W.1 being dt.

25.2.88 does/cannot be the base for the claim of

the workmen.

(iv) Moreover, the reference has neither any proof,

expressed or implied, about the engagement of

other similar workers' engagement.

Under these circumstances, it stands clear the

claim of the Union/workmen for their regularisation

is unreasonable and unrealistic. Hence, it is hereby

responded in the terms of the reference and

accordingly.

ORDERED

Let the award be the same is passed that the

action of the management of Govindpur Area No. III of

M/s. BCCL in denying the regularisation of S/Shri

Manik Chand Singh and 104 others (as per the list

enclosed) in the Company's Rolls is quite justified and

legal. Therefore, the concerned workmen are not entitled

to any relief.

Let the copies in duplicate of the Award be sent

to the Ministry of Labour & Employment, Government

of India for information and needful publication in the

Gazette of India.

KISHORI RAM, Presiding Officer

998

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

LIST OF WORKMEN

Name

Father's Name

1. Manik Chand Singh

Sri Murat Singh

2. Baj Nath Mahato

" Mohi Mahato

3. Bhuneshwar Singh

" Nand Lal Singh

4. Ram Prasad Saw

" Huro Saw

5. Rajendra Prasad Kumar

Late Bundu Kumhar

6. Dhaneshwar Gope

" Mahabir Gope

7. Sahdeo Mahato

" Bhala Nath Mahato

8. Amrit Singh,

" Murat Singh

9. Md. Anwar Ansari

Md. Guljar Ansari

10. Dilip Pramanik

Late Dhanjoy Pramanik

11. Hira Lal Paswan

Late Karmu Paswan

12. Dewa Nand Mahato

Late Janki Mahato

13. Ram Khelawan Paswan

Late Kishun Paswan

14. Gopal Kumhar

Sri Sukar Kumhar

15. Binay Kumar Sinha

Late Chakardhar Prasad

16, Binay Kumar Bishiar

Late Indra Narain Bishiar

17. Jagbandhu Banerjee

Late Jagannath Banerjee

18. Chandrika Paswan

Sri Jobi Paswan

19. Ratho Singh

" Pokh Lal Singh

20. Dhanu Rawani

" Moti Rawani

21. Murat Yadav

" Bandhan Yadav

22. Karim Mian

Late Aziz Mian

23. Kodar Yadav

" Chaman Mahato

24. Satish Prasad Yadav

" Sudarshan Yadav

25. Ramesh Yadav

" Chaman Yadav

26. Rajesh Rawani,

Sri Sheo Charan Rawani

27. Praveen Kumar Sinha

" Jitendra Prasad

28. Shankar Chouhan

Late Barhan Chouhan

29. Deo Nandan Vishwakarma " Parshuram Vishwakarma

30. Shatrughan Riwari

Late Raj Kishore Riwari

31. Parshuram Dubey

Sri Ram Keshwar Dubey

32. Md. Imran

Late Abul Khoyer

33. Abdur Rahim

Late Abul Khoyer

34. Sukhdeo Sharma

" Darshan Barhi

35. Yogendra Gope

Late Sohrai Gope

36. Basudeo Yadav

" Doman Yadav

37. Abul Ansari

Late Latif Ansari

38. Rameshwar Mahato

Sri Debi Lal Mahato

39. Ram Naresh Ram

" Ramdeni Ram

40. Jhari Lal Manjhi

" Jitan Manjhi

41. Shiv Shankar Mahato

" Lal Chand Mahato

42. Sarju Gope

" Mahadeo Gope

43. Prayag Singh

Late Meghu Singh

44. Balram Mahato

Late Gajadhar Mahato

45. Rajeshwar Das

" Mungeshwar Das

46. Basant Paswan

" Bahadur Paswan

47. Ram Bilash Ram

" Jangi Ram

48. Satendra Singh

Sri Sukaran Singh

49. Krishnadeo Manjhi

" Somar Manjhi

50. Jethu Mahato

" Raghu Mahato

51. Kartik Mahato

" Mahadhan Mahato

52. Laxman Mahato

Sri Lal Chand Mahato

53. Pulashi Singh

Bhola Singh

54. Naresh Prasad

Late Bundu Kumar

55. Hakim Yadav

Sri Narma Yadav

56. Baij Nath Rawani

" Budhu Rawani

57. Kuleshwar Singh

Late Palganjan Singh

58. Baldeo Singh

Sri Sukar Singh

59. Jagan Raoy

Late Pati Roy

60. Naresh Bhuia

Sri Tetar Bhuia

61. Sri Nath Ojha

Sri Praduman Ojha

62. Firoz Ahmed

Sarajul Haque

63. Dalgobind Pramanik

Late Lalu Pramanik

64. Suresh Bhuia

Sri Tetar Bhuia

65. Duryodhan Kumhar

Late Chuni Lal Kumar

66. Raju Singh

" Rameshwar Singh

67. Nageshwar Singh

Sri Murat Singh

68. Hemant Kumar Rawani

" Lakhan Rawani

69. Angad Kumhar

" Sohan Lal Kumhar

70. Baldeo Kumhar

Late Mutar Kumhar

71. Ram Lakhan Badhee

Sri Budhan Badhee

Name

Father's Name

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

999

72. Alimuddin

Saraful Haque

73. Aftab Hossain

Asgar Hossain

74. Iltaf Hossain

Asgar Hossain

75. Jamuna Rana

Sri Janki Rana

76. Prabhu Nath Ojha

" Praduman Ojha

77. Jheo Nath Ojha

Sri Praduman Ojha

78. Vijay Chouhan

Late Barhan Chauhan

79. Jitu Lal Manjhi

Sri Mangla Manjhi

80. Krishna Chouhan

" Gopali Chauhan

81. Samsad Haider

Late S.M. Haider

82. Akhilesh Kumar Singh

Late Ram Janam Singh

83. Subhasish

Sri Rabi Prasad

Bhattacharjee

84. Raju Rawani

Sri Narayan Rawani

85. Pratap Rawani

" Sahdeo Rawani

86. Bijay Kumar Singh

" Sita Ram Singh

87. Rameshwar Chouhan

" Gopali Chuhan

88. Shiv Narayan Chouhan

" Gopali Chuhan

89. Bhola Thakur

Somar Thakur

90. Kali Charan Das

Gonu Das

91. Laxmikant Mandal

Bipin Mandal

92. Jeewan Mandal

93. Mahendra Prasad

Sri Dhanesh Singh

94. Shibu Rawani

" Budhu Rawani

95. Basaduo Bhuia

Late Mansha Bhuia

96. Bimal Singh

Late Chalitar Singh

97. Jiban Kumar Mandal

Sri Atul Chandar Mandal

98. Babu Chand Rabidas

" Jagdish Rabidas

99. Pratap Pramanik

" Manu Pramanik

100. Ali Ansari

Late Latif Ansari

101. Krishna Ram

Ramdeo Ram

102. Sanjoy Nonia

Sri Radhe Nonia

103. Bishwa Nath Yadav

" Narayan Yadav

104. Laljee Yadav

" Chalitar Yadav

105. Dasrath Mahato

" Agbalu Mahato

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New Delhi, the 13th January, 2014

S.O. 371.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 07/1999)

of the Cent. Govt. Indus. 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

workmen, received by the Central Government on

13/01/2014.

[No. L-20012/169/1998-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. 07 of 1999

PARTIES

Jt. General, Secretary

Dhanbad Colliery Kramchari

Sangh, Dhanbad

Vs.

General Manager,

Sudamdih Area of

M/s. BCCL, Sudamdih, Dhanbad

On behalf of the

Mr. D. Mukherjee,

workman

Ld. Advocate

On behalf of the

Mr. D.K. Verma, Ld. Advocate

management

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 27th November, 2013

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on then under Sec. 10(1)(d)

of the I.D. Act., 1947 has referred the following dispute to

this Tribunal for adjudication vide their Order No. L-20012/

169/98-IR(C-I) dt. 16.12.1998.

Name

Father's Name

1000

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

SCHEDULE

"Whether the action of the management of Sudamdih

Area Office of M/s. BCCL in dismissing Sri Durga

Charan Mahato from the service of company w.e.f.

30.11.1994 is justified? If not, to what relief the

workmen is entitled?"

2. The case of workman Durga Charan Mahato as

stated in his written statement, is that he was appointed as

Minder Loader in Bhowra (North) Colliery under Bhowra

Area of M/s. BCCL in the year 1983 as per the Letter

No. G.M./Per/Appt./11/SE/6680-84 dt. 2/3.9.1983. Thereafter

he was transferred to Sudamdih Area as Sr. Data Entry

Operator as permanent employee of the Company. He had

got his employment after full legal formalities under the

Land Looser Scheme of the Company consequent upon

the acquisition of Mauza Gaur Khunti Mouza No. 113,

Khata No. 20, Plot No. 265(P) Area 1.98 acres under P.S.

Jorapokhar, Distt. Dhanbad by the Company for its Vendor

Bishu Mahato as per the Regd, Sale Deed No. 774

dt. 30.1.1981 as it was the purchased Lands of the Vendor

by virtue of his three Regd. Sale Deeds Nos. 12899/1961,

3795/1967 and 20338/1973 respectively, as mutated and

rents regularly being paid. But suddenly, the Management

illegally issued the workman a false chargesheet as per the

Letter No. G.M./(S.A.)/P.S./F-7/92/27462-64 dt. 31.12.1992

for the misconduct on the ground that the land purchase

by BCCI did not belong to aforesaid Vendor Bishu Mahato,

rather it is the Government of Bihar, Khas Land. The

initiation of the proceeding by the Management after a

long period of 11 year against the workman was illegal. The

domestic enquiry was not conducted fairly, properly and

according to the rules of natural justice, as he was neither

given full opportunity in it nor furnished with the documents

of the lands as Bihar Khas Land, and the report of the

Circle Officer concerned as demanded by him. Likewise the

management failed to prove the charges levelled against

the workman, yet the workman was illegally dismissed as

per the Letter No. CGM/(SA)/P.S.Rg./SMO/F-40/94/21579-

87 dt. 30.11.1994. Since there was no employer-employee

relationship between the Management and the workman

prior to his appointment, the workman had not committed

any misconduct under clause 26.1.11 of the Certified

Standing as alleged by the Management. The action of the

Management in dismissing the workman from the service

w.e.f. 30.11.1994 is illegal and unjustified. At last, the failure

due to the adamant attitude of the Management in

conciliation proceeding in the Industrial Dispute raised by

the Union resulted in the reference for adjudication.

3. The workman in his rejoinder with specific denials

has stated that an invalid enquiry was irregularly conducted

by the biased Enquiry Officer. Non-supply of the Enquiry

report and proceeding caused great prejudice to the

workman.

4. Whereas the case of the O.P./Management as

pleaded in its written statement-cum-rejoinder with

categorical denials is that the present reference is

unmaintainable in law and facts. In the year 1980-81, the

workman fraudulently sought his employment in the Bharat

Coking Coal India Ltd. Company by claiming himself as a

dependent of Bishun Mahato, the owner of the plots of the

Land which never belong to his father Bishun Mahato.

The land actually belongs to the Government of Bihar (Khas

Land). The above act of the workman is a misconduct, so

he was issued by the Management the chargesheet dt.

01.02.1992. He submitted his reply, but on finding it

unsatisfactory, consequent upon the appointment of

Sri Bhagwan Pd. Dy. C.P.M. Bhowra by the Management,

the aforesaid Enquiry Officer fairly conducted the enquiry

according to the principle of the natural justice, and

submitted his enquiry report, holding the charges as

levelled to have been established. On the approval from

the Competent Authority, the management dismissed the

workman w.e.f. 30.12.1994, as the workman had got his

employment in the M/s. BCCL under the Land Looser

Scheme fraudulently by giving false information about the

ownership of the Land. So the dismissal of the workman is

legal and justified. The workman is not entitled to any relief.

In case of the declaring the domestic enquiry unfair at the

Preliminary enquiry, the Management has sought

permission for adducing afresh evidence to prove the

charges.

5. The O.P./Management in its rejoinder has

categorically denied the allegation of the workman, and

stated that in view of the employment of the workman under

the Land Looser Scheme, the onus of proof lies upon him

to prove his title and interest in the Land. The workman

raised the Industrial dispute after much delay.

FINDING WITH REASONS

6. In the instant reference, after due hearing and

considering at the preliminary point about the fairness of

the domestic enquiry, the Tribunal as per its Order No. 31

dt. 15.3.2011 has held the enquiry as quite fair, proper and

as per the principle of natural justice. In result, the case

directly came up for hearing the final argument on merits.

The workman as per his written argument has to

submit that the chargesheet was issued after lapse of 11

years after his appointment in the year 1983, and the

chargesheet does not disclose the alleged plot numbers

etc., so it was vague. He has cited two Rulings : 2009 L.L.R.

252(SC), Roop Singh Negi Vs. Punjab National Bank, wherein

Management witnesses merely tendered the documents

and did not prove the contents thereof— The FIR relied

upon could not be treated as evidence; further the orders

being non-speaking cannot be sustained; even otherwise

after the Disciplinary action was initiated against the

appellant after five years of the incident as held (Para 120

& 17), and Secondly, L.L.R. 1994 Pat 280, Binay Kumar

Singh Vs. State of Bihar & Ors, wherein it has been held

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1001

that Disciplinary proceedings related to the allegations of

year 1972, the Deptt. proceedings initiated after lapse of

8 years, the allegation became stale by lapse of time and

therefore Disciplinary proceeding should not be allowed

to continue in relation thereto (Para 4).

Such plea of the workman based on the both the

rulings is untenable for the reason that in the instant case

all the relevant documents including the photocopy of the

Report of Circle Officer, Jharia, concerning the status of

the lands sold by Bishoo Mahato the father of present

workman, to the B.C.C.L. and accordingly its acquisition

by the B.C.C.L. for employment of his two sons workmen

Durg Charan Mahato, Kedar Mahato & other five relatives

alleged as nephews and son-in-law appears to have been

crystal clear substantiated by the Management witnesses

concerned before the Enquiry Officer in course of the

domestic enquiry. At the investigation of the Vigilance

Authorities concerned into the genuiness of the lands of

aforesaid Bisoo (Mahto), the domestic enquiry set in the

year 1992 and after due departmental enquiry the Enquiry

report dt. 2/3.8.1993 was submitted by the Enquiry Officer

Bhawan Pd., Dy. C.P.M., Bhowra Area. Truth is always

verifiable whenever a question of it arises. None of the

rulings seems applicable to the case.

7. Further the workman has to submit that the

dismissal by the Appellate Authority, the Area General

Manager as per the Certified Standing Order of the Company

in this case is illegal as it deprived the appellant of his right

to appeal, as such the order of dismissal as an inherent

defect is liable to be set aside as held by the Hon'ble Apex

Court in the case of Surjit Singh Vs. Chairman and Managing

Director reported in FIR 1995 (SC) 817. But the argument of

the workman in lack of any such pleading the evidence is

also unsustainable. Every Ratio decidendi acts upon the

factum of a particular case. So far as the non-supply of

enquiry Report and Show Cause Notice to the workman is

concerned, non-furnishing of enquiry report to delinquent

will not vitiate the enquiry as held by the Hon'ble Supreme

Court in the case of Debotosh Pal Coudhary Vs. Punjab

National Bank, 2002 LLR 1169(SC). An enquiry will not be

vitiated for nonfurnishing of enquiry report and issuing

Show Cause Notice to the delinquent before imposing of

punishment as in the present in which non prejudice to the

delinquent has been established at any moment.

8. Whereas Mr. D.K. Verma, Learned Cousel for the

O.P./Management has contended that the workman was

chargesheeted for fraudulently getting his employment

under the Land Looser Scheme; the enquiry into it was

fairly conducted as apparent from the Enquiry Report

submitted by the Enquiry Officer on his reasoned finding

based on the report of the Circle Officer, Jharia, in respect

of the Lands in dispute which belong to the Government of

Bihar, not to Bisoo, the father of workman Durga Charan

Mahato and his brother Kedar Mahato and others five

alleged relatives all of whom were fruaudulently given

employment under the same scheme. The charge of the

fraudulently obtaining employment was duly proved

against the present workman in this case, so punishment

of dismissal from the service of the company to the workman

was quite proportionate to his misconduct of grave nature

a days.

9. After hearing the argument of workman Durga

Charan Mahato and Mr. D.K. Verma, Learned Counsel for

the O.P./Management, and I have minutely perused all the

materials on the case record, I find the facts as under:

(i) There is no dispute in the fact that workman Durga

Charan Mahato just as his brother Kedar Mahato

with five other alleged relatives Bhola Nath, Kapil

Pd., Bihari Pd. and Sateyandra Pd. as nephews and

son-on-law of his father Siboo got employment in

the colliery concerned under the Land Looser Scheme

by virtue of the sale of the total 5.85 lands in issue by

aforesaid Siboo (Mahato) as his own lands to the

B.C.C.L.

(ii) At the investigation into it by the Vigilance Authority

concerned, as per the reports of the Circle Officer,

Jharia out of total 5.85 Acres of Lands sold by Bisoo

to the company, 4.58 Acre comes under Gairabad,

Khata No. 20 is Gairabad Malik Khas, not recorded

in any tenant's name, but Area 70 dec. land under

Khata 12 in respect of which Revenue Receipt stands

recorded in the name of Bhagatu Mahato (and others)

from which Bisoo alleged to have purchased. So, the

land under the Khata Area 5.15 did not belong to

Bisoo, the father of workman Durga Charan Mahato;

so his employment at the imitiation of Bisoo under

the said Scheme was fraudulent and on false

information.

(iii) The present workman in collusion of his father Bisso

had fraudulently got his employment by furnishing

false information about the lands concerned in course

of the said scheme.

In view of the grave nature of the misconduct as

proved against the workman, his dismissal from the service

of the Company was quite proportionate to it.

In result, it is in the terms of the reference, responded

as such and hereby

ORDERED

That the Award be and the same is passed that the

action of the management of Sudamdih Area Office of M/s

BCCL in dismissing Shri Durga Charan Mahato from the

service from the Company w.e.f. 30.11.1994 is quite justified

and legal. Hence, the workman is not entitled to any relief.

KISHORI RAM, Presiding Officer

1002

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

vkns'k

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 372.—tcfd dsUnz ljdkj dk ;g er gS fd iou

gal gsfydkWIVlZ fyfeVsM ds izca/ku ls lacaf/kr fu;ksDrkvksa ,oa lela[;d

fnukad 15-5-2013 dh vuqlwph ds laca/k esa muds dkexkjksa ds e/;

,d vkS|ksfxd fookn gS(

vkSj tcfd bl fookn esa jk"Vªh; egRo dk iz'u 'kkfey gS ,oa

,slh izd`fr dk Hkh gS fd blesa ,d jkT; ls vf/kd esa fLFkr iou gal

gsfydkWIVlZ fyfeVsM ds izfr"Bkuksa ds blesa #fp j[kus vFkok izHkkfor

gksus dh laHkkouk gS(

vkSj tcfd dsUnz ljdkj dk ;g er gS fd mDr fookn dk

jk"Vªh; vf/kdj.k }kjk U;k;fu.kZ;u fd;k tkuk pkfg,(

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxdh fookn vf/kfu;e]

1947 ¼1947 dk 14½ dh /kkjk 7[k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, eqEcbZ esa eq[;ky; lfgr Je ea=ky; ds vkns'k la[;k

,y&11012@8@2013&vkbZvkj ¼lh&I½] fnukad 15-05-2013 }kjk

jk"Vªh; vkS|ksfxdh vf/kdj.k xfBr fd;k rFkk U;k;ewfrZ Jh xkSjh 'kadj

ljkZQ dks blds ihBklhu vf/kdkjh ds :i esa fu;qDr fd;k vkSj

vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 10 dh

mi /kkjk ¼1d½ }kjk iznÙk 'kfDr dk iz;ksx djrs gq, mDr vkS|ksfxd

fookn dks U;k;fu.kZ;u gsrq mDr jk"Vªh; vkS|ksfxd vf/kdj.k dks

fufnZ"V dj fn;kA

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vf/kdj.k xfBr fd;k tkrk gS vkSj mi;qZDr fookn dks U;k;fu.kZ;u

gsrq mi;qZDr jk"Vªh; vkS|ksfxd vf/kdj.k dks bl funs'k ds lkFk fufnZ"V

dj fn;k fd U;k;ewfrZ Jh lR; iwr egjks=k bl ekeys esa ml pj.k ls

vkxs dk;Zokgh djsaxs ftl pj.k ij bls U;k;ewfrZ Jh xkSjh 'kadj ljkZQ

}kjk NksM+k x;k Fkk vkSj bls rnuqlkj fuiVk,axsA vuqlwph vkSj vU;

'krs± ,oa fuca/ku ogha jgsaxs tSls os fnukad 15-05-2013 ds lela[;d

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[lañ ,y&11012@8@2013&vkbZvkj ¼lh&I½]

,eñ dsñ flag] vuqHkkx vf/kdkjh

ORDER

New Delhi, the 13th January, 2014

S.O. 372.—Whereas the Central Government is of

the opinion that an industrial dispute exists between the

Employers in relation to the management of Pawan Hans

Helicopters Ltd. and their workmen in respect to the

schedule of even No. dated 15.05.2013;

And whereas the dispute involves national

importance and is of such nature that the establishments

of Pawan Hans Helicopters Ltd. situated in more than one

State are likely to be interested in, or affected;

And whereas the Central Government is of the

opinion that the said disputes should be adjudicated by a

National Industrial Tribunal;

And whereas the Central Government, in exercise of

powers conferred by Section 7 B of the Industrial Disputes

Act, 1947 (14 of 1947) constituted a National Industrial

Tribunal vide Ministry of Labour Order No.

L-11012/8/2013-IR(C-I) dated 15.05.2013 with headquarters

at Mumbai and appointed Justice Shri Gauri Shankar Sarraf

as its Presiding Officer and in exercise of the powers

conferred by Sub-Section (1A) of Section 10 of the said

Act, referred the said Industrial Dispute to the said National

Industrial Tribunal for adjudication.

And whereas Justice Shri Gauri Shankar Sarraf

relinquished the charge of the said National Industrial

Tribunal.

Now, therefore, a National Industrial Tribunal is

consituted with headquarters at Mumbai with Justice Shri

Satya Poot Mehrotra as its Presiding Offcer and the above

said dispute is referred to the above said National Industrial

Tribunal for adjudication with a direction that Justice Shri

Satya Poot Mehrotra shall proceed in the matter from the

stage at which it was left by Justice Shri Gauri Shankar

Sarraf and dispose of the same accordingly. The schedule

and other terms and conditions shall be remain same as

mentioned in the Adjudication Order of even No. dated

15.05.2013.

[No. L-11012/8/2013-IR(C-I)]

M.K. SINGH, Section Officer

ubZ fnYyh] 13 tuojh] 2014

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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ ,XthD;wfVo

fMikVZesaV vkWQ ,VkWfed ,uthZ] gSnjkckn 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;]

gSnjkckn ds iapkV ¼lanHkZ la[;k 57@2006½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 10@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@03@2014&vkbZvkj ¼Mh;w½]

ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 13th January, 2014

S.O. 373.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 57/2006)

of the Central Government Industrial Tribunal/Labour

Court, Hyderabad now as shown in the Annexure, in the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1003

industrial dispute between the employers in relation to the

management of Chief Executive, Department of Atomic

Energy, Hyderabad and their workmen, which was received

by the Central Government on 10/01/2014.

[No. L-42012/03/2014-IR (DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT AT HYDERABAD

PRESENT: — Smt. M. Vijaya Lakshmi,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C.No.57/2006

Betwen:

Smt. B. Lingamma,

W/o Ramji,

R/o H.No.10-1/148,

Nehru Nagar Colony, Block-III, H.C.L. X Roads,

ECIL Post, Ranga Reddy District,

Hyderabad- 62.

.....Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad- 500062.

.... Respondent

APPEARANCES:

For the Petitioner :

M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent :

Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec. 2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The averments made in the petition in brief are as

follows:

Petitioner worked as Sweeper inside the Respondent

unit along with other similarly situated persons. Petitioner

was engaged for cleaning, sweeping, dusting, watching of

bend dumps. This work is perennial nature. Petitioner was

working directly under the control of the Respondent and

the salary of the Petitioner is being paid directly by the

Respondent. However, Respondent brought non-existing

contractor between the Petitioner and the Respondent, to

show that there is no master and servant relationship

between them. The Central Government, exercising the

power under Sec. 10 of Abolition of Contract Labour Act

on the basis of the recommendations and in conciliation

with the Central Advisory Board constituted under Sec.

10(1) of the said act issued notification dated 9.12.1976

prohibiting employment of contract labourers in respect of

cleaning sweeping, dusting and watching of the building

owned by or occupied by the establishment in respect of

which the appropriate government under the said act is the

Central Government. Petitioner's job is cleaning and

sweeping. Once engaging contract labourers for said job

is abolished, there is an obligation for the Respondent to

consider regularising the Petitioner and similarly placed

persons basing on the availability of vacancies. Even as

per the mandate of the Apex Court it is the statutory

obligation of the Principal Employer to absorb the contract

labourer once the contract labour is abolished and to treat

them as regular employees. It is the statutory obligation

under Sections 11, 19 and 20 of the Factories Act to maintain

cleanliness of the area in which the factory is situated.

Respondent company is a factory. Even as per the condition

contained in format of the license under Contract Labour

Regulation and Abolition Act. Petitioner is entitled for

regular pay of the minimum wages prescribed by the

Government. Initially Petitioner was paid Rs. 25/- per day.

Subsequently it was enhanced to Rs. 45/- per day. Petitioner

worked from May, 1992 to October, 1998 continuously

without any break in service. Petitioner along with other

similarly situated persons filed WP No. 29210 of 1998 before

the Hon'ble High Court of A.P. for absorbing as a regular

employee and to pay other benefits on par with other

employees. During the pendency of the said Writ petition,

Petitioner was terminated from the service in the month of

October, 1998 and the writ petition was allowed by an order

dated 25.9.2000. Against the said order WA No. 1602/1999

was filed by the Respondent before the Division Bench of

the Hon'ble High Court of A.P. The said appeal was allowed

on 23.2.2001. Against the said order Petitioner filed Special

Leave to Appeal (Civil) No. 13451/2001 before the Hon'ble

Supreme Court of India and the same was withdrawn with

a liberty to raise industrial dispute before the appropriate

forum on 9.11.2001. Thus, the Petitioner raised the dispute.

The premises of the Respondent including the residential

quarters of the officers of the Respondent is in the same

campus, i.e., within the premises of the Respondent.

Cleaning activities of the Respondent quarters which

includes, roads and maintenance of the buildings is to be

taken care off by the Respondents only. An officer from

the civil department used to take care of the work in respect

of cleaning and maintenance of the factory buildings

including the residential quarters. No work was entrusted

1004

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

to any outsider at any point of time i.e., contractor.

Respondent used to maintain details of causal labourers,

who were entrusted with the works of cleaning, gardening,

civil works etc., which are perennial in nature. Petitioner

was deputed to work as sweeper. Respondent never issued

any appointment letter. However, salary was being paid by

the Respondent Management on monthly basis.

Attendance register and wages register were maintained

by the Respondent and the same are in their custody.

Respondent used to take the signature of the Petitioner in

the wage register every month while paying salary in cash.

There was no contract given to any contractor who is in

between Respondent and Petitioner. In view of the

notification issued by the Central Government. Respondent

should not engage any contract labour. Admittedly,

Petitioner is an uneducated woman and she has been

exploited by the Respondent by paying less than minimum

wages and terminating her services abruptly without any

notice consequent to her filing WP before the Hon'ble High

Court of A.P. and without following the procedure

contemplated under Industrial Disputes Act, 1947 as well

as Contract Labour Regulation and Abolition Act. There is

violation of the provisions of Sec. 25F of Industrial Disputes

Act 1947. Petitioner is the only earning member of her family

and consequent to illegal termination of her services it has

become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in

brief as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over me service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No. 5592 of 1991 filed by Sri Kewal Singh and 17 others

vide order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Shri P. Narasimha, the contractor. Respondent No. 2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer. NFC, It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 registration of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistant.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970, Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1005

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She cannot claim for regularization of her

services. In the writ proceedings for the similar cause of

action, litigation was launched seeking for same relief in

this proceedings is hit by res judicata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Wl to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, this matter and LC Nos. 29 to 40/

2006 are clubbed together in pursuance of the memo filed

by the Petitioner and it has been ordered that evidence is

to be adduced in this case i.e., LC 28/2006, accordingly in

respect of all these cases i.e., LC 28 to 20 on behalf of

respondents WW1 in this case alone has been cross

examined, though separate chief examination affidavits of

WWl have been filed in all these cases. Further more,

Respondent's evidence has been adduced in all these cases

separately and arguments are also advanced in all these

cases and Respondent has filed his written arguments in

all these cases separalely. In the given cirucmustances nad

for the sake of effective disposal of all these cases awards

are being passed in all these cases separately and

individually. On behalf of the Respondent MW1 was

examined and exhibits Ml to M8 are marked.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judicata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal cannot entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is supposed

to have his legal recourse from the Central Administrative

Tribunal, This contention cannot be accepted as a correct

contention. It is undoubtedly an industrial dispute and the

Respondent is admittedly a central government

organisation. This forum is Central Government Industrial

Tribunal-cum-Labour Court whose function is to decide

the industrial disputes arising from the industries which

are Central Government undertakings. All the industrial

disputes which arose within the jurisdiction of this tribunal

and which concern with the Central Government

organisations. Central Government undertakings, are to be

decided by this forum only as per the powers conferred on

this tribunal. As to the Central Administrative Tribunal is

concerned, all the service and administration related

disputes pertaining to the officers and employees of all the

central government offices, organisations and undertakings

are to be dealt with by the said forum. Since the present

dispute is an industrial dispute raised under Sec. 2A(2) of

Industrial Disputes Act, 1947, this tribunal got every

jurisdiction to entertain this dispute.

This point is answered accordingly.

8 Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No. 1602/2000 in WP No. 29210/1998 by

virtue of judgement dated 22.3.2001 In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947,

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking 5ec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

1006

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extraordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex.W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No. 29210/1998 will not act as

res judicata for the present proceedings.

This point is answered accordingly.

12. Point No.4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however. Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers (COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e. a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for fhe establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-calfed contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

Ors. Vs. National Union Waterfront Workers and Others

{(2001) 7 SCC page 1}, which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

¹Hkkx II—[k.M 3(ii)º

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1007

and other workmen and other related aspects. It is the

burden of the Respondent replace all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex.M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex. M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

hefore the court which indicates that there are no such,

documents and therefore Ex. M4 has never been acted

upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs,

in the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to he taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case; the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to he decided and it has been decided while deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

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[PART II—SEC. 3(ii)]

25. Sec. 25F of the Industrial Disputes Act. 1947 deals

with conditions precedent to retrenchment of workman.

Sec. 25 F 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]. "

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely be held that Petitioner comes under the purview of

the workman mentioned in Sec. 25F by working with the

Respondent for not less than one year. As per Sec. 25F

such a workman can not be retrenched, until he has 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 workman

has to be paid retrenchment compensation as mentioned

in Sec. 25F(b) and there shall be compliance of Sec. 25F(c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, [(2011) 6 SCC page

584] and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supreme Court of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory prerequisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service. This point is answered

accordingly.

29. Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri.

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. B. Lingamma

MW1 : Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W l :

Photostat copy of order in WP No. 29210/

1998 dt. 25.9.2000

Ex.W 2 :

Photostat copy of representation dt. 11.4.98

Ex.W 3 :

Photostat copy of order in SLA (Civil) Np.

13451/2001

Ex.W 4 :

Photostat copy of representation dt. 3.5.96

Ex.W 5 :

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex.W 6 :

Photostat copy of reprsentation dt. 9.10.98

¹Hkkx II—[k.M 3(ii)º

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1009

Ex. W 7 :

Photostat copy of order in WA No. 1602/1999

Ex.W 8 :

Photostat copy of representation dt.

24.10.2005

Documents marked for the Respondent

Ex. M1 :

Photostat copy of order in WPNo. 5592/1991

Ex. M2 :

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3 :

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4 :

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy. Contractor

Ex. M5 :

Photostat copy of order in contempt case No.

1903/98

Ex. M6 :

Photostat copy of order in WPNo. 29210/1998

dt. 25.9.2000

Ex. M7 :

Photostat copy of order in WA No. 1602/1999

Ex. M8 :

Photostat copy of receipt from Kapra

Municipality dt. l.1.1999

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New Delhi, the 13th January, 2014

S.O. 374.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I. D. No. 31/2006)

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 Chief Executive, Department of Atomic

Energy, Hyderabad and their workman, which was received

by the Central Government on 10/01/2014.

[No. L-42012/3/2014-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present : Smt. M. Vijaya Lakshmi, Presiding Officer

Dated the 30th day of August. 2013

INDUSTRIAL DISPUTE L.C. No. 31/2006

Between:

Smt. Y. Pushpa.

W/o Y Somaiah.

R/o H.No.10-1/612,

Nehru Nagar Colony, Block-1, Ashok Nagar,

Near N F.C. ECIL POST,

Ranga Reddy District,

Hyderabad - 62.

......Petitioner

AND

Chief Executive,

Nuclear Fuel Complex.

Department of Atomic Energy,

Hyderabad- 500 062.

....Respondent

Appearances:

For the Petitioner : M/s G. Ravi Mohan, G. Narersh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent: Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec.2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The averments made in the petition in brief are as

follows:

Petitioner worked as Sweeper in the Respondent unit

along with other similarly situated persons. Petitioner was

engaged for cleaning, sweeping, dusting, watching of bend

dumps. This work is perennial nature. Petitioner was

working directly under the control of the Respondent and

the salary of the Petitioner is being paid directly by the

Respondent. However, Respondent brought non-existing

contractor between the Petitioner and the Respondent, to

show that there is no master and servant relationship

between them. The Central Government, exercising the

1010

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

power under Sec. 10 of Abolition of Contract Labour Act

on the basis of the recommendations and in conciliation

with the Central Advisory Board constituted under Sec,10

(1) of the said act issued notification dated 9.12.1976

prohibiting employment of contract labourers in respect of

cleaning sweeping, dusting and watching of the building

owned by or occupied by the establishment in respect of

which the appropriate government under the said act is the

Central Government. Petitioner's job is cleaning and

sweeping. Once engaging contract labourers for said job

is abolished, there is an obligation for the Respondent to

consider regularising the Petitioner and similarly placed

persons basing on the availability of vacancies. Even as

per the mandate of the Apex Court it is the statutory

obligation of the Principal Employer to absorb the contract

labourer once the contract labour is abolished and to treat

them as regular employees. It is the statutory obligation

under Sections 11, 19 and 20 of the Factories Act to maintain

cleanliness of the area in which the factory is situated.

Respondent company is a factory. Even as per the condition

contained in format of the license under Contract Labour

Regulation and Abolition Act, Petitioner is entitled for

regular pay of the minimum wages prescribed by the

Government. Initially Petitioner was paid Rs.25/- per day.

Subsequently it was enhanced to Rs. 45/- per day. Petitioner

worked from May, 1992 to October, 1998 continuously

without any break in service. Petitioner along with other

similarly situated persons filed WP No.29210 of 1998 before

the Hon'ble High Court of A.P. for absorbing as a regular

employee and to pay other benefits on par with other

employees. During the pendency of the said Writ petition.

Petitioner was terminated from the service in the month of

October. 1998 and the writ petition was allowed by an order

dated 25.9.2000. Against the said order WA No. 1602/1999

was filed by the Respondent before the Division Bench of

the Hon'ble High Court of A.P. The said appeal was allowed

on 23.2.2001. Against the said order Petitioner filed Special

Leave to Appeal (Civil) No.13451/2001 before the Hon'ble

Supreme Court of India and the same was withdrawn with

a liberty to raise industrial dispute before the appropriate

forum on 9.11.2001. Thus, the Petitioner raised the dispute.

The premises of the Respondent including the residential

quarters of the officers of the Respondent is in the same

campus, i.e. within the premises of the Respondent.

Cleaning activities of the Respondent quarters which

includes, roads and maintenance of the buildings is to be

taken care off by the Respondents only. An officer from

the civil department used to take care of the work in respect

of cleaning and maintenance of the factory buildings

including the residential quarters. No work was entrusted

to any outsider at any point of time i.e. contractor.

Respondent used to maintain details of causal labourers,

who were entrusted with the works of cleaning, gardening,

civil works etc., which are perennial in nature. Petitioner

was deputed to work as sweeper. Respondent never issued

any appointment letter. However, salary was being paid by

the Respondent Management on monthly basis.

Attendance register and wages register were maintained

by the Respondent and the same are in their custody.

Respondent used to take the signature of the Petitioner in

the wage register every month while paying salary in cash.

There was no contract given to any contractor who is in

between Respondent and Petitioner, In view of the

notification issued by the Central Government. Respondent

should not engage any contract labour. Admittedly.

Petitioner is an uneducated woman and she has been

exploited by the Respondent by paying less than minimum

wages and terminating her services abruptly without any

notice consequent to her filing WP before the Hon'ble High

Court of A.P.. and without following the procedure

contemplated under Industrial Disputes Act, 1947 as well

as Contract Labour Regulation and Abolition Act. There is

violation of the provisions of Sec.25F of Industrial Disputes

Act, 1947, Petitioner is the only earning member of her

family and consequent to illegal termination of her services

it has become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in

brief as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No.5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P, Narasimha, the contractor. Respondent No.2 in

WP No.29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the Kapra municipality. Since service charges running into

lakhs of rupees have been paid to Kapra Municipality which

facilitated the Respondent approaching them for taking up

the house keeping jobs in DAE colony. The house keeping

works of DAE housing colony is being taken care of by

Kapra municipality. The requirement is being met through

helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

¹Hkkx II—[k.M 3(ii)º

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1011

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government, There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 292l0 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No.29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'bLe Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Wl to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, this matter i.e.LC No.31/2006 along

with other L.C Nos. taking from L.C Nos. 29 to 40/2006 are

clubbed together in L.C. 28/2006 in pursuance of the memo

filed by the Petitioner and it has been ordered that evidence

is to be adduced in first case i.e. LC 28/2006, Accordingly

in respect of all these cases i.e. LC 28 to 40 of 2006, Smt. T

Saradha, WW1 in L.C. 28/2006 alone has been cross-

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more. Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex.Ml to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points thai arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No.29210

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is supposed

to have his legal recourse from the Central Administrative

Tribunal. This contention can not be accepted as a correct

contention. It is undoubtedly an industrial dispute and the

Respondent is admittedly a central government

organisation. This forum is Central Government Industrial

1012

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Tribunal cum Labour Court whose function is to decide

the industrial disputes arising from the industries which

are Central Government undertakings. All the industrial

disputes which arose within the jurisdiction of this tribunal

and which concern with the Central Government

organisations Central Government undertakings, are to he

decided by this forum only as per the powers conferred on

this tribunal. As to the Central Administrative Tribunal is

concerned, all the service and administration related

disputes pertaining to the officers and employees of all the

central government offices, organisations and undertakings

are to be dealt with by the said forum. Since the present

dispute is an industrial dispute raised under Sec,2A(2) of

Industrial Disputes Act. 1947, this tribunal got every

jurisdiction to entertain this dispute.

This point is answered accordingly,

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Honble High Court of

A.P. decided WA No.1602/2000 in WP No.29210 /1998 by

virtue of judgement dated 22.3.2001, In this regard, it can

clearly he seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e. in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking

Sec,2A(2) of Industrial Disputes Act, 1947 by enacting

Sec,2A(3) of the said act. Thus, as on the relevant date,

there was no prescription of period of limitation for

preferring industrial disputes. It is not for the courts to

prescribe any period of limitation When the Act is silent as

to the question of limitation, the courts are bound to

entertain the cases, without looking into the belatedness

or otherwise in filing the same, as it is the duty of the

courts to interpret and implement the law enacted by the

parliament only, but not to substitute or incorporate any

new law. In the given circumstances, it is to be held that

this petition is not barred by limitation. This point is

answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with die ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more.

Petitioner and others have withdrawn the special

leave petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No.1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can he seen in Ex.W3 the order

rendered in Special Leave to Appeal (Civil) No, 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regulafisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be

held that the proceedings of WP No.29210. 1998 will not

act as res judicata for the present proceedings. This point

is answered accordingly.

12. Point No. 4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however. Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers(COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers(COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

¹Hkkx II—[k.M 3(ii)º

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1013

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e. a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor whether the principal employer i.e. the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs, National Union Waterfront Workers and Others

(2001l) 7 SCC page 1, which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract entrusted

to the contractor regarding the way in which the work was

extracted from the Petitioner and other workers and also the

mode of payment of wages to the Petitioner and other

workmen and other related aspects. It is the burden of the

Respondent to place all the relevant record before this

tribunal. But the only record produced by the Respondent

regarding the alleged contract is Ex.M4, the letter dated 30.9.97

said to have been issued by the Respondent to one Sri P.

Ramana Reddy a contractor There is no record to show that

Respondent called for tenders for given contract work and

selected any persons as contractors through any selection

process. While she was under cross examination MW1

had admitted that they have not filed any document to

show that contractor was engaged or agreement was

entered between contractor and Management.

18. Further, in Ex.M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex.M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex.M4 has never been acted upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken thai she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed lo establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates thai there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

1014

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petihoner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decided and it has been decided while deciding

Point No,4 alone.

22. Evidently. Respondent ceased to take services of

the Petitioner since 23.10,1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No.4

Respondent failed to establish that there has been a

contractor as an intermediaiory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec.25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec.25 F 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 thai 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 tieu 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 pan

thereof in excess of six months; and

(c) Notice in the prescribed manner fs served on the

appropriate Government [or such authority as may

he specified by the appropriate Government by

notification in the Official Gazette]."

26- As can he gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely he held that Petitioner comes under the purview of

the workman mentioned in Sec.25F by working with the

Respondent for not less than one year. As per Sec.25F

such a workman can not be retrenched, until he has 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 workman

has to be paid retrenchment compensation as mentioned

in Sec,25F(b) and there shall be compliance of Sec.25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, {(2011) 6 SCC page

584} and in the case of Anup Shartna Vs. Public Health

Division [(20I)J 5 SCC 497] Hon'ble Supreme Court of India

considered ihe effect of violation of Sec.25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec.25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory prerequisites contemplated

under Sec.25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is had and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

¹Hkkx II—[k.M 3(ii)º

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1015

29. Point No. 6 :

In view of the findings given in Point No.5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely he held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result :

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for die period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service, Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt P. Phani Gowri, Personal

Assistant corrected by me on this the 30th day of August,

2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. Y. Pushpa

MW1: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.Wl:

Photostat copy of order in WP No.29210/1998

dt.25.9.2000

Ex.W2:

Photostat copy of representation dt. 11.4.98

Ex.W3:

Photostat copy of order in SLA (Civil) Np,

13451/2001

Ex.W4:

Photostat copy of representation dt. 3.5.96

Ex.W5:

Photostat copy of provisional receipt from

Kapra Municipality dt.13.11.98

Ex,W6:

Photostat copy of representation dt.9.10.98

Ex.W7:

Photostat copy of order in WA No.1602/1999

Ex W8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex.Ml:

Photostat copy of order in WP No.5592/1991

Ex.M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

EX-M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex.M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramany Reddy, Contractor

Ex.M5:

Photostat copy of order in contempt case No.

1903/98

Ex.M6:

Photostat copy of order in WPNo.292I0/1998

dt. 25.9.2000

Ex.M7: Photostat copy of order in WA No. I602/1999

Ex.M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999

ubZ fnYyh] 13 tuojh] 2014

dkñvkñ 375.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMIVh tujy

esustj bafM;u dkSfly vkWQ ,xzhdYpjy fjlpZ ,aM vnlZ gSnjkckn

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

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,oa Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 105@2005½ dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 10&01&2014 dks izkIr gqvk

FkkA

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New Delhi, the 13th January, 2014

S.O. 375.—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/

2005) 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 Deputy Director General, The Indian

Council of Agricultural Research and Others, Hyderabad

and their workman, which was received by the Central

Government on 10.01.2014

[No. L-42012/3/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present :

Smt, M. Vijaya Lakshmi, Presiding Officer

Dated the 19th day of July, 2013

INDUSTRIAL DISPUTE L.C. No. 105/2005

1016

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Between:

Sri K. Siddanna,

S/o Balashetty,

C/o V & P Kuppanagar,

Jharasangram, Zaheerabad &

C/o. M/s.T. Sharath, Advocates

Plot No. 145, Road No. 10, Jubilee Hills,

Hyderabad

......Petitioner

AND

1 .

The Deputy Director General,

The Indian Counsel of Agricultural

Research, Krishi Bhavan, New Delhi.

The Chairman,

Dcccan Development Society,

Office at A 6 Mttra Appts,

Basheerbagh, Hyderabad.

The Principal,

Krishi Vigyan Kendra,

Post Box No.213, Zaheerabad.

.......Respondents

Appearances:

For the Petitioner :

M/s. T. Sharath & G.N Raju,

Advocates

For the Respondents:

M/s. N.R. Devaraj & W

Satyanarayana, Advocates for Rl

M/s. B. Nalsin Kumar, K.S. Rahul,

M.S Chandresh & K.Aravind

Goud, Advocates for R2 & R3

AWARD

This petition under Sec.2 A (2) of the I.D. Act, 1947

has been filed by Sri K. Siddanna challenging his

termination against the Management of The Indian Counsel

of Agricultural Research and Krishi Vigyan Kendra. The

Petitioner filed this petition seeking for setting aside the

order of termination and to direct the Respondents to

reinstate the Petitioner with full baek wages, continuity of

service and other attendant benefits.

2. The averments made in the petition in brief are as

follows:

Respondents one and two have common objects to

promote and accelerate the process of education and

training in the field of agriculture and to achieve these

common objects they entered into a Memorandum of

Understanding dated 19.7.1991 deciding to pool funds sent

with man power and equipment. For the purpose of

achieving these objectives Respondent first established

the third Respondent at various districts in the state of

A.P.. Second Respondent recruited about 22 staff in various

fields in different years commencing from 1904, 2nd

Respondent recruited the Petitioner as attendant on 4.6.1991

for placing with the third Respondent at Medak district.

Ever since the appointment Petitioner has been discharging

his duties to the satisfaction of the Respondents, In his

letter of appointment it is stated that the appointment was

temporary and till the continuation of the project and thy it

is liable to be terminated without assigning any reason. On

2.9.97 first Respondent addressed letter to all the Kendras

regarding the funding, norms of building infrastructures

and staffing pattern. It is stated in the said fetter that revised

staff strength of 16 will be applicable for KVKs when the

existing staff in the KVK are adjusted/redeployed within

the over all institutes system or they are transferred or

promoted or retired. Trie staff already adjusted should be

treated as final. The position so vacated because of transfer

promotion or retirement shall not be filled up in case these

are exceeding revised strength of 16. Till such time the

host institute make adjustment through redeployment or

promotion or retirement, the existing staff shall continue to

work in the KVK. For filling up of any vacant post prior

approval of the council will have to be obtained" after

receiving the said letter of the first Respondent without

even assigning any reason 2nd Respondent issued tetter

of termination dated 25.9.97 to the Petitioner and others

terminating their services on the ground that the main cut

in funding is related to staff positions. First Respondent

has specifically stated in the letter dated 2.9.97 that the

existing staff shall continue to work for KVK i.e., third

Respondent. First Respondent has approved the

appointment of the Petitioner. Thus under no circumstances

2nd Respondent can not terminate the services of the

Petitioner on the ground of financial problems. Further, the

persons who are appointed subsequent to the Petitioner

has heen left in the service. Absolutely, there is no basis

for terminating the services of the Petitioner over looking

the years of his service put in by him in the organisation.

Petitioner questioned the said letter of termination by way

of WP No.7588 of 1998 and the Han'ble High Court of A.P.

permitted the Petitioner to discharge his duties. Pending

interim orders Petitioner was denied to discharge the duties

pursuant to the interim order passed in WPMP No.43754/

1998 in WP No,355l0/1998, Since the third Respondent failed

to comply with the interim order Petitioner filed contempt

petition, since the Respondent raised the question of

maintainability of writ petition on the ground fiiat

Respondent No.3 does not fall under article 12 of

Constitution of India Petitioner has withdrawn the writ

petition on 23,1.2004 with leave of the Hon'blc High Court

of A.P. to institute appropriate proceeding before this

tribunal. Third Respondent who pleads on one hand that

there are no funds and hence, services of the Petitioner

were terminated, has issued a paper advertisement in

Mareh. 2002 in Employment News calling for new

appointments, on the other hand. It is not the ease of the

Respondents that the project has come to an end. They are

went upon to terminate the services of the Petitioner. All

¹Hkkx II—[k.M 3(ii)º

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1017

India KVK Employees Union filed WP No 1 26/98 before

Hon'ble Supreme Court of India, seeking for regularisation

of their services in all Kendras of India, While disposing

off the said writ petition supreme court held that even

according to the affidavit filed by the first Respondent and

letter dated 24.6.98 the grievance of the writ petitioners

does not survive In their counter first Respondent stated

that the services of all employees are protected. Thus,

Petitioner can not be terminated and the action of the third

Respondent is illegal and violative of principles of natural

justice and the same is liable to be set aside. For no fault of

his, Petitioner is victimized and the practice of the third

Respondent is unfair.

3. First Respondent filed his counter with the averments

in brief as follows:

First Respondent has nothing to do with the

engagement or employment to the Petitioner made by the

2nd Respondent Petitioner and others are neither employed

nor employable nor retrenched by the first Respondent.

This is solely in the domain of 2nd Respondent and 2nd

Respondent alone is responsible. The number and the

trades of the members of staff are purely based on their

requirements and utility. The services of Petitioner and

five others were terminated by 2nd Respondent on the

ground that strength of the staff of R3 has been reduced to

22 to 16. Only the services of junior most persons were

terminated as they were engaged on purely temporary basis

and are liable to be terminated at any time without any

further notice. Petitioner is one of the junior most person

whose services were terminated. The activities taken up in

the given scheme are social welfare activities for the

upliftment of workmen and helping the poor and

downtrodden in the society by implementing various

schemes. In the said process personnel engaged in one

scheme will be shifted to another and redeployment also

will be there according to the requirement. As per the

circumstances warrant Rl prescribes the number of persons

to be engaged which either increases or decreases

according it its requirements or necessity leaving it to the

discretion of 2nd Respondent and the 2nd Respondent

arranges the required number of staff. If there is no need

the 2nd Respondent may terminate the services of the

employees. R1 is not liable for any such activities of 2nd

Respondent. Thus, first Respondent is not a necessary

party and no relief can be sought for against him. Its

misjoinder of parties as far as Rl is concerned. Rl is not an

industry as defined u/s 2(j) of Industrial Disputes Act, 1947.

Further, Rl is under the control of Central Government and

comes under the definition of ''State" under Article 12 of

the Constitution. All the service rules and conditionality of

services in FRSR and CCS & CCA Rules are applicable to

the employees of Rl. As per the principle laid down in the

case of Rajendra Vs. State of Rajasthan (1999) (2) SCC 317

when the post temporarily created for fulfilling the needs

of a particular project or scheme limited in its duration comes

to an end on account of the need for the project was fulfilled

or had to be abandoned wholly or partially for want of

funds, employer can not be compelled to continue

employing such employees. The petition is liable to be

dismissed.

4. 2nd and 3rd Respondents filed their counter with the

averments in brief as follows:—

2nd Respondent is a charitable institution working

in the interest of rural poor, By developing them

economically, socially and educationally by extending all

support needed by them. It's a non-profit organisation

which functions with the funds released by national and

international donors and also adopting by nodal schemes

of the state and central governments. They are not an

industry within the meaning of the ID act. Hence, petition

is not maintainable. Respondents only assist the rural poor

by educating them and by imparting techniques which are

not activities of industry under this act. 2nd Respondent is

a registered rural development organisation. First

Respondent has the responsibility for agricultural research

education and for extension of education in the country

and established Krishi Vigyan Kendras/trainee training

centres in the districts with the object of promoting and

accelerating the progress of education and training in the

field of agriculture and allied areas under the scheme known

as KVK/TVT on individual projects. Each project is

entrusted to an implementing agency selecting a suitable

organisation in the district. For the district of Medak 1CAR

has considered the 2nd Respondent as an implementing

agency. They entered into a memorandum of understanding

whereunder first Respondent has agreed to provide grant

for the project according to the pattern of assistance

approved under TTC/KVK. subject to personal and

budgetary limitations imposed by the Government of India

from time to time. The administrative control over the staff

employed under the scheme shall rest with the 2nd

Respondent. Petitioner was appointed for the third

Respondent as attendar on adhoc basis and his appointment

was subject to termination at any time. His salary was paid

from out of the funds provided by the first Respondent.

His appointment was liable for termination without

assigning any reason and without notice. While so, first

Respondent issued letter dated 26.5.97 on funding patterns,

norms of building infrastructures and staff in KVKS and

also fixing staff pattern of each KVK comprising 16 courses.

Further, 1st Respondent issued letter dated 2.9.97 stating

that all KVKs which have not completed five years from

the year of sanction will be provided 100% grants till they

complete five years. Thereafter, all these KVKs will be

funded by the lst Respondent and implementing agency

for a period of 5 years. On completion of 10 years the funding

pattern would be 50:50 percent by the first Respondent

and hosting institute and it is further stated that all KVKs

irrespective of their existence will be funded on 100% basis

during the year 1997-98. In view of the drastic change in

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

the funding process and second Respondent being a non-

governmental organisation entirely dependent upon donor

funds, is not in a position to continue the staff excess of

16. Thus, in exercise of power conferred in the above

mentioned letters 2nd Respondent issued letter dated

25.9.97 informing the Petitioner and others that their

services will not be required from 1.4.1998. Suppressing

material facts, Petitioner and others filed WP 7588 of 1998

and obtained exparte interim orders. Respondents filed

counter affidavits and thereafter, the said petition was

dismissed for default. After waiting for a reasonable period

Respondents addressed letter dated 2.9,98 discontinuing

the services of the Petitioner and others by bringing the

original termination orders into force. Thereupon Petitioner

and others filed a petition restore WP 7588 of 1998.

Respondents filed their counter affidavit mentioning the

factum of termination. After hearing both parties Hon'ble

High Court of A.P. restored WP No.7588 of 1998 but. without

reviving the exparte interim order. Ultimately the said writ

petition was dismissed by order dated 10.2.99 with a finding

that, Petitioners can not seek relief under article 226 of

Constitution of India, Petitioners filed WP no. 35510 of

1998 challenging the letter dated 2 9.98 and also Contempt

Case No. 872 of 1998 but ultimately they were all withdrawn.

Since it is not an "Industry" as defined in Sec.2(j) of

Industrial Disputes Act, 1947, the question of Petitioner

falling within the meaning of workman as defined in Sec.2(S)

does not arise. Therefore, Sec.25(F) 25(G) And 25 (H) of the

said act are not applicable to the facts and circumstances

of this case. It is only a charitable institution and does not

fall within the meaning of industry. The termination of the

Petitioner would not amount to retrenchment under

Sec.2(oo) (bb) of the Industrial Disputes Act, 1947.

Petitioner was appointed on 1.7.94 but not on 4.6.91 as

alleged. The contention of the Petitioner that 2nd

Respondent issued letter of termination dated 25.9.97

without giving any reason on the ground of main cut in

funding relating to staff positions and that in the letter

dated 2.9.97 Ist Respondent specifically stated that existing

staff shall continue to work, are all not correct. Harmonious

reading of said letter would reveal that 2nd Respondent is

given liberty to reduce the staff strength to 16. 2nd

Respondent reserved the power to terminate the services

of the Petitioner without notice and without assigning

reasons, while giving appointment order. The contention

of the Petitioner that the employees who have been

appointed in the year 1997 are left in the service, and that

there is no basis for removal of the Petitioner overlooking

his service are all incorrect. Petitioner was terminated due

to change in funding pattern by funding institutions.

Whereas paper advertisement dated 23-29 March, 2002 was

not the post held by the Petitioner, it relates to different

post for which Petitioner is not qualified. The contention

that first Respondent filed his counter in WP No. 126 of

1998 before Hon'ble Supreme Court of India stating that

services of all employees is protected is not correct. The

said proceeding has no bearing on these Respondents.

Petitioner is not entitled for the relief sought for. Petition is

liable to be dismissed.

5. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Ex.Wl to W9 were marked.

On behalf of Respondents MW1 and MW2 were examined

and exhibits Ex.Ml to M3 are marked.

6. Heard the arguments of either party. Written

arguments were filed by Respondent and the same were

considered.

7. The points that arise for determination are:

I. Whether activities of Respondents comes under the

purview of definition of industry and whether

Petitioner is a workman?

II. Whether the orders passed hy the 2nd Respondent

terminating the services of the Petitioner is liable to

be set aside? If so, on what grounds?

III. To what relief Petitioner is entitled to?

8. Point No.(I):

It is the contention of the Petitioner that he is a

workman under Sec.2(s) of the Industrial Disputes Act,

1947 and the activities of the Respondents amounts to

industry, under Sec, 2(j) of the Industrial Disputes Act,

1947. Sec. 2(j) of the said act read as follows:

Industry means any business, trade, undertaking,

manufacture or calling of employees and includes

any calling service, employmen, handicraft or

industrial occupation or avocation of workman.

" Whereas, Sec.2(s) reads as follows:

'Workman means any person (including an

apprentice) employed in any industry to any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work far hire or reward, whether the terms of

employment be express or implied, and for the purposes of

any proceeding under this Act in relation to an industrial

dispute, includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute, but

does not include any such person—

(i) who is subject to the Air Force Act, 1950, or the

Army Act, 1950, or the Navy Act, 1957;or

(ii) who is employed in the police service or as an officer

or other employee of a prison; or

(iii) who is employed mainly in a managerial or

administrative capacity; or

(iv) who, being employed in a supervisory capacity,

draws wages exceeding one thousand six hundred

rupees per mensem or exercises, either by the nature

of the duties attached to the office or by reason of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1019

the powers vested in him, functions mainly of a

managerial nature.

9. Now, it is to be verified whether the activities of

the Respondents attract the ingredients of the term

industry, cited above. Admittedly, the activities of the

Respondents are carrying out agricultural research,

veterinary matters, raising agricultural productions etc.,

and rendering assistance to rural poor to develop

economically, socially and educationally with the help of

the funds donated by donors or the government, as per

the schemes and objectives for which purpose the funds

are released.

10. It is the contention of the Respondents that their

activities do not generate any profits, and on the other

hand they are philanthropical activities and thus, they do

not fall under the category of industry. It is not the

contention of the Petitioner that Respondents are earning

any profit through their activities. Now, it is to be verified

whether the above mentioned activities of the Respondents

do fall under category of industry. As per the definition of

industry given under sec.2(j) of the Industrial Disputes

Act. 1947, any service also will come under the purview of

the said definition.

11. Learned Counsel for the Respondents 2 and 3

relied upon the principles laid down in the case of Physical

Research Laboratory Vs. KG Sarma (l997) 4 SCC page 257,

whereunder, a Division Bench of Hon'ble Supreme Court

of India has distinguished the principles laid down in the

case of the Bangalore Water Supply And Sewerage Board

vs. A. Rajappa, [1978 (2 SCC 213)] and held that "while

interpreting the words 'undertaking', 'calling' and 'service'

which are of much wider import, the principle "noscitur a

sociis was applied and it was held that they wauld be

"industry" only if they are found to be analogous to trade

or business. Furthermore, an activity undertaken by

government cannot be regarded as an industry if it is done

in discharging sovereign functions."

2. Whereas Learned Counsel for the Petitioner relied

upon the principles laid down by the Apex Court in the

case of JK Cotton Spinning and Weaving Mills Co Limited

Vs. Labour Appellate Tribunal of India IIIrd Branch,

Lucknow 1964-AlR(SC)-0-737/1964-SCR-3-724 and in the

case of Mahila Samiti, Tikamgarh and State of Madhya

Pradesh and Ors. 1993 III LLJ page 46, in support of his

contention that the principles laid down in the case of

Bangalore Water Supply and Sewerage Board Vs. A.

Rajappa, (1978) 2 SCC 213 and Satynarayana Sharma and

Ors. Vs. National Mineral Development Corporation Ltd.

and Ors, 1993 III LLJ, 472 still hold the field.

13. In the case of Nehru Yuva Kettdru Sangathan Vs.

Union of India, the Hon'ble High Court of Delhi considered

the principles laid down in various cases including the

case of Physical Laboratory (relied upon by the

respondents). Considering the legal situation that in the

case of Coir Board Vs. Indira Devi 1988 III SCC 259, the

Hon'ble Supreme Court of India had decided to refer the

decision in Bangalore Water Supply case for

reconsideration by a larger Bench but subsequently three

judges Bench of the Hon'ble Supreme Court of India held

by its order dated 10.11.1998 in Coir Board case that

Bangalore Water Supply Case does not require any

reconsideration, Hon'ble Delhi High Court had categorically

held in the case of Nehru Yuva Kendra Sangathan Vs. Union

of India after discussing various legal precedents, that

obviously Bangalore Water Supply case which is a seven

Judge Bench judgement rendered by the Apex Court still

holds the field. Further Hon'ble Delhi High Court referred

to the case of General Manager Telecom vs. S. Srinivasa

Rao 1997 SCC 767, whereunder also it was held by three

Judges Bench of the Apex Court that the Bangalore Water

Supply case holds the field and it is binding precedent.

14. It is not the case of the respondents that any

larger bench of the Apex Court was formulated for

reconsidering the principles laid down by the seven judges

Bench of Apex Court in Bangalore Water Supply case. Thus,

it is very much clear that the said judgement continues to

be a binding legal precedent.

15. In the Bangalore Water Supply case, it is held

that "absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

other sector. The true focus is functional and the decisive

test is the nature of the activity with special emphasis on

the employer employee relation. "

16. In the circumstances, just because the activities

of the respondents do not generate any profit and they are

philanthropic in nature, it will not change the fact that the

said activities come under the purview of the definition of

industry since the decisive test is the nature of the activity

with special emphasis of employer and employee

relationship. The nature of the activity in this case is a

systematic activity organized with cooperation between

employer and employees for rendering services calculated

to satisfy human wants and wishes i.e., improving the

production of agricultural products and also developing

the rural poor, socially economically and educationally etc.

Thus, the activities of the Respondents attract the

ingredients of the definition of 'Industry’ as provided under

Sec. 2(j) of Industrial Disputes Act, 1947 and thus, it is an

'Industry'.

17. Consequentially, the persons who work for the

Respondents will certainly come under the purview of the

definition of the workman given under Sec. 2(s) of the

Industrial Disputes Act, 1947, since, as already cited above,

Sec.2(s) of the said Act, provides that any person employed

in any industry to any manual, unskilled, skilled, technical,

operational, clerical or supervisory work for hire or reward

is a workman. Thus, Petitioner who has been appointed as

1020

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

an Horticulture extension attendant by 2nd Respondent

and has been deputed to work so with the 3rd Respondent

will certainly come under the purview of the definition of

the workman referred to above. In the case of Mahila

Samithi, Thimkkamgarh Vs. State of M.P. 1993 III LLJ page

468 relied upon by the counsel for the Petitioner it is held

to the effect that the employees of the Mahila Samithi which

is engaged in systematic activities of promoting training

women in family planning programme etc., which is an

industry, will certainly come under the purview of the

definition of workman u/s 2(s) of the Industrial Disputes

Act, 1947. This principle is a guiding principle to arrive at

the conclusion that the Petitioner is a workman.

18. Thus, it can safely be held that the activities of

the respondents come under the purview of the industry

as defined under Sec. 2(j) of Industrial Disputes Act, 1947

and Petitioner comes under the definition of the workman

under Sec. 2(s) of the Industrial Disputes Act, 1947.

This point is answered accordingly.

I9. Point No. II:

It is an undisputed fact that Petitioner who has been

working as Horticulture extension attendant sinee 1.7.1994

with the 3rd Respondent, being appointed to the said post

by the 2nd Respondent by virtue of the order dated 24.6.1994

has been terminated from services by the 2nd Respondent

w.e.f. 1.4.1998 by virtue of Ex.W4 the letter dated 25.9.1997.

The reason for termination of services of the Petitioner

have been given in Ex.W4 as that first Respondent has

changed its guidelines and have provided a reduced budget

to voluntary organisation to run their KVKs that the main

cut in funding is related to staff positions and inspite of

their best efforts 2nd Respondent could only get a grace

period of some months and as the cut becomes effective

from 1.4.1998, the services of Petitioner were terminated

with effect from the said date.

20. Petitioner is questioning the reasonableness of

termination of his services in that manner and claiming that

2nd Respondent cannot terminate services of the Petitioner

on the ground of financial problems and that further persons

who are appointed subsequent to the Petitioner have been

left in service and thus, there is discrimination. It is further

claimed by the Petitioner that 3rd Respondent who pleads

on one hand that as there are no funds the services of the

Petitioner were terminated, has issued a paper advertisement

in March, 2002 in employment news calling for new

appointments on the other hand and that as per the terms

of his appointment Petitioner is entitled to be continued in

service until the project comes to an end.

21. Whereas it is the claim of the Respondents that

Petitioner is one of the juniormost persons and therefore

his services were terminated, as there was need for

retrenchment. It is the further contention of the

Respondents that Petitioner was appointed on adhoc basis

and his appointment was subject to termination at any time

without assigning any reason and without notice and

further that in view of the drastic change brought out in

funding process by the 1st Respondent, 2nd Respondent

was constrained to terminate the services of the Petitioner.

The 2nd Respondent is further denying the truth of the

contention of the Petitioner that the employees employed

subsequent to him are still left in service and that paper

advertisement dated 23-29 March, 2002 does not relate to

the post of Petitioner.

22. Thus, it is to be verified that any person who was

appointed subsequent to the Petitioner have been left in

service, while terminating the services of the Petitioner

and if so it is a justified action. The other point to be decided

is whether the Respondents who have terminated the

services of the Petitioner claiming that for want of funds

they cannot continue him in service are justified in making

new appointments in March, 2002. The third aspect to be

decided is whether Respondents can terminate the services

of the Petitioner without notice and without assigning

reasons and also without paying compensation.

23. As to the first point mentioned above, is

concerned, Ex.W8 is the details of the staff working in the

given KVK as on February, 1998 produced before the court

by the Petitioner. This document has been marked with the

consent of the Respondents on 12.7.2006. That means the

correctness of this document is admitted by the

Respondents. As can be seen from mis document Petitioner

has been appointed on 1.7.1994 whereas, one Kasyap

training assistant has been appointed on 31.3.97. There are

several other employees who were appointed in the years

1995 and 1996 also. Thus, it cannot be termed that Petitioner

is the juniormost employee of the Respondents. As can

been seen from Ex.W4, the reason given for termination of

the services of the Petitioner is that as the cut in funding is

relating to staff positions Petitioner’s services were

terminated and it is the claim of the Respondents that as

Petitioner is one of the juniorrmost employees his services

were terminated due to cut in the funding. But the fact

appears to be otherwise, as per the discussions held above,

in the light of the contents of Ex. W8. There are several

other employees who juniors to the Petitioner when the

dates of appointment of these persons are considered, are

still continuing in the service. It is not the claim of the

Respondents that considering the nature of the work being

done by the various workmen and its importance to the

organisation, they have chosen to retain some and

terminate the others. It is their categorical contention that

as the Petitioner was one of the junior most employees his

services were terminated, which is not a correct statement.

Therefore, the contention of the Petitioner that the persons

who are appointed subsequent to him were left out in

service and his services were terminated by the

Respondents, is to be accepted as a correct contention. It

amounts to discrimination which shall never be allowed. It

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1021

is the principle that the last come first go. So the action of

the Respondents in this regard is not justifiable.

24. As to the second aspect to be considered is

concerned certainly, the Respondents are not justified in

recruiting new persons when they terminated the services

of the Petitioner on the ground of non-availability of

sufficient funds. It is the contention of the Respondents

that the vacancies advertised by virtue of ExW7

advertisement are different posts to the post held by the

Petitioner, that Petitioner got no qualifications to hold any

such posts and therefore, they can not be find fault with

for making new appointments.

25. But the fact remains that Petitioner who was in

the service of Respondents was removed from service only

on the ground that funds were not available. If funds were

not available no fresh appointments can be made. The

grievance of the Petitioner is that Respondents are making

new appointments. It is a fact that new appointments were

made. Then there is no justification, in terminating the

services of the Petitioner.

26. As to the third aspect is concerned, just because

it is mentioned in the appointment order that without notice

Petitioner's services can be terminated Respondents can

not do as such since, the provisions of Sec.25(F) of the

Industrial Disputes Act, 1947 provides for one month's

notice, and payment of retrenchment compensation to the

workmen who is retrenched. Thus, irrespective of the

contents of the appointment order given to the Petitioner

who is a workman, Respondents are liable to give one

month notice. In this case, sufficient notice has been given

to the Petitioner, but evidently no retrenchment

compensation has been given to him. On this ground also

Ex.W4 order is not a maintenance order.

27. In view of the foregone discussion of the material

on record it can safely be held that Ex,W4 the order passed

by the 2nd Respondent terminating the services of the

Petitioner is not maintainable and is liable to be set aside.

This point is answered accordingly.

28. Point No. III:

In view of the findings arrived at above, Ex.W4 order

is liable to be set aside and Petitioner is entitled for

reinstatement into service. Considering the fact that the

Petitioner has approached the court belatedly, i.e., about 7

years after his removal from service, he is not entitled for

any back wages, but he is entitled for continuity of service

and other attendant benefits.

This point is answered accordingly.

29. Result:—

In the result. Petition is allowed. The impugned order

dated 25.9.97 issued by the 2nd Respondent is hereby set

aside. Petitioner shall be reinstated into service forthwith.

He is entitled for continuity of service and other attendant

benefits except back wages.

Award is passed accordingly. Transmit,

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesscs examined for the

Witnesses examined for the

Petitioner

Respondent

WW1: Sri K. Siddanna

MW1 Sri K Srinivasa Rao

MW2 Sri A. Giridhar

Documents marked for the Petitioner

Ex.Wl

Photostat copy of Memorandum of

Understanding dt. 19.7.1991

Ex,W2.

Photostat copy of Ir. No.l (I)/96-AE-l dt.2.9.l997

Ex.W3:

Photostat copy of appointment Ir. dl 24.6.1994

Ex.W4

Photostat copy of Ir. dt. 25.9.1997

Ex.W5:

Photostat copy of order in WP Nos7588, 1998 &

35510/1998

Ex.W6:

Photostat copy of order in Hon'ble Supreme

Court dt.24.8.1998

Ex.W7:

Photostat copy of employment newspapcr

cutting dt.23-29 March, 2002

Ex. W8:

Photostat copy of statement showing working

staff in KVK, Zaheerabad as on February, 1998

Ex.W9:

Paper publication dared 19.4.2006

Documents marked for the Respondents

Ex.Ml:

Attested

mpy

Memorandum

Understanding between the Indian Council of

Agricultural Research, Krishi Bhawan, New

Delhi and Deccan Krishi Vigyana Kendra

Ex. M2:

Photostat copy of Ir. No 1(1)96-AE-1 dt.26.5.1997

Ex. M3:

Photostat copy of Ir. No 1(1 )/96-AE-I dt. 2.9.1997

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1022

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 10@01@2014 dks izkIr gqvk

FkkA

[lañ ,y&42012@3@2004&vkbZvkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, 13th January, 2014

S.O. 376.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947) the Central

Government hereby publishes the award (I.D No. 106/

2005) 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 Deputy Director General, The Indian

Council of Agricultural Research and Others, Hyderabad

and their workman, which was received by the Central

Government on 10/01/2014.

[No. L-42012/3/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT: —

Smt M. Vijaya Lakshmi,

Presiding Officer

Dated the 19th day of July, 2013

INDUSTRIAL DISPUTE L.C.No. 106/2005

BETWEEN:

Sri Md. Mahaboob,

S/o Md. Shaik Ahmed,

C/o M/s. T. Sharath, Advocates

Plot No. 145, Road No. 10, Jubilee Hills,

Hyderabad.

......Petitioner

AND

The Deputy Director General,

The Indian Counsel of Agricultural Research,

Krishi Bhavan, New Delhi.

The Chairman,

Deccan Development Society,

Office at A 6 Meera Appts,

Basherbagh, Hyderabad.

3. The Principal,

Krishi Vigyan Kendra,

Post Box No.213, Zaheerabad.

.....Respondents

APPEARANCES:

For the Petitioner :

M/s.T Sharath & G.N. Raju,

Advocates

For the Respondents :

M/s.N.R. Devaraj & W.

Satyanarayana, Advocates for R1

M/s. B. Nalin Kumar, K.S. Rahul,

M.S. Chandresh & K. Aravind

Goud, Advocates for R2 & R3

AWARD

This petition under Sec. 2 A (2) of the LD. Act, 1947

has been filed by Sri Md. Mahaboob challenging his

termination against the Management of the Indian Counsel

of Agricultural Research and Krishi Vigyan Kendra. The

Petitioner filed this petition seeking for setting aside the

order of termination and to direct the Respondents to

reinstate the Petitioner with full back wages, continuity of

service and other attendant benefits.

2. The averments made the petition in brief are as follows:

Respondents one and two have common objects to

promote and accelerate the process of education and

training in the field of agriculture and to achieve these

common objects they entered into a Memorandum of

Understanding dated 19.7.1991 detiding to pool funds sent

with man power and equipment. For the purpose of

achieving these objectives Respondent first established

the third Respondent at various districts in the state of A.

P. Second Respondent recruited about 22 staff in various

fields in different years commencing from 1994. 2nd

Respondent recruited the Petitioner as Driver on 1.4.1997

for placing with the third Respondent at Medak district.

Ever since the appointment Petitioner has been discharging

his duties to the satisfaction of the Respondents. In his

letter of appointment it is stated that the appointment was

temporary and till the continuation of the project and that

it is liable to be terminated without assigning any reason.

On 2.9.97 first Respondent addressed letter to all the

Kendras regarding the funding, norms of building

infrastructures and staffing pattern. It is stated in the said

letter that revised staff strength of 16 will be applicable for

KVKs when the existing staff in the KVK are adjusted/

redeployed within the over all institutes system or they are

transferred or promoted or retired. The staff already

adjusted should be treated as final. The position so vacated

because of transfer promotion or retirement shall not be

filled up in case these are exceeding revised strength of 16.

Till such time the host institute make adjustment through

redeployment or promotion or retirement, the existing staff

shall continue to work in the KVK. For filling up of any

vacant post prior approval of the council will have to be

obtained" after receiving the said letter of the first

Respondent without even assigning any reason 2nd

Respondent issued letter of termination dated 25.9.97 to

the Petitioner and others terminating their services on the

ground that the main cut in funding is related to staff

positions. First Respondent has specifically stated in the

letter dated 2.9.97 that the existing staff shall continue to

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1023

work for KVK i.e., third Respondent. First Respondent has

approved the appointment of the Petitioner. Thus, under

no circumstances 2nd Respondent can not terminate the

services of the Petitioner on the ground of financial

problems. Further, the persons who are appointed

subsequent to the Petitioner has been left in die service.

Absolutely, there is no basis for terminating the services

of the Petitioner over looking the years of his service put in

by him in the organisation. Petitioner questioned the said

letter of termination by way of WP No.7588 of 1998 and the

Hon'ble High Court of A.P. permitted the Petitioner to

discharge his duties. Pending interim orders Petitioner was

denied to discharge the duties pursuant to the interim order

passed in WPMP No.43754/1998 in WP No. 35510/1998.

Since the third Respondent failed to comply with the interim

order Petitioner filed contempt petition, since the

Respondent raised the question of maintainability of writ

petition on the ground that Respondent No. 3 does not fall

under article 12 of Constitution of India Petitioner has

withdrawn the writ petition on 23.12.2004 with leave of the

Hon'ble High Court of A.P. to institute appropriate

proceeding before this tribunal. Third Respondent who

pleads on one hand that there are no funds and hence,

services of the Petitioner were terminated, has issued a

paper advertisement in March, 2002 in Employment News

calling for new appointments, on the other hand. It is not

the case of the Respondent that the project has come to an

end. They are went upon to terminate the services of the

Petitioner. All India KVK Employees Union filed WP No.

126/98 before Hobble Supreme Court of India, seeking for

regularisation of their services in all Kendras of India. While

disposing off the said writ petition Supreme Court held

that even according to the affidavit filed by the first

Respondent and letter dated 24.6.98 the grievance of the

writ petitioners does not survive. In their counter first

Respondent stated that the services of all employees are

protected. Thus, Petitioner cannot be terminated and the

action of the third Respondent is illegal and violative of

principles of natural justice and the same is liable to be set

aside. For no fault of his, Petitioner is victimized and the

practice of the third Respondent is unfair.

3. First Respondent filed his counter with the averments

in brief as follows:

First Respondent has nothing to do with the

engagement or employment to the Petitioner made by the

2nd Respondent. Petitioner and others are neither employed

nor employable nor retrenched by the first Respondent.

This is solely in the domain of 2nd Respondent and 2nd

Respondent alone is responsible. The number and the

trades of the members of staff are purely based on their

requirements and utility. The services of Petitioner and

five others were terminated by 2nd Respondent on the

ground that strength of the staff of R3 has been reduced to

22 to 16. Only the services of junior most persons were

terminated as they were engaged on purely temporary basis

and are liable to be terminated at any time without any

further notice. Petitioner is one of the junior most person

whose services were terminated. The activities taken up in

the given scheme are social welfare activities for the

upliftment of workmen and helping the poor and

downtrodden in the society by implementing various

schemes In the said process personnel engaged in one

scheme will be shifted to another and redeployment also

will be there according to the requirement. As per the

circumstances warrant Rl prescribes the number of persons

to be engaged which either increases or decreases

according it its requirements or necessity leaving it to the

discretion of 2nd Respondent and the 2nd Respondent

arranges the required number of staff. If there is no need

the 2nd Respondent may terminate the services of the

employees. RII is not liable for any such activities of 2nd

Respondent. Thus, first Respondent is not a necessary

party and no relief can be sought for against him. Its

misjoinder of parties as far as Rl is concealed. Rl is not an

industiy as defined u/s2(j) of Industrial Disputes Act, 1947.

Further Rl is under the control of Central Government and

comes under the definition of "State" under Article 12 of

the Constitution. All the service rules and conditionality of

services in FRSR and CCS & CCA Rules are applicable to

the employees of Rl. As per the principle laid down in the

case of Rajendra Vs. State of Rajasthan (1999) (2) SCC 317,

when the post temporarily created for fulfilling the needs

of a particular project or scheme limited in its duration,

comes to an end on account of the need for the project was

fulfilled or had to be abandoned wholly or partially for

want of funds, employer cannot be compelled to continue

employing such employees. The petition is liable to be

dismissed.

3. 2nd and 3rd Respondents filed their counter with the

averments in brief as follows:

2nd Respondent is a charitable institution working

in the interest of rural poor. By developing them

economically, socially and educationally by extending all

support needed by them. It's a non-profit organisation

which functions with the funds released by national and

international donors and also adopting by nodal schemes

of the state and central governments. They are not an

industry within the meaning of the ID Act. Hence, petition

is not maintainable. Respondents only assist the rural poor

by educating them and by imparting techniques which are

not activities of industry under this act. 2nd Respondent is

a registered rural development organisation. First

Respondent has the responsibility for agricultural research

education and for extension of education in the country

and established Krishi Vigyan Kendras/ trainee training

centres in the districts with the object of promoting and

accelerating the progress of education and training in the

field of agriculture and allied areas under the scheme known

as KVK/TVT on individual projects. Each project is

entrusted to an implementing agency selecting a suitable

1024

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

organisation in the district. For the district of Medak ICAR

has considered the 2nd Respondent as an implementing

agency. They entered into a memorandum of understanding

whereunder first Respondent has agreed to provide grant

for the project according to the pattern of assistance

approved under TTC/KVK subject to personal and

budgetary limitations imposed by the Government of India

from time to time. The administrative control over the staff

employed under the scheme shall rest with the 2nd

Respondent. Petitioner was appointed for the third

Respondent as Driver on adhoc basis and his appointment

was subject to termination at any time. His salary was paid

from out of the funds provided by the first Respondent.

His appointment was liable for termination without

assigning any reason and without notice. While so, first

Respondent issued letter dated 26.5.97 on funding patterns,

norms of building infrastructures and staff in KVKs and

also fixing staff pattern of each KVK comprising 16 courses.

Further, 1st Respondent issued letter dated 2.9.97 stating

that all KVKs which have not completed five years from

the year of sanction will be provided 100% grants till they

complete five years. Thereafter, all these KVKs will be

funded by the 1st Respondent and implementing agency

for a period of 5 years. On completion of 10 years the funding

pattern would be 50:50 percent by the first Respondent

and hosting institute and it is further stated that all KVKs

irrespective of their existence will be funded on 100% basis

during the year 1997-98, In view of the drastic change in

the funding process and second Respondent being a

non-governmental organisation entirely dependent upon

donor funds, is not in a position to continue the staff excess

of 16. Thus, in exercise of power conferred in the above

mentioned letters 2nd Respondent issued letter dated

25.9.97 informing the Petitioners and others that their

services will not be required from 1.4.1998. Suppressing

material facts, Petitioner and others filed WP 7588 of 1998

and obtained exparte interim orders. Respondents filed

counter affidavits and thereafter, the said petition was

dismissed for default. After waiting for a reasonable period

Respondents addressed letter dated 2.9.98 discontinuing

the services of the Petitioner and others by bringing the

original termination orders into force. Thereupon Petitioner

and others filed a petition to restore WP 7588 of 1998.

Respondents filed their counter affidavit mentioning the

factum of termination. After hearing boih parties Hon'ble

High Court of A.P. restored WP No. 7588 of 1998 but, without

reviving the exparte interim order. Ultimately the said writ

petition was dismissed by order dated 10.2.99 with a finding

that, Petitioners can not seek relief under article 226 of

Constitution of India. Petitioners filed WPNo.35510 of 1998

challenging ihe letter dated 2.9.98 and also Contempt Case

No.872 of 1998 but ultimately they were all withdrawn. Since

it is not an "Industry" as defined in Sec.2(j) of Industrial

Disputes Act, 1947, the question of Petitioner falling within

the meaning of workman as defined in Sec.2 (S) does not

arise. Therefore. Sec.25 (F) 25(G) and 25 (H) of the said act

are not applicable to the facts and circumstances of this

case. It is only a charitable institution and does not fall

within the meaning of industry. The termination of the

Petitioner would not amount to retrenchment under

Sec.2(oo) (bb) of the Industrial Disputes Act, 1947. The

contention of the Petitioner that 2nd Respondent issued

letter of termination dated 25.9.97 without giving any reason

on the ground of main cut in funding relating to staff

positions and that in the letter dated 2.9.97 1st Respondent

specifically stated that existing staff shall continue to work,

are all not correct. Harmonious reading of said letter would

reveal that 2nd Respondent is given liberty to reduce the

staff strength to 16. 2nd Respondent reserved the power

to terminate the services of the Petitioner without notice

and without assigning reasons, while giving appointment

order. The contention of the Petitioner that the employees

who have been appointed in the year 1997 are left in the

service, and that there is no basis for removal of the

Petitioner overlooking his service are all incorrect. Petitioner

was terminated due to change in funding pattern by funding

institutions. Whereas paper advertisement dated 23-29

March, 2002 was not the post held by the Petitioner, it

relates to different post for which Petitioner is not qualified.

The contention that first Respondent filed his counter in

WP No. 126 of 1998 before Hon'ble Supreme Court of India

stating that services of all employees is protected is not

correct. The said proceeding has no bearing on these

Respondents. Petitioner is not entitled for the relief sought

for. Petition is liable to be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Ex.Wl to W8 were marked.

On behalf of Respondents MW1 and MW2 were examined

and exhibits Ex.Ml to M3 are marked.

5. Heard the arguments of either party. Written

arguments were filed by Respondent and the same were

considered.

6. The points that arise for determination are:

I. Whether activities of Respondents comes under the

purview of definition of industry and whether

Petitioner is a workman?

II. Whether the orders passed by the 2nd Respondent

terminating the services of the Petitioner is liable to

be set aside? If so, on what grounds?

III. To what relief Petitioner is entitled to?

7. Point No. (I):

It is the contention of the Petitioner that he is a

workman under Sec. 2(s) of the Industrial Disputes Act,

1947 and the activities of the Respondents amounts to

industry, under Sec. 2 (j) of the Industrial Disputes Act,

1947. Sec. 2(j) of the said act read as follows:

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1025

Industry means any business, trade, undertaking,

manufacture or calling of employees and includes any

calling service, employment, handicraft or industrial

occupation or avocation of workman."

Whereas, Sec. 2(s) reads as follows:

'Workman' means any person (including an

apprentice) employed in any industry to any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward, whether the terms of

employment be express or Implied, and for ihe purposes of

any proceeding under this Act in relation to an industrial

dispute, includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute, but does

not include any such person-

(i) who is subject to the Air Force Act, 1950, or the

Army Act, 1950, or the Navy Act, 1957, or

(ii) who is employed in the police service or as an officer

or other- employee of a prison; or

(iii) who is employed mainly in a managerial or

administrative capacity: or

(iv) who, being employed in a supervisory capacity, draws

wages exceeding one thousand fix hundred rupees

per mensem or exercises, either by the nature of the

duties attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature.

8. Now, it is to be verified whether the activities of

the Respondents attract the ingredients of the term

industry, cited above. Admittedly, the activities of the

Respondents are carrying out agricultural research,

veterinary matters, raising agricultural productions etc.,

and rendering assistance to rural poor to develop

economically, socially and educationally with the help of

the funds donated by donors or the government, as per

the schemes and objectives for which purpose the funds

are released.

9. It is the contention of the Respondents that their

activities do not generate any profits, and on the other

hand they are philanthropical activities and thus, they do

not fall under the category of industry. It is not the

contention of the Petitioner that Respondents are earning

any profit through their activities. Now, it is to be verified

whether the above mentioned activities of the Respondents

do fall under category of industry. As per the definition of

industry given under Sec 2(j) of the Industrial Disputes

Act, 1947, any service also will come under the purview of

the said definition,

10. Learned Counsel for the Respondents 2 and 3

relied upon the principles laid down in the case of Physical

Research Laboratory Vs. KG Sarma (1997) 4 SCC page 257,

whereunder, a Division Bench of Hon'ble Supreme Court

of India has distinguished the principles laid down in the

case of the Bangalore Water Supply and Sewerage Board

vs. A. Rajappa, [(1978) 2 SCC 213] and held that "while

interpreting the words 'undertaking', 'calling' and 'service'

which are of much wider import, the principle "noscitur a

sociis was applied and it was held that they would be

"industry" only if they are found to be analogous to trade

or business. Further more, an activity undertaken by

government cannot be regarded as an industry if it is done

in discharging sovereign functions."

11. Whereas Learned Counsel for the Petitioner relied

upon the principles laid down by the Apex Court in the

case of JK Cotton Spinning and Weaving Mills Co Limited

Vs. Labour Appellate Tribunal of India IIIrd Branch,

Lucknow l964-AIR(SC)-0-737/1964-SCR-3-724 and in the

case of Mahila Samiti, Tikamgarh and State of Madhya

Pradesh and Ors. 1993 III LLJ page 46, in support of his

contention that the principles laid down in the case of

Bangalore Water Supply and Sewerage Board vs. A.

Rajappa, (1978) 2 SCC 213 and Satynarayana Sharma and

Qrs. Vs. National Mineral Development Corporation Ltd.

and Ors. 1993 III LLJ, 472 still hold the field.

12. In the case of Nehru Yuva Kendra Sangathan Vs.

Union of India, the Hon'ble High Court of Delhi considered

the principles laid down in various cases including the

case of Physical Laboratory (relied upon by the

respondents). Considering the legal situation thai in the

case of Coir Board Vs. Indira Devi 1988 III SCC 259, the

Hon'ble Supreme Court of India had decided to refer the

decision in Bangalore Water Supply case for

reconsideration by a larger Bench but subsequently three

judges Bench of the Hon'ble Supreme Court of India held

by its order dated 10.11.1998 in Coir Board case that

Bangalore Water Supply Case does not require any

reconsideration, Hon'ble Delhi High Court had categorically

held in the case of Nehru Yuva Kendra Sangathan Vs. Union

of India after discussing various legal precedents, that

obviously Bangalore Water Supply case which is a seven

Judge Bench judgement rendered by the Apex Court still

holds the field. Further Hon'ble Delhi High Court referred

to the case of General Manager Telecom vs. S. Srinivasa

Rao 1997 SCC 767, whereunder also it was held by three

Judges Bench of the Apex Court that the Bangalore Water

Supply case holds the field and it is binding precedent.

13. It is not the case of the respondents that any

larger bench of the Apex Court was formulated for

reconsidering the principles laid down by the even judges

Bench of Apex Court in Bangalore Water Supply case. Thus,

it is very much clear that the said judgement continues to

be a binding legal precedent.

14. In the Bangalore Water Supply case, it is held

that "absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

1026

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

other sector. The true focus is functional and the decisive

test is the nature of the activity with special emphasis on

the employer employee relation."

15. In the circumstances, just because the activities

of the respondents do not generate any profit and they are

philanthropic in nature, it will not change the fact that the

said activities come under the purview of the definition of

industry since the decisive test is the nature of the activity

with special emphasis of employer and employee

relationship. The nature of the activity in this case is, a

systematic activity organized with cooperation between

employer and employees for rendering services calculated

to satisfy human wants and wishes i.e., improving the

production of agricultural products and also developing

the rural poor, socially economically and educationally etc.

Thus, the activities of the Respondents attract the

ingredients of the definition of 'Industry' as provided under

Sec. 2(j) of Industrial Disputes Act, 1947 and thus, it is an

'Industry'.

16. Consequentially, the persons who work for the

Respondents will certainly come under the purview of the

definition of the workman given under Sec. 2(S) of the

Industrial Disputes Act, 1947, since, as already cited above,

Sec. 2(s) of the said Act, provides that any person employed

in any industry to any manual, unskilled, skilled, technical,

operational, clerical or supervisory work for hire oi reward

is a workman. Thus, Petitioner who has been appointed as

Driver by 2nd Respondent and has been deputed to work

so with the 3rd Respondent will certainly come under the

purview of the definition of the workman referred to above.

In the case of Mahila Samithi, Thimkkamgarh Vs. State of

M.R. 1993 III LLJ page 468 relied upon by the counsel for

the Petitioner it is held to the effect that the employees of

the Mahila Samithi which is engaged in systematic activities

of promoting training women in family planning programme

etc. which is an industry, will certainly come under the

purview of the definition of workman u/s 2(s) of the

Industrial Disputes Act, 1947. This principle is a guiding

principle to arrive at the conclusion that the Petitioner is a

workman.

17. Thus, it can safely be held that the activities of

the respondents come under the purview of the industry

as defined under Sec. 2(j) of Industrial Disputes Act, 1947

and Petitioner comes under the definition of the workman

under Sec. 2(s) of the Industrial Disputes Act, 1947.

This point is answered accordingly.

18. Point No. II:

It is an undisputed fact that Petitioner who has been

working as Tractor Driver since 1.4.1997 with the

3 Respondent, being appointed to the said post by the 2nd

Respondent by virtue of the order dated 17.4.1997 has been

terminated from services by the 2nd Respondent w.e.f.

1.4.1998 by virtue of Ex.W4 the letter dated 25.9.1997. The

reason tor termination of services of the Petitioner have

been given in Ex.W4 as that first Respondent has changed

its guidelines and have provided a reduced budget to

voluntary organisation to run their KVKs that the main cut

in funding is related to staff positions and in spite of their

best efforts 2nd Respondent could only get a grace period

of some months and as the cut becomes effective from

1.4.1998, the services of Petitioner were terminated with

effect from the said date.

19. Petitioner is questioning the reasonableness of

termination of his services in that manner and claiming that

2nd Respondent can not terminate services of the Petitioner

on the ground of financial problems and that further persons

who are appointed subsequent to the Petitioner have been

left in service and thus, there is discrimination. It is further

claimed by the Petitioner that 3rd Respondent who pleads

on one hand that as there are no funds the services of the

Petitioner were terminated, has issued a paper advertisement

in March, 2002 in Employment News calling for new

appointments on the other hand and that as per the terms

of his appointment Petitioner is entitled to be continued in

service until the project comes to an end.

20. Whereas it is the claim of the Respondents that

Petitioner is one of the juniormost persons and therefore

his services were terminated, as there was need for

retrenchment. It is the further contention of the

Respondents that Petitioner was appointed on adhoc basis

and his appoitniment was subject to termination at any

time without assigning any reason and without notice and

further that in view of the drastic change brought out in

funding process by the 1st Respondent, 2nd Respondent

was constrained to terminate the services of the Petitioner.

The 2nd Respondent is further denying the truth of the

contention of the Petitioner that the employees employed

subsequent to him are still left in service and that paper

advertisement dated 23-29 March, 2002 does not relate to

the post of Petitioner.

21. Thus, it is to be verified that any person who was

appointed subsequent to the Petitioner have been left in

service, while terminating the services of the Petitioner

and if so it is a justified action. The other point to be decided

is whether the Respondents who have terminated the

services of the Petitioner claiming that for want of funds

they can not continue him in service are justified in making

new appointments in March, 2002. The third aspect to be

decided is whether Respondents can terminate the services

of the Petitioner without notice and without assigning

reasons and also without paying compensation.

22. As to the first point mentioned above, is

concerned, Ex.W8 is the details of the staff working in the

given KVK as on February, 1998 produced before the court

by the Petitioner. This document has been marked with the

consent of the Respondent on 12.7.2006. That means the

correctness of this document is admitted by the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1027

Respondents. As can be seen from this document Petitioner

has been appointed on 1.4.1997 whereas, one Kasyap

training assistant has been appointed on 31.3.1997. There

are several other employees who were appointed in the

years 1995 and 1996 also. Thus, cannot be termed that

Petitioner is the juniormost employee of the Respondents.

As can been seen from Ex. W4, the reason given for

termination of the services of the Petitioner is that as the

cut in funding is relating to staff positions Petitioner's

services were terminated and it is the claim of the

Respondents that as Petitioner is one of the juniormost

employees his services were terminated due to cut in the

funding. But the fact appears to be otherwise, as per the

discussions held above, in the light of the contents of

Ex.W8. There are several other employees who are juniors

to the Petitioner when the dates of appointment of these

persons are considered, are still continuing in the service.

It is not the claim of the Respondents that considering the

nature of the work being done by the various workmen and

its importance to the organisation, they have chosen to

retain some and terminate the others. It is their categorical

contention that as the Petitioner was one of the junior

most employees his services were terminated, which is not

a correct statement. Therefore, the contention of the

Petitioner that the persons who are appointed subsequent

to him were left out in service and his services were

terminated by the Respondents, is to be accepted as a

correct contention. It amounts to discrimination which shall

never be allowed. It is the principle that the last come first

go. So the action of the Respondents in this regard is not

justifiable.

23. As to the second aspect to be considered is

concerned certainly, the Respondents are not justified in

recruiting new persons when they terminated the services

of the Petitioner on the ground of non-availability of

sufficient funds. It is the contention of the Respondents

that the vacancies advertised by virtue of Ex. W7

advertisement are different posts to the post held by the

Petitioner, that Petitioner got on qualifications to hold any

such posts and therefore, they cannot be find fault with for

making new appointments.

24. But the fact remains that Petitioner who was in

the service of Respondents was removed from service only

on the ground that funds were not available. If funds were

not available no fresh appointments can be made. The

grievance of the Petitioner is that Respondents are making

new appointments. It is a fact that new appointments were

made. Then there is no justification, in terminating the

services of the Petitioner.

25. As to the third aspect is concerned, just because

it is mentioned in the appointment order that without notice

Petitioner's services can be terminated Respondents can

not do as such since, the provisions of Sec. 25(F) of the

Industrial Disputes Act, 1947 provides for one month's

notice, and payment of retrenchment compensation to the

workmen who is retrenched. Thus, irrespective of the

contents of the appointment order given to the Petitioner

who is a workman, Respondents are liable to give one

month notice. In this case, sufficient notice has been given

to the Petitioner, but evidently no retrenchment

compensation has been given to him. On this ground also

Ex.W4 order is not a maintenance order.

26. In view of the foregone discussion of the material

on record it can safely be held that Ex.W4 the order passed

by the 2nd Respondent terminating the services of the

Petitioner is not maintainable and is liable to be set aside.

This point is answered accordingly,

27. Point No. III: In view of the findings arrived

at above, Ex.W4 order is liable to be set aside and Petitioner

is entitled for reinstatement into service. Considering

the fact that the Petitioner has approached the court

belatedly, i.e., about 7 years after his removal from service,

he is not entitled for any back wages, but he is entitled

for continuity of service and other attendant benefits.

This point is answered accordingly.

28. Result:—

In the result, Petition is allowed, Tlie impugned order

dated 25.9.97 issued by the 2nd Respondent is hereby set

aside. Petitioner shall be reinstated into service forthwith.

He is entitled for continuity of service and other attendant

benefits except back wages.

Award is passed accordingly. Transmit.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesscs examined for the

Witnesses examined for the

Petitioner

Respondent

WW 1: Sri K. Mahaboob

MW1: Sri K. Srinivasa Rao

MW2: Sri A. Giridhar

Documents marked for the Petitioner

Ex. W1:

Photostat copy of Memorandum of

Uderstanding dt. 19.7.1991

Ex. W2:

Photostat copy of Ir. No. 1(1)/96-AE-1 dt.

2.9.1997

Ex. W3:

Photostat copy of appointment Ir. dt. 24.6.1994

Ex. W4:

Photostat copy of Ir. dt. 25.9.1997

Ex. W5:

Photostat copy of order in WP Nos. 7588/1998

& 35510/1998

Ex. W6:

Photostat copy of order of Hon'ble Supreme

Court dt. 24.8.1998

1028

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Ex. W7:

Photostat copy of employment newspaper

cutting dt. 23-29 March, 2002

Ex. W8:

Photostat copy of statement showing working

staff in KVK, Zaheerabad as on February, 1998

Documents marked for the Respondents

Ex. M1:

Attested

copy

Memorandum

Understanding between the Indian Council of

Agricultural Research, Krishi Bhawan, New

Delhi and the Deccan Krishi Vigyana Kendra dt.

19.7.1991

Ex.M2:

Photostat copy of lr. No. 1(1)/96-AE-1 dt.

26.5.1997

Ex. M3:

Photostat copy of lr. No. 1(1)/96-AE-1 dt.

2.9.1997

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New Delhi, the 13th January, 2014

S.O. 377.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 107/2005)

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 Deputy Director General, The Indian

Council of Agricultural Research and Others, Hyderabad

and their workman, which was received by the Central

Government on 10/01/2014.

[No. L-42012/3/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT : Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 19th day of July, 2013

INDUSTRIAL DISPUTE L.C. No. 107/2005

Between:

Sri Md. Jani Miya,

S/o Shafrudin,

C/o 2-2-198, Subhasgunj Mear MPP Office,

Zaheerabad

.....Petitioner

AND

The Deputy Director General,

The Indian Counsel of Agricultural Research,

Krishi Bhavan, New Delhi.

The Chairman,

Deccan Development Society,

Office at A 6 Meera Appts,

Basheerbagh, Hyderabad.

The Principal,

Krishi Vigyan Kendra,

Post Box No. 213, Zaheerabad.

..........Respondents

Appearances:

For the Petitioner :

M/s. T. Sharath & G.N. Raju,

Advocates

For the Respondents :

M/s. N.R. Devaraj & W.

Satyanarayana, Advocates for R1

M/s. B. Nalin Kumar, K.S. Rahul,

M.S. Chandresh & K. Aravind

Goud, Advocates for R2 & R3

AWARD

This petition under Sec. 2 A(2) of the I.D. Act, 1947

has been filed by Sri Md. Jani Miya challenging his

termination against the Management of the Indian Counsel

of Agricultural Research and Krishi Vigyan Kendra. The

Petitioner filed this petition seeking for setting aside the

order of termination and to direct the Respondents to

reinstate the Petitioner with full back wages, continuity of

service and other attendant benefits.

2. The averments made in the petition in brief are as follows:

Respondents one and two have common objects to

promote and accelerate the process of education and

training in the field of agriculture and to achieve these

common objects they entered into a Memorandum of

Understanding dated 19.7.1991 deciding to pool funds sent

with man power and equipment. For the purpose of

achieving these objectives Respondent first established

the third Respondent at various districts in the state of

A.P. Second Respondent recruited about 22 staff in various

fields in different years commencing from 1994. 2nd

Respondent recruited the Petitioner as Driver on 1.4.1997

for placing with the third Respondent at Medak district.

Ever since the appointment Petitioner has been discharging

his duties to the satisfaction of the Respondents. In his

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letter of appointment it is stated that the appointment was

temporary and till the continuation of the project and that

it is liable to be terminated without assigning any reason.

On 2.9.97 first Respondent addressed letter to all the

Kendras regarding the funding, norms of building

infrastructures and staffing pattern. It is stated in the said

letter that revised staff strength of 16 will be applicable for

KVKs when the existing staff in the KVK are adjusted/

redeployed within the over all institutes system or they are

transferred or promoted or retired. The staff already

adjusted should be treated as final. The position so vacated

because of transfer promotion or retirement shall not be

filled up in case these are exceeding revised strength of 16.

Till such time the host institute make adjustment through

redeployment or promotion or retirement, the existing staff

shall continue to work in the KVK. For filling up of any

vacant post prior approval of the council will have to be

obtained" after receiving the said letter of the first

Respondent without even assigning any reason 2nd

Respondent issued letter of termination dated 25.9.97 to

the Petitioner and other terminating their services on the

ground that the main cut in funding is related to staff

positions. First Respondent has specifally stated in the

letter dated 2.9.97 that the existing staff shall coutinue to

work for KVK i.e., third Respondent. First Respondent has

approved the appointment of the Petitioner. Thus, under

no circumstances 2nd Respondent can not terminate the

services of the Petitioner on the ground of financial

problems. Further, the persons who are appointed

subsequent to the Petitioner has been left in the service.

Absolutely, there is no basis for terminating the services

of the Petitioner over looking the years of his service put in

by him in the organisation. Petitioner questioned the said

letter of termination by way of WP No. 7588 of 1998 and the

Hon'ble High Court of A.P. permitted the Petitioner to

discharge his duties. Pending interim orders Petitioner was

denied to discharge the duties pursuant to the interim order

passed in WPMP No. 43754/1998 in WP No. 35510/1998.

Since the third Respondent failed to comply with the interim

order Petitioner filed contempt petition, since the

Respondent raised the question of maintainability of writ

petition on the ground that Respondent No. 3 does not fall

under article 12 of Constitution of India Petitioner has

withdrawn the writ petition on 23.1.2004 with leave of the

Hon'ble High Court of A.P. to institute appropriate

proceeding before this tribunal. Third Respondent who

pleads on one hand that there are no funds and hence,

services of the Petitioner were terminated, has issued a

paper advertisement in March, 2002 in Employment News

calling for new appointments, on the other hand. It is not

the case of the Respondents that the project has come to

an end. They went upon to terminate the services of the

Petitioner. All India KVK Employees Union filed WP No.

126/98 before Hon'ble Supreme Court of India, seeking for

regularisation of their services in all Kendras of India. While

disposing off the said writ petition supreme court held that

even according to the affidavit filed by the first Respondent

and letter dated 24.6.98 the grievance of the writ petitioners

does not survive. In their counter first Respondent stated

that the services of all employees are protected. Thus,

Petitioner can not be terminated and the action of the third

Respondent is illegal and violative of principles of natural

justice and the same is liable to be set aside. For no fault of

his, Petitioner is victimized and the practice of the third

Respondent is unfair.

3. First Respondent filed his counter with the averments

in brief as follows:

First Respondent has nothing to do with the

engagement or employment to the Petitioner made by the

2nd Respondent. Petitioner and others are neither employed

nor employable nor retrenched by the first Respondent.

This is solely in the domain of 2nd Respondent and 2nd

Respondent alone is responsible. The number and the

trades of the members of staff are purely based on their

requirements and utility. The services of Petitioner and

five others were terminated by 2nd Respondent on the

ground that strenght of the staff of R3 has been reduced to

22 to 16. Only the services of junior most persons were

terminated as they were engaged on purely temporary basis

and are liable to be terminated at any time without any

further notice. Petitioner is one of the junior most person

whose services were terminated. The activities taken up in

the given scheme are social welfare activities for the

upliftment of workmen and helping the poor and

downtrodden in the society by implementing various

schemes. In the said process personnel engaged in one

scheme will be shifted to another and redeployment also

will be there according to the requirement. As per the

circumstances warrant R1 prescribes the number of persons

to be engaged which either increases or decreases

according it its requirements or necessity leaving it to the

discretion of 2nd Respondent and the 2nd Respondent

arranges the required number of staff. If there is no need

the 2nd Respondent may terminate the services of the

employees. R1 is not liable for any such activities of 2nd

Respondent. Thus, first Respondent is not a necessary

party and no relief can be sought for against him. Its

misjoinder of parties as far as R1 is concerned. R1 is not an

industry as defined u/s 2(j) of Industrial Disputes Act, 1947.

Further, R1 is under the control of Central Government and

comes under the definition of "State under Article 12 of the

Constitution. All the service rules and conditionality of

services in FRSR and CCS & CCA Rules are applicable to

the employees of R1. As per the principle laid down in the

case of Rajendra Vs. State of Rajasthan [(1999)(2) SCC 317],

when the post temporarily created for fulfilling the needs

of a particular project or scheme limited in its duration,

comes to an end on account of the need for the project was

fulfilled or had to be abandoned wholly or partially for

want of funds, employer can not be compelled to continue

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[PART II—SEC. 3(ii)]

employing such employees. The petition is liable to be

dismissed.

4. 2nd and 3rd Respondents filed their counter with the

averments in brief as follows:

2nd Respondent is a charitable institution working

in the interest of rural poor. By developing them

economically, socially and educationally by extending all

support needed by them. It's a non-profit organisation

which functions with the funds released by national and

international donors and also adopting by nodal schemes

of the state and central governments. They are not an

industry within the meaning of the ID act. Hence, petition

is not maintainable. Respondents only assist the rural poor

by educating them and by imparting techniques which are

not activities of industry under this act. 2nd Respondent is

a registered rural development organisation. First

Respondent has the responsibility for agricultural research

education and for extension of education in the country

and established Krishi Vigyan Kendras/Trainee Training

Centres in the districts with the object of promoting and

accelerating the progress of education and training in the

field of agriculture and allied areas under the scheme known

as KVK/TTC on individual projects. Each project is

entrusted to an implementing agency selecting a suitable

organisation in the district. For the district of Medak ICAR

has considered the 2nd Respondent as an implementing

agency. They entered into a memorandum of understanding

whereunder first Respondent has agreed to provide grant

for the project according to the pattern of assistance

approved under TTC/KVK subject to personal and

budgetary limitation imposed by the Government of India

from time to time. The aministrative control over the staff

employed under the scheme shall rest with the 2nd

Respondent. Petitioner was appointed for the third

Respondent as watchman on 19.4.1994 on adhoc basis and

his appointment was subject to termination at any time his

salary was paid from out of the funds provided by the first

Respondent. His appointment was liable for termination

without assigning any reason and without notice. While

so, first Respondent issued letter dated 26.5.97 on funding

patterns, norms of building infrastructures and staff in

KVKs and also fixing staff pattern of each KVK comprising

16 courses. Further, 1st Respondent issued letter dated

2.9.97 stating that all KVKs which have not completed five

years from the year of sanction will be provided 100% grants

till they complete five years. Thereafter, all these KVKs will

be funded by the 1st Respondent and implementing agency

for a period of 5 years. On completion of 10 years the funding

pattern would be 50:50 percent by the first Respondent

and hosting institute and it is further stated that all KVKs

irrespective of their existence will be funded on 100% basis

during the year 1997-98. In view of the drastic change in

the funding process and second Respondent being a non-

governmental ogranisation entirely dependent upon donor

funds, is not in a position to continue the staff excess of 16.

Thus, in exercise of power conferred in the above mention

letters 2nd Respondent issued letter dated 25.9.97 informing

the Petitioners and others that their services will not be

required from 1.4.1998. Suppressing material facts, Petitioner

and others filed WP 7588 of 1998 and obtained exparte

interim orders. Respondents filed counter affidavits and

thereafter, the said petition was dismissed for default. After

waiting for a reasonable period Respondents addressed

letter dated 2.9.98 discontinuing the services of the

Petitioner and others by bringing the original termination

orders into force. Thereupon Petitioner and others filed a

petition to restore WP 7588 of 1998. Resondents filed their

counter affidavit mentioning the factum of termination. After

hearing both parties Hon'ble High Court of A.P. restored

WP No. 7588 of 1998 but, without reviving the exparte

interim order. Ultimately the said write petition was

dismissed by order dated 10.2.99 with a finding that,

Petitioners can not seek relief under article 226 of

Constitution of India. Petitioners filed WP No. 35510 of

1998 challenging the letter dated 2.9.98 and also Contempt

Case No. 872 of 1998 but ultimately they were all withdrawn.

Since it is not an "Industry" as defined in Sec. 2(j) of

Industrial Disputes Act, 1947, the question of Petitioner

falling within the meaning of workman as defined in Sec.

2(S) does not arise. Therefore, Sec. 25(F) 25 (G) and 25 (H)

of the said act are not applicable to the facts and

circumstances of this case. It is only a charitable institution

and does not fall within the meaning of industry. The

termination of the Petitioner would not amount to

retrenchement under Sec. 2(oo) (bb) of the Industrial

Disputes Act, 1947. The contention of the Petitioner that

2nd Respondent issued letter of termination dated 25.9.97

without giving any reason on the ground of main cut in

funding relating to staff positions and that in the letter

dated 2.9.97 1st Respondent specifically stated that existing

staff shall continue to work, are all not correct. Harmonious

reading of said letter would reveal that 2nd Respondent is

given liberty to reduce the staff strength to 16. 2nd

Respondent reserved the power to terminate the services

of the Petitioner without notice and without assigning

reasons, while giving appointment order. The contention

of the Petitioner that the employees who have been

appointed in the year 1997 are left in the service, and that

there is no basis for removal of the Petitioner overlooking

his service are all incorrect. Petitioner was terminated due

to change in funding pattern by funding institutions.

Whereas paper advertisement dated 23-29 March, 2002 was

not the post held by the Petitioner, it relates to different

post for which Petitioner is not qualified. The contention

that first Respondent filed his counter in WP No. 126 of

1998 before Hon'ble Supreme Court of India stating that

services of all employees is protected is not correct. The

said proceedings has no bearing on these Respondents.

Petitioner is not entitled for the relief sought for. Petition is

liable to be dismissed.

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1031

5. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Ex. W1 to W8 were

marked. On behalf of Respondents MW1 and MW2 were

examined and exhibits Ex. M1 to M4 are marked.

6. Heard the arguments of either party. Written

arguments were filed by Respondent and the same were

considered.

7. The points that arise for determination are:

I. Whether activities of Respondents comes under the

purview of definition of industry and whether

Petitioner is a workman?

II. Whether the orders passed by the 2nd Respondent

terminating the services of the Petitioner is liable to

be set aside? If so, on what grounds?

III. To what relief Petitioner is entitled to?

8. Point No. (I):

It is the contention of the Petitioner that he is a

workman under Sec. 2(s) of the Industrial Disputes Act,

1947 and the activities of the Respondents amounts to

industry, under Sec. 2(j) of the Industrial Disputes Act,

1947. Sec. 2(j) of the said act read as follows:

Industry means any business, trade, undertaking,

manufacture of calling of employees and includes any

calling service, employment, handicraft or industrial

occupation or avocation of workman."

Whereas, Sec. 2(s) reads as follows:

'Workman' means any person (including an

apprentice) employed in any industry to any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward, whether the terms of

employment be express or implied, and for the purposes of

any proceeding under this Act in relation to an industrial

dispute, includes any such person who has been dismissed.

discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute, but

does not include any such person—

(i) who is subject to the Air Force Act, 1950, or the

Army Act, 1950, or the Navy Act, 1957; or

(ii) who is employed in the police service or as an officer

or other employee of a prison; or

(iii) who is employed mainly in a managerial or

administrative capacity; or

(iv) who, being employed in a supervisory capacity,

draws wages exceeding one thousand six hundred

rupees per mensem or exercises, either by the nature

of the duties attached to the office or by reason of

the powers vested in him, functions mainly of a

managerial nature.

9. Now, it is to be verified whether the activities of

the Respondents attract the ingredients of the industry,

cited above. Admittedly, the activities of the Respondents

are carrying out agricultural research, veterinary matters,

raising agricultural productions etc., and rendering

assistance to rural poor to develop economically, socially

and educationally with the help of the funds donated by

donors or the goverment, as per the schemes and objectives

for which purpose the funds are released.

10. It is the contention of the Respondents that their

activities do not generate any profits, and on the other

hand they are philanthropical acitivies and thus, they do

not fall under the category of industry. It is not the

contention of the Petitioner that Respondents are earning

any profit through their activities. Now, it is to be verified

whther the above mentinoed activities of the Respondents

do fall under category of industry. As per the definition of

industry given under sec. 2(j) of the Industrial Disputes

Act, 1947, any service also will come under the purview of

the said definition.

11. Learned Counsel for the Respondents 2 and 3

relied upon the principles laid down in the case of Physical

Research Laboratry Vs. KG Sarma (1997) 4 SCC page 257,

whereunder, a Division Bench of Hon'ble Supreme Court

of India has distinguished the principle laid down in the

case of the Bangalore Water supply And Sewerage Board

vs. A. Rajappa, [C1978) 2 SCC 213] and held that "while

interpreting the words 'undertaking', 'calling' and 'service'

which are of much wider import, the principle "noscitur a

socius was applied and it was held that they would be

"industry" only if they are found to be analogous to trade

or business. Further more, an activity undertaken by

government can not be regarded as an industry if it is done

in discharging sovereign functions."

12. Whereas Learned Counsel for the Petitioner relied

upon the principles laid down by the Apex Court in the

case of JK Cotton Spinning and Weaving Mills Co Limited

Vs. Labour Appellate Tribunal of India IIIRd Branch,

Lucknow 1964-AIR(SC)-0-737/1964-SCR-3-724 and in the

case of Mahila Samiti, Tikamgarh and State of Madhya

Pradesh and Ors. 1993 III LLJ page 46, in support of his

contention that the principles laid down in the case of

Bangalore Water Supply and Sewerage Board vs. A.

Rajappa, (1978) 2 SCC 213 and Satynarayana Sharma and

Ors. Vs. National Mineral Development Corporation Ltd.

and Ors. 1993 III LLJ, 472 still hold the field.

13. In the case of Nehru Yuva Kendra Sangathan Vs.

Union of India, the Hon'ble High Court of Delhi considered

the principles laid down in various cases including the

case of Physical Laboratory (relied upon by the

respondents). Considering the legal situation that in the

case of Coir Board Vs. Indira Devi 1988 III SCC 259, the

Hon'ble Supreme Court of India had decided to refere the

decision in Bangalore Water Supply case for

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[PART II—SEC. 3(ii)]

reconsideration by a larger Bench but subsequently three

judges Bench of the Hon'ble Supreme Court of India held

by its order dated 10.11.1998 in Coir Board case that

Bangalore Water Supply Case does not require any

reconsideration. Hon'ble Delhi High Court had categorically

held in the case of Nehru Yuva Kendra Sangathan Vs. Union

of India after discussing various legal precedents, that

obviously Bangalore Water Supply case which is a seven

Judge Bench judgment rendered by the Apex Court still

holds the field. Further Hon'ble Delhi High Court referred

to the case of General Manager Telecom vs. S. Srinivasa

Rao 1997 SCC 767, whereunder also it was held by three

Judges Bench of the Apex Court that the Bangalore Water

Supply case holds the field and it is binding precedent.

14. It is not the case of the respondents that any

larger bench of the Apex Court was formulated for

reconsidering the principles laid down by the seven judges

Bench of Apex Court in Bangalore Water Supply case. Thus,

it is very much clear that the said judgment continues to

be a binding legal precedent.

15. In the Bangalore Water Supply case, it is held

that "absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

other sector. The true focus is functional and the decisive

test is the nature of the activity with special emphasis on

the employer employees relation."

16. In the circumstances, just because the activities

of the respondents do not generate any profit and they are

philanthropic in nature, it will not change the fact that the

said activities come under the purview of the definition of

industry since the decisive test is the nature of the activity

with special emphasis of employer and employee

relationship. The nature of the activity in this case is, a

systematic activity organized with cooperation between

employer and employees for rendering services calculated

to satisfy human wants and wishes i.e., improving the

production of agricultural products and also developing

the rural poor, socially economically and educationally etc.

Thus, the activities of the Respondents attract the

ingredients of the definition of 'Industry' as provided under

Sec. 2(i) of Industrial Disputes Act, 1947 and thus, it is an

'Industry'.

17. Consequentially, the persons who work for the

Respondents will certainly come under the purview of the

definition of the workman given under Sec. 2(S) of the

Industrial Disputes Act, 1947, since, as already cited above,

Sec. 2 (S) of the said Act, provides that any person employed

in any industry to any manual, unskilled, skilled, technical,

operational, clerical or supervisory work for hire or reward

a workman. Thus, petitioner who has been appointed as

Watchman by 2nd Respondent and has been deputed so

with the 3rd Respondent will certainly come under the

purview of the definition of the workman referred to above.

In the case of Mahila Samithi, Thimkkamgarh Vs. State of

M.P. 1993 III LLL page 468 relied upon by the counsel for

the Petitioner it is held to the effect that the employees of

the Mahila Samith i which is engaged in systematic activities

of promoting training women in family planning programme

etc., which is an industry, will certainly come under the

purview of the definition of workman us 2(s) of the Industrial

Disputes Act, 1947. This principle is a guiding principle to

arrive at the conclusion that the Petitioner is a workman.

18. Thus, it can safely be held that the activities of

the respondents come under the purview of the industry

as defined under Sec. 2(j) of Industrial Disputes Act, 1947

and Petitioner comes under the definition of the workman

under Sec. 2(s) of the Industrial Disputes Act, 1947.

This point is answered accordingly.

19. Point No. II:

It is an undisputed fact that Petitioner who has been

working as Watchman since 1.5.1994 with the 3rd

Respondent, being appointed to the said post by the 2nd

Respondent by virtue of the order dated 19.4.1994 has been

terminated from services by the 2nd Respondent w.e.f.

1.4.1998 by virtue of Ex. W4 the letter dated 25.9.1997. The

reason for termination of services of the Petitioner have

been given in EX. W4 as that first Respondent has changed

its guidelines and have provided a reduced budget to

voluntary organisation to run their KVks that the main cut

in funding is related to staff positions and inspite of their

best efforts 2nd Respondent could only get a grace period

of some months and as the cut becomes effective from

1.4.1998, the services of Petitioner were terminated with

effect from the said date.

20. Peitioner is questioning the reasonableness of

termination of his services in that manner and claiming that

2nd Respondent can not terminate services of the Petitioner

on the ground of financial problems and that further persons

who are appointed subsequent to the Petitioner have been

left in service and thus, there is discrimination. It is further

claimed by the Petitioner that 3rd Respondent who pleads

on one hand that as there are no funds the services of the

Petitioner were terminated, has issued a paper advertisement

in March, 2002 in Employment News calling for new

appointments on the other hand and that as per the terms

of his appointment Petitioner is entitled to be continued in

service until the project comes to an end.

21. Whereas it is the claim of the Respondents that

Petitioner is one of the junior most persons and therefore

his services were terminated, as there was need for

retrenchment. It is the further contention of the

Respondents that Petitioner was appointed on ad hoc basis

and his appointment was subject to termination at any time

without assigning any reason and without notice and

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1033

further that in view of the drastic change brought out in

funding process by the 1st Respondent, 2nd Respondent

was constrained to terminate the services of the Petitioner.

The 2nd Respondent is further denying the truth of the

contention of the Petitioner that the employees employed

subsequent to him are still left in service and that paper

advertisement dated 23-29 March, 2002 does not relate to

the post of Petitioner.

22. Thus, it is to be verified that any person who was

appointed subsequent to the Petitioner have been left in

service, while terminating the services of the Petitioner

and if so it is a justified action. The other point to be decided

is whether the Respondents who have terminated the

services of the Petitioner claiming that for want of funds

they can not continue him in service are justified in making

new appointment in March, 2002. The third aspect to be

decided is whether Respondents can terminate the services

of the Petitioner without notice and without assigning

reasons and also without paying compensation.

23. As to the first point mentioned above, is

concerned, Ex.W8 is the details of the staff working in the

given KVK as on February, 1998 produced before the court

by the Petitioner. This document has been marked with the

consent of the Respondents on 12.7.2006. That means the

correctness of this document is admitted by the

Respondents. As can be seen from this document Petitioner

has been appointed on 19.4.1994 whereas, one Kasyap

training assistant has been appointed of 31.3.97. There as

several other employees who were appointed in the years

1995 and 1996 also. Thus, it cannot be termed that Petitioner

is the junior most employee of the Respondents. As can

been seen from Ex.W4,, the reason given for termination

of the services of the Petitioner is that as the cut in funding

is relating to staff position Petitioner's services were

terminated and it is the claim of the Respondents that as

Petitioner is one of the juniormost employees his services

were terminated due to cut in the funding. But the fact

appears to be otherwise, as per the discussions held above,

in the light of the contents of Ex.W8. There are several

other employees who are juniors to the Petitioner when the

dates of appointment of these persons are considered, are

still continuing in the service. It is not the claim of the

Respondents that considering the nature of the work being

done by the various workmen and its importance to the

organization, they have chosen to retain some and terminate

the others. It is their categorical contention that as the

Petitioner was one of the junior- most employees his

services were terminated, which is not a correct statement.

Therefore, the contention of the Petitioner that the persons

who are appointed subsequent to him were left out in

service and his services were terminated by the

Respondents, is to be accepted as a correct contention. It

amounts to discrimination which shall never be allowed. It

is the principle that the last come first go. So the action of

the Respondents in this regard is not justifiable.

24. As to the second aspect to be considered is

concerned certainly, the Respondents are not justified in

recruiting new persons when they terminated the services

of the Petitioner on the ground of non-availability of

sufficient funds. It is the contention of the Respondents

that the vacancies advertised by virtue of Ex. W7

advertisement are different posts to the post held by the

Petitioner, that Petitioner got no qualifications to hold any

such posts and therefore, they cannot be find fault with

for making new appointments.

25. But the fact remains that Petitioner who was in

the service of Respondents was removed from service only

on the ground that funds were not available. If funds were

not available no fresh appointments can be made. The

grievance of the Petitioner is that Respondents are making

new appointments. It is fact that new appointments were

made. Then there is no justification, in terminating the

services of the Petition.

26. As to the third aspect is concerned, just because

it is mentioned in the appointment order that without notice

Petitioner's services can be terminated Respondents can

not do as such since, the provisions of Sec. 25(F) of the

Industrial Disputes Act, 1947 provides for one month's

notice, and payment of retrenchment compensation to the

workmen who is retrenched. Thus, irrespective of the

contents of the appointment order given to the Petitioner

who is a workman, Respondents are liable to give one

month notice. In this case, sufficient notice has been given

to the Petitioner, but evidently no retrenchment

compensation has been given to him. On this ground also

Ex.W4 order is not a maintenance order.

27. In view of the foregone discussion of the material

on record it can safely be held that Ex.W4 the order passed

by the 2nd Respondent terminating the services of the

Petitoner is not maintainable and is liable to be set aside.

This point is answered accordingly.

28. Point No. III: In view of the findings arrived at

above, Ex.W4 order is liable to be set aside and Petitioner

is entitled for reinstatement into service. Considering the

fact that the Petitioner has approached the court belatedly,

i.e. about 7 years after his removal from service, he is not

entitled for any back wages, but he is entitled for continuity

of service and other attendant benefits.

This point is answered accordingly.

29. Result:

In the result, Petition is allowed. The impugned order

dated 25.0.97 issued by the 2nd Respondent is hereby set

aside. Petitioner shall be reinstated into service forthwith.

He is entitled for continuity of service and other attendant

benefits except back wages.

Award is passed accordingly. Transmit.

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[PART II—SEC. 3(ii)]

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 19th day of

July, 2013.

M.VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1L Shri Md. Jani Miya

MW1: Sri K. Srinivasa Rao

MW2: Sri A. Giridhar

Documents marked for the Petitioner

Ex.W1:

Photostate copy of Memorandum of

Understanding dt. 19.7.1991

Ex.W2:

Photostate copy of lr. No. 1(1)/96-AE-1 dt.

2.9.1997

Ex.W3:

Photostate copy of appointment lr. dt. 19.4.1994

Ex.W4:

Photostate copy of lr. dt. 25.9.1997

Ex.W5:

Photostate copy of order in WP Nos. 7588/1998

& 35510/1998

Ex.W6:

Photostate copy of order of Hon'ble Supreme

Court dt. 24.8.1998

Ex.W7:

Photostate copy of employment newspaper

cutting dt 23—29 March, 2002

Ex.W8:

Photostate copy of of statement showing

working staff in KVK, Zaheerabad as on

February, 1998

Documents marked for the Respondents

ExM1:

Attested

copy

Memorandum

Understanding between the Indian Council of

Agricultural Research, Krishi Bhawan, New

Delhi and the Deccan Krishi Vigyana Kendra dt.

19.7.1991

Ex.M2:

Photostate copy of of lr. No. (1)/96-AE-1 dt.

26.5.1997

Ex.M3:

Photostate copy of lr. No. (1)/96-AE-1 dt. 2.9.1997

Ex.M4:

Photostate copy of lr. dt. 25.9.1997 termination

order.

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New Delhi, the 13th January, 2014

S.O. 378.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No 108/

2005) 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 Deputy Director General, The Indian

Council of Agricultural Research and Others, Hyderabad

and their workman, which was recived by the Central

Government on 10.01.2014.

[No. L-42012/3/2014-IR(DU)]

P.K. VENU GOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

PRESENT :

Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 19th day of July, 2013

INDUSTRIAL DISPUTE L.C. No. 108/2005

Between:

Sri B. Srinivas,

S/o Pentaiah, (Since died LR's brought on record)

2. Smt. Renuka W/o Late B. Srinivas

3. Baby Vaishnavi, D/o Late B. Srinivas

4. Smt. Narasamma, W/o Pentaiah

C/o 5-1-376/1, Shantinagar,

Zaheerabad.

(Petitioners No. 2 to 4 are added as per orders dated

25.2.2009 in IA 24/2008)

......Petitioners

AND

The Deputy Director General,

The Indian Counsel of Agricultural Research,

Krishi Bhavan, New Delhi.

The Chairman,

Deccan Development Society,

Office at A-6 Meera Appts,

Basheerbagh, Hyderabad.

The Principal,

Krishi Vigyan Kendra,

Post Box No. 213, Zaheerabad.

.......Respondents

¹Hkkx II—[k.M 3(ii)º

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1035

APPEARANCES:

For the Petitioner :

M/s. T. Sharath & G.N. Raju,

Advocates

For the Respondents

M/s N.R. Devaraj & W.

Satyanarayana, Advocates for R1

M/s. B. Nalin Kumar, K.S. Rahul,

M.S. Chandresh K. Aravind

Goud, Advocates for R2 & R3

AWARD

This petition under Sec. 2A (2) of the I.D. Act, 1947

has been filed by Shri B. Srinivas challenging his termination

against the Management of the Indian Consel of

Agricultural Research and Krishi Vigyan Kendra. The

Petitioner filed this petition seeking for setting aside the

order of termination and to direct the Respondents to

reinstate the Petitioner with full back wages, continuity of

service and other attendant benefits.

2. The averments made in the petition in brief are as

follows:

Respondents one and two have common objects to

promote and accelerate the process of education and

training in the field of agriculture and to achieve these

common objects they entered into a Memorandum of

Understanding dated 19.7.1991 deciding to pool funds sent

with man power and equipment. For the purpose of

achieving these objectives Respondent first established

the third Respondent at various districts in the state of

A.P. Second Respondent recruited about 22 staff in various

fields in different years commencing from 1994. 2nd

Respondent recruited the Petitioner as Watchman on

1.4.1996 for placing with the third Respondent at Medak

district. Ever since the appointment Petitioner has been

discharging his duties to the satisfaction of the

Respondents. In his letter of appointment it is stated that

the appointment was temporary and till the continuation of

the project and that it is liable to be terminated without

assigning any reason. On 2.9.97 first Respondent addressed

letter to all the Kendras regarding the funding, norms of

building infrastrucures and staffing pattern. It is stated in

the said letter that revised staff strength of 16 will be

applicable for KVKs when the existing staff in the KVK are

adjusted/redeployed within the over all institutes system

or they are transferred or promoted or retired. The staff

already adjusted should be treated as final. The position

so vacated because of transfer promotion or retirement

shall not be filled up in case these are exceeding revised

strength of 16. Till such time the host institute make

adjustment through redeployment or promotion or

retirement, the existing staff shall continue to work in the

KVK. For filling up of any vacant post prior approval of the

council will have to be obtained" after receiving the said

letter of the first Respondent without even assigning any

reason 2nd Respondent issued letter of termination dated

25.09.97 to the Petitioner and others terminating their

services on the ground that the main cut in finding is related

to staff positions. First Respondent has specifically stated

in the letter dated 2.9.97 that the existing staff shall continue

to work for KVK i.e. third Respondent. First Respondent

has approved the appointment of the Petitioner. Thus,

under no circumstances 2nd Respondent can not terminate

the services of the Petitioner on the ground of financial

problems. Further, the persons who are appointed

subsequent to the Petitioner has been left in the service.

Absolutely, there is no basis for terminating the services

of the Petitioner over looking the years of his service put in

by him in the organisation. Petitioner questioned the said

letter of termination by way of WP No. 7588 of 1998 and the

Hon'ble High Court of A.P. permitted the Petitioner to

discharge his duties. Pending interim order Petitioner was

denied to discharge the duties pursuant to the interim order

passed in WPMP No. 43754/1998 inWP No. 35510/1998.

Since the third Respondent failed to comply with the interim

order Petitioner filed contempt petition, since the

Respondent raised the question of maintainability of writ

petition on the ground that Respondent No. 3 does not fall

under article 12 of Constitution of India Petitioner has

withdrawn the writ petition on 23.1.2004 with leave of the

Hon'ble High Court of A.P. to institute appropriate

proceeding before this tribunal. Third Respondent who

pleads on one hand that there are no funds and hence,

services of the Petitioner were terminated, has issued a

paper advertisement in March, 2002 in Employment News

calling for new appointments, on the other hand. It is not

the case of the Respondents that the project has come to

an end. They went upon to terminate the services of the

Petitioner. All India KVK Employees Union filed WP No.

126/98 before Hon'ble Supreme Court of India, seeking for

regularisation of their services in all Kendras of India. While

disposing off the said writ petition supreme court held that

even according to the affidavit filed by the first Respondent

and letter dated 24.6.98 the grievance of the writ petitioners

does not survive. In their counter first Respondent stated

that the services of all employees are protected. Thus,

Petitioner can not be terminated and the action of the third

Respondent is illegal and violative of principles of natural

justice and the same is liable to be set aside. For no fault of

his, Petitioner is victimized and the practice of the third

Respondent is unfair.

3. First Responsdent filed his counter with the averments

in brief as follows:

First Respondent has nothing to do with the

engagement or employment to the Petitioner made by the

2nd Respondent. Petitioner and others are neither employed

nor employable nor retrenched by the first Respondent.

This is solely in the domain of 2nd Respondent and 2nd

Respondent alone is responsible. The number and the

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

trades of the members of staff are purely based on their

requirements and utility. The services of Petitioner and

five others were terminated by 2nd Respondent on the

ground that strength of the staff of R3 has been reduced to

22 to 16. Only the services of junior most persons were

terminated as they were engaged on purely temporary basis

and are laible to be terminated at any time without any

further notice. Petitioner is one of the junior most person

whose services were terminated. The activities taken up in

the given scheme are social welfare activities for the

uplifitment of workmen and helping the poor and

downtrodden in the society by implementing various

schemes. In the said process personnel engaged in one

scheme will be shifted to another and redeployment also

will be there according to the requirement. As per the

circumstances warrant R1 prescribes the number of persons

to be engaged which either increases or decreases

according to its requirements or necessity leaving it to the

discretion of 2nd Respondent and the 2nd Respondent

arranges the required number of staff. If there is no need

the 2nd Respondent may terminate the services of the

employees. R1 is not liable for any such activities of 2nd

Respondent. Thus, first Respondent is not a necessary

party and no relief can be sought for against him. Its

misjoinder of parties as far as R1 is concerned. R1 is not an

industry as defined u/s 2(j) of Industrial Disputes Act, 1947.

Further, R1 is under the control of Central Government and

comes under the definition of "State" under Article 12 of

the Constitution. All the service rules and conditionality of

services in FRSR and CCS & CCA Rules are applicable to

the employees of R1. As per the principle laid down in the

case of Rajendra Vs. State of Rajasthan (1999) (2) SCC 317,

when the post temporarily created for fulfilling the needs

of a particular project or scheme limited in its duration,

comes to an end on account of the need for the project was

fulfilled or had to be abandoned wholly or partially for

want of funds, employer can not be compelled to continue

employing such employees. The petition is liable to be

dismissed.

4. 2nd and 3rd Respondents filed their counter with the

averments in brief as follows:

2nd Respondent is a charitable institution working

in the interest of rural poor. By developing them

economically, socially and educationally by extending all

support needed by them. It's a non-profit organisation

which functions with the funds released by national and

international donors and also adopting by nodal schemes

of the state and central governments. They are not an

industry within the meaning of the ID Act. Hence, petition

is not maintainable. Respondents only assist the rural poor

by educating them and by imparting techniques which are

activities of industry under this act. 2nd Respondent is a

registered rural development organisation. First

Respondent has the responsibility for agricultural research

education and for extension of education in the country

and established Krishi vigyan Kendras/Trainee Training

Centres in the districts with the object of promoting and

accelerating the progress of education and training in the

field of agriculture and allied areas under the scheme known

as KVK/TTC on individual projects. Each project is

entrusted to an implementing agency selecting a suitable

organisation in the district. For the district of Medak ICAR

has considered the 2nd Respondent as an implementing

agency. They entered into a memorandum of understanding

whereunder First Respondent has agreed to provide grant

for the project according to the pattern of assistance

approved under TTC/KVK subject to personal and

budgetary limitations imposed by the Government of India

from time to time. The administrative control over the staff

employed under the scheme shall rest with the 2nd

Respondent. Petitioner was appointed for the third

Respondent as watchman on 1.4.1996 on adhoc basis and

his appointment was subject to termination at any time.

His salary was paid from out the funds provided by the

first Respondent. His appointment was liable for termination

without assigning any reason and without notice. While

so, first Respondent issued letter dated 26.5.97 on funding

patterns, norms of building infrastructures and staff in

KVKs and also fixing staff pattern of each KVK comprising

16 courses. Further, 1st Respondent issued letter dated

2.9.97 stating that all KVKs which have not completed five

years from the year of sanction will be provided 100% grants

till they complete five years. Thereafter, all these KVKs will

be funded by the 1st Respondent and implementing agency

for a period of 5 years. On completion of 10 years the funding

pattern would 50:50 percent by the first Respondent and

hosting institute and it is further stated that all KVKs

irrespective of their existence will be funded on 100% basis

during the year 1997-98. In view of the drastic change in

the funding process and second Respondent being a non-

governmental organisation entirely dependent upon donor

funds, is not in a position to continue the staff excess of

16. Thus, in excercise of power conferred in the above

mentioned letter 2nd Respondent issued letter dated 25.9.97

informing the Petitioners and other that their services will

not be required from 1.4.1998. Suppressing material facts,

Petitioner and other filed WP 7588 of 1998 and obtained

exparte interim orders. Respondents filed counter affidavits

and thereafter, the said petition was dismissed for default.

After waiting for a reasonable period Respondents

addressed letter dated 2.9.98 discontinuing the services of

the Petitioner and other by bringing the original termination

order into force. Thereupon Petitioner and other filed a

petition to restore WP 7588 of 1998. Respondents filed

their counter affidavit mentioning the factum of termination.

After hearing both parties Hon'ble High Court of A.P.

restored WP No. 7588 of 1998 but, without reviving the

exparte interim order. Ultimately the said writ petition was

dismissed by order dated 10.2.99 with a finding that,

¹Hkkx II—[k.M 3(ii)º

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1037

Petitioners can not seek relief under article 226 of

Constitution of India. Petitioner filed WP No. 35510 of 1998

challenging the letter dated 2.9.98 and also Contempt Case

No. 872 of 1998 but ultimately they were all withdrawn.

Since it is not an "Industry" as defined in Sec. 2(j) of

Industrial Dispute Act, 1947, the question of Petitioner

falling within the meaning of workman as defined in Sec

2(S) does not arise. Therefore, Sec. 25(F) 25(G) and 25 (H)

of the said act are not applicable to the facts and

circumstances of this case. It is only a charitable institution

and does not fall within the meaning of industry. The

termination of the Petitioner would not amount to

retrenchment under Sec. 2(oo) (bb) of the Industrial Dispute

Act, 1947. The contention of the Petitioner that 2nd

Respondent issued letter of termination dated 25.9.97

without giving any reason on the ground of main cut in

funding relating to staff positions and that in the letter

dated 2.9.97 1st respondent specifically stated that existing

staff shall continue to work, are all not correct. Harmonious

reading of said letter would reveal that 2nd Respondent is

given liberty to reduce the staff strength to 16. 2nd

Respondent reserved the power to terminate the services

of the Petitioner without notice and without assigning

reasons, while giving appointment order. The contention

of the Petitioner that the employees who have been

appointed in the year 1997 are left in the service, and that

there is no basis for removal of the Pettitioner overlooking

his service are all incorrect. Pettioner was terminated due

to change in funding pattern by funding institutions.

Whereas paper advertisement dated 23—29 March, 2002

was not the post held by the Petitioner, it relates to different

post for which Petitioner is not qualified. The contention

that first Respondent filed his counter in WP No. 126 of

1998 before Hon'ble Supreme Court of India stating that

services of all employees is protected is not correct. The

Said proceeding has no bearing on these Respondents.

Petitioner is not entitled for the relief sought for. Petition is

liable to be dismissed.

5. to substantiate the contentions of the Petitioner

WW1 was examined and exhibits Ex W1 to W8 were

marked.

6. After the closure of Petitioner's evidence and while

the matter was comming for Respondent's evidence, since

Petitioner expired, by virtue of order dated 25.2.2009 in IA

No. 24/2008, Petitioners No. 2 to 4, the Legal

Representatives of deceased original Petitioner were

brought on record.

7. On behalf of Respondents MW1 and MW2 were

examined and exhibits Ex. M1 to M4 are marked.

8. Heard the argument of either party. Written

arguments were filed by respondent and the same were

considered.

9. The points that arise for dertiermination are:

I. Whether activities of Respondents comes under the

purview of defination of industry and whether

Petitioner has been a workman?

II. Whether the orders passed by the 2nd Respondent

terminating the services of the Petitioner No. 1

(Original Petitioner) is liable to be set aside? If so, on

what grounds?

III. To what relief Petitioners No. 2 to 4 are entitled to ?

10. Point No. (I)

It is the contention of the Petitioners that Pettioner

No. 1 has been a workman under Sec 2(s) of the Industrial

Disputes Act, 1947 and the activities of the Respondents

amounts to industry, under Sec. 2(j) of the Industrial

Disputes Act, 1947. Sec. 2(J) of the said act read as

follows:—

Industry means any business, trade, undertaking,

manufacture or calling of employees and includes any

calling service, emplopyment, handicaraft or industrial

occupation or avocation of workman.

Whereas, Sec. 2(s) reads as follows:

"Workman' means any person (including an

apprentice) employed in any industry to any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward, whether the terms of

employment be expressed or implied, and for the purposes

of any proceeding under this Act in relation to an industrial

dispute, includes any such person who has been dismissal,

discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissed,

discharge or retrenchment has led to that dispute, but does

not include any such persons—

(i) who is subject to the Air Force Act, 1950 or the Army

Act, 1950 or the Navy Act, 1957; or

(ii) who is employed in the police service or as an officer

or other employee of a prison; or

(iii) who is employed mainly in a managerial or

administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws

wages exceeding one thousand six hundered rupees

per mensem or exercise, either by the nature of the

duties attached to the office or by reason of the

powers vested in him, functions mainly of a

managerial nature.

11. Now it is to be verified whether the activities of

the Respondents attract the ingredients of the term

industry, cited above. Admittedly, the activities of the

Respondents are carrying out agricultural research,

veterinary matters, raising agricultural productions etc.,

and rendering assistance to rural poor to develop

economically, socially and educationally with the help of

the funds donated by donors or the government, as per

the schemes and objectives for which purpose the funds

are released.

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

12. It is the contention of the Respondents that their

activities do not generate any profits, and on the other

hand they are philanthropical activities and thus, they do

not fall under the category of industry. It is not the

contention of the Pettioners that Respondents are earning

any profit through their activities. Now, it is to be verifed

whether the above mentioned activities of the

Respondents do fall under category of industry. As per the

definition of industry given under sec. 2(j) of the Industrial

Disputes Act, 1947, any service also will come under the

purview of the said definition.

13. Learned Counsel for the Respondents 2 and 3

relied upon the principles laid down in the case of Physical

Research Laboratory Vs. KG Sarma (1997) 4 SCC page 257,

whereunder, a Division Bench of Hon'ble Supreme Court

of India has distinguished the principles laid down in the

case of the Bangalore Water Supply And Sewerage Board

vs. A Rajappa, [(1978) 2 SCC 213] and held that " while

interpreting the words 'undertaking', ‘calling’ and 'service'

which are of much wider import, the principle "noscitur a

sociis was applied and it was held that they would be

"industry" only if they are found to be analogous to trade

or business. Further more, an activity undertaken by

government can not be regarded as an industry if it is done

in discharging sovereign functions."

14. Whereas Learned Counsel for the Pettioners relied

upon the principles laid down by the Apex Court in the

case of JK Cotton Spinning and Weaving Mills Co. Limited

Vs. Labour Appellate Tribunal of India IIIRD Branch,

Lucknow 1964-AIR(SC)-0-737/1964-SCR-3-724 and in the

case of Mahila Samiti, Tikamgarh and State of Madhya

Pradesh and Ors. 1993 III LLJ page 46, in support of his

contention that the principles laid down in the case of

Bangalore Water supply and Sewerage Board vs. A.

Rajappa, (1978) 2 SCC 213 and Satnarayana Sharma and

Ors. Vs. National Mineral Development Corporation Ltd.

and ORs. 1993 III LLJ, 472 still hold the field.

15. In the case of Nehru Yuva Kendra Sangathan Vs.

Union of India, the Hon'ble High Court of Delhi considered

the principles laid down in various cases including the

case of Physical Laboratory (relied upon by the

respondents). Considering the legal situation that in the

case of Coir Board Vs. Indira Devi 1988 III SCC 259, the

Hon'ble Supreme Court of India had decided to refer the

decision in Bangalore Water Supply case for

reconsideration by a larger Bench but subsequently three

judges Bench of the Hon'ble Supreme Court of India held

by its order dated 10.11.1998 in Coir Board case that

Bangalore Water Supply case does not require any

reconsideration, Hon'ble Delhi High Court had categorically

held in the case of Nehru Yuva Kendra Sangathan Vs. Union

of India after discussing various legal precedents, that

obviously Bangalore Water Supply case which is a seven

Judge Bench judgement rendered by the Apex Court still

holds the field. Further Hon'ble Delhi High Court referred

to the case of General Manager Telecom vs. S. Srinivasa

Rao 1997 SCC 767, whereunder also it was held by three

Judges Bench of the Apex Court that the Bangalore Water

Supply case holds the field and it is binding precedent.

16. It is not the case of the respondents that any

larger bench of the Apex Court was formulated for

reconsidering the principles laid down by the seven judges

Bench of Apex Court Bangalore Water Supply case. Thus,

it is very much clear that the said judgement continues to

be a binding legal precedent.

17. In the Bangalore Water Supply case, it is held

that "absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

other sector. The true focus is functional and the decisive

test is the nature of the activity with special emphasis on

the employer employee relation."

18. In the circumstance, just because the activities of

the respondents do not generate any profit and they are

philanthropic in nature, it will not change the fact that the

said activities come under the purview of the definition of

industry since the decisive test is the nature of the activity

with special emphasis of employer and employee

relationship. The nature of the activity in this case is a

systematic activity organized with cooperation between

employer and employees for rendering services calculated

to satisfy human wants and wishes i.e., improving the

production of agricultural products and also developing the

rural poor, socially economically and educationally etc. Thus,

the activities of the Respondents attract the ingredients of

the definition of 'Industry' as provided under Sec. 2(j) of

Industrial Disputes Act., 1947 and thus, it is an 'Industry'.

19. Consequentially, the persons who work for the

Respondents will certainly come under the purview of the

definition of the workman given under Sec. 2(S) of the

Industrial Disputes Act, 1947, since, as already cited above,

Sec. 2(S) of the said Act, provides that any persons

employed in any industry to any manual, unskilled, skilled,

technical, operational, clerical or supervisory work for hire

or reward is a workman. Thus, deceased Petitioner who

has been appointed as Watchman by 2^nd Respondent and

has been deputed to work so with the 3^rd Respondent will

certainly come under the purview of the definition of the

workman referred to above. In the case of Mahila samithi,

Thimkkamgarh Vs. State of M.P. 1993 III LLJ page 468 relied

upon by the counsel for the Petitioner it is held to the

effect that the employees of the Mahila Samithi which is

engaged in systematic activites of promoting training

women in family planning programme etc., which is an

industry, will certainly come under the purview of the

definition of workman u/s 2(s) of the Industrial Disputes

Act, 1947. This principle is a guiding principle to arrive act

the conclusion that the Petitioner is a workman.

¹Hkkx II—[k.M 3(ii)º

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1039

20. Thus, it can safely be held that the activities of

the respondents come under the purview of the industry

as defined under Sec. 2(j) of Industrial Disputes Act, 1947

and 1^st Petitioner will come under the definition of the

workman under Sec. 2(s) of the Industrial Disputes Act,

1947.

This point is answered accordingly.

21. Point No. II:

It is a undisputed fact that 1^st Petitioner who has

been working as Watchman since 1.4.1996 with the 3^rd

Respondent, being appointed to the said post by the 2^nd

Respondent by virtue of the order dated 1.4.1996 has been

terminated from services by the 2^nd Respondent w.e.f.

1.4.1998 by virtue of Ex. W4 the letter dated 25.9.1997. The

reason for termination of services of the 1^st Petitioner have

been given in Ex. W4 as that first Respondent has changed

its guidelines and have provided a reduced budget to

voluntary organisation to run their KVKs that the main cut

in funding it related to staff positions and inspite of their

best efforts 2^nd Respondent could only get a grace period

of some months and as the cut becomes effective from

1.4.1998, the services of 1^st Petitioner were terminated with

effect from the said date.

22. First Peitioner has been questioning the

reasonableness of termination of his services in that manner

and claiming that 2^nd Respondent can not terminate services

of the 1st Petitioner on the ground of financial problems

and that further persons who are appointed subseqent to

the 1st Petitioner have been left in service and thus, there

is discrimination. Further, it has been claimed by the 1st

Petitioner that 3rd Respondent who pleads on one hand

that as there are no funds the services of the 1st Petitioner

were terminated, has issued a paper advertisement in

March, 2002 in Employment News calling for new

appointments on the other hand and that as per the terms

of his appointment 1st Petitioner has been entitled to

continue in service until the project comes to an end.

23. Whereas it is the claim of the Respondents that

1st Petitioner has been one of the juniormost persons and

therefore his services were terminated, as there was need

for retrechment. It is the further contention of the

Respondents that 1st Petitioner was appointed on adhoc

basis and his appointment was subject to termination at

any time without assigning any reason and without notice

and further that in view of the drastic change brought out

in funding process by the 1st Respondent, 2nd Respondent

was constrained to terminate the services of the 1st

Petitioner. The 2nd Respondent is further denying the truth

of the contention of the 1st Petitioner that the employees

employed subsequent to him are still left in service and

that paper advertisement dated 23-29 March, 2002 does

not relate to the post of 1st Petitioner.

24. Thus, it is to be verified that any person who

was appointed subsequent to the 1st Petitioner have been

left in service, while terminating the services of the 1st

Petitioner and if so it is a justified action. The other point to

be decided is whether the Respondents who have

terminated the services of the 1st Petitioner claiming that

for want of funds they could not continue him in service

are justified in making new appointments in March, 2002.

The third aspect to be decided is whether Respondents

can terminate the services of the 1st Petitioner without

notice and without assigning reasons and also without

paying compensation.

25. As to the first point mentioned above, is

concerned, Ex. W8 is the details of the staff working in the

given KVK as on February, 1998 produced before the court

by the 1st Petitioner. This document has been marked with

the consent of the Respondents on 12.7.2006. That means

the correctness of this document is admitted by the

Respondents. As can be seen from this document 1st

Petitioner has been appointed on 1.4.1996 whereas, one

Kasyap training assistant has been appointed on 31.3.97.

There are several other employees who were appointed in

the years 1995 and 1996 also. Thus, it can not be termed

that 1st Petitioner has been the juniormost employee of the

Respondents. As can been seen from Ex. W4, the reason

given for termination of the services of the 1st Petitioner is

that as the cut in funding is relating to staff positions 1st

Petitioner's services were terminated and it is the claim of

the Respondents that as1st Petitioner has been one of the

juniormost employees his services were terminated due to

cut in the funding. But the fact appears to be otherwise, as

per the discussions held above, in the light of the conents

of Ex. W8. There are several other employees who are

juniors to the 1st Petitioner when the dates of appointment

of these persons are considered, are still continuing in the

service. It is not the claim of the Respondents that

considering the nature of the work being done by the

various workman and its importance to the organisation,

they have chosen to retain some and terminate the others.

It is their categorical contention that as the 1st Petitioner

was one of the junior most employees his services were

terminated, which is not a correct statement. Therefore,

the contention of the 1st Petitioner that the persons who

are appointed subsequent to him were left out in service

and his services were terminated by the Respondents, is to

be accepted as a correct contention. It amounts to

discrimination which shall never be allowed. It is the set

principle that the last come first go. So the action of the

Respondents in this regard is not justifiable.

26. As to second aspect to be considered is

concerned certainly, the Respondents are not justified in

recruiting new persons when they terminated the services

of the 1st Petitioner on the ground of non-availability of

sufficient funds. It is the contention of the Respondents

that the vacancies advertised by virtue of Ex. W7

advertisement are diffferent posts to the post held by the

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

1st Petitioner, that 1st Petitioner got no qualifications to

hold any such posts and therefore, they can not be find

fault with for making new appointments.

27. But the fact remains that 1st Petitioner who was

in the service of Respondents was removed from service

only on the ground that funds were not available. If funds

were not available no fresh appointments can be made.

The grievance of the 1st Petitioner has been that

Respondents were making new appointments. It is a fact

that new appointments were made. Then there is no

justification, in terminating the services of the 1st Petitioner.

28. As to the third aspect is concerned, just because

it is mentioned in the appointment order that without notice

1st Petitioner's services can be terminated Respondents

can not do as such since, the provisions of Sec. 25(F) of

the Industrial Disputes Act, 1947 provides for one month's

notice, and payment of retrenchment compensation to the

workman who is retrenched. Thus, irrespective of the

contents of the appointment order given to the 1st Petitioner

who was a workman, Respondents are liable to give one

month notice. In this case, sufficient notice has been given

to the 1st Petitioner, but evidently no retrechment

compensation has been given to him. On this ground also

Ex. W4 order is not a maintenance order.

29. In view of the foregone discussion of the material

on record it can safely be held that Ex. W4 the order passed

by the 2nd Respondent terminating the services of the 1st

Petitioner is not maintainable and is liable to be set aside.

This point is answered accordingly.

30. Point No. III:

In view of the findings arrived at above, Ex. W4

order is liable to be set aside and consequently, 1st

Petitioner would have been entitled for reinstatement into

service if he is alive. But, unfortunately, he expired while

this proceeding has been pending enquiry before this

Tribunal and his Legal Representatives i.e. Petitioners 2 to

4 who are no other than the wife and children of the

deceased 1st Petitioner/workman have been brought on

record. In the given circumstances, the question of

reinstatement of 1st Petitioner into service does not arise.

The only relief to which the Petitioners will be entitled to is

the monetary benefits to which the 1st Petitioner would

have been entitled to during his life time consequent to Ex.

W4 order being set aside. If Petitioner would have been

alive he would have been entitled to be reinstated into

service and further he would have been entitled to

continuity of service and other attendant benefits. The

monetary gains to which 1st Petitioner thus would have

been entitled to, are to be passed on to his legal heirs.

Thus, calculating the wages and other benefits to which

he would have been entitled to if he would have been

reinstated into services and continued to be in service

until the date of his demise, the said amount is to be paid to

the Petitioners 2 to 4 by the Respondent Management.

This is the relief to which Petitioner's are entitled to.

This point is answered accordingly.

31. Result:—

In the result, Petition is allowed. The impugned order

dated 25.09.97 issued by the 2nd Respondent is hereby set

aside. Consequently, 1st Petitioner would have been entitled

to reinstatement into service and continuity of service and

other attendant benefits, until the date of his demise.

Petitioners 2 to 4 being his legal representatives are entitled

for the monetary reliefs to which 1st Petitioner would have

been entitled to, if he continued to live and reinstated into

service and died while in service. Respondent Management

is hereby directed to calculate the said amount and pay the

same to the Petitioners 2 to 4 forthwith. Petitioners 2 to 4

are entitled for the said amount in equal shares.

Award is passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 19th day of

July, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri B. Srinivas

MW1: Sri K. Srinivasa Rao

MW2: Sri A. Giridhar

Documents marked for the Petitioner

Ex. W1:

Photostat copy of Memorandum of

Understanding dt. 19.7.1991

Ex. W2:

Photostat copy of Ir. No. 1(1)/96-AE-1 dt.

2.9.1997

Ex. W3:

Photostat copy of appointment Ir. dt. 1.4.1996

Ex. W4:

Photostat copy of Ir. dt. 25.9.1997

Ex. W5:

Photostat copy of order in WP Nos 7588/1998

& 35510/1998

Ex. W6:

Photostat copy of order of Hon'ble Supreme

Court dt. 24.8.1998

Ex. W7:

Photostat copy of employment newspaper

cutting dt. 23-29 March, 2002

Ex. W8:

Photostat copy of statement showing working

staff in KVK, Zaheerabad as on February, 1998

Documents marked for the Respondents

Ex. M1:

Attested copy of Memorandum of

Understanding between the Indian Council of

Agricultural Research, Krishi Bhawan, New

¹Hkkx II—[k.M 3(ii)º

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1041

Delhi and the Deccan Krishi Vigyana Kendra

dt. 19.7.1991

Ex. M2:

Photostat copy of Ir. No.1(1)/96-AE-1 dt.

26.5.1997

Ex. M3:

Photostat copy of Ir. No. 1(1)/96-AE-1 dt.

2.9.1997

Ex. M4:

Office copy of Ir. dt. 25.9.1997 termination order.

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New Delhi, the 13th January, 2014

S.O. 379.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), as the Central

Government hereby publishes the Award (I.D. No. 109/

2005) 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 Deputy Director General, The Indian

Council of Agricultural Research and Others, Hyderabad

and their workman, which was received by the Central

Government on 10/01/2014.

[F.No. L-42012/3/2014-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present : Smt. M. VIJAYA LAKSHMI, Presiding Officer

Dated the 19th day of July, 2013

INDUSTRIAL DISPUTE L.C. NO. 109/2005

Between:

Sri D. Venkata Ramana,

S/o Late Venkateswarlu,

C/o T. Sharath & G.N. Raju,

Advocates, R/o Plot No. 145,

Road No. 10, Jubilee Hills,

Hyderabad.

..........Petitioner

AND

The Deputy Director General,

The Indian Counsel of Agricultural Research,

Krishi Bhavan, New Delhi.

The Chairman,

Deccan Development Society,

Office at A 6 Meera Appts,

Basheerbagh, Hyderabad.

The Principal,

Krishi Vigyana Kendra,

Post Box No. 213, Zaheerabad.

........Respondents

Appearances:

For the Petitioner:

M/s. T. Sharath & G.N. Raju,

Advocates

For the Respondents:

M/s. N.R. Devaraj & W.

Satyanarayana, Advocates for R 1

M/s. B. Nalin Kumar, K.S. Rahul,

M.S. Chandresh & K. Aravind

Goud, Advocates for R2 & R3

AWARD

This petition under Sec. 2 A (2) of the I.D. Act, 1947

has been filed by Sri D. Venkata Ramana challenging his

termination against the Management of the Indian Counsel

of Agricultural Research and Krishi Vigyana Kendra. The

Petitioner filed this petition seeking for setting aside the

order of termination and to direct the Respondents to

reinstate the Petitioner with full back wages, continuity of

service and other attendant benefits.

2. The averments made in the petition in brief are as follows:

Respondents one and two have common objects to

promote and accelerate the process of education and

training in the field of agriculture and to achieve these

common objects they entered into a Memorandum of

Understanding dated 19.7.1991 deciding to pool funds sent

with man power and equipment. For the purpose of

achieving these objectives Respondent first established

the third Respondent at various districts in the state of

A.P. Second Respondent recruited about 22 staff in various

fields in different years commencing from 1994. 2nd

Respondent recruited the Petitioner as Messenger on

1.4.1996 for placing with the third Respondent at Medak

district. Ever since the appointment Petitioner has been

discharging his duties to the satisfaction of the

Respondents. In his letter of appointment it is stated that

the appointment was temporary and till the continuation of

the project and that it is liable to be terminated without

assigning any reason. On 2.9.97 first Respondent addressed

letter to all the Kendras regarding the funding, norms of

building infrastructure and staffing pattern. It is stated in

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

the said letter that revised staff strength of 16 will be

applicable for KVKs when the existing staff in the KVK are

adjusted/redeployed within the over all institutes system

or they are transferred or promoted or retired. The staff

already adjusted should be treated as final. The position

so vacated because of transfer promotion or retirement

shall not be filled up in case these are exceeding revised

strength of 16. Till such time the host institute make

adjustment through redeployment or promotion or

retirement, the existing staff shall continue to work in the

KVK. For filling up of any vacant post prior approval of the

council will have to be obtained" after receiving the said

letter of the first Respondent without even assigning any

reason 2nd Respondent issued letter of termination dated

25.9.97 to the Petitioner and others terminating their

services on the ground that the main cut in funding is

related to staff positions. First Respondent has specifically

stated in the letter dated 2.9.97 that the existing staff shall

continue to work for KVK i.e., third Respondent. First

Respondent has approved the appointment of the

Petitioner. Thus, under no circumstances 2nd Respondent

can not terminate the services of the Petitioner on the

ground of financial problems. Further, the persons who are

appointed subsequent to the Petitioner has been left in the

service. Absolutely, there is no basis for terminating the

services of the Petitioner over looking the years of his

service put in by him in the organisation. Petitioner

questioned the said letter of termination by way of WP No.

7588 of 1998 and the Hon'ble High Court of A.P. permitted

the Petitioner to discharge his duties. Pending interim orders

Petitioner was demied to discharge the duties pursuant to

the interim order passed in WPMP No. 43754/1998 in WP

No. 35510/1998. Since the third Respondent failed to comply

with the interim order Petitioner filed contempt petition,

since the Respondent raised the question of maintainability

of writ petition on the ground that Respondent No. 3 does

not fall under article 12 of Constitution of India Petitioner

has withdrawn the writ petition on 23.1.2004 with leave of

the Hon'ble High Court of A.P. to institute appropriate

proceeding before this tribunal. Third Respondent who

pleads on one hand that there are no funds and hence,

services of the Petitioner were terminated, has issued a

paper advertisement in March, 2002 in Employment News

calling for new appointments, on the other hand. It is not

the case of the Respondents that the project has come to

an end. They went upon to terminate the services of the

Petitioner. All India KVK Employees Union filed WP No.

126/98 before Hon'ble Supreme Court of India, seeking for

regularisation of their services in all Kendras of India. While

disposing off the said writ petition supreme court held that

even according to the affidavit filed by the first Respondent

and letter dated 24.6.98 the grievance of the writ petitioners

does not survive. In their counter first Respondent stated

that the services of all employees are protected. Thus,

Petitioner cannot be terminated and the action of the third

Respondent is illegal and violative of principles of natural

justice and the same is liable to be set aside. For no fault of

his, Petitioner is victimized and the practice of the third

Respondent is unfair.

3. First Respondent filed his counter with the averments

in brief as follows:

First Respondent has nothing to do with the

engagement or employment to the Petitioner made by the

2nd Respondent. Petitioner and others are neither employed

nor employable no retrenched by the first Respondent.

This is solely in the domain of 2nd Respondent and 2nd

Respondent alone is responsible. The number and the

trades of the members of staff are purely based on their

requirements and utility. The services of Petitioner and

five others were terminated by 2nd Respondent on the

ground that strength of the staff of R3 has been reduced to

22 to 16. Only the services of junior most persons were

terminated as they were engaged on purely temporary basis

and are liable to be terminated at any time without any

further notice. Petitioner is one of the junior most person

whose services were terminated. The activities taken up in

the given scheme are social welfare activities for the

upliftment of workmen and helping the poor and

downtrodden in the society by implementing various

schemes. In the said process personnel engaged in one

scheme will be shifted to another and redeployment also

will be there according to the requirement. As per the

circumstances warrant R1 prescribes the number of persons

to be engaged which either increases or decreases

according it its requirements or necessity leaving it to the

discretion of 2nd Respondent and the 2nd Respondent

arranges the required number of staff. If there is no need

the 2nd Respondent may terminate the services of the

employees. R1 is not liable for any such activities of 2nd

Respondent. Thus, first Respondent is not a necessary

party and no relief can be sought for against him. Its

misjoinder of parties as far as R1 is concerned. R1 is not an

industry as defined u/s 2(j) of Industrial Disputes Act, 1947.

Further, R1 is under the control of Central Government and

comes under the definition of "State" under Article 12 of

the Constitution. All the service rules and conditionality of

services in FRSR and CCS & CCA Rules are applicable to

the employees of R1. As per the principle laid down in the

case of Rajendra Vs. State of Rajasthan (1999)(2) SCC 317,

when the post temporarily created for fulfilling the needs

of a particular project or scheme limited in its duration,

comes to an end on account of the need for the project was

fulfilled or had to be abandoned wholly or partially for

want of funds, employer can not be compelled to continue

employing such employees. The petition is liable to be

dismissed.

4. 2nd and 3rd Respondents filed their counter with the

averments in brief as follows:

2nd Respondent is a charitable institution working

in the interest of rural poor. By developing them

¹Hkkx II—[k.M 3(ii)º

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1043

economically, socially and educationally by extending all

support needed by them. It's a non-profit organisation

which functions with the funds released by national and

international donors and also adopting by nodal schemes

of the state and central governments. They are not an

industry within the meaning of the ID Act. Hence, petition

is not maintainable. Respondents only assist the rural poor

by educating them and by imparting techniques which are

not activities of industry under this act. 2nd Respondent is

a registered rural development organisation. First

Respondent has the responsibility for agricultural research

education and for extension of education in the country

and established Krishi Vigyana Kendras/Trainee Training

Centres in the districts with the object of promoting and

accelerating the progress of education and training in the

field of agriculture and allied areas under the scheme known

as KVK/TTC on individual projects. Each project is

entrusted to an implementing agency selecting a suitable

organisation in the district. For the district of Medak ICAR

has considered the 2nd Respondent as an implementing

agency. They entered into a memorandum of understanding

whereunder first Respondent has agreed to provide grant

for the project according to the pattern of assistance

approved under TTC/KVK subject to personal and

budgetary limitations imposed by the Government of India

from time to time. The administrative control over the staff

employed under the scheme shall rest with the 2nd

Respondent. Petitioner was appointed for the third

Respondent as Peon-cum-Messenger on 1.4.1996 on adhoc

basis and his appointment was subject to termination at

any time. His salary was paid from out of the funds provided

by the first Respondent. His appointment was liable for

termination without assigning any reason and without

notice. While so, first Respondent issued letter dated

26.5.97 on funding patterns, norms of building

infrastructures and staff in KVKs and also fixing staff

pattern of each KVK comprising 16 courses. Further, 1st

Respondent issued letter dated 2.9.97 stating that all KVKs

which have not completed five years from the year of

sanction will be provided 100% grants till they complete

five years. Thereafter, all these KVKs will be funded by the

1st Respondent and implementing agency for a period of 5

years. On completion of 10 years the funding pattern would

be 50 : 50 percent by the first Respondent and hosting

institute and it is further stated that all KVKs irrespective

of their existence will be funded on 100% basis during the

year 1997-98. In view of the drastic change in the funding

process and second Respondent being a non-government

organisation entirely dependent upon donor funds, is not

in a position to continue the staff excess of 16. Thus, in

exercise of power conferred in the above mentioned letters

2nd Respondent issued letter dated 25.9.97 informing the

Petitioners and others that their services will not be required

from 1.4.1998. Suppressing material facts, Petitioner and

others filed WP 7588 of 1998 and obtained exparte interim

orders. Respondents filed counter affidavits and thereafter,

the said petition was dismissed for default. After waiting

for a reasonable period Respondents addressed letter dated

2.9.98 discontinuing the services of the Petitioner and

others by bringing the original termination orders into force.

Thereupon Petitioner and others filed a petition to restore

WP 7588 of 1998. Respondents filed their counter affidavit

mentioning the factum of termination. After hearing both

parties Hon'ble High Court of A.P. restored WP No. 7588 of

1998 but, without reviving the exparte interim order.

Ultimately the said writ petition was dismissed by order

dated 10.2.99 with a finding that, Petitioners can not seek

relief under article 226 of Constitution of India. Petitioners

filed WP No. 35510 of 1998 challenging the letter dated

2.9.98 and also Contempt Case No. 872 of 1998 but ultimately

they were all withdrawn. Since it is not an "Industry" as

defined in Sec. 2(j) of Industrial Disputes Act, 1947, the

question of Petitioner falling within the meaning of workman

as defined in Sec. 2(S) does not arise. Therefore, Sec. 25 [F

25(G) and 25 (H)] of the said act are not applicable to the

facts and circumstances of this case. It is only a charitable

institution and does not fall within the meaning of industry.

The termination of the Petitioner would not amount to

retrenchment under Sec. 2(oo) (bb) of the Industrial

Disputes Act, 1947. The contention of the Petitioner that

2nd Respondent issued letter of termination dated 25.9.97

without giving any reason on the ground of main cut in

funding relating to staff positions and that in the letter

dated 2.9.97 1st Respondent specifically stated that existing

staff shall continue to work, are all not correct. Harmonious

reading of said letter would reveal that 2nd Respondent is

given liberty to reduce the staff strength to 16. 2nd

Respondent reserved the power to terminate the services

of the Petitioner without notice and without assigning

reasons, while giving appointment order. The contention

of the Petitioner that the employees who have been

appointed in the year 1997 are left in the service, and that

there is no basis for removal of the Petitioner overlooking

his service are all incorrect. Petitioner was terminated due

to change in funding pattern by funding institutions.

Whereas paper advertisement dated 23-29 March, 2002 was

not the post held by the Petitioner, it relates to different

post for which Petitioner is not qualified. The contention

that first Respondent filed his counter in WP No. 126 of

1998 before Hon'ble Supreme Court of India stating that

services of all employees is protected is not correct. The

said proceeding has no bearing on these Respondents.

Petitioner is not entitled for the relief sought for. Petition is

liable to be dismissed.

5. To substantiate the contentions ofthe Petitioner

WW1 was examined and exhibits Ex. W1 to W8 were

marked. On behalf of Respondents MW1 and MW2 were

examined and exhibits Ex. M1 to M4 are marked.

6. Heard the arguments of either party. Written

arguments were filed by Respondent and the same were

considered.

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[PART II—SEC. 3(ii)]

7. The points that arise for determination are:

I. Whether Activities of Respondents comes under the

purview of definition of industry and whether

Petitioner is a workman?

II. Whether the orders passed by the 2nd Respondent

terminating the services of the Petitioner if liable to

be set aside? If so, on what grounds?

III. To what relief Petitioner is entitled to?

8. Point No. (I):

It is the contention of the Petitioner that he is a

workman under Sec. 2(s) of the Industrial Disputes. Act,

1947 and the activities of the Respondents amounts to

industry, under Sec.2(j) of the Industrial Disputes Act, 1947.

Sec.2(j) of the said act read as follows:

Industry means any business, trade, undertaking,

manufacture or calling of employees and includes and

calling service, employment, handicraft or industrial

occupation or avocation of workman.''

Whereas, Sec. 2(s) reads as follows:

'Workman' means any person (including an

apprentice) employed in any industry to any manual,

unskilled, skilled, technical, operational, or supervisory

work for hire or reward, whether the terms of employment

be express or implied, and for the purposes of any

proceeding under this Act in relation to an industrial

dispute. includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute, but

does not incoude any such person—

i) who is subject to the Air Force Act,1950, or the

Army Act, 1950, or the Navy Act, 1957; or

ii) who is employed in the police service or as an officer

or other employee of a prison; or

iii) who is employed mainly in a managerial or

administrative capacity; or

iv) who, being employed in a supervisory capacity,

draws wages exceeding one thousand six hundred

rupees per mensem or exercises, either by the nature

of the duties attached to the office or by reason of

the powers vested in him, functions mainly of a

managerial nature.

9. Now, it is to be verified whether the activities of

the Respondents attract the ingredients of the term

industry, cited above. Admittedly, the activities of the

Respondents are carrying out agricultural research,

veterinary matters, raising agricultural productions etc.,

and rendering assistance to rural poor to develop

economically, socially and educationally with the held of

the funds donated by donors or the government, as per

the schemes and objectives for which purpose the funds

are released.

10.It is the contention of the Respondents that their

activities do not generate any profits, and on the other

hand they are philanthropical activities and thus, they do

not fall under the category of industry. It is not the

contention of the Petitioner that Respondents are earning

any profit through their activities. Now, it is to be verified

whether the above mentioned activities of the Respondents

do fall under category of industry. As per the definition of

industry given under sec. 2(j) of the Industrial Disputes

Act, 1947, any service also will come under the purview of

the said definition.

11.Learned Counsel for the Respondents 2 and 3

relied upon the principles laid down in the case of Physical

Research Laboratory Vs. KG Sarma (1997) 4 SCC page

257, whereunder, a Division Bench of Hon'ble Supreme

Court of India has distinguished the principles laid down

in the case of the Bangalore Water Supply And Sewerage

Board Vs. A. Rajappa, [(1978) 2 SCC 213] and held that

''while interpreting the words 'undertaking', 'calling'

and 'service' which are of much wider import, the

principle ''noscitur a sociis was applied and it was held

that they would be ''industry'' only if they are found to be

analogous to trade or business. Further more, an activity

undertaken by govenment can not be regarded as an

industry if it is done in discharging sovereign functions.''

12. Whether Learned Counsel for the Petitioner relied

upon the principles laid down by the Apex Court in the

case JK Cotton Spinning and Weaving Mills Co Limited

Vs. Labour Appellate Tribunal of India IIIRD Branch.

Lucknow 1964-AIR(SC)-0-737/1964-SCR-3-724 and in

the case of Mahila Samiti, Tikamgarh and State of

Madhya Pradesh and Ors. 1993 III LLJ page 46, in

support of his contention that the principles laid down in

the case of Bangalore Water Supply and Sewerage Board

vs. A Rajappa, (1978) 2 SCC 213 and Satynarayana

Sharma and Ors. Vs. National Mineral Development

Corporation Ltd. and Ors. 1993, III LLJ, 472 still hold

the filed.

13.In the case of Nehru Yuva Kandra Sangathan

Vs. Union of India, the Hon'ble High Court of Delhi

considered the principles laid down in various cases

including the case of Physical Laboratory (relied upon by

the respondents). Considering the legal situation that in

the case of Coir Board Vs. Indira Devi 1988 III SCC 259,

the Hon'ble Supreme Court of India had decided to refer

the decision in Bangalore Water Supply case for

reconsideration by a larger Bench but subsequently three

judges Bench of the Hon'ble Supreme Court of India held

by its order dated 10.11.1998 in Coir Boad case that

Bangalore Water Supply Case does not require any

reconsideration, Hon'ble Delhi High Court had categorically

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1045

held in the case of Nehru Yova Kendra Sangathan Vs.

Union of India after discussing various legal precedents,

that abviously Bangalore Water Supply case which is a

seven Judge Bench judgement rendered by the Apex Court

still holds the field. Further Hon'ble Delhi High Court

referred to the case of General Manager Telecom vs. S.

Srinivasa Rao 1997 SCC 767, whereunder also it was

held by three Judges Bench of the Apex Court that the

Bangalore Water Supply case holds the field and it is

binding precedent.

14.It is not the case of the respondents that any

larger benach of the Apex Court was formulated for

reconsidering the principles laid down by the seven judges

Bench of Apex Court in Bangalore Water Supply case. Thus,

it is very much clear that the said judgement continues to

be a binding legal precedent.

15.In the Bangalore Water Supply case, it is held

that ''absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, privater or

other sector. The true focus is functional and the decisive

test is the nature of the activity with special emphasis on

the employee relation.''

16.In the circumstances, just because the activities

of the respondents do not generate any profit and they are

philanthropic in nature, it will not change the fact that the

said activities come under the purview of the definition of

industry since the decisive test is the nature of the activity

with special emphasis of employer and employee

relationship. The nature of the activity in this case is, a

systematic activity organized with cooperation between

employer and employees for rendering services calculated

to satisfy human wants and wishes i.e. improving the

production of agricultural products and also develping

the rural poor, socially economically and educationally etc.

Thus, the activities of the Respondents attract the

ingredients of the definition of 'Industry' as provided under

Sec. 2(j) of Industrial Disputes Act, 1947 and thus, it is an

'Industry'.

17.Consequentially, the persons who work for the

Respondents will certainly come under the purview of the

definition of the workman given under Sec. 2(s) of the

Industrial Disputes Act, 1947, since, as already cited above,

Sec.2(s) of the said Act, provides that any person employed

in any industry to any manual, unskilled skilled, technical,

operational, clerical or supervisory work for hire or reward

is a workman. Thus, Petitioner who has been appointed as

Peon-cum-Messanger by 2nd Respondent and has been

deputed to work so with the 3^rd Respondent will certainly

come under the purview of the definition of the workman

referred to above. In the case of Mahila Samithi,

Thimkkamgarh Vs. State of M.P. 1993 III LLJ page 468

relied upon by the counsel for the Petitioner it is held to the

effect that the employees of the Mahila Samithi which is

engaged in systematic activities of promoting training

women in family planning programme etc., which is an

industry, will certainly come under the purview of the

definition of workman u/s 2(s) of the Industrial Disputes

Act, 1947. This principle is a guiding principle to arrive at

the conclusion that the Petitioner is a workman.

18. Thus, it can safely be held that the activities of

the respondents come under the purview of the industry

as defined under Sec.2(i) of Industrial Disputes act, 1947

and Petitioner comes under the definition of the workman

under Sec.2(s) of the Industrial Disputes Act, 1947.

This point is answered accordingly.

19. Point No. II:

It is an undisputed fact that Petitioner who has been

working as Peon-cum-Messenger since 1.4.1996 with the

3^rd Respondent, being appointed to the said post by the 2^nd

Respondent by virtue of the order dated 1.4.1996 has been

terminated from services by the 2^nd Respondent w.e.f.

1.4.1998 by virtue of Ex W4 the letter dated 25.9.1997. The

reason for termination of services of the Petitioner have

been given in Ex. W4 as the first Respondent has changed

its guidelines and have provided a reduced budget to

voluntary organisation to run their KVKs that the main cut

in funding is related to staff positions and inspite of their

best efforts 2^nd Respondent could only get a grace period

of some months and as the cut becomes effective from

1.4.1998, the srvices of Petitioner were terminted with effect

from the said date.

20. Petitioner is questioning the reasonaleleness of

termination of his srvices in that manner and claiming that

2^nd Respondent can not terminate services of the Petitioner

on the ground of financial problems and that further person

who are appointed subsequent to the Petitioner have been

left in service and thus, there is discrimination. It is further

claimed by the Petitioner that 3^rd Respondent who pleads

on one hand that as there are no funds the services of the

Petitioner were terminated, has issued a paper advertisement

in March, 2002 in Employment News calling for new

appointments on the other hand and that as per the terms

of his appointment Petitioner is entitled to be continued in

service until the project come to an end.

21. Whereas it is the claim of the Respondents that

Petitioner is one of the juniormost persons and therefore

his services were terminated, as there was need for

retrenchment. It is the further contention of the

Respondnets that petitioner was appointed on adhoc basis

and his appointment was subject to termination at any time

without assigning any reason and without notice and

further that in view of the drastic change brought out in

funding process by the 1^st Respondent, 2^nd Respondent

was constrained to terminate the services of the Petitioner.

The 2^nd Respondent is further denying the truth of the

contention of the Petitioner that the employees employed

subsequent to him are still left in service and that paper

1046

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

advertisement dated 23-29 March, 2002 does not relate to

the post of Petitioner.

22. Thus, it is to be verified that any person who was

appointed subsequent to the Petitioner have been left in

service, while terminating the services of the Petitioner

and if so it is a justified action. The other point to be decided

is whether the Respondents who have terminated the

services of the Petitioner claiming that for want of funds

they can not continue him in service are justified in making

new appointments in march, 2002. The third aspect to be

decided is whether Respondents can terminate the services

of the Petitioner without notice and without assigning

reasons and also without paying compensation.

23. As to the first point mentioned above, is

concerned, Ex. W8 is the details of the staff working in the

given KVK as on February, 1998 produced before the court

by the Petitioner. This document has been marked with the

consent of the Respondents on 12.7.2006. That means the

correctness of this document is admitted by the

Respondents. As can be seen from this document Petitioner

has been appointed on 1.4.1996 whereas, one Kasyap

training assistant has been appointed on 31.3.97. There are

several other employees who were appointed in the years

1995 and 1996 also. Thus, it can not be termed that Petitioner

is the juniormost employee of the Respondents. As can

been seen from Ex. W4, the reason given for termination of

the services of the Petitioner is that as the cut in funding is

relating to staff positions Petitioner's services were

terminated and it is the claim of the Respondents that as

Petitioner is one of the juniormost employees his services

were terminated due to cut in the funding. But the fact

appears to be otherwise, as per the discussions held above,

in the light of the contents of Ex.W8. There are several

other employees who are juniors to the Petitioner when the

dates of appointment of these persons are considered, are

still continuing in the services. It is not the claim of the

Respondents that considering the nature of the work being

done by the various workmen and its importance to the

organisation, they have chosen to retain some and terminte

the others. It is their categorical contention that as the

Petitioner was one of the junior most employees has services

were terminated, which is not a correct statement. Therefore,

the contention of the petitioner that the persons who are

appointed subsequent to him were left out in service and

his services were terminated by the Respondents, is to be

accepted as a correct contention. It amounts to

discrimination which shall never be allowed. it is the principle

that the last come first go. So the action of the Respondents

in this regard is not justifiable.

24. As to the second aspect to be considered is

concerned certainly, the Respondents are not justified in

recruiting new persons when they terminated the services

of the Petitioner on the ground of non-availability of

sufficient funds. It is the contention of the Respondents

that the vacancies advertised by the virtue of Ex.W7

advertisement are different posts to the post held by the

Petitioner, that Petitioner got no qualifications to hold any

such posts and therefore, they can not be find fault with

for making new appointments.

25. But the fact remains the Petitioner who was in the

service of Respondents was removed from service only on

the ground that funds were not available. If funds were not

available no fresh appointments can be made. The grievance

of the Petitioner is that Respondents are making new

appointments. It is a fact that new appointments were made.

Then there is no justification, in terminating the seravices

of the Petitioner.

26. As to the third aspect is concerned, just because

it is mentioned in the appointment order that without notice

Petitioner's services can be terminated Respondents can

not do as such since, the provisions of Sec.25(F) of the

Industrial Disputes Act, 1947 provides for one month's

notice, and payment of retrenchment compensation to the

workmen who is retrenched. Thus, irrespective of the

contents of the appoinment order given to the Petitioner

who is a workman, Respondents are liable to give one

months notice. In this case, sufficient notice has been given

to the Petitioner, but evidently no retrenchment

compensation has been given to him. On this ground also

Ex.W4 order is not a maintenance order.

27. In view of the foregone discussion of the material

on record it can safely be held that Ex.W4 the order

passedby the 2^nd Respondent terminating the services of

the Petitioner is not maintainable nad it liable to be set

aside.

This point is answered accordingly.

28. Point No. III: In view of the findings arrived at

above, Ex.W4 order is liable to be set aside and Petitioner

is entitled for reinstatement into service. Considering the

fact that the Petitioner has approached the court belatedly,

i.e., about 7 years after his removal from service, he is not

entitled for any back wages, but he is entitled for continuity

of service and other attendant benefits.

This point is answered accordingly.

29. Result:-

In the reasult, Petition is allowed. The impugned order

dated 25.9.97 issued by the 2nd Respondent is hereby set

aside. Petitioner shall be reinstated into service forth with.

He is entitled for continuity of service and other attendant

benefits except back wages.

Award is passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 19^th day of

July, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1047

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri D. Venkata Ramana MW1: Sri K. Srinivasa Rao

MW2:Sri A. Giridhar

Documents marked for the Petitioner

Ex.W1:

Photostat copy of Memorandum of

Understanding dt. 19.7.1991

Ex.W2:

Photostat copy of Ir.No1(1)/96-AE-1 dt.2.9.1997

Ex.W3:

Photostat copy of appointment Ir. dt. 1.4.1996

Ex.W4:

Photostat copy of Ir. dt.25.9.1997

Ex.W5:

Photostat copy of order in WP Nos 7588/1988

& 35510/1998

Ex.W6:

Photostat Copy of order of Hon'ble Supreme

Court dt. 24.8.1998

Ex.W7:

Photostat copy of Employment newspaper

cutting dt. 23-29 March, 2002

Ex. W8

Photostat Copy of statement showing working

staff in KVK, Zaheerabad as on February, 1998.

Documents marked for the Respondents

Ex.M1:

Attested

copy

memorandum

understanding between the Indian Council of

Agricultural Research, Krishi Bhawan, New

Delhi and the Deccan Krishi Vigyana Kendra dt.

19.7.1991

Ex.M2:

Photostat copy of 1r. No.1(1)/96-AE-1 Dt.

26.5.1997

Ex.M3:

Photostat copy of 1r. No.1(1)/96-AE-1 dt.

2.9.1997

Ex.M4:

Office copy of 1r. dt. 25.9.1997 termination order.

ubZ fnYyh] 15 tuojh] 2014

dkñvkñ 380.—deZpkjh jkT; chek vf/kfu;e] 1948] 1948

¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk iznRr 'kfDr;ksa

dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 Qjojh] 2014 dks

ml rkjh[k ds :i esa fu;r djrh gS] ftudks mDr

vf/kfu;e ds v/;k;&4¼44 o 45 /kkjk ds flok; tks igys ls izo`Rr

gks pqdh gS½ v/;k;&5 vkSj 6 [/kkjk&76 dh mi /kkjk&¼1½ vkSj

/kkjk&77]78]79 vkSj 81 ds flok; tks igys gh izo`Rr dh tk pqdh gS]

ds mica/k NRrhlx< jkT; ds fuEufyf[kr {ks=ksa esa izo`Rr gksaxs] vFkkZr~%

^^rglhy vdyrjk ftyk tkatxhj&pkaik esa jktLo

xzke&vdyrjk [kVksyk] f[klksjk] cjxoka] yfV;k] idfj;k]

ijlkghukyk] dY;k.kiqj] eqjyhMhg jksxnk] rjkSn] fdjkjh] vejyky]

[kijhMhg] [kksaM] njhZVkWM] jlsMk] dksVx<+ egeniqj] ipjh] lktkikyh]

nsojh] dVubZ] ufj;jk ds vUrxZr vkus okys {ks=A**

[lañ&,la&38013@01@2014&,lñ,lñ1]

tktZdqVh Vhñ ,yñ] voj lfpo

New Delhi, the 15th January, 2014

S.O. 380.—In exercise of the powers conferred by

sub-section (3) of Section 1 of the Employees' State

Insurance Act, 1948 (34 of 1948) the Central Government

hereby appoints the 1st February, 2014 as the date on which

the provisions of Chapter IV (except Sections 44 and 45

which have already been brought into force) and Chapter-

V and VI [except sub-section (1) of Section 76 and Sections

77, 78, 79 and 81 which have already been brought into

force] of the said Act shall come into force in the following

areas in the State of Chhattisgarh neamely:-

"Area falling within the revenue villages of Akaltara,

khatola, Khisora, Bargawa Latiya, Pakariya, Parsahinala,

kalyanpur, Murlidih, Rogada, Taroud, Kirari, Amartal,

Khapridih, Khond, Darritand, Raseda, Kotgarh,

Mahmadpur, Pachari, Sajapali, Dewari, Katnai and Nariyara

in Tehsil-Akaltara, Dist-Janjgir-Champa."

[No. S-38013/01/2014-SS.I]

GEORGEKUTTY T.L., Under Secy.

vkns'k

ubZ fnYyh] 15 tuojh] 2014

dkñvkñ 381.—tcfd dsUnzh; ljdkj dk ;g er gS fd

Hkkjrh; [kkn~; fuxe ds izca/ku ,oa muds dkexkjksa ds e/; ,d

vkSn~;ksfxd fookn fon~;eku gS%

vkSj tcfd dsUnzh; ljdkj us vkSn~;ksfxd fookn vf/kfu;e]

1947 ¼1947 dk 14 ½ dh /kkjk 7[k }kjk iznRr 'kfDr;ksa dk iz;ksx

djrs gq, Je ea=ky; ds fnukad 08-07-2003 ds vkns'k la[;k

,y&22012@28@2002&vkbZvkjñ¼lh&II½ ds }kjk ,d jk"Vªh;

vkSn~;ksfxd U;k;kf/kdj.k xfBr fd;k ftldk eq[;ky; eqEcbZ esa j[kk

x;k vkSj U;k;ewfrZ Jh ,lñlhñ ik.Ms; dks blds ihBklhu vf/kdkjh ds

:i esa fu;qDr fd;k vkSj mDr vf/kfu;e dh /kkjk&10 dh mi&/kkjk

¼1d½ }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, mDr vkSn~;ksfxd fookn

dks U;k;fu.kZ;u gsrq mijksDr jk"Vªh; vkSn~;ksfxd U;k;kf/kdj.k dks lkSaik

x;kA

vkSj tcfd U;k;ewfrZ Jh ,lñlhñ ik.Ms; us fnukad

08-09-2004 dks mijksDr jk"Vªh; vkSn~;ksfxd U;k;kf/kdj.k dk inHkkj

NksM+ fn;kA

vkSj tcfd dsUnz ljdkj us fnukad 10-11-2005 ds vkns'k

}kjk jk"Vªh; U;k;kf/kdj.k dks iquxZfBr fd;k rFkk U;k;ewfrZ Jh ?ku';ke

nkl dks bldk ihBklhu vf/kdkjh fu;qDr fd;k(

vkSj tcfd U;k;ewfrZ Jh ?ku';ke nkl us fnukad 06-02-

2006 dks mijksDr jk"Vªh; vkSn~;ksfxd U;k;kf/kdj.k dk inHkkj NksM+

fn;kA

1048

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

vkSj tcfd dsUæ ljdkj us fnukad 04-02-2011 ds vkns'k

}kjk jk"Vªh; U;k;kf/kdj.k dks iquxZfBr fd;k rFk U;k;ewfrZ Jh xkSjh

'kadj ljkZQ dks bldk ihBklhu vf/kdkjh fu;qDr fd;k(

vkSj tcfd U;k;ewfrZ Jh xkSjh 'kadj ljkZQ us viuh lsokfuo`fÙk

ij mijksDr jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dk inHkkj NksM+ fn;kA

vr% vc ,d jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dh LFkkiuk dh

tkrh gS ftldk eq[;ky; eqEcbZ esa gksxk vkSj ftlds ihBklhu

vf/kdkjh lhthvkbZVh&lg&Je U;k;ky; lañ 1 ds ihBklhu vf/kdkjh]

lR;iwr esgjks=k gksaxs rFkk mi;qZDr fookn dks U;k;&fu.kZ;u ds fy,

jk"Vªh; vkS|ksfxd U;k;kf/kdj.k dks bl funsZ'k ds lkFk lanfHkZr fd;k

tkrk gS fd U;k;ewfrZ Jh lR;iwr esgjks=k bl ekeys esa ml Lrj ls vkxs

dkjZokbZ djsaxs tgka ls U;k;ewfrZ Jh xkSjh 'kadj ljkZQ us bls NksM+k Fkk

rFkk rn~uqlkj bl ekeys dks fuiVk,axsA

[lañ ,y&22012@28@2002&vkbZ vkj ¼lh&II½]

chñ ,eñ iVuk;d] MsLd vf/kdkjh

ORDER

New Delhi, the 15th January, 2014

S.O. 381.—Whereas the Central Govt. is of the

opinion that an industrial dispute existed between the

management of FCI and their workmen:

And Whereas the industrial dispute involves

question of national importance and also is of such nature

that establishments of Food Corporation of India located

in more than one state are likely to be interested in or

affected;

And Whereas the Central Government in exercise of

the powers conferred by Section 7 B of the I.D. Act, 1947

(14 of 1997) constituted a National Industrial Tribunal vide

Ministry of Labour Order No. L-22012/28/2002-IR(C-II)

dated 8.7.2003 with headquarters at Mumbai and appointed

Justice Shri S.C. Pandey as its Presiding Officer and 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 S.C. Pandey relinquished

charge of the above National Industrual Tribunal on

8.9.2004;

And Whereas Central Government vide order dated

10.11.2005 reconstituted the National Tribunal and

appointed Justice Shri Ghanshyam Dass as its Presiding

Officer;

And Whereas Justice Shri Ghanshyam Dass

relinquished the charge of the said National Industrial

Tribunal on 06.02.2006;

And Whereas Central Government vide order dated

04.02.2011 reconstituted the National Tribunal and

appointed Justice Shri Gauri Shanker Sarraf as its Presiding

Officer;

And Whereas Justice Gauri Shanker Sarraf

relinquished the charge of the said National Industrial

Tribunal on his retirement;

New therefor, a National Industrial Tribunal is

constituted with Headquarters at Mumbai with Justice Shri

Satya Poot Mehrotra, Presiding Officer of CGIT-cum Labour

Court No. 1 Mumbai as its Presiding Officer and the above

said dispute is referred to the said National Industrial

Tribunal for adjudication with a direction that Justice Shri

Satya Poot Mehrotra shall proceed in the matter from the

stage at which it was left by Justice Shri Gauri Shanker

Sarraf and dispose of the same accordingly.

[No. L-22012/28/2002-IR(C-II)]

B.M. PATNAIK, Desk Officer

ubZ fnYyh] 16 tuojh] 2014

dkñvkñ 382.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj eSus¯tx Mk;jsDVj

iztk VwYl fyfeVsM fldanjkckn ds izca/kra= ds lac) fu;kstdksa vkSj

muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUæh;

ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] gSnjkckn ds iapkV

¼lanHkZ la[;k 23@2005] 24] 2005] 25] 2005] 26] 2005] 27] 2005]

29] 2005] 32@2005] 31@2005] 32@2005] 33@2005] 34] 2005]

35@2005] 36@2005] 54@2005] 55@2005] 56@2005] 57@2005]

58@2005] 59@2005] 60@2005] 61@2005] 62@2005] 63@2005]

64@2005] 65@2005] 80@2005] 81@2005] 82@2005] 83@2005]

84@2005] 85@2005] 86@2005] 87@2005] 88@2005] 89@2005]

90@2005] 91@2005] 92@2005] 94@2005] 100@2005] 101@2005]

111@2005] 112@2005] 113@2005] 132@2005] 80@2006] 81@2006]

154@2006] 155@2005] 159@2006] 160@2006] 19@2007] 39@2007]

40@2007] 41@2007] 88@2007] 89@2007] 90@2007½ dks izdkf'kr

djrh gS tks dsUæh; ljdkj dks 10@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@03@2014&vkbZvkj¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 16th January, 2014

S.O. 382.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947)] the Central

Government hereby publishes the award (I.D. No. 23/2005,

24, 2005, 25, 2005, 26, 2005, 27, 2005, 29,2005, 30/2005, 31/

2005, 32/2005, 33/2005, 34, 2005 35/2005, 36/2005, 54/2005,

55/2005, 56/2005, 57/2005, 58/2005, 59/2005, 60/2005, 61/

2005, 62/2005, 63/2005, 64/2005, 65/2005, 80/2005, 81/2005,

82/2005, 83/2005, 84/2005, 85/2005, 86/2005, 87/2005, 88/

2005, 89/2005, 90/2005, 91/2005, 92/2005, 94/2005, 100/2005,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1049

101/2005, 111/2005, 112/2005, 113/2005, 132/2005, 80/2006,

81/2006, 154/2006, 155/2006, 159/2006, 160/2006, 19/2007,

39/2007, 40/2007, 41/2007, 88/2007, 89/2007, 90/2007) 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 Managing Director, Praga Tools Limited,

Secunderabad and their workmen, which was received by

the Central Government on 10/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : Smt. M. VIJAYA LAKSHMI, Presiding Officer

Dated the 24th day of October, 2013

Industrial Disputes LC Nos.

23/2005, 24/2005, 25/2005, 26/2005, 27/2005, 29/2005,

30/2005, 31/2005, 32/2005, 33/2005, 34/2005, 35/2005, 36/

2005, 54/2005, 55/2005, 56/2005, 57/2005, 58/2005, 59/2005,

60/2005, 61/2005, 62/2005, 63/2005, 64/2005, 65/2005, 80/

2005, 81/2005, 82/2005, 83/2005, 84/2005, 85/2005, 86/2005,

87/2005, 88/2005, 89/2005, 90/2005, 91/2005, 92/2005, 94/

2005, 100/2005, 101/2005, 111/2005, 112/2005, 113/2005, 132/

2005, 80/2006, 81/2006, 154/2006, 155/2006, 159/2006, 160/

2006, 19/2007, 39/2007, 40/2007, 41/2007, 88/2007, 89/2007

and 90/2007.

Between :

LC 23 of 2005

Sri K. Ashok Kumar

S/o K. Rajamalu

H.No. 6-4-462/1, Krishnanagar Colony,

Bholakpur Secunderabad-80.

LC 24 of 2005

Sri V. Amarnath

S/o M. Vishnu

H.No. 4, Block No.7, New Boiguda,

IDH Colony, Secunderabad-80

LC 25 of 2005

Smt. A. Kalavathi

W/o Late A. Kumar

2-39/2/B, GoodShed Road,

Moosapet, Hyderabad-18

LC 26 of 2005

Sri P. Veeramani

S/o P. Manikyam

H.No. 13-66 IG Naga, Hyderabad-37

LC 27 of 2005

Sri E. Shankar

S/o Late E. Rajaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80

LC 33 of 2005

Sri G. Raji Reddy

S/o G. Buchi Reddy

Forge & Foundry Division,

Praga Tools, Secunderabad-80

LC 34 of 2005

Sri A. Venkatesh

S/o Late A. Balaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80

LC 35 2005

Sri K. Shankar

S/o K. Lachaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80

LC 80 of 2005

Sri Aziz Mohammad

S/o Zaheer Mohammad

SRT. 596, Sanath Nagar,

Hyderabad-18.

10. LC 81 of 2005

Sri A. Rajan

S/o Andrews Cooper

H.No. 15-24, Gurumurthynagar,

Balanagar, Hyderabad-37.

11. LC 94 of 2005

Sri M. Sriniwas

S/o M. Dharmaraj

H.No. 12-11-1134, Boudhanagar,

Warasiguda, Secunderabad

12. LC 100 of 2005

Sri R. Ramesh Kumar

S/o Gopal Rao Rajbhure

H.No. 114, Tarbund, Secunderabad

13. LC 101 of 2005

Sri B. Ram Prasad

S/o B Mohan Rao

Dundiralapadu, P.O : Gampalagudem

Mandal, Krishna District.

14. LC 111 of 2005

Sri A. Sriniwasa Rao

S/o Late A. Anjaneyulu

C-35, SBH Colony,

Saidabad, Hyderabad

1050

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

15. LC 112 of 2005

Sri V. Narsing Rao

S/o Late V. Linagam

R/o Bholakpur, Secunderabad

16. LC 113 of 2005

Sri M. Armstrong

S/o Late M. Mariandass,

Machine Tools Divisions,

Praga Tools, Secunderabad-80

17. LC 154 of 2006

Smt. A. Lakshmi Saraswathi

W/o Late AVM Krishna Rao

Flat No. 132, 3rd Block,

Prajay City Apts., Miyapur,

Hyderabad-49.

18. LC 159 of 2006

Sri Andrews mario

S/o Late H. Sebastian

Machine Tools Division,

Praga Tools, Secunderabad-80

19. LC 160 of 2006

Sri E. Sriniwas

S/o E. Mysaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80

20. LC 19 of 2007

Smt. B. Venkatamma

W/o Late B. Yellaiah

1-1-538/25, Gandhinagar,

Musheerabad, Hyderabad-80.

21. LC 39 of 2007

Sri M. Durgadas Reddy

S/o M. Sundar Reddy

1-7-505/1, Bakaram,

Musheerabad, Hyderabad-84.

22. LC 40 of 2007

Sri S. Srikanth Singh

S/o Late S. Satyanarayana Singh

9-3-739/1 & 2, Regimental Bazar,

Secunderabad-3.

23. LC 41 of 2007

Sri Abdul Majeed

S/o Late Abdul Razak

H.No. K-43- Ist Phase, HUDA,

Borabanda Colony, Hyderabad-18.

24. LC 88 of 2007

Sri P. Gangadhara Reddy

S/o P. Aswartha Reddy

4-8-85/1/A, Manjeeranagar,

Sangareddy, Medak District.

25. LC 89 of 2007

Sri A. Mastanvali

S/o Late A. Immam Sahib

H.No. 1-5-144, Jamistanpur,

Musheerabad, Hyderabad

26. LC 90 of 2007

Sri P. Nagesh

S/o Late P. Narasimha

6-5-267, Chacha Nehrunagar,

New Boiguda, Secunderabad-80

....Petitioners

AND

The Managing Director,

M/s. Praga Tools Limited,

6-6-8/32, Kavadiguda Road,

Secunderabad-500 80.

....Respondent

Appearances:

For the Petitioners

M/s. S. Prasada Rao, Advocates

in LC Nos. 80/2005 & 81/2005

M/s. B.G. Ravindra Reddy, P.

Srinivasulu & B.V. Chandra

Sekhar, Advocates in all other

56 cases except LC Nos. 80/2005

& 81/2005

For the Respondent :

M/s. G. Vidya Sagar, K. Udaya

Sri & P. Sudheer Rao,

Advocates

27. LC 29 of 2005

Sri Abdul Hameed, S/o Abdul Kareem

Forege & Foundry Division,

Prga Tools, Secunderabad-80.

28. LC 30 of 2005

Sri T. Venkateswara Rao, S/o T. Laxman

Machine Tools Divisions,

Praga Tools, Secunderabad-80.

29. LC 31 of 2005

Sri K.V. Srinivas, S/o K Venkata Swamy

Machine Tools Division,

Praga Tools, Secunderabad-80

30. LC 32 of 2005

Sri M. Rajkumar, S/o Late M. Mallaiah

Machine Tools Division,

Praga Tools, Secunderabad-80

31. LC 36 of 2005

Sri V. Chandrasekhar, S/o Late V. Chittaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

¹Hkkx II—[k.M 3(ii)º

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1051

32. LC 54 of 2005

Sri A. Venkatesh,

S/o Late A Mallesh

Machine Tools Division,

Praga Tools, Secunderabad-80

33. LC 55 of 2005

Sri R. Yesu Babu,

S/o R. Appa Rao

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

34. LC 56 of 2005

Sri Ch. Jagannadham,

S/o Ch. Narayana

CNC Division, Praga Tools,

Secunderabad-80.

35. LC 57 of 2005

Sri E. Veera Reddy,

S/o Late EC Veera Reddy

CNC Division, Praga Tools,

Secunderabad-80.

36. LC 58 of 2005

Sri K. Murali,

S/o Late K. Padmaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

37. LC 59 of 2005

Sri Y. Sudhakar,

S/o Y.A. Ramulu

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

38. LC 60 of 2005

Smt. Mathangi Satyamma,

W/o Late M. Jayaprakash

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

39. LC 61 of 2005

Sri G. Raj Kumar,

S/o G. Gopala Rao

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

40. LC 62 of 2005

Sri G. Nageswara Rao,

S/o G. Appa Rao

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

41. LC 63 of 2005

Sri Shanthilal,

S/o Late Bahadur

Machine Tools Division,

Praga Tools, Secunderabad-80.

42. LC 64 of 2005

Smt. Paladi Deepika,

W/o Late P. Susheel Kumar

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

43. LC 65 of 2005

Sri K. Pratap,

S/o Late K. Shanakaraiah

Forege & Foundry Division,

Praga Tools, Secunderabad-80.

44. LC 80 of 2006

Sri D. Venkata Ramana,

S/o D. Narayana

H.No. 2-10-10, Nallagutta,

Piler (Post, PS & Mandal),

Chittoor District

45. LC 81 of 2006

Sri A. Julious,

S/o Late V.P. Anthony

Machine Tools Division,

Praga Tools, Secunderabad-80.

46. LC 82 of 2005

Sri T. Gopi,

S/o Late Tella Pentaiah

Machine Tools Division,

Praga Tools, Secunderabad-80.

47. LC 83 of 2005

Sri T. Sridhar,

S/o Late T. Narasimha

Machine Tools Division,

Praga Tools, Secunderabad-80.

48. LC 84 of 2005

Sri B. Srinivas,

S/o Late B. Gouraiah

Forge & Foundry Division,

Praga Tools,Secunderabad-80.

49. LC 85 of 2005

Sri D. Naresh,

S/o Late D. Jaswanth Rao

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

50. LC 86 of 2005

Sri T.K. Ravinder,

S/o T. Butchama Chary

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

51. LC 87 of 2005

Sri B. Nagaraju, S/o Late B. Shankaraiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

52. LC 88 of 2005

Sri P. Siddi Ramulu, S/o Kistaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

1052

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

53. LC 89 of 2005

Sri M Satyanarayana, S/o Late M Pandu

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

54. LC 90 of 2005

Sri M. Lokesh Kumar, S/o M Koteswara Rao

Machine Tools Division,

Praga Tools, Secunderabad-80.

55. LC 91 of 2005

Sri G Mohan Rao, S/o Late G Komaraiah

Machine Tools Division, Praga Tools,

Secunderabad-80.

56. LC 92 of 2005

Sri SVGK Muralidhar, S/o S V Krisha Rao

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

57. LC 132 of 2005

Sri T Dasarath, S/o Late D Pentaiah

Forge & Foundry Division,

Praga Tools, Secunderabad-80.

58. LC 155 of 2006

Sri P Anjan Prasad, S/o Late P Narasaiah

H.No. 12-10-590/64, Warasiguda,

Secunderabad

....Petitioners

AND

1. The Managing Director,

M/s. Praga Tools Limited,

6-6-8/32, Kavadiguda Road,

Secunderabad-80.

2. Union of India, rep. by its Secretary,

Min. of Heavy Industries and Public Enterprises,

Dept. of Public Enterprises, Block No. 14,

CGO Complex, New Delhi-110003.

....Respondents

Appearances:

For the Petitioners:

M/s. B.G. Ravindra Reddy,

P. Srinivasulu & B.V.

Chandra Sekhar, Advocates

For the Respondent:

M/s. G. Vidya Sagar, K.

Udaya Sri & P. Sudheer

Rao, Advocates

AWARD

These industrial disputes have been raised by

58 Petitioners by way of filing individual applications

invoking Sec. 2A(2) of Industrial Disputes Act, 1947

questioning the legality and justification of the action of

the respondent company in terminating the services of 58

Petitioners listed above in cause title. For Petitioners, M/s.

S. Prasada Rao, Advocates have appeared in LC Nos. 80/

2005 & 81/2005 and M/s. B.G. Ravindra Reddy, P. Srinivasulu

& B.V. Chandra Sekhar, Advocates have appeared in all

other 56 cases. M/s. G. Vidya Sagar, K. Udaya Sri & P.

Sudheer Rao, Advocates have appeared for Respondents.

Though Petitioners have filed individual applications, as

the cause of action, condition and status etc., involved in

all the these industrial disputes are one and the same, for

easy disposal and for convenience sake all these cases

viz., LC Nos. 23/2005, 24/2005, 25/2005, 26/2005,

27/2005, 29/2005, 30/2005, 31/2005, 32/2005, 33/2005, 34/

2005, 35/2005, 36/2005, 54/2005, 55/2005, 56/2005, 57/2005,

58/2005, 59/2005, 60/2005, 61/2005, 62/2005, 63/2005, 64/

2005, 65/2005, 80/2005, 81/2005, 82/2005, 83/2005, 84/2005,

85/2005, 86/2005, 87/2005, 88/2005, 89/2005, 90/2005, 91/

2005, 92/2005, 94/2005, 100/2005, 101/2005, 111/2005, 112/

2005, 113/2005, 132/2005, 80/2006, 81/2006, 154/2006, 155/

2006, 159/2006, 160/2006, 19/2007, 39/2007, 40/2007, 41/2007,

88/2007, 89/2007 and 90/2007 are being disposed off vide a

COMMON AWARD.

2. The brief averments made in the petitions are as follows:

All the Petitioners were appointed as helpers/fitters/turners/electricians/clerk/welders etc., on casual basis and got

terminated as per the details given below:—

Date of

Employment status

Sl.

Case No

Year

Petitioner

Joining

Termination

In Praga

After

Tools

disengagement

2005

K Ashok Kumar

08/01/86

01/11/01

Helper

unemployed

2005

V Amarnath

28/12/85

01/11/01

Helper

Painter

2005

A Kalavathi

21/09/89

01/11/01

Helper

unemployed

2005

P Veeramani

21/01/86

01/11/01

Helper

unemployed

2005

E Shankar

05/12/85

01/11/01

Helper

Goat Care

2005

Abdul Hameed

06/01/87

22/05/04

Fitter

Hamali work

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1053

2005

T Venkatewsara Rao

05/10/95

01/11/01

Turner

Hamali work

2005

KV Srinivas

18/11/95

01/11/01

Fitter

Carpenter Helper

2005

M Rajkumar

16/10/95

01/11/01

Fitter

Pan shop worker

2005

G Raji Reddy

06/02/86

01/11/01

Helper

Painter

2005

A Venkatesh

26/12/85

01/11/01

Helper

unemployed

2005

K Shankar

19/12/85

01/11/01

Helper

coolie

2005

V. Chandrasekhar

18/12/85

01/11/01

Helper

unemployed

2005

A Venkatesh

18/08/88

01/11/01

Clerk

unemployed

2005

R Yesu Babu

21/07/88

01/11/01

Fitter

unemployed

2005

Ch. Jagannadham

22/08/89

01/11/01

Electrician

unemployed

2005

E Veera Reddy

23/11/88

01/11/01

Electrician

Helper Electrician

2005

K Murali

20/05/86

01/11/01

Helper

unemployed

2005

Y Sudhakar

16/07/86

01/11/01

Helper

unemployed

2005

Mathangi Satyamma

12/09/91

01/11/01

Helper

unemployed

2005

G Raj Kumar

05/03/86

01/11/01

Helper

Painter

2005

G Nageswara Rao

21/09/88

01/11/01

Fitter

Painter & Electrician

2005

Shanthilal

10/10/93

1/6/2002

Helper

Painter

2005

Paladi Deepika

15/06/96

01/11/01

Helper

unemployed

2005

K Pratap

03/10/91

01/11/01

Fitter

unemployed

2005

Aziz Mohammad

28/02/84

24/03/05

casual labour

unemployed

2005

A Rajan

03/01/81

25/03/05

casual labour

unemployed

2005

T Gopi

08/07/80

15/04/88

Helper

unemployed

2005

T Sridhar

01/10/87

01/11/01

Helper

unemployed

2005

B Srinivas

20/04/86

15/04/92

Helper

Worker in Cycle shop

2005

D Naresh

02/06/87

01/11/01

Helper

unemployed

2005

T K Ravinder

15/02/89

01/11/01

Casual Clerk

unemployed

2005

B Nagaraju

21/01/90

01/11/01

Casual

unemployed

Time Clerk

2005

P Siddi Ramulu

21/09/88

01/11/01

Fitter

Hamali work

2005

M Satyanarayana

08/07/87

10/11/01

Helper

Mason's work

2005

M. Lokesh Kumar

21/09/85

01/11/01

Helper

Unemployed

2005

G Mohan Rao

22/09/88

01/11/01

Miller

To be asked

2005

SVGK Muralidhar

02/01/88

01/08/98

Clerk

unemployed

2005

M Srinivas

03/07/86

31/12/03

Casual

Hamali work

mazdoor

100

2005

R Ramesh Kumar

27/08/87

01/11/01

Helper

unemployed

101

2005

B Ram Prasad

01/09/87

31/03/03

Fitter

111

2005

A Srinivasa Rao

06/05/88

08/06/05

Clerk cum

unemployed

Typist

112

2005

V Narsing Rao

14/06/91

01/11/01

Casual

Painter

mazdoor

1054

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

113

2005

M Armstrong

14/07/91

01/11/01

Helper

unemployed

132

2005

T Dasarath

20/03/81

01/04/86

Helper

unemployed

2006

D Venkata Ramana

12/02/86

01/11/01

Helper

unemployed

2006

A Julious

17/04/86

01/11/01

Helper

unemployed

154

2006

A Lakshmi Saraswathi

17/05/88

01/11/01

Clerk

unemployed

155

2006

P Anjan Prasad

18/10/84

18/07/05

Helper

unemployed

159

2006

Andrews mario

05/08/88

01/11/01

Welder

unemployed

cum Fitter

160

2006

E Srinivas

29/04/86

01/11/01

Helper

unemployed

2007

B Venkatamma

21/01/93

01/11/01

Helper

Unemployed

2007

M Durgadas Reddy

15/04/86

01/11/01

Helper

Unemployed

2007

S Srikanth Singh

23/06/86

01/11/01

Helper

Worker in Tak

Couriers

2007

Abdul Majeed

01/12/87

01/05/95

Electrician

unemployed

2007

P Gangadhara Reddy

15/04/86

15/06/96

Auto

unemployed

Mechanic

2007

A Mastanvali

12/03/86

01/04/05

Blacksmith

unemployed

Cum Fitter

2007

P Nagesh

24/04/86

01/11/01

Helper

Hamali work

They were not issued with written appointment order.

But they were given casual employment ticket and time

card by their employer. They were covered under ESIC,

EPF and Bonus Act etc. They were issued with identity

cards. The Respondents were to deduct contributions

towards EPF and ESIC schemes, from their wages. They

worked for more than 240 working days prior to their

termination from services, during the preceding year.

Besides, they also completed 240 working days of work in

all the previous years in the respondent company. Further,

they worked for extra hours after their normal working hours

on some days. They worked on weekly off days, public

holidays and national holidays also. They worked on

weekly off days, public holidays and national holidays

also. But, their employer never used to pay wages for the

work done on such public holidays and national holidays

as they will be paying to the regular workmen for such

work, which is discriminatory. Since, their appointment

Petitioners worked continuously without any break in

service and without any complaints whatsoever and to the

satisfaction of their superiors. While so, they were not

allowed to perform their duties without any written

termination order, without giving any reason for termination.

Thereafter, Petitioners approached the respondent

company several times and also through their union

requesting for their reinstatement into service without any

response. Petitioners also sent written representations

requesting for their reinstatement into service. Though they

received the same, no reply was given and no action was

taken. Having no other alternative Petitioners filed this

petition. The termination of the Petitioners from service is

illegal and unjustified. No notice was given to the Petitioners

prior to their termination from service. No retrenchment

compensation has been paid. There are more than 500

workmen employed in the respondent company, Hence, it

is covered under Chapter V(B) of the Industrial Disputes

Act, 1947 and Sec. 25N of the said act applies. Permission

from the appropriate government is a precondition for any

termination/retrenchment of workmen. But respondent

company has not obtained any such permission. Some of

the casual workers who were appointed much later to the

Petitioners have been appointed to regular posts ignoring

the seniority of the Petitioners which is illegal and

discriminatory. Further, some of the casual workers who

were appointed much later to ihe Petitioners were continued

in service whereas Petitioners have been terminated from

service, which is illegal and discriminatory. The termination

of the Petitioners from service is illegal, invalid and in

violation of Sec. 25F. 25N, 25G and 25H of lndustrial

Disputes Act, 1947, Therefore, Petitioners are entitled for

reinstatement into service with full back wages, continuity

of service and all other attendant benefits.

¹Hkkx II—[k.M 3(ii)º

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1055

3. First Respondent filed their counter with the averments

in brief as follows:

These petitions are not maintainable under Sec.2A(2)

of the Industrial Disputes ACT, 1947. Respondent company

is a public sector undertaking controlled and regulated

initially by Ministry of Defence and later by Government

of India. It is regulated by the policy decisions of the

Ministry of Heavy Industry. As per its man power planning

in various categories permanent employees were recruited

as per the established recruitment procedure for the public

employment. Employment in the respondent company is

public employment and there should be sanctioned posts

and Management have to take policy decisions in this

regard basing on the work load and its financial capacity.

Only then, it can set in motion the recruitment procedure. It

has to notify the vacancies in employment exchange and

also it has to give wide publicity by giving the eligibility

criteria required for a particular post and the selection

committee has to be constituted for selecting the

candidates after receiving the applications from the

candidates. A short list of the candidates who are eligible

for interview is to be prepared and they are to be interviewed

and thereafter as per the merit the candidates are to be

selected. The antecedents of the selected candidates are

to be verified and applying the reservation policy roaster

list is to be prepared and then appointments are to be made

on probation. No person is entitled for the back door

method of appointment as demanded by the Petitioners by

way of this industrial dispute.

There are no permanent vacancies to appoint or post

the casuals in said vacancies or to regularise their services.

Respondent company became sick and it could not run

and reach the stage that it has no financial capacity to pay

the wages to the permanent staff. In addition of sickness,

unauthorized absenteeism resulted in taking casuals to

carry out some skilled, semi-skilled and unskilled works as

on that day's peculiar circumstances prevailing. These

casuals are not discharging all the duties of the permanent

employees much less held responsible for production work

are fastened with any sort of responsibility. No duty is cast

on the casuals to attend daily. When there were urgent

need on certain dates some routine and unskilled jobs which

were not directly related to productions were assigned to

casuals and they were paid minimum wages as applicable

to them. Because of the acclimatization the work culture

and environment the casuals knowing the area of job were

opted in the event of casual vacancies arise. Due to

unforeseen absenteeism in various departments every day

and the load of work, various department officials used to

make requisitions for the man power to do certain jobs. So

the managerial staff used to go to the gate and assign the

said work to the casuals who were waiting at the gate

offering their services, thus, the Petitioners and other

persons were engaged as casuals. The job of the casual

ends by day. Such services will not give any legal right.

Except to consider their case on par with others at the time

of available sanctioned vacancies arise subject to the

candidates satisfy the requisite qualifications and

stipulations. Since, there is no man power requirement at

all, question of implementing any settlement arrived at by

the respondent Management with the employees union

does not arise. Since some of the casuals approached the

High Court and they were provided with employment,

though there were no vacancies in view of the directions

given by the said court. That can not be a ground to seek

for regularization in public employment by back door

methods public employment can not be given as it will be

in violation of the mandate of the constitution and all public

policies. The allegation that Petitioners were appointed in

the Forge And Foundry Division or Machine Tools Division

as casual workers and since then they have discharged

their duties continuously, without complaints and to the

satisfaction to their superiors is not a correct fact. They

were not appointed in any regular or permanent vacancy.

They are to be put to strict proof regarding their contentions.

Even otherwise being casuals they have not vested right

to make claim for permanent employment because of their

disengagement. This can not be treated by any stretch of

imagination as termination without any order. All the casual

employees including the Petitioners were paid the wages

for the actual number of days they were engaged as per

labour laws and the respondent Management complied all

the statutory obligations at the time of payment of wages

including P.F. and E.S.I. as the case may be. Petitioners

also were paid wages after the statutory deductions of P.F.

and E.S.I. and were communicated as they were covered

under both these acts. For the purpose of identification

and maintenance of time if respondent company provides

ticket number and time card will not give rise to any right to

seek for permanent post in the Respondent company.

Petitioners are to be put to strict proof regarding their

contention that they were paid Rs. 5100/- per month towards

wages as on the date of their oral termination from duty.

Petitioners' case is not a case of termination basing on the

exigencies of work the jobs were provided. It will not give

any right to raise an industrial dispute. Petitioners are to be

put to strict proof that they worked for more than 240 days

prior to their termination from service and also in previous

years. There are false contentions. There is no violation of

any of the provisions of Industrial Disputes Act, 1947 on

the part of the respondent. Nature of the job allocated to

various persons mentioned in the petitions and the same

actually allocated to the Petitioners are different. The facts

and circumstances in the year 1991 are totally different

because of the contempt proceedings filed before the court

some Petitioners were given appointment orders though

there were no vacancies. The same can not be cited as a

precedent and it can not be claimed that there is

discrimination. Petitioners can not claim for reinstatement

into service with full back wages and continuity of service

with all attendant benefits. Even otherwise Petitioners are

1056

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

not entitled for any of the reliefs sought for. Petitions are

liable to be dismissed.

4. 2nd Respondent filed a memo adopting the counter

filed by the first Respondent in the relevant disputes.

5. To substantiate the contentions of the Petitioners,

Petitioners were examined as WW1 in their respective cases

exhibits were marked. On behalf of the Respondent

Management MWl was examined and Ex.Ml to M7 were

marked.

6. Heard the arguments of either party.

7. The points that arise for determination are:

(I) Whether the Petitioners are entitled for reinstatement

into service as casual workers?

(II) Whether the Petitioners are entitled for the reliefs of

payment of full back wages, continuity of service

and other attendant benefits?

8. Point No 1:

It is the contention of the Petitioners that they have

been working as a casual workers with the first Respondent

company since their appointment continuously, receiving

wages and further that Respondent company has been

deducting amounts from their wages each month for

subscribing the same for Provident Fund and for Employees

State Insurance, as Petitioners were covered by the same.

Whereas in their counter Respondent company made an

effort to deny the truth of the contention of the Petitioners

that they have been working continuously as casual

workers with the Respondent company from their

respective date of appointment but, they have not denied

the truth of the contention of the Petitioners that Petitioners

have been working as casual workers with them. Thus, it is

their contention that Petitioners though worked as casual

workers for them, Petitioners have not been working with

them regularly.

9. Whereas, the Assistant General Manager(HRM)

of the Respondent company who has been examined as

MWl in these cases, has admitted that deductions were

made from the wages of the Petitioners and other casual

workers each and every month, for making contribution to

the provident fnnd and ESI and for such deductions

registers were maintained and signatures of the Petitioners

and other such casual workers were obtained in the said

registers. That means, regularly for each and every month

wages were being paid to the Petitioners and other such

workers, while so, deductions were being made from the

said wages for making contributions to PF and ESI. Thus,

it is a regular procedure which indicates that Petitioners

and other such workers worked for the Respondent

company continuously, but as casual workers.

10. MWl admitted that there were registers

maintained by ihc Respondent company for the deductions

from the wages made for contributing to PF and ESI. If

such registers are produced before the court it would have

been possible for the court to verify the date from which

such deductions were made in respect of the Petitioners.

But such registers were not produced before the court.

Therefore, an Inference is to be drawn that since the

contention of the Respondent company that Petitioners

have not been working continuously from their date of

joining is not correct and as they are apprehending that if

such registers are produced before the court the truth will

come out, such registers are not produced. In the given

circumstances it can safely be concluded that Petitioners

have been working for the first Respondent as casual worker

continuously from the date of appointment.

11. It is an admitted fact, as can be seen from the

contentions of the Respondents which can be gathered

from their counter and the evidence of the MW1, that

Petitioners have been disengaged from service by not

allowing them to perform their duties since that date. It

amounts to termination of their service only. Certainly they

have worked for more than 240 working days continuously

prior to the said date of termination of their service.

Petitioners have been in service with the Respondent

company for about 24 years. But, they have not been issued

with any written notice informing them of the factum of

termination of their service much less assigning reasons

for such termination. Petitioner have not been paid any

retrenchment compensation either, admittedly. It is the

explanation given by MW1 for such conduct that Petitioners

were not regular workers. This explanation is not at all

acceptable.

12. Petitioners will certainly come under the purview

of the definition of workmen as contemplated by the

Indusirial Disputes Act. 1947. Therefore, they are entitled

for all the benefits which are provided for in the said Act. It

is not in dispute that Chapter V (B) of Industrial Disputes

Act 1947 applies to the 1st Respondent company. Thus, in

case of termination of Petitioners' services by the employer,

they as well as the employer will be governed by Sec.25N

of the Industrial Disputes Act, 1947. Sec.25N(I) reads as

follows:

"25-N. Conditions precedent to retrenchment of

workmen:— (1) No workman employed in any industrial

establishment to which this Chapter applies, who have

been in continuous service for not Less than one year

under an employer shall be retrenched by that employer

until—

(a) the workman have been given three months' notice in

writing indicating the reasons for retrenchment and

the period of notice have expired, or the workman

have been paid in lieu of such notice, wages for the

period of the notice; and

(b) the prior permission of the appropriate Government

or such authority as may be specified by that

¹Hkkx II—[k.M 3(ii)º

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1057

Government by notification in the Official Gazette

(hereafter in this Section referred to as the specified

authority) have been obtained on an application made

in this behalf."

Whereas in the present case admittedly. Respondent

has neither issued the three months notice nor has paid

the wages in lieu of such notice. They have not obtained

permission of the appropriate government for terminating

the services of the workmen. They have not paid the

retrenchment compensation provided for in Sec. 25N (9) of

the Industrial Disputes Act. 1947 either. In the given

circumstances termination of the Petitioners is certainly

illegal and unjustified as rightly contended for by the

Petitioners.

13. Further more, the material on record discloses

that some of the casual workers who were working along-

with the Petitioners and whose services were also terminated

approached Hon'ble High Court of A.P. and Hon'ble High

Court has directed the Respondent company to reinstate

them into service and also to consider the regularization of

their services if such schemes are available. The order dated

14.6.2007 rendered by Hon'ble High Court of A.P. in WP

No. 20241 of 2005 shows that such an order has been

passed. Evidence of MW1 clarifies that such an order has

been implemented. Though Petitioners are standing on the

same footing as the Petitioners in the said writ petition,

their contentions were not considered by the first

Respondent though they made representations to them

time and again.

14. A plea has been put forth for the Respondent

company that there is no sufficient work load enabling

them to engage casual workers. But the evidence of MW1

clarifies that even now first Respondent is employing

casual workers and some of them were engaged by the first

Respondent much subsequent to the date of engagement

of the Petitioners and they are still continuing to work for

the Respondent.

15. Thus, there is clear violation of the provisions of

Sections 25G and 25H of Industrial Disputes Act, 1947 on

the part of the Respondent company.

16. The evidence on record clearly shows that though

Respondent company is a public sector undertaking

controlled and regulated by the Government of India, the

Management of the said company is committing several

irregularities and illegalities by employing several casual

workers paying substantially less remuneration than the

amount which they are paying to the regular workers though

they are extracting substantial work from the said casual

workers. But it is not relevant to the dispute on hand. Now

the question to be decided is not regarding regularization

of any casual workers. The dispute on hand is regarding

the legality or otherwise of the termination of the services

of the Petitioners. It is already held above that said

termination is neither legal nor justified for the reasons

discussed above. In the given circumstances, various

contentions raised for the Respondents in connection with

public employment and methods of public employment need

not be gone into as they are irrelevant here.

17. It is a well established position of law that when

there is illegal termination of service of the workman by the

employer in violation of Sec. 25F or Sec. 25N of Industrial

Disputes Act, 1947 the only course opened to correct the

situation is reinstatement of the said workman into service.

Therefore, the Petitioners are entitled for reinstatement into

service.

This point is answered accordingly.

18. Point No. II:

As can be gathered from the evidence of the

Petitioners as WW1 some of them are working as painters,

electricians, coolies, hamalies and helpers etc., and some

of them are unemployed since the date of their

disengagement. Thus, some of them have suffered

financially due to abrupt termination of their services by

their employer M/s. Praga Tools Limited. But also

considering the fact, that as per the evidence on record,

first Respondent is also not doing well financially and

therefore awarding full back wages to the Petitioners is not

prudent thing to do, reasonable compensation is to be

awarded to the Petitioners by the Respondent company

i.e., M/s. Praga Tools Limited. Awarding of Rs. 10,000

towards compensation to each of the Petitioners from the

first Respondent for the illegal and unjustified termination

of their services, is reasonable.

19. Further, Petitioners are entitled for continuity of

service by restoring their seniority and they are entitled for

other attendant benefits as well,

This point is answered accordingly.

Result:

20. In the result, all the 58 petitions mentioned in

cause title are allowed The action of the Respondent

company i.e., M/s. Praga Tools Limited in terminating the

services of the Petitioners is held as illegal and unjustified

and it is set aside. Petitioners shall be reinstated into service

forthwith as casual workers with continuity of service and

other attendant benefits. Respondent company shall pay

an amount of Rs. l0,000 (Rupees ten thousand only) to

each of the Petitioners in the 58 Petitions (as per cause

title) towards compensation for the illegal termination of

the services of the Petitioners, forthwith.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 24th day of

October 2013.

M. V1JAYA LAKSHMI, Presiding Officer

1058

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Appendix of evidence

Witnesses examined for the

Petitioners

Respondent

WW1: 58 Petitioners as per

MW1: Sri N. Babu Rao

cause titled

Documents marked for the Petitioners

LC 23 of 2005

Ex. W 1: Representation

Ex. W 2: Ack. Card

Ex. W 3: EPF slip

Ex. W 4: Agreement

Ex. W 5: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 6: Seniority list

Ex. W 7: Common order in WP No. 23866/01 & 5722/02

dt. 14.6.07

LC 24 of 2005

Ex. W 1: EPF slip

Ex. W 2: Representation

Ex. W 3: ID Card

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

LC 25 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 4.6.07

LC 26 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

LC 27 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

LC 29 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

LC 30 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

LC 31 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

LC 32 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

10.

LC 33 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

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Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

11.

LC 34 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Identity card

Ex. W 5: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 6: Seniority list

Ex. W 7: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

12.

LC 35 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

13.

LC 36 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

14.

LC 54 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

15.

LC 55 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

16.

LC 56 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

17.

LC 57 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

18.

LC 58 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

19.

LC 59 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

20.

LC 60 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

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21.

LC 61 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

22.

LC 62 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

23.

LC 63 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 6: Seniority list

Ex. W 7: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

24.

LC 64 of 2005

Ex. W 1: EPF slip

Ex. W 2: Representation

Ex. W 3: ESI card

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.19

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

25.

LC 65 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

26.

LC 80 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Identity card

Ex. W 5: Seniority list of casual workers

27.

LC 81 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: representation

Ex. W 4: Identity card

Ex. W 5: Seniority list of casual workers

28.

LC 82 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

29.

LC 83 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7

: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

30.

LC 84 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

31.

LC 85 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

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32.

LC 86 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

33.

LC 87 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

34.

LC 88 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

35.

LC 89 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

36.

LC 90 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: identity card

Ex. W 5: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 6: Seniority list

Ex. W 7: Common order in WP No. 23866/01 & 5722/

02 14.6.07

37.

LC 92 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

39.

LC 94 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

40.

LC 100 of 2005

Ex. W 1: Representation

Ex. W 2: ESI card

Ex. W 3: EPF slip

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 & 5722/

02 14.6.07

41.

LC 101 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

42.

LC 111 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 & 5722/

02 14.6.07

43.

LC 112 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

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Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

44.

LC 113 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

45.

LC 132 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

46.

LC 80 of 2006

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

47.

LC 81 of 2006

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: representation

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

48.

LC 154 of 2006

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

49.

LC 155 of 2006

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

50.

LC 159 of 2006

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

51.

LC 160 of 2005

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

52.

LC 19 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

53.

LC 39 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

54.

LC 40 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

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Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

55.

LC 41 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

56.

LC 88 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

57.

LC 89 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Postal receipt

Ex. W 5: Acknowledgement card

Ex. W 6: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 7: Seniority list

Ex. W 8: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07

58.

LC 90 of 2007

Ex. W 1: ESI Card

Ex. W 2: EPF slip

Ex. W 3: Representation

Ex. W 4: Order in WP No. 20241/05 dt. 14.6.07

Ex. W 5: Seniority list

Ex. W 6: Common order in WP No. 23866/01 &

5722/02 dt. 14.6.07.

Documents marked for the Respondent

Ex. M1: Photostat copy of Lr. Dt. 11.3.2002 from D/o Heavy

Industry

Ex. M2: Photostat copy of Lr. No. 7(14)/91-PR-IV dt.

11.3.1992 (Neat copy of Ex. M1)

Ex. M3: Photostat copy of proceeding of BIFR dt. 3.5.2007

Ex. M4: Photostat copy of proceeding of BIFR dt.

13.6.2008

Ex. M5: Photostat copy of 2001-02 balance sheet-extract-

performance of last 10 years

Ex. M6: Photostat copy of 2006-07 balance sheet-extract-

performance of last 7 years

Ex. M7: Photostat copy of 2009-10 balance sheet-extract-

Profit and Loss.

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New Delhi, the 17th January, 2014

S.O. 383.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 36/2006)

of the Central Government Industrial Tribunal/Labour

Court, Hyderabad as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, received by the Central Government on

13/01/2014.

[No. L-42012/03/2014-IR (DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT :

Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 36/2006

Between:

Sri M. Pochaiah,

S/o Butchaiah,

R/o H.No. 5-24/R-49,

Rajiv Gandhi Nagar, Kapra Municipality,

Uppal (M), Ranga Reddy District.

.....Petitioner

1064

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad-500 062.

.....Respondent

APPEARANCES:

For the Petitioner:

M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent:

Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec. 2A(2) of

Industrial Disputes Act, 1947 by the Petitioner who is

claiming to be the person who worked as sweeper in the

Respondent unit seeking for setting aside the oral

termination of services dated 23.10.1998 by the Respondent

consequently to direct the Respondent to reinstate the

Petitioner into service with continuity of service, back

wages and all other attendant benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

w.e.f. 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them. The Central Government

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec. 10(1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government, Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs. 25/-

per day. Subsequently it was enhanced to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No. 29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition, Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No. 13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2002. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of casual labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated man and he has been exploited by the

Respondent by paying less than minimum wages and

terminating his services abruptly without any notice

consequent to his filing WP before the Hon'ble High Court

of A.P., and without following the procedure contemplated

under Industrial Disputes Act, 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec.25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of his family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of his family.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1065

3. Respondent filed his counter wilh the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No.5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991, Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha, the contractor, Respondent No.2 in

WP No.29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the Kapra Municipality. Since service charges running into

lakhs of rupees have been paid to Kapra Municipality which

facilitated the Respondent approaching them for taking up

the house keeping jobs in DAE colony. The house keeping

works of DAE housing colony is being taken care of by

Kapra Municipality. The requirement is being met through

helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. His engagement is not within the

knowledge and control of the Respondent at any time. It

was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of his services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No.1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No.29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by him was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to him by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (RA) Act, 1970. Petitioner's employer was not having

any contractual obligation with him as on the date of

issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and he was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. He can not claim for regularization of his

services. In the writ proceedings for the similar cause of

action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WWl was examined and exhibits Wl to W8 are marked.

While WWl evidence was in progress and by virtue of the

orders dated 17.3.2009, this matter i.e. LC No.36/2006 along

with other L.C. Nos. taking from L.C No. 29 to 40/2006 are

clubbed together in LC. 28/2006 in pursuance of the memo

filed by the Petitioner and it has been ordered that evidence

is to be adduced in first case i.e., LC 28/2006. Accordingly

in respect of all these cases i.e., LC 28 to 40 of 2006, Smt. T.

Saradha, WWl in L.C. 28/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WWl have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex. M1 to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

1066

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 292l0

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1 :

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is

supposed to have his legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a central

government organisation. This forum is Central Government

Industrial Tribunal-cum-Labour Court whose function is

to decide the industrial disputes arising from the industries

which are Central Government undertakings. All the

industrial disputes which arose within the jurisdiction of

this tribunal and which concern with the Central

Government organisations Central Government

undertakings, are to be decided by this forum only as per

the powers conferred on this tribunal As to the Central

Administrative Tribunal is concerned, all the service and

administration related disputes pertaining to the officers

and employees of all the central government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec.2A(2) of Industrial Disputes Act, 1947,

this Tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2 :

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No. 1602/2000 in WP No. 29210/1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duly of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation. This point is answered accordingly.

9. Point No. 3 :

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judi cata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No.1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex.W3 the order

rendered in Special Leave to Appeal(Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of his services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing file Respondent to reinstate the

Petitioner in the service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1067

11. In the given circumstances, it can safely be

held that the proceedings of WPNo.29210/1998 will not

act as res judi cata for the present proceedings.

This point is answered accordingly.

Point No. 4 :

12. Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that he has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers(COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and he was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to him by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/Court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If she contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Worker and Others

{(200I) 7 SCC page 1}, which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex.M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex.M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

1068

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex.M4 has never been acted upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that he is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

Point No. 5 :

21. As can be gathered from the line of the defence

taken in this case by the Respondent and the arguments

built up and advanced for them, what one can see is that

they are meeting the claim of the Petitioner as if the Petitioner

is seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decided and it has been decided white deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organisation which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act. 1947

deals with conditions precedent to retrenchment of

workman. Sec. 25 F 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]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

¹Hkkx II—[k.M 3(ii)º

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1069

contentions of the Petitioner that he has been in continuous

service with the Respondent since years together which

has not been disproved by producing the record maintained

by the Respondent regarding the service of the Petitioner

with the Respondent. Therefore, it can safely be held that

Petitioner comes under the purview of the workman

mentioned in Sec.25F by working with the Respondent for

not less than one year. As per Scc.25F such a workman can

not be retrenched, until he has 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 workman has to be paid

retrenchment compensation as mentioned in Sec. 25F (b)

and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, {(2001) 6 SCC page

584} and in the case of Anup Sharma Vs. Public Health

Division {(2010) 5 SCC 497} Hon'ble Supreme Court of

India considered the effect of violation of Sec.25F and held

that termination of service of a workman without complying

with the mandatory provisions contained under Sec.25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory prerequisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act. 1947,

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

Point No. 6 :

29. In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result :

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of his services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri M. Pochaiah

MWl: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex. W1:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. W2:

Photostat copy of representation dt. 11.4.98

Ex. W3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex. W4:

Photostat copy of representation dt. 3.5.96

Ex. W5:

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex. W6:

Photostat copy of representation dt. 9.10.98

Ex. W7:

Photostat copy of order in WA No. 1602/1999

Ex. W8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex. M1:

Photostat copy of order in WP No. 5592/1991

Ex. M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M5:

Photostat copy of order in contempt case No.

1903/98

Ex. M6:

Photostat copy of order in WPNo. 29210/1998

dt. 25.9.2000

Ex. M7:

Photostat copy of order in WA No. 1602/1999

Ex. M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

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New Delhi, the 17th January, 2014

S.O. 384.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 37/2006)

of the Cent. Govt. Indus. Tribunal/Labour Court, Hyderabad

now as shown in the Annexure, in the industrial dispute

between the employers in relation to the management of

Chief Executive, Nuclear Fuel Complex, Department of

Atomic Energy, Hyderabad and their workmen, which was

received by the Central Government on 13/01/2014.

[No. L-42012/03/2014-IR (DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT :

SMT. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 37/2006

Between:

Smt. G. Lakshmi,

W/o Mohan,

R/o Plot No. 123,

Sai Nagar Colony, Near Kushaiguda,

ECIL Post, Ranga Reddy District,

...Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Departmemt of Atomic Energy,

Hyderabad-500 062.

....Respondet

Appearances:

For the Petitioner

: M/s. G. Ravi Mohan, G. Narersh

Kumar, Vikas Sharma, K.

Bhaskar & G. Pavan Kumar,

Advocates

For the Respondent

: Sri

Suryanarayana,

Advocate

AWARD

This is a petition filed invoking Sec. 2A (2) of

Industrial Disputes Act. 1947 by the Petitioner who is

claiming to be the person who worked as sweeper in the

Respondent unit seeking for setting aside the oral

termination of services dated 23.10.1998 by the Respondent

consequently to direct the Respondent to reinstate the

Petitioner into service with continuity of service, back

wages and all other attendant benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

from May, 1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them.The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec. 10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area m which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government.

Initially Petitioner was paid Rs. 25/- per day.

Subsequently it was enhanced to Rs. 45/- per day. Petitioner

worked from May, 1992 to October, 1998 continuously

without any break in service. Petitioner along with other

similarly situated persons filed WP No. 29210 of 1998 before

the Hon'ble High Court of A.P. for absorbing as a regular

employee and to pay other benefits on par with other

employees. During the pendency of the said Writ petition,

Petitioner was terminated from the service in the month of

October, 1998 and the writ petition was allowed by an order

dated 25.9.2000. Against the said order WA No. 1602/1999

was filed by the Respondent before the Division Bench of

¹Hkkx II—[k.M 3(ii)º

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1071

the Hon'ble High Court of A.P. The said appeal was allowed

on 23.2.2001 Against the said order Petitioner filed Special

Leave to Appeal (Civil) No. 13451/2001 before the Hon'ble

Supreme Court of India and the same was withdrawn with

a liberty to raise industrial dispute before the appropriate

forum on 9.11.2001. Thus, the Petitioner raised the dispute.

The premises of the Respondent including the residential

quarters of the officers of the Respondent is in the same

campus, i.e., within the premises of the Respondent.

Cleaning activities of the Respondent quarters which

includes, roads and maintenance of the buildings is to be

taken care off by the Respondents only. An officer from

the civil department used to take care of the work in respect

of cleaning and maintenance of the factory buildings

including the residential quarters. No work was entrusted

to any outsider at any point of time i.e., contractor.

Respondent used to maintain details of causal labourers,

who were entrusted with the works of cleaning, gardening,

civil works etc. which are perennial in nature. Petitioner

was deputed to work as sweeper. Respondent never issued

any appointment letter. However, salary was being paid by

the Respondent Management on monthly basis.

Attendance register and wages register were maintained

by the Respondent and the same are in their custody.

Respondent used to take the signature of the Petitioner in

the wage register every month while paying salary in cash.

There was no contract given to any contractor who is in

between Respondent and Petitioner. In view of the

notification issued by the Central Government. Respondent

should not engage any contract labour. Admittedly,

Petitioner is an uneducated woman and she has been

exploited by the Respondent by paying less than minimum

wages and terminating her services abruptly without any

notice consequent to her filing WP before the Hon'ble High

Court of A.P. and without following the procedure

contemplated under Industrial Disputes Act, 1947 as well

as Contract Labour Regulation and Abolition Act. There is

violation of the provisions of Sec.25F of Industrial Disputes

Act, 1947, Petitioner is the only earning member of her

family and consequent to illegal termination of her services

it has become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP No.

5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha, the contractor, Respondent No.2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The overall control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularzation of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP. 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrigtnly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

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[PART II—SEC. 3(ii)]

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Wl to W8 are marked.

While WWl evidence was in progress and by virtue of the

orders dated 17.3.2009, this matter i.e. LC No. 37/2006 along

with other L.C. Nos. taking from L.C. No. 29 to 40/2006 are

clubbed together in L.C. 28/2006 in pursuance of the memo

filed by the Petitioner and it has been ordered that evidence

is to be adduced in first case i.e., LC 28/2006. Accordingly

in respect of all these cases i.e., LC 28 to 40 of 2006, Smt. T.

Saradha, WWl in L.C. 28/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases scparately by examining MWl

and Management marked Ex.Ml to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 292l0

of 1998 operate as res judicata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is supposed

to have his legal recourse from the Central Administrative

Tribunal. This contention can not be accepted as a correct

contention. It is undoubtedly an industrial dispute and the

Respondent is admittedly a Central Government

organisation. This forum is Central Government Industrial

Tribunal-cum-Labour Court whose function is to decide

the industrial disputes arising from the industries which

are Central Government undertakings. All the industrial

disputes which arose within the jurisdiction of this tribunal

and which concern with the Central Government

organisations Central Government undertakings, are to be

decided by this forum only as per the powers conferred on

this tribunal. As to the Central Administrative Tribunal is

concerned, all the service and administration related

disputes pertaining to the officers and employees of all the

Central Government offices, organisations and

undertakings are to be dealt with by the said forum. Since

the present dispute is an industrial dispute raised under

Sec. 2A(2) of Industrial Disputes Act. 1947, this tribunal

got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No. 1602/2000 in WP No. 29210/1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

¹Hkkx II—[k.M 3(ii)º

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1073

period of limitation. When the Act is silent as to the

question of limitation, the courts are bound to entertain

the cases, without looking into the belatedness or otherwise

in filing the same, as it is the duly of the courts to interpret

and implement the law enacted by the parliament only, but

not to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more.

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No. 29210/1998 will not act as

res judicata for the present proceedings.

This point is answered accordingly.

12. Point No. 4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however. Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers(COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers(COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is. that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him hut claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

1074

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[PART II—SEC. 3(ii)]

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Workers and Others

{(2001) 7 SCC page 1}, which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M 4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW l had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex. M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex. M4 has never been acted

upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can he gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decided and it has been decided while deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

¹Hkkx II—[k.M 3(ii)º

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1075

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec. 25 F 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

appropriate Government [or such authority as may

be specified by the appropriate Government by

notification in the Official Gazette]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely be held that Petitioner comes under the purview of

the workman mentioned in Sec. 25F by working with the

Respondent for not less than one year. As per Sec. 25F

such a workman cannot be retrenched, until he has 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. Furthermore, the workman

has to be paid retrenchment compensation as mentioned

in Sec. 25F (b) and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory prerequisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur. {(2011) 6 SCC page

584} and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supreme Court of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory pre-requisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to he set aside and Petitioner is entitled for

reinstatement into service.

This point in answered accordingly.

29. Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

1076

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. G. Lakshmi

MW1: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex. W1:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. W2:

Photostat copy of representation dt. 11.4.98

Ex. W3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex. W4:

Photostat copy of representation dt. 3.5.96

Ex. W5:

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex. W6:

Photostat copy of representation dt. 9.10.98

Ex. W7:

Photostat copy of order in WA No. 1602/1999

Ex. W8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex. M1:

Photostat copy of order in WP No. 5592/1991

Ex. M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M5:

Photostat copy of order in contempt case No.

1903/98

Ex. M6:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. M7:

Photostat copy of order in WA No. 1602/1999

Ex. M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999.

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New Delhi, the 17th January, 2014

S.O. 385.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 39/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present :— SMT. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 39/2006

Between:

Sri B. Mallaiah,

S/o Devija.

R/o H.No. 10-1/92, Nehru Nagar,

Block-III, H.C.L.-X Roads,

ECIL Post, Ranga Reddy District.

Hyderabad-62.

......Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad-500 062.

.......Respondent

Appearances:

For the Petitioner:

M/s. G. Ravi Mohan, G. Narersh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent:

Sri K. Suryanarayana, Advocate.

AWARD

This is a petition filed invoking Sec. 2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1077

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

w.e.f. 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them. The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec. 10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respectof cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availaility of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of Principal Employer to absorb

the contract labourer once the contractlabour is abolished

and to treat them as regular employees. It is the statutory

obligation under Section 11, 19 and 20 of the Factories Act

to maintain cleanliness of the area in which the factory is

situated. Respondent company is a factory. Even as per

the codtition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs. 25/-

per day. Subsequently it was enhanced to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No.29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition, Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9,2000. Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No.13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated man and he has been exploited by the

Respondent by paying less than minimum wages and

terminating his services abruptly without any notice

consequent to his filing WP before the Hon'ble High Court

of A.P., and without following the procedure contemplated

under Industrial Disputes Act, 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec. 25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of his family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of his family.

3. Respondent filed his counter with the averments in

brief as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP No.

5592 of 1991 filled by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way hack in 1995 as the contract entered into

with Sri P. Narasimha. the contractor. Respondent No.2 in

WP No.29210/1998 expired by 30.6.1995, On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded hy Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, waich and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

1078

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

of the colony. The over all control including allotment of

quarters vests with the Estate Officer. NFC, It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 monilis executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide teller dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

control labourers were also engaged. Petitioner is one

among the labourers engaged hy the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. His engagement is not within the

knowledge and control of the Respondent at any time. It

was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner Filed WP No.292I0 of 1998 seeking

for regularization of his services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'hle High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 rcgularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

tribunal now. It is a belated claim. Statement of the Petitioner

that the work done by him was perennial in nature was

denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to him by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with him as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and he was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. He can not claim for regularization of his

services. In the writ proceedings for the similar cause of

action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits Wl to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, this matter i.e. LC No.39/2006 along

with other LC. Nos. taking from LC. No. 29 W 40/2006 are

clubbed together in L.C. 28/2006 in pursuance of the memo

filed by the Petitioner and it has been ordered that evidence

is to be adduced in first case i.e., L-C 28/2006. Accordingly

in respect ol all these cases i.e.. LC 28 to 40 of 2006, Smt. T

Saradha. WW1 in L-C 28/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WWl have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex.Ml to MB in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards arc

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No.29210

of 1998 operate as res judicata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so. whether

the said order is liable to be set aside?

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1079

6. To what relief Petitioner is entitled?

7. Point No.1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is supposed

to have his legal recourse from the Central Administrative

Tribunal. This contention can not be accepted as a correct

contention. It is undoubtedly an industrial dispute and the

Respondent is admittedly a central government

organisation. This forum is Central Government Industrial

Tribunal-cum-Labour Court whose function is to decide

the industrial disputes arising from the industries which

are Central Government undertakings. All the industrial

disputes which arose within the jurisdiction of this tribunal

and which concern with the Central Government

organisations Central Government undertakings, are to be

decided by this forum only as per the powers conferred on

this tribunal. As to the Central Administrative Tribunal is

concerned, all the service and administration related

disputes pertaining to the officers and employees of all the

central government offices, organisations and undertakings

are in he dealt with by the said forum. Since the present

dispute is an industrial dispute raised under Sec.2A(2) of

Industrial Disputes Act, 1947, this tribunal got every

jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A,P. decided WA No.1602/2000 in WP No.29210/1998 by

vice of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking

Sec.2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedncss or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is not be held that this petition is noi

barred by limitation.

This point is answered accordingly.

9. Point No.3:

The writs filed invoking the extraordinary jurisdiction

oHhe Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain Industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution ol India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex.W3 the order

rendered in Special Leave to Appeal(Ciwel) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regulari sation of their services with the Respondent,

Whereas, the present industrial dispute is raised by the

Petitioner, consequent io termination of his services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are cotally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No.29210.1998 will not act as

res judicata for the present proceedings.

This point is answered accordingly.

12. Point No.4:

Admittedly, Petitioner has worked with Ihe

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that he has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however. Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them,

14. Whereas. Respondent is contending that house

keeping works in DAF. housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

1080

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers(COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and / or

deployment of hclpers(COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAT Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and he was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to him by the

Respondent. Furthermore, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e. the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will havet o consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any give for result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Workers and

Others[(2001) 7 SCC page 1], which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex.M4. the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross-examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18 Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-Charge

within 2 (two) weeks from the date of issue of this order. If

the work was done in furtherance of E. M4 order, in every

likelihood the daily, report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex. M4 has never been acted upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that he is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody. If actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

¹Hkkx II—[k.M 3(ii)º

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1081

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

thai Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to he decided and it has been decided while deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No.4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec. 25 F reads as follows:-

"25-F: Condition precedent to retrenchment of

workmen:— No employed in any industry who has been

in continuous service for not less than one year under an

employer should be retrenched by that employer untit^

(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 the 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]."

26. As can be gathered from the facts on record.

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that he has been in continuous

service with the Respondent since years together which

has not been disproved by producing the record maintained

by the Respondent regarding the service of the Petitioner

with the Respondent. Therefore, it can safely be held that

Petitioner comes under the purview of the workman

mentioned in Sec.25F hy working with the Respondent for

not less than one year. As per Sec.25F such a workman can

not be retrenched until he has 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 workman has to be paid

retrenchment compensation as mentioned in Sec. 25F (b)

and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre-requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Horfble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, [(2011) 6 SCC page

584] and in the case of Anup Sharma Vs. Public Health

Division 1(2010) 5 SCC 497] Hon'ble Supreme Court of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

1082

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

with the mandatory provisions contained under Sec.25 F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory pre-requisites contemplated

under Sec.25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable lo be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner tor the period from 23.10.1998

of the date of termination of his services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit

Typed to my dictation by Smt. P. Phani Gowri.

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WWI: Sri B. Mallaiah

MW/Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1:

Photostat copy of order in WPNo. 292lO/1998

dt. 25.9.2000

Ex.W2:

Photostat copy of representation dt. 11.4.98

Ex.W3:

Photostat copy of order in SLA (Civil) No. 13451/

2001

Ex.W4:

Photostat copy of representation dt. 3.5.96

Ex.W5:

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex.W6:

Photostat copy of representation dt.9.10.98

Ex.W7:

Photostat copy of order in WA No.l602/1999

Ex.W8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex.M I:

Photostat copy of order in WP No. 5592/I99l

Ex.M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex.M3:

Photostat copy of letter dt.9.1.1999 issued by

NFC to Commissioner Kapra Municipality

Ex.M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Fx.M5:

Photostat copy of order in contempt case No.

1903/98

Ex.M6:

Photostat copy of order in WP No.29210/I998

dt. 25.9.2000

Ex.M7:

Photostat copy of order in WA No. l 602/1999

Ex.M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999.

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New Delhi, the 17th January, 2014

S.O. 386.—In pursuance of Section 17 of the

Industrial Disputes Act. 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D No. 40/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

¹Hkkx II—[k.M 3(ii)º

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1083

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

PRESENT: SMT. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C No. 40/2006

Between:

Smt. B. Lakshmi,

W/o B. Shankar,

R/o H. No. 1-226,

Nehru Nagar Colony, Block-III, H.C.L, X Roads,

ECIL Post, Ranga Keddy District,

Hyderabad -62.

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad-500062.

.........Respondent

APPEARANCES:

For the Petitioner :

M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent:

Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec.2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

w.e,f. 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them. The Central Government,

exercising the power under Sec.3'0 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec.10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs. 25/-

per day. Subsequently it was enhanced to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No. 29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefit on par with

other employees. During the pendency of the said Writ

petition, Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No, 1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No.13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

used to lake the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated woman and she has been exploited by the

Respondent by paying less than minimum wages and

terminating her services abruptly without any notice

consequent to her filing WP before the Hon'ble High Court

of A.P. and without following the procedure contemplated

under Industrial Disputes Act, 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec. 25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member other family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No. 5592 of 1991 filed by Sri Kewal Singh and 17 others

vide order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha, the contractor, Respondent No. 2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA Municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAH housing colony is being taken care

of by Kapra Municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall he maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim, Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Pelitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judicata. Petition is liable to

be dismissed.

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1085

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.03.2009, this matter i.e. LC No. 40/2006

along with other L.C. Nos. taking from L.C. No. 29 to 40/

2006 are clubbed together in L.C. 28/2006 in pursuance of

the memo filed by the Petitioner and it has been ordered

that evidence is to be adduced in first case i.e., L.C. 28/

2006. Accordingly in respect of all these cases i.e., L.C. 28

to 40 of 2006, Smt. T. Saradhar WW1 in L.C. 28/2006 alone

has been cross-examined on behalf of respondents, though

separate chief examination affidavits of WW1 have been

filed in all these cases. Further more, Respondent's evidence

have been adduced in all these cases separately by

examining MW1 and Management marked Ex. M1 to M8 in

each case and arguments are also advanced in all these

cases and Respondent has filed his written arguments in

all these cases separately. In the given circumstances and

for the sake of effective disposal of all these cases awards

are being passed in all these cases separately and

individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 2921/0

of 1998 operate as res judicata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6.' To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is supposed

to have his legal recourse from the Central Administrative

Tribunal. This contention can not be accepted as a correct

contention. It is undoubtedly an industrial dispute and the

Respondent is admittedly a central government

organisation. This forum is Central Government Industrial

Tribunal-cum-Labour Court whose function is to decide

the industrial disputes arising from the industries which

are Central Government undertakings. All the industrial

disputes which arose within the jurisdiction of this tribunal

and which concern with the Central Government

organisations Central Government undertakings, are to be

decided by this forum only as per the powers conferred on

this tribunal. As to the Central Administrative Tribunal is

concerned, all the service and administration related

disputes pertaining to the officers and employees of all the

central government offices, organisations and undertakings

are to be dealt with by the said forum. Since the present

dispute is an industrial dispute raised under Sec. 2A(2) of

Industrial Disputes Act, 1947, this tribunal got every

jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P decided WA No.1602/2000 in WP No. 29210 /1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No 3 :

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases tiled before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extraordinary jurisdiction provided

under Article 226 of Constitution of India. Furthermore,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

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[PART II—SEC. 3(ii)]

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No.1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Furthermore, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No. 29210/l998 will not act as

res judicata for the present proceedings.

This point is answered accordingly.

12. Point No. 4 :

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA Municipality, whereas requirement of plant of

the Respondent is being met through helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers (COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Furthermore, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether, the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that the

Industrial Tribunal/Court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Workers and Others

[(2001) 7 SCC page 1], which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

¹Hkkx II—[k.M 3(ii)º

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1087

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall he submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex, M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged tor the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no 'such

documents and therefore Ex. M4 has never been acted

upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee,

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this cast. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularizatton of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decided and it has been decided while deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to lake services of

the Petitioner since 23.10.1998 . In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No.4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely he inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Scc. 25 F reads as follows:-

"25-F: Conditions precedent to retrenchment of

workmen:- No workman employed in any industry who has

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

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

appropriate Government [or such authority as may

be specified by the appropriate Government by

notification in the official Gazette]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely be held that Petitioner comes under the purview of

the workman mentioned in Sec. 25F by working with the

Respondent for not less than one year. As per Sec. 25F

such a workman can not be retrenched, until he has 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 workman

has to be paid retrenchment compensation as mentioned

in Sec. 25F (b) and there shall he compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, {(201l) 6 SCC page

584} and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supreme Count of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory prerequisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled to

reinstatement into service.

This point is answered accordingly.

29. Point No. 6 :

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it an safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result: :-

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. B. Lakshmi

MW1: Smt. A. Rama Devi

Document marked for the Petitioner

Ex.Wl:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. W2:

Photostat copy of representation dt. 11.4.98

Ex. W3:

Photostat copy of order in SLA (Civil)

Np. 13451/2001

Ex. W4:

Photostat copy of representation dt. 3.5.96

Ex. W5:

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex. W6:

Photostat copy of representation dt. 9.10.98

Ex. W7:

Photostat copy of order in WA No. 1602/1999

Ex. W8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex. M1:

Photostat copy of order in WP No. 5592/1991

¹Hkkx II—[k.M 3(ii)º

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1089

Ex. M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M5:

Photostat copy of order in contempt case

No. 1903/98

Ex. M6:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. M7:

Photostat copy of order in WA No. 1602/1999

Ex. M8:

Phtostat copy of receipt from Kapra

Municipality dt. 1.1.1999

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New Delhi, the 17th January, 2014

S.O. 387.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 2/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR (DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

HYDERABAD

PRESENT:—

Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTEL L.C. NO. 2/2006

Between:

Smt. B. Lakshmi,

W/o Heerala,

R/o H. No. 6-24/1, Subhash Nagar,

Mallapur, Railway Bridge,

N.F.C. Post, Nacharam, Uppal (M),

Ranga Reddy District,

Hyderabad-62.

.......Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad - 500 062.

....Respondent

APPEARANCES:

For the Petitioner : M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kuniar, Advocates

For the Respondent: Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec. 2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

from 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them.The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec. 10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs. 25/-

per day. Subsequently it was enhanced to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No. 292l0 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition. Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A,P. The said

appeal was allowed on 23.2.2001 Against the said order

Petitioner filed Special Leave to Appeal (Civil) No.13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with 3 liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated woman and she has been exploited by the

Respondent by paying less than minimum wages and

terminating her services abruptly without any notice

consequent to her filing WP before the Hon'ble High Court

of A.P., and without following the procedure contemplated

under Industrial Disputes Act, 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec. 25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of her family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in

brief as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No.5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha, the contractor, Respondent No.2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA Municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE. colony. The

house keeping works of DAE housing colony is being

taken care of by Kapra Municipality. The requirement is

being met through helpers deployed by sucli persons.

Making such arrangement on the deployment of helpers a

running contract for a period of 12 months executing urgent

works such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

¹Hkkx II—[k.M 3(ii)º

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1091

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976, As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She cannot claim for regularization of her

services. In the writ proceedings for the similar cause of

action, litigation was launched seeking for same relief in

this proceedings is hit by res judicata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and Exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, i.e., L.C. 3/2006 to 8/2006 including

this case are clubbed with LC No. 1/2006 in pursuance of

the memo filed by the Petitioner and it has been ordered

that evidence is to be adduced in LC 2/2006. Accordingly

in respect of all these cases i.e., LC. 1 to 8 of 2006, Smt. B.

Lakshmi, Petitioner in L.C. 2/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex. Ml to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judicata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23,10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No.1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Knmar

vs. Union of India (AIR 1997 SC 1125) Petitioner is

supposed to have his legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a central

government organisation. This forum is Central Government

Industrial Tribunal cum-Labour Court whose function is to

decide the industrial disputes arising from the industries

which are Central Government undertakings. All the

industrial disputes which arose within the jurisdiction of

this tribunal and which concern with the Central

Government Organisations, Central Government

Undertakings, are to be decided by this forum only as per

the powers conferred on this tribunal. As to the Central

Administrative Tribunal is concerned, all the service and

administration related disputes pertaining to the officers

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

and employees of all the central government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec. 2A(2) of Industrial Disputes Act, 1947,

this tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No.1602/2000 in WP No. 292l0/1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking

Sec. 2A(2) of Industrial Disputes Act, 1947 by enacting

Sec. 2A(3) of the said act. Thus, as on the relevant date,

there was no prescription of period of limitation for

preferring industrial disputes. It is not for the courts to

prescribe any period of limitation. When the Act is silent

as to the question of limitation, the courts are bound to

entertain the cases, without looking into the belatedness

or otherwise in filing the same, as it is the duty of the

courts to interpret and implement the law enacted by the

parliament only, but not to substitute or incorporate any

new law. In the given circumstances, it is to be held that

this petition is not barred by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extraordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No.1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex.W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be

held that the proceedings of WP No. 29210/1998 will not

act as res judicata for the present proceedings.

This point is answered accordingly.

12. Point No.4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers (COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is contention of the

Respondent, contrary to the contentions of the Petitioner,

that Petitioner has been a contract labourer engaged by

the contractor to whom the cleaning work was entrusted

by the Respondent but not a person directly engaged by

the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

¹Hkkx II—[k.M 3(ii)º

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1093

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the coditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the

question whether the contractor has been interposed

either on the ground of having undertaken to produce

any given result for the establishment or for supply of

contract or for work of the establishment under a genuine

contract or is a mere rule/camouflage to evade compliance

with various beneficial legislations so as to deprive the

workers of the benefit thereunder. If the contract is found

to be not genuine but a mere camouflage, the so-called

contract labour will have to be treated as employees of

the principal employer." This is the legal principle laid

down by the Hon'ble Supreme Court of India in the case of

Steel Authority of India and ors. Vs. National Union

Waterfront Workers and Others{(2001) 7 SCC page I}, which

is relied upon by Learned Counsel for the Respondent

himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex, Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex. M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex. M4 has never been acted upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regulamation

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised .seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they arc all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other-

wise is to be decided and it has been decided while deciding

Point No.4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No.4

Respondent failed to establish that there has been a

contractor as an intermediator between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec.25 F 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' 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

appropriate Government [or such authority as may

be specified by the appropriate Government by

notification in the official Gazette]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent. leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely be held that Petitioner comes under the purview of

the workman mentioned in Sec. 25F by working with the

Respondent for not less than one year. As per Sec. 25F

such a workman can not be retrenched, until he has 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 workman

has to be paid retrenchment compensation as mentioned

in Sec. 25F (b) and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Honble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, [(2011) 6 SCC page

584] and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supreme Court of India

considered the effect of violation of Sec.25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory pre-requisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impunged termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No.6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order daled 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside-Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 21.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Office.

Appendix of evidence

Witnesscs examined for the

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. B. Lakshmi

MWl: Smt. A. Rama Devi

¹Hkkx II—[k.M 3(ii)º

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1095

Documents marked for the Petitioner

Ex.Wl:

Photostat copy of order in WPNo 29210/1998

dt.25.9.2000

Ex.W2:

Photostat copy of representation dt. l1.4.98

Ex.W3:

Photostat copy of order in SLA (Civil) Np.13451/

2001

Ex.W4:

Photostat copy of representation dt.3.5.96

Ex.W5:

Photostat copy of provisional receipt from

Kapra Municipality 13.11.98

Ex.W6:

Photostat copy of representation dt 9.10.98

Ex.W7:

Photostat copy of order in WA No.1602/1999

Ex.W8;

Photostat copy of representation dt.24.10.2005

Documents marked for the Respondent

Ex.M1:

Photostat copy of order in WP No. 5592/1991

Ex.M2:

Photostat copy of receipt from Kapra

Municipality dt.l3.11.98

Ex.M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex.M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex.M5:

Photostat copy of order in contempt case No.

1903/98

Ex.M6: Photostat copy of order in WPNo.292l 0/1998

dt.25.9,2000

Ex.M7: Photostat copy of order in WA No. 1602/1999

Ex.M8:

Photostat eopy of receipt from Kapra

Municipality dt. 1.1.1999

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New Delhi, the 17th January, 2014

S.O. 388.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No 1/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

PRESENT:

SMT. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August 2013

INDUSTRIAL DISPUTE L.C. No. 1/2006

Between:

Smt. G, Suguna,

W/o Yadagiri,

R.'o H.No.5-2/1. Boduppal Colony,

Mallikarjuna Temple, Ghatkeshar(M),

Ranga Reddy District,

Hyderabad-62.

...Petitioner

AND

Chief Executive,

Nuclear Fuel

Department of Atomic Energy,

Hyderabad -500 062.

....Respondent

Appearances:

For the Petitioner

: M/s. G. Ravi Mohan. G. Narersh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For ihe Respondent : Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec.2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The ayerments made in the petition in brief are as

follows:

Petitioner worked as Sweeper in the Respondent unit

from 1.5.1992 along with other similarly situated persons.

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them.The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec.10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees- It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area rn which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs.25/- per

day. Subsequently it was enhanced to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No. 29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said writ

petition. Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000, Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of theHon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No. 13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i,e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated woman and she has been exploited by the

Respondent by paying less than minimum wages and

terminating her services abruptly without any notice

consequent to her filing WP before the Hon'ble High Court

of A,P.. and without following the procedure contemplated

under Industrial Disputes Act, 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec.25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of her family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No.5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha. the contractor, Respondent No.2 in

WP No,292l0/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

¹Hkkx II—[k.M 3(ii)º

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1097

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jangle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 292l0 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No.29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now, It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970, Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9-12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis gf completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WWI was examined and Exhibits Wl to W8 are marked-

While WWl evidence was in progress and by virtue of the

orders dated 17.3,2009, this matter ie L.C 1/2006 and LC

Nos. 2 to 8/2006 are clubbed together in pursuance of the

memo filed by the Petitioner and it has been ordered that

evidence is to be adduced in LC 2/2006- Accordingly in

respect of all these cases i.e., LC 1 to 8 of 2006, Suit, B.

Lakshmi. Petitioner in L.C. 2/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more. Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex.Ml to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whemer this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No.29210

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No.1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

is contending that this Tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union Of India (AIR 1997 SC 1125) Petitioner is

supposed to have his legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a central

government organisation. This forum is Central Government

Industrial Tribunal-cum-Labour Court whose function is

to decide the industrial disputes arising from the industries

which are Central Government undertakings. All the

industrial disputes which arose within the jurisdiction of

this tribunal and which concern with the Central

Government organisations Central Government

undertakings, are to be decided by this forum only as per

the powers conferred on this tribunal. As to the Central

Administrative Tribunal is concerned, all the service and

administration related disputes pertaining to the officers

and employees of all the central government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec,2A(2) of Industrial Disputes Act, 1947,

this tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No.2:

It is the contention of the Respondent that present

dispute is barred hy limitation for the reason That Petitioner

filed this petition five years after the Hon'ble High Court of

A.P, decided WA No.1602/2000 in WP No.29210 /1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.2A(3)

of the said act. Thus, as on the relevant date, there was no

prescription of period of limitation for preferring industrial

disputes. It is not for the courts to prescribe any period of

limitation. When the Act is silent as to the question of

limitation, the courts are hound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which arc

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P, the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal(Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending; seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WPNo.29210/1998 will not act as

res judi cata for the present proceedings.

This point is answered accordingly.

12. Point No.4:

Admittedly. Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers(COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and / or

deployment of helpers(COS) a running contract for a period

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1099

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and slorm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitionerhas been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that the

Industrial Tribunal/court will have to consider the

question whether the contractor has been interposed

either on the ground of having undertaken to produce

any given result for the establishment or for supply of

contract labour for work of the establishment under a

genuine contract or is a mere rule/camouflage to evade

compliance with various beneficial legislations so as to

deprive the workers of the benefit thereunder. If the

contract is found to be not genuine but a mere camouflage,

the so-called contract labour will have to be treated as

employees of the principal employer." This is the legal

principle laid down by the Hon'ble Supreme Court of

India in the case of Steel Authority of India and ors. Vs.

National Union Waterfront Workers and Others{(2001) 7

SCC page 1}. which is relied upon by Learned Counsel

for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex.M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex.M4 it is averred that ''A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages fo contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order'".

If the work was done in furtherance of Ex.M4 order, in

every likelihood the daily report indicating details of

labourers and vehicles engaged for the work, would have

been submitted by the contractor to the Engineer-in-chargc

on every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex.M4 has never been acted upon,

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Rcspondenl failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularizalion of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were temiinated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regulari zation

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regulari-nation of services. The said

arguments are to he taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to he decided and it has been decided while deciding

Point No.4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998, In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No.4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947

deals with conditions precedent to retrenchment of

workman. Sec.25 F 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 he 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]."

26. As can be gathered from the facts on record.

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been m

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely be held that Petitioner comes under the purview of

the workman mentioned in Sec,25F by working with the

Respondent for not less than one year. As per Sec.25F

such a workman can not be retrenched, until he has 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

nolice for the period of notice. Further more, the workman

has to be paid retrenchment compensation as mentioned

in Sec.25F (b) and there shall be compliance of Sec.25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the Case of Devinder

Singh Vs. Municipal Council, Sanaur, {(2011) 6 SCC page

584} and in the case of Anup Sharma Vs. Public Health

Division [(2010, 5 SCC 497]Hon'ble Supreme Court of

India considered the effect of violation of Sec.25F and

held that termination of service of a workman without

complying with the mandatory provisions contained

under $ec.25F (A) and (B) should ordinarily result in his

reinstatement.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1101

28. In the present case, evidently there is no

compliance of the mandatory prerequisites contemplated

under Scc,25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No.6:

In view of the findings given in Point No.5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:-

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. G. Suguna

MWl: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.Wl:

Photostat copy of order in WPNo.29210/1998

dt. 25.9.2000

Ex.W2:

Photostat copy of representation dt. l1.4.98

Ex.W3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex.W4:

Photostat copy of representation dt.3.5.96

Ex.W5:

Photostat copy of provisional receipt from

Kapra Municipality dt.13.11.98

Ex. W6:

Photostat copy of representation dt.9.10.98

Ex.W7:

Photostat copy of order in W A No. 1602/1999

Ex.W8:

Photostat copy of representation dt.28.9.2005

Documents marked for the Respondent

Ex,Ml:

Photostat copy of order in WP No. 5592/199l

Hx.M2:

Photostat copy of receipt from Kapra

Municipality dt l3.11.98

Ex.M3:

Photostat copy of letter dt,9,1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex.M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex.M5:

Photostat copy of order in contempt case No.

1903/98

Ex.M6: Photostat copy of order in WPNo.29210/1998

dt.25.9.2000

Ex.M7: Photostat copy of order in WA No.1602/1999

Ex.M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999

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New Delhi the 17th January, 2014

S.O. 389.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby published the Award (Ref. No. 2/22 of

2010) of the Cent. Govt. Indus. Tribunal-cum-Labour Court

No. 2, Mumbai as shown in the Annexure, in the industrial

dispute between the management of DFS (India) Private

Limited, Duty Free Shop, and their workmen, received by

the Central Government on 17/01/2014.

[No. L-11012/1/2010-IR (CM-I)]

M.K. SINGH, Section Officer

1102

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : K.B. KATAKE, B.A. LL.M., Presiding Officer

REFERENCE NO CGIT-2/22 of 2010

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF DFS (INDIA) PVT. LTD. DUTY FREE SHOP

The General Manager

DFS (India) Private Ltd., Duty Free Shop

2C Air India Arrival Lounge

Chhatrapati Shivaji International Airport

Sahar, Andheri

Mumbai—400 066.

AND

THEIR WORKMEN

Shri Nandakumar G. Chavan

M-906, Bhoomi Breeze

Raheja Estate

Kulupwadi

Borivali (E)

Mumbai 400 066.

Appearances:

FOR THE EMPLOYER

: Mr. Sundeep Puri,

Advocate.

FOR THE WORKMAN : Mr. N.G. Kankonkar,

Advocate.

Mumbai, dated the 12th November, 2013

AWARD

The Government of India, Ministry of Labour &

employment by its Order No. L-11012/1/2010-IR(CM-I),

dated 17.02.2010 in exercise of the powers conferred by

clause (d) of sub-section (1) and sub-section 2 (A) of

Section 10 of the Industrial Disputes Act, 1947 have referred

the following industrial dispute to this Tribunal for

adjudication:

"Whether the action of the management of Duty Free

Shop (India) Pvt. Ltd., Mumbai in terminating Shri

Nandakumar G. Chavan. Warehouse Assistant from

the services w.e.f. 15.05.2009 as contended by the

workman concerned is justified and legal?

( ii) To what relief is the workmen concerned

entitled?"

2. After receipt of the reference, notices were issued

to both the parties. In response to the notice, the second

party workman filed his statement of claim at Ex-4.

According to him, he was employee of the first party

company since 28/03/2008. He was confirmed in the service

from May 2008. His duties were to arrange for the airport

entry pass for DFS employees, visitors to the duty free

shop like supplies, depositing telephone bills etc. He was

performing his duties manually and of clerical nature. He

was not doing any supervisory or administrative work.

According to the second party workman he was working

with the first party and his service was clean, spotless,

unblemished and to the entire satisfaction of his superiors

According to him on 14/10/2008 Mr. Vijay Patel, Country

Head Manager of the first party and Mr. Raja, Manager of

loss and prevention department asked the workman and

his colleague Sameer Sawant not to attend their duties

with immediate effect and compelled to surrender their

airport entry passes so as to restrain them from doing their

regular work. No reason was given to the second party as

to why he was suspended till further orders. They paid him

salary of October 2008. From the month of November and

December the first party paid some amount to the second

party as subsistence amount Neither show cause notice

was issued, nor any charge sheet was served on the second

party. He was not given an opportunity to give any

explanation. The first party all of a sudden terminated the

services of the second party by their letter dt. 15/05/2009.

The second party approached to their union. The union

wrote letters to the first party. As they did not give any

response, the union made a complaint to the Labour

Commissioner (C). As conciliation failed, as per the report

of ALC (C), the Labour Ministry sent the reference to this

Tribunal. According to the workman the first party

dismissed him from services illegally. Therefore he prays

that the order of dismissal be quashed and set aside. He

also prays that he be reinstated in the service of the first

party with full back wages from 15/05/2009. He also prays

that pending hearing, the first party be directed to take

second party in the employment and allow him to do his

regular work.

3. The first party resisted the statement of claim vide

their written statement at Ex-7. According to them, the

second party is not 'workman' as defined under Sec 2 (s) of

the Industrial Disputes Act. He was doing the job of

supervisory and administrative nature. Therefore the

reference is not maintainable. The second party is guilty of

supressing the true facts hence he is not entitled to any

relief. His services were terminated simplicitor vide letter

dt. 15/5/2009. The action of the management is legal,

proper and justified. The second party was appointed as

Ware-house Assistant and was pre dominantly performing

duties of administrative nature. On 16/09/2008 workman

and Mr. Sameer Sawant made an attempt to commit theft/

transfer 12 bottles of Johny Walker Black Label from 2C

Departure to 2C arrival ware house without any record.

While removing the bottles Ms. Neha Patil, Sales Associate

asked them where they were taking the stock and also told

them that without proper billing they cannot remove the

stock. The workman told her that there was some stock

taking activity at arrival section and therefore they were

transferring the stock and have removed 12 bottles of JW

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1103

Black Label. Ms. Neha Patil reported it to Duty Security

Guard, Mrs. Jayashree Save. She enquired with workman

and Mr. Sameer Sawant. They told her that they were taking

out the bottles as per the instructions of Mr. Pai.

Ms. Jayashree Save informed the incident to another

security superiors Mr. Dinesh Karakesia When he enquired

with Ms. Jayshree Save she told that the workman and

Mr. Sameer Sawant told her that money has been handed

over to Mr. Pai. Security Supervisor informed the incident

to Mr. Pai and then to L.P. & Custom Manager. On the same

day at about 8.00 p.m. the workman was spotted by one

Sales Assistant, Mr J. Dewalekar exiting the 2 B arrival

gate. The workman was carrying one carry bag in his left

hand, his usual office bag in his right hand and a Johny

Walker backpack bag on his back. He was unable to walk

properly due to the weight of the bags he was carrying.

The backpack of Johny Walker was the same being given

as GWP with JW bottles purchased by customers at DFS.

4. From 7/10/2008 to 14/10/2008 there was a full-

fledged inquiry conducted by Director, Talent Management,

Singapore Raja, Shri Khan- Loss Prevention Manager

Singapore Vispi Patel- CEO India Viren Ahuja — Joint

venture Partner — Flamingo. During the inquiry number of

people were interviewed by the committee and it was

concluded that Mr. Sunil Raisinghani the then Product Sales

Manager, Mr. Prasanna Pai, Loss Prevention Customs

Manager, Sameer Sawant and the workman were involved

in the misappropriation of liquor and fully involved in the

irregularities of custom compliances as well as theft of liquor

from various locations. Mr. Raisinghani and Pai tendered

their resignations. Mr. Sameer Sawant was also terminated.

He had approached Labour Commissioner for conciliation.

However later on he also resigned at his own. The workman

also approached Assistant Labour Commissioner. The

workman was found guilty of mischief of theft and

misappropriation therefore his services were terminated.

After termination of the services the second party is gainfully

employed and earning. Hence he is not entitled to any

relief. Therefore the first party prays that the reference be

rejected with cost

5. Following are the issues for my determination.

I record rny findings thereon for the reasons to follow:

Sr. No.

Issues

Findings

Whether second party is 'workman'

Yes

as contemplated under Section 2(s)

of the .I.D. Act?

If yes, whether his termination is

legal and valid?

Whether the workman is entitled to As per the

any relief sought for?

final order.

What order?

As per the

final order.

REASONS

Issue no.1:-

6. Herein the fact is not disputed that the second

party was the employee of the first party. He was appointed

as Ware-house Assistant and was confirmed in the service.

According to the second party he was doing the work

manually as well as clerical in nature. Therefore according

to him he was a workman as defined under Sec. 2(s) of the

I.D. Act. As against this according to the first party, the

second party was predominantly performing the duties of

administrative in nature. Therefore he does not come within

the definition of 'workman'. The duties of Ware-house

Assistant are given by the first party in their written

statement at Ex-7. However no duty given therein is of

supervisory or administrative in nature. His few duties given

in the duty list are as follows:

* Ensure merchandise is accurately checked, skued

and labelled correctly against appropriate work.

* Ensure orders are checked and packed against the

correct paper work.

* Identify and rotate old stock.

* Assist in all departments within the DC when

requested by management in unloading and loading

of containers, picking and packing orders, receiving,

booking and checking of inwards stocktaking.

* Be responsible for housekeeping of the entire bond

stock areas (including surrounding grounds).

* Assist stock inventory controller with aged stock,

discrepancies stock takes etc.

* Treat all management and fellow team members with

respect to support a team environment.

* Perform any other duties as requested in a diligent

and consequence manner.

* Health and safety

* Take all practical measures to minimise, isolate or

eliminate hazards in the work place. Ensure that work

place is safe and behave in a manner that does not

impose any risk to health and safety.

* Comply with reasonable instructions from any

supervisor or authorised representative of the

company regarding health and safety matters.

* Actively participate in the Emergency Response

procedures.

* Report any accidents, injuries of hazards in the

workplace to management.

* Actively support and comply with DFS CHS

policies and procedures.

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[PART II—SEC. 3(ii)]

* Systems and procedures.

* Comply with company policy and procedures relating

to security and stock control.

* Comply with all security audit requirements,

* Actively support and comply with all health and

safety policy procedures and regulations.

* Adhere to company dress standards and punctuality.

* Uphold the highest standard of professional

grooming and presentation at all times etc.

7. According to the workman he use to prepare pass

and to assist Mr. Sunil Raisihani. None of these duties are

either seen of administrative or supervisory in nature. In

this respect the Ld. advocate for the first party submitted

that from their letter of suspension and dismissal it is

revealed that the workman was doing administrative work.

It is mentioned in these letters that he was doing

administrative work. In this respect it is pertinent to note

that these letters were issued afterwards. However in the

appointment letter/offer of employment letter dt. 28/3/2008

at Ex-24 nowhere it is mentioned that the second party was

appointed to perform work in the nature of supervisory or

of administrative in nature. Therefore letter of suspension

or termination need not be taken into account to ascertain

the nature of work done by the workman. The Ld. adv. for

the first party on the point resorted to Supreme Court ruling

in H.R. Adyanhayay Etc V/s. Sandoz (I) Ltd. Etc. AIR 1994

SC 2608 wherein the Hon'ble Court while defining workman

observed that;

"Workman means any person (including an

Apprentice) employed in any industry to do any

manual, unskilled, skilled technical operational,

clerical or supervisory work for hirer or reward.

Whether the terms of employment be expressed or

implied"

The Hon'ble Court further observed that;

"It does not include any person (i) Who is subject of

airforce or army or navy Act. (ii) Who is employed

in the police service or as an officer or other

employee of a prison or (iii) who is employed mainly

in a managerial or administrative capacity or who

being employed in a supervisory capacity draws

wages exceeding Rs. 1,600/- per month or exercises

either by nature or the duties attached to the office

or by reason of power vested in him functions mainly

of a managerial nature."

8. In the case at hand the duties shown in the duty

list of the workman as Ware-House Assistant cannot be

said of administrative or managerial work. He was required

to ensure orders are checked packed against correct paper

work. He was supposed to identify and rotate old stock.

He was supposed to assist in all departments with the DC

as per the direction of management in unloading and loading

of containers, picking and packing order, receiving checking

booking of inward stock, stock taking. He was supposed

to assist stock inventory controller. He was also supposed

to perform any other duty as requested/directed in a diligent

and contentious manner. He was supposed to comply with

company policy and relating to security. He was supposed

to comply with all security audit requirement. He was also

required to adhere company dress standard and punctuality.

He was neither supervising work of any employee nor taking

any independent decisions. It shows that he was not

performing any managerial or administrative duties.

9. In this respect the Ld. adv. for the first party

submitted that his designation is accepted by the workman

as Warehouse Assistant and his pay was above Rs.1,600/-

p.m. Therefore he is not a 'workman'. In support of his

argument Ld. adv. resorted to Apex Court rulrng in Mukesh

K. Tripathi V/s. Sr. Divisional Manager, LIC &Qrs. AIR

2004 SC 1479 wherein the Hon'ble Court in respect of

Apprentice Development Officer observed that;

"The duties and/obligation of Development officer

of the Corporation by no stretch of Imagination,

can be held to be performed by an apprentice."

The Hon'ble Court in this case held that;

"The Development Officer of LIC was rightly held

not to be a workman."

However the duties of Warehouse assistant cannot

be compared with the Development Officer of LIC. Thus I

hold that this ruling does not extend any help to the first

party.

10. In this respect the Ld. Adv. for the first party

submitted that burden is on the workman to prove the

existing relationship of employer-employee between them

to which workman failed, In support of his argument the

Ld. adv, resorted to the Apex Court ruling in Workmen of

Nilgiri Co-op. Mkt. Society Ltd, V/s. State of Tamil Nadu &

Ors. AIR 2004 SC 1639 wherein the Hon'ble Court in para 47

of the judgement observed that;

"It is well settled principle of law that the person

who sets up a plea of existence of a relationship of

employer and employee, the burden would be upon

him."

The Hon'ble Court further observed that;

"When a person asserts that he was a workman of

the company and it is denied by the company, it is

for him to prove the fact. It is not for the company to

prove that he was not an employee of the company

but of some other person."

11. In this respect I would like to point out that in the

case at hand the relationship between the parties is not in

dispute. On the other hand the fact is admitted that there

¹Hkkx II—[k.M 3(ii)º

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1105

exists employer-employee relationship between first party

and the second party. The issue herein for determination is

whether the second party is a workman as defined under

Section 2 (s) of the I.D. Act. Therefore this ruling in respect

of relationship between the parties is not relevant to the

facts of the present case.

12. On the point Ld. adv for the first party further

submitted that, the burden is on the second party to prove

that he is workman. It is not on the first party to prove that

he is not a workman as defined under Sec 2 (s) of the I.D.

Act. In support of his argument Ld. Adv. cited Bombay

High Court ruling in Maharashtra Industrial Development

Corporation & Ors. Vs. Baban Nathaji Sarode & Anr. 2003

(i) Bom. CR 680, wherein the Honble Court on the point

observed that;

"It was for the respondent to have positively pleaded

and proved that he was squarely covered in the

main part of definition of "Workman" even from the

duty list which is considered by the industrial

Court."

13. In this respect the Ld. adv. for the second party

pointed out that the second party has pleaded in his

statement of claim as well as contended in his affidavit and

has also given his duty list. Neither he was performing any

managerial or administrative duties nor was recruited as an

officer to perform managerial or administrative duties. MW-

1 has also admitted in his cross that the workman used to

assist the Ware-house in-charge. It is contended by the

workman that, he was doing his work manually and of

clerical nature. The duty list also reflects the same fact. In

the circumstances I hold that the second party has

discharged the initial burden as cited in the above ruling.

14. The Ld. adv. for the first party further submitted

that while performing administrative or managerial duty

some duties undertaken by him like maintaining accounts,

filling certain proformae are clerical in nature, but his major

job was of managerial in nature and such employee cannot

be termed as workman. In support of his argument the Ld.

adv. relied upon Apex Court ruling in S.K. Maini V/s. M/s.

Carona Sahu Company Ltd- & Ors. AIR 1994 SC 1824. In

this respect from the duties of the workman as Ware house

Assistant, it cannot be said that his work was mainly of

administrative or managerial nature. Therefore this ruling

also does not extend any help to the first party.

15. On the point the Apex Court ruling is helpful in

National Engineering Industries Ltd. V/s. Shri Kishan

Bhagaria and Ors. AIR 1998 SC 329. In this case the Hon'ble

Court has examined the nature of supervisory work the

employee was doing. In that case in respect of internal

Auditor of the Company, the Hon'ble Court observed in

para 9 of the judgment that;

"His duties were mainly reporting and checking on

behalf of the management. A reporter or a checking

clerk is not a supervisor. The respondent herein

does not appear to us doing any kind of supervisory

work. He was undoubtedly checking up on behalf

of the employer but he had no independent right or

authority to take decision and his decision did not

bind the company."

In this matter, the Hon'ble Court upheld the decision

of Division Bench of the High Court who had decided that

the internal auditor i.e. respondent no.1 therein was a

workman.

16. In the case at hand, though the workman herein

was designated as Warehouse Assistant and his pay scale

is higher he has no independent power to take decision.

His duties were to check the stock, scull, label correctly,

ensure the orders are checked and packed against the

correct paper work, identify and rotate old stock, assist in

all departments. He was also supposed to assist stock

inventory controller with aged stock. He was also supposed

to perform any other work in a diligent and contentious

manner. Neither he was empowered to take independent

decisions nor authorized to bind the company by his

decision. It shows that he was not performing any

administrative or managerial duties, his duties were of

manual and of clerical nature. In the circumstances I hold

that the second party is 'Workman' within the meaning of

Section 2 (s) of the I.D. Act. Accordingly, I decide this

issue no.1 in the affirmative.

Issue no. 2:-

17. In respect of termination of the services, it is

contended on behalf of the first party that, the workman

was involved in misappropriation of stock of liquor and in

irregularities of Customs compliances, as well as theft of

liquor from various locations. In the written statement it is

contended that on 7/10/2008 to 14/10/2008 there was a full

fledge inquiry conducted by the Director, Talent

Management-Singapore, Raja, Shri Khan-Loss Prevention

Manager, Singapore, Vispi Patel-CEO India, Viren Ahuja-

Joint Venture Partner - Flamingo. It is further contended

that during the inquiry number of people were interviewed

by the committee and it was concluded that, Mr. Sunil

Raisinghani the then Sr. Product Sales Manager, Mr

Prasanna Pai Loss Prevention and Customs Manager, the

workman and Mr. Samir Sawant were involved in

misappropriation of stock of liquor and fully involved in

irregularities in customs compliances, as well as theft of

liquor from various locations.

18. Though it is contended in the written statement

that there was full-fledged Inquiry by the high officials of

the company, however from the record it is revealed that,

neither any show cause notice was issued to the workman,

nor he was served with any charge sheet. Furthermore the

workman was not present on all the dates when the alleged

inquiry was conducted. The workman was not even asked

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

to remain present on all the dates of alleged inquiry. These

facts are admitted in the cross examination by the

Management witness no.1, Mr. Kailash Bushan who has

deposed at Ex-42. In para 13 of his cross examination he

has stated that, "no show cause notice or charge sheet

was given to the second party. The second party was not

present on all the dates as he was not asked to remain

present on all the dates of the alleged inquiry.'' The first

party has also produced the inquiry papers/the documents

in respect of the minutes of the alleged inquiry. Ex-48 is the

copy of minutes of the meeting held on 7/10/2008 to 14/10/

2008 in respect of the workman. From these minutes Ex-48

it is revealed that the Committee Members interviewed some

employees (witnesses) and found that four people were

involved in misappropriation of stock of liquor and

irregularities of customs compliances as well as theft of

liquor from various locations and they recommended the

termination of services of the workman. Ex-49 is the report

of Neha Patil to H.R Manager Ex-50 is the statement of

witness Jayashree Save. Ex-51 is the statement of Dinesh

H. Karakesia working as Supervisor. Ex-52 is the statement

of witness of Jagannath Deolekar However it is revealed

that neither the statements of these witnesses were

recorded in presence of the workman, nor they were offered

for cross examination.

19. From the evidence on record it is revealed that,

there was only preliminary inquiry. On the basis of the said

inquiry neither show cause notice was issued to the

workman, nor his explanation was called for. No charge

sheet was served on the workman and there was no inquiry

held as contemplated under law. In this respect the Ld. adv.

for the first party submitted. That in cases of theft, forgery

the services of employee can be terminated even without

domestic inquiry. In support of his argument the Ld. adv.

resorted to Delhi High Court ruling in All India Institute of

Medical Sciences V/s O.P. Chavan & Ors 2007 (113) FLR

161 wherein the Hon'ble Court in para 14 of the judgement

observed that;

"It is not necessary that, in every case where a

person is involved in theft, forgery and where a

criminal case is registered, the management has to

hold an inquiry and then only terminate the services

The management can always terminate the services

in terms of service conditions of an employee, for

loss of faith and confidence, where the employee

involved is handling sensitive post or high degree

of integrity and honesty is expected from him

because of responsibility."

20. In the case at hand it is alleged that the workman

was involved in misappropriation and theft case. However

neither any criminal case was registered against him nor he

was recruited in managerial cadre. Therefore the ratio laid

down in this ruling is not attracted to the set of facts of the

present case.

21. The Ld. adv. for the first party further submitted

that as the workman was caught removing store items, he

was rightly dismissed by the management. On the point

the Ld. adv. cited following rulings:

(I) Escort Ltd. (Tractor Div) V/s. Labour Court (P&H)

1986 FLR 273. In that case the Labour Court had

given finding of guilty of theft. In the circumstances

Hon'ble High Court held that Labour Court cannot

proceed to exercise jurisdiction under Section 11 A

to water down quantum of punishment.

(II) Pfizer Ltd. V/s. Mazdoor Congress & Ors. AIR 1996

SC 2618 wherein temporary workman was found

committing theft. His services were terminated and

the Labour held that the management was not

indulging in unfair labour practice.

However ratios laid down in both the cases are not

attracted to the set of facts of the present case as facts

therein are totally different than the facts in the case at

hand.

22. In respect of legal and proper inquiry the

guideline is given by the Hon'ble Apex Court in Sur Enamel

and Stamping Works Ltd. V/s. Their Workmen 1963 II LLJ

367 wherein the Hon'ble Apex Court laid down the

following conditions for fair and proper domestic inquiry.

They are:

"(1) The employee proceeded against has been informed

dearly of the charges leveled against him.

(2) The witnesses are examined-ordinarily in the

presence of the employee in respect of the charges

(3) The employee is given a fair opportunity to cross

examine witnesses.

(4) He is given a fair opportunity to examine witnesses

including himself in his defence if he so wishes on

any relevant matter and

(5) The inquiry officer records his findings with reasons

for the same in his report. "

23. In the case at hand neither workman was served

with show cause notice nor any charge-sheet was served

on him. Neither witnesses were examined in his presence

nor they were offered for cross examination. In short there

was no inquiry as such initiated against the workman. On

the other hand the workman was dismissed merely on the

basis of reports and interrogation of some witnesses by

the officials of the company, in the circumstances I hold

that in fact there was no inquiry at all.

24. The Ld adv. for the first party cited few rulings in

respect of the contents of victimization, in respect of dealing

with the question of bonafide etc. However as there was

no inquiry and no Inquiry Officer was appointed, all the

rulings referred on behalf of the first party do not extend

¹Hkkx II—[k.M 3(ii)º

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1107

any help to it. The Ld. Adv. also referred some rulings

where in, the respective courts held that for misconduct of

theft, termination or dismissal from service is the adequate

and proper punishment. However the rulings are in respect

of cases where the workmen were found guilty after domestic

enquiry, in the case at hand there was no enquiry as such.

Thus question of adequate or proper punishment does not

arise. Those rulings thus are totally irrelevant. Therefore it

is unnecessary to discuss these judgments cited on the

point of punishment.

25. In the light of above discussions it is clear that

no charge sheet was served on the workman. No inquiry

Officer was appointed and there was no inquiry at all. The

workman was removed merely on the basis of some report

and on the basis of interrogation of some employees by

the officials of the company. In this back drop it needs no

further discussion to arrive me at the conclusion that the

services of the workman were terminated illegally.

Accordingly I decide this issue no. 2 in the negative.

Issue no. 3:-

26. As the services of workman were terminated

illegally, without any inquiry the Ld. adv. for the second

party submitted that workman should be reinstated with

full back wages. In support of his argument the Ld. adv. for

the second party resorted to Apex Court ruling in UPSRTC

through its MD V/s. J.P, Mishra 2003 I LLJ 224. In that case

the order of termination was held rightly set aside by High

Court as the rule of natural justice requiring issue of notice

to the respondent to show cause against the proposed

action was not observed by the management. Therefore

the workman therein was reinstated by the High Court with

full back wages. The Hon'ble Supreme Court confirmed the

order of reinstatement with modification in the order of

back wages. In that case, full-fledged inquiry was held.

After receipt of the report of the Inquiry Officer, show cause

notice was not issued to the workman calling upon him to

show cause as to why action should not be taken against

him. In the circumstances the Hon'ble Court upheld the

order of reinstatement of the workman with partial back

wages. In the light of this ruling Ld. adv. for the second

party submitted that in the case at hand the services of

workman was terminated without any charge sheet or

inquiry. Therefore he should be reinstated with full back

wages. The Id. adv. also resorted to the Division Bench

ruling of Bombay High Court in Taranjitsingh I, Bagga

V/s. M.S.R.T.C. 2008 (4) Bom C.R. 330. In that case the

Labour Court and Industrial Tribunal had given findings in

respect of the inquiry that it was not fair and proper as

there was violation of principles of natural justice, as no

opportunity was given to the workman to cross examine

the two management witnesses. Therefore the workman

therein was reinstated with full back wages. In writ before

single judge the order of directing payment of back wages

was set aside. In writ appeal the Hon'ble Division Bench of

Bombay High Court examined the facts and circumstances

and in the light of various decisions of Apex Court, the

Hon'ble Court para 7 of the judgment observed that;

"In view of this, in our view, it was not necessary for

the Ld. judge to interfere with the findings of both

the Courts below that the appellant was entitled to

full back wages upon his reinstatement"

27. On the point of back wages the Ld adv. for the

first party submitted that the burden was on the workman

to prove that he was unemployed and back wages should

not be awarded unless employee shows that he was not

gainfully employed, in support of his argument, Ld. adv.

resorted to Himachal Pradesh High Court ruling in Pawan

Kumar V/s. H.P. State Industrial Corporation & Anr. 2007

III LLJ 281 HP wherein the Hon'ble Court in para 2 of the

judgment observed that;

"When the question of determining the entitlement

of as person to back wages is concerned, the

employee has to show that he was not gainfully

employed. The Initial burden is on him. After and if,

he places materials in that regard, the employer

can bring on record materials to rebut the claim."

28. The Ld. adv for the first party also resorted to

Apex Court ruling in Kendriya Vidyalaya Sanghatan & ANR

V/s. S.C, Sharma AIR 2005 SC 768 wherein the Hon'ble

Court has laid down the same principle as law of the land.

29. In this respect the Ld. adv. for the second party

submitted that it is mentioned in the statement of claim that

the workman tried to get some other job. However he could

not get any job and he is not gainfully employed. In this

respect the Id. adv. for the first party submitted that the

workman is working as RTO Agent. Suggestion to that

effect was put to the workman in his cross examination The

workman has denied the suggestion that he is working as

RTO agent. Neither workman has placed on record any

material nor the management has led any evidence to show

that the workman is working as RTO Agent and he is

gainfully employed. In this respect I would like to point out

that after termination of his services the workman must be

earning something, it may not be sufficient or equal to his

pay. However he may be earning at least to meet the two

ends. He may have suffered a lot as he lost his job and was

required to fight the legal battle. In this back drop to meet

the end of justice instead of awarding full back wages, I

think it proper to award 60% of the total emoluments from

the date of termination of his services till the date of his

reinstatement.

30. In short, as services of the workman were

terminated illegally and without any charge sheet or inquiry,

he is entitled to be reinstated. In this back drop, I think it

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

proper to reinstate him with 60% back wages, continuity of

service and all other consequential benefits. Accordingly I

partly allow the reference and proceed to pass the following

order:

ORDER

The reference is partly allowed with no order as to

cost.

1. The order of dismissal of second party from services

is hereby declared illegal and the same is set aside.

2. The first party is directed to reinstate second party

workman in service with 60% back wages, continuity

in service with all other consequential benefits.

Date: 12.11.2013

K.B. KATAKE, Presiding Officer

ubZ fnYyh] 17 tuojh] 2014

dkñvkñ 390.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ ,XthD;wfVo

uqDysvj ¶;wy dkEIysDl fMikVZesaV vkWQ ,VkWfed ,uthZ] gSnjkckn 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;] gSnjkckn ds iapkV ¼lanHkZ la[;k 01@2007 dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@03@2014&vkbZvkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 17th January, 2014

S.O. 390.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 01/2007)

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 Managing Director, Indian Immunologicals

Limited, Hyderabad and their workman, which was received

by the Central Government on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : Smt. M. VIJAYA LAKSHMI, Presiding Officer

Dated the 11th day of June, 2013

M.P. No. 1/2007

Between:

Sri Shaik Umar Farook,

S/o Shaik Hussain Peer,

R/o F.No. 56, Mamatha Nagar,

Nagole, Hyderabad-68.

.........Petitioner

AND

The Managing Director,

Indian Immunologicals Ltd.,

Rakshappuram, Gachibowli,

Hyderabad-19.

.........Respondent

Appearances:

For the Petitioner.

M/s. s. Prasada Rao, C. Bala

Subrahmanyam & K. Bharathi,

Advocates

For the Respondent:

M/s. P. Nageswar Sree, K.

Raghuram Reddy & Ch. Venkata

Raju, Advocates

ORDER

This petition under Sec. 33 C(2) of the Industrial

Disputes Act, 1947 has been filed by peititioner Sri Shaik

Umar Farook, against the respondent Indian Immunologicals

Ltd., seeking for payment of certain amounts after his

resignation to a tune of Rs. 2,45,457/-.

2. The contentions of the Petitioner in brief are as follows:-

Petitioner was offered appointment vide letter dated

14.8.2000 as Marketing Supervisor and appointed from

11.9.2000 in the scale of 4700-110-5800-EB-110-7230 with

all other allowances applicable from time to time. He was

also issued with certificate of achieving annual scale target

2000-2001 duly signed by the Managing Director and was

issued with a merit certificate for his achievement of 137%

as sales target for 2002-2003. While so, he was compelled

to resign the post because of his immediate superior one

Mr. Sastry who had created havoc and he forced the

Petitioner to resign. Further, Petitioner was not paid his

entitled benefits which are: Salary form 1.6.2004 to

December, 2004 @ his last salary drawn Rs. 8220/-, LTC of

Rs. 6863/- and Medical reimbursement of one month basic

salary of Rs. 6160/- bonus for the year 2003-2004 and 2004-

December 2004 part payment i.e., 1 and half month salary,

the production incentive which is determined amount since

he got merit certificate of given production for the year

2003-2004 of one month basic pay, incremental arrears from

April, 2004 to September, 2004 Rs. 6,000/-. Also entitled for

gratuity/service compensation for 4 years, @ 15 days i.e. 2

months salary comes to Rs. 16,440/-, in total the Petitioner

is entitled for Rs. 2,45,457/-. Hence, this petition to direct

the Respondent to pay all the benefits due to him.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1109

3. Having received the notice of this petiton

Respondent filed counter statement stating that Patitioner

joined as Marketing supervisor and has exercised

supervisory, administrative and managerial powers and

drew salary exceeding Rs. 1600, hence, he is not a 'workman'

as contemplated U/Sec.2 (s) of Industrial Disputes Act,

1947. Therefore, he is not entitled to invoke jurisdiction of

this Hon'ble Court. Hence, petition is liable to be dismissed.

4. During the enquiry for Petitioner WW1 was

examined and Ex. W1 to W11 were marked. For Respondent

no evidence was adduced. The matter was called arguments

time and again, but, neither party evinced any interest in

the proceedings. Inspite of giving fair opportunity

Petitioner who is seeking for relief in this matter failed to

take any interest in the proceedings. In the circumstances

petition is dismissed.

Ordered accordingly.

Dictated to the Personal Assistant, transcribed by

her corrected and pronounced by me on this the 11th day

of June, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

the Petitioner

the Respondent

WW1: Sri Shaik Umar Farook

NIL

Documents marked for the Petitioner/Workman

Ex. W1:

Photostat copy of appointment letter dt.

11.9.2000

Ex. W 2:

Photostat copy of another appointment letter

dt. 3.10.2001

Ex. W 3:

Photostat copy of merit certificate for exceeding of

sales targets from Managing Director for 2000-01

Ex. W 4:

Photostat copy of appreciation letter for

performance dated 18.10.2003

Ex. W 5:

Photostat copy of office order of transferring

the Petitioner to Chennai Dt. 4.2.2004

Ex. W 6:

Photostat copy of representation to Managing

Director of WW1 dt. 1.9.2004

Ex. W 7:

Photostat copy of another representation dt.

5.10.2004

Ex. W 8:

Photostat copy of representation dt. 28.10.2004.

Ex. W 9:

Photostat copy of another representation to

HRD Manager

dt. 29.3.2005

Ex. W 10: Photostat copy of pay slip of WW 1 for May,

2004

Ex. W 11: Photostat copy of office order accepting

resignation of the WW1 dt. 5.7.2004

Documents marked for the Respondent

NIL

ubZ fnYyh] 17 tuojh] 2014

dkñvkñ 391.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ tujy

esustj] Hkkjr lapkj fuxe fyfeVsM] gSnjkckn 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;]

gSnjkckn ds iapkV ¼lanHkZ la[;k 117@2007½ dks izdkf'kr djrh gS

tks dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@03@2014&vkbZvkj ¼Mh;w½]

ih- ds- os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, the 17th January, 2014

S.O. 391.—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/

2007) 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 Chief General Manager, Bharat Sanchar

Nigam Ltd., Hyderabad and their workman, which was

received by the Central Government on 13/01/2014.

[F.No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present :

Smt. M. Vijaya Lakshmi,

Presiding Officer

Dated the 8th day of October, 2013

INDUSTRIAL DISPUTE L.C. No. 117/2007

Between:

Sri Khaja Aneesuddin,

S/o Khaja Mohiuddin,

R/o 5-4-240, Gunj Street,

Jagityal, Karimnagar district

...Petitioner

AND

1110

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

The Chief General Manager,

Bharat Sanchar Nigam Ltd.,

A.P. Circle, Abids, Hyderabad.

The General Manager,

Bharat Sanchar Nigam Ltd.,

Karimnagar.

The Sub Divisional Engineer,

Bharat Sanchar Nigam Ltd.,

Jagityal Sub Division, Jagityal,

Karimnagar

.....Respondents

Appearances:

For the Petitioner:

M/s. A Radha Krishna & B.V.

Kumar, Advocates

For the Respondent:

Sri M.C. Jacob, Advocate

AWARD

Sri Khaja Aneesuddin, the Petitioner who worked as

Mazdoor in the Respondent's organization has filed this

petition under Sec. 2A(2) of the Industrial Disputes Act,

1947 against the Respondents Bharat Sanchar Nigam Ltd.,

seeking for declaring the oral termination order dated

15.7.1991 passed by the Respondent No. 1 as illegal,

arbitrary and to set aside the same consequently directing

the Respondent to reinstate the Petitioner into service duly

granting all the consequential benefits such as continuity

of service, back wages and all other attendant benefits

etc., and such other reliefs as this court may deems fit.

2. The Respondents filed counter stating that the

prayer of the Petitioner to set aside the termination order of

the Respondent has no substance and no relevance to the

facts of the case but admiitting that Petitioner was engaged

as casual mazdoor in September, 1986 under the control of

3rd Respondent. He was engaged as and when work is

there in the Telecom Department and after completion of

work he was disengaged. It is the further claim of the

management that Petitioner was not in service of the

Respondent organization in the year 1999 and subsequently

also and that the petition is liable to be dismissed.

3. Petitioner filed his chief exaimination affidavit.

4. Case stand posted for cross examination of

Petitioner as WWI. Petitioner called absent and there is no

representation for him since long time. Inspite of giving

fair opportunity Petitioner is not taking interest in the

proceedings. In the circumstances, taking that Petitioner

has got no interest in the proceedings, petition is dismissed.

Award passed accordingly. Transmit.

Dictated to Sri J. Vijaya Sarathi, UDC transcribed by

him and corrected by me on this the 8th day of October,

2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

Nil

Documents marked for the Petitioner

Nil

Documents marked for the Respondent

Nil

ubZ fnYyh] 17 tuojh] 2014

dkñvkñ 392.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMIVh tujy

esustj ¼lSV dkWe½] b lh vkbZ ,y] gSnjkckn ds izcaèr= ds lac)

fu;kstdkas vkSj muds deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky;]

gSnjkckn ds iapkV ¼lanHkZ la[;k 74@2005½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&42012@03@2014&vkbZ vkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh

New Delhi, the 17th January, 2014

S.O. 392.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 74/2005)

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 Deputy General Manager (SATCOM), ECIL

Hyderabad and their workman, which was received by the

Central Government on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present :

Smt. M. Vijaya Lakshmi,

Presiding Officer

Dated the 4th day of September, 2013

INDUSTRIAL DISPUTE L.C. No. 74/2005

Between:

Sri M. Chandra Sekhar,

S/o M. Satyanarayana,

R/o H.No. C-12/11 ECIL

Hyderabad.

...Petitioner

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1111

AND

The Deputy General Manager (SAT-COM),

APD, (Disciplinary Authoirty),

ECIL Hyderabad.

...Respondent

Appearances:

For the Petitioner:

M/s. G. Ravi Mohan, & G. Naresh

Kumar, Advocates

For the Respondent:

M/s. P. Nageswar Sree, K.

Raghuram Reddy & Ch. Venkata

Raju, Advocates

AWARD

Sri M. Chandra Sekhar, the Petitioner who worked as

cleaner/helper in the Respondent's organization has filed

this petition under Sec. 2A(2) of the Industrial Disputes

Act, 1947 against the Respondents ECIL seeking for

declaring the termination order dated 8.8.2002 issued by

the Respondent as illegal, arbitrary and to set aside the

same consequently directing the Respondent to reinstate

the Petitioner into service duly granting all the

consequential benefits such as continuity of service, back

wages and all other attendant benefits etc., and such other

reliefs as this court may deems fit.

2. The Respondents filed counter stating that the

prayer of the Petitioner to set aside the termination order of

the Respondent has no substance and no relevance to the

facts of the case. Petitioner was engaged on daily wage

basis wage basis and subsequently appointed into the

regular grade as Cleaner w.e.f. 1.10.1996 in the Respondent

company. He was irregular to his duties as such he was

counselled many times and issued with two charge sheets

for unauthorized absence. After due enquiry and following

the procedure he was terminiated. As scuh, the petition

may be dismissed as he is not entiled for any relief.

3. Petitioner counsel filed memo conceding the

validity of the domestic enquiry.

4. Case stands posted for arguments. At this stage,

Petitioner's counsel filed memo dated 9.4.2013 stating that

Petitioner died on 27.3.2013 and sought for time to bring

his legal heirs on record. No steps were taken and there is

no representation since long time. In the circumstances,

the petition is dismissed.

Award passed accordingly. Transmit.

Dictated to Smt. P.Phani Gowri, Personal Assitant

transcribed by her corrected by me on this the 4th day of

September, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesscs examined for the

Witnesses examined for the

Petitioner

Respondent

Nil

Documents marked for the Petitioner

Nil

Documents marked for the Respondent

Nil

ubZ fnYyh] 17 tuojh] 2014

dkñvkñ 393.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk ds vuqlj.k esa dsUnzh; ljdkj lc&fMfotuy

vkWfQlj] VsfydkWe esgcwcuxj ds izc/kra= ds lac) fu;kstdksa vkSj

muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1] gSnjkckn ds iapkV

¼lanHkZ la[;k 69@91½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

13@01@2014 dks izkIr gqvk FkkA

[lañ ,y&40012@108@91&vkbZ vkj ¼Mh;w½]

ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh

New Delhi, 17th Janaury, 2014

S.O. 393.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 69/91) of

the Central Government Industrial Tribunal/Labour Court-

1, Hyderabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of Sub-Divisional Officer, Telecom,

Mahboobnagar and their workman, which was received by

the Central Government on 13/01/2014

[No. L-40012/108/91-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL

TRIBUNAL-I, AT HYDERABAD

Present : Sri N. Balayogi, B.Com., B.L., Chairman

Dated 10th day of June, 2013

I.D. No. 69 of 1991

BETWEEN:

Shri G. Shivaji,

H.No. 2-20, Nasrullabad,

Via Thimmajipet,

Mahaboobnagar (District) - 509 406

...Petitioner

AND

The Sub-Divisional Officer,

Telecom, Nagar Kurnool,

Mahaboobnagar (District) - 509 209.

1112

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

The Distt. Telecom Engineer,

Mahaboobnagar - 509 050.

...Respondents

This case is come up before me for final hearing on

06.03.2013 in the presence of Sri William Burra, Advocate

for the Petitioner and Sri R.S. Murthy,. Advocate for the

Respondents having stood over the same for consideration,

this Court delivered the following Award:

AWARD

1. This Reference U/Sec. 10(2-A) of I.D. Act, 1947 for

adjudication:

i) "Whether the management of Sub-Divisional office

(Rural), Telecom, Nagar Kurnool is justified in

terminating the services of Shri G. Shivaji with effect

from 16.10.1989"?

ii) "if not, to what relief the workman is entitled to"?

2. The claim of the petitioner in brief is as follows:—

The petitioner was recruited and employed as Casual

Mazdoor for 227 days without paying weekly offs from

12-1-1989 to 15-10-1989 except in the months of June &

July 1989 and he was retrenched on the ground that he was

recruited after 30-3-1985 contrary to the orders of Director

General, P & T, New Delhi. The Petitioners was not given

notice, or paid wages U/Sec. 25(F) of I.D. Act.

3. As per orders issued by the Telecom Department

dated 7-11-1989 after absorption in the regular

Establishment in his turn in the Seniority list and grant of

temporary status in thus, incidental to his service in the

T&D. Accordingly the retrenchment is illegal, null and void,

consequently the petitioner is entitled to re-instatement in

service with full back wages, continuity of service,

protection of the seniority and all other benefits,

consequential or incidental to the re-instatement.

4. The respondents filed their counter and contended

that the petitioner was engaged as and when the work is

available and there is no scope for any termination and

violation of Sec. 25-F of I.D. Act. The order in W.P. No.

12286/1996 dated 2-7-1996 become final and was not

questioned by the petitioner at any time and became

resjudicata. The petitioner suppressed the fact of dismissal

of W.P. No. 12285/1996.

5. The respondents further contended that the record

now produced by the petitioner has mentioned performance

in Gadwal and Jadcherla Sub-divisions which constitutes

separate Establishment for the purpose of 240 days. The

claim of the petitioner is based on mis-representation and

suppression of facts which deserveds to be dismissed in-

limini with exemplary costs.

6. The main I.D. No. 69/1991 was dismissed vide order

dated 13.05.1994. Against the said award the petitioner filed

W.P. No. 12285/1996 and the same was allowed while setting

aside the award dated 13.05.1994 and the matter is remanded.

Against the orders in W.P.No. 12285/1996 dated 07.02.2002

the respondent filed W.A. No. 560/2012 and the same was

dismissed following the Judgement in W.A.No. 1084/2002.

7. On behalf of the petitioner W.W.1 examined. Ex.

W1 to W6 are marked and on behalf of respondents M.W.1

was examined and no documents are marked.

8. Point:

(i) "Whether the management of Sub-Divisional office

(Rural). Telecom, Nagar Kurnool is justified in

terminating the services of Shri G. Shivaji with effect

from 16.10.1989"?

(ii) "if not, to what relief the workman is entitled to"?

The learned cousnel for the petitioner contended

that the petitioner completely worked for more than 240

days as such he is entitled for the benefit U/Sec. 25-F of

the I.D. Act and that the respondents without issuing notice

and complying the mandatory provisions under Sec. 25(F)

of I.D. Act. Hence that act of the respondent is illegal and

void. On the other hand, the respondents contended that

the record produceed by the petitioner pertains to other

reasons and the petitioner was engaged as and when work

is available, hence is not entitled for the benefit of the

provision U/Sec. 25-F of the I.D. Act. More so, the orders

in W.P. No.12286/1996 dated 2-7-1996 become final and

operate as res judicata on this ground alone the claim is

liable to be rejected.

9. The petitioner himself is examined as WW1 and

the S.D.O., Tele communication Sri K. Paramadhamayya of

the Respondent Management is examined as MW1. The

evidence of WW1 and MW1 is corroborated each other to

the extent that the petitioner/WW1 was engaged for

temporary works of laying cables, erection of poles and

digging of trenches during the period 12.01.1989 to

15.10.1989.

10. The consistent evidence of WW1 is that after

15.10.1989 he was not engaged by the Respondent for any

works during the 260 days (inclusive national holidays)

actually worked for 227 days. Similarly the evidence of

MW1 is that during the period from 12.01.1989 to 15.10.1989

WW1worked for 227 days. It is also evident from the

evidence of WW1 and MW1 that during the month of

May 1989 WW1 was not engaged and worked, this fact is

clearly deposed by MW1 and admitted by WW1 during

the cross examination.

11. Even according to the evidence in chief and

admission during cross examination of WW1 that the 227

days are inclusive of weekly offs, national holidays and

the days of cessation. Though in the evidence in chief

WW1 stated that the days during the period from 12.01.1989

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1113

to 15.10.1989 are 277 days on both deposed that he worked

for total number of days 260 inclusive of national holiday.

12. Since the burden of proof lies on the workman to

prove that he actual worked 240 days during the period of

one year, they have produced Ex.W6 Katcha register/record

with details which was recorded and signed by the

supervisors of the Respondents. The days of works were

noted in Ex.W6. According to which they were 277 days

out of which the petitioner worked only 227 days. Ex. W1 is

the representation of WW1 to the Sub-Divisional officer,

Tele Communication dated 02.03.1993, where under WW1

clearly stated that during the period from January, 1989 to

June 1999 there are 133 days from July 1989 to October

1989, working days 94 totaling to 227 days. The entire

representation is claiming the difference of wages. The

petitioner/WW1 in the Ex. W1 clearly stated that he was

not given paid weekly holidays and weekly offs for which

no wages were paid to him. During the cross examination

admitted that he was not paid salary or wages for those

holidays and Sundays. Ex. W2 is another representation to

the Regional Labour Commissioner showing the number

of days worked in every month which comes to 227 days

during the period from 12.01.1989 to 30.04.1989 and

01.06.1989 to 15.10.1989 excluding the month of May 1989,

in which admittedly the petitioner/WW1 was not engaged

for casual works. Ex.W3 in the parawise remarks of the

Sub-Divisional Officer, Tele Communications to the

Regional Labour Commissioner and Ex.W4 the rejoinder of

the petitioner. The Ex.W5 is the Minutes of the Asst. Labour

Commissioner, Hyderabad dated 20.06.1991 fiding that the

cancellation ended in failure.

13. In support of the petitioner contention relied on a

decision in Mohan lal Vs Management of M/s. Bharat

Electronic Limited (1981) 3 SCC 225 where their lordships

held that if immediately preceding the date of termination

of service such workman actually worked for not less than

240 days within a period of 12 months under the employer,

he will deemed to be in continuous service for one year

under Sec. 25-B (2) (a)(ii) for the purpose of Chapter VA. It

is not necessary for the purpose of clause (2) (A) that the

workman should be in service for a period of one year.

The petitioner of WW1 deposed that in total of 260

days inclusive of National holidays worked for 227 days

which is corroborated by the evidence of MW1 that during

the period from 12.01.1989 to 15.10.1989 supported by Ex.W6

established that the petitioner actually worked 227 days.

14. Batala Coop. Sugar Mines Ltd., Vs Swarna Singh

(2005) 8 SCC 481 where their lordships held that so far

as the question of onus regarding working more than 240

days is concerns for the claimant to let evidence to show

that he had in fact worked for 240 days in the year

preceeding is termination.

Since the onus of is heavily on the claimant besides

his oral evidence also filed Ex. WI representation of the

petitioner where under he has shown the actual working

days is 227 days during the period 01/1989 to 06/1989 and

07/1989 to 10/1989. During cross examination WW1 admitted

and MW1 deposed that the during the month of May, 1989

there is a breaking work, which period is also excluded in

Ex. W6. In Ex. W2 representation also the claimant excluding

the month of May, 1989 submitted his working days in

detail actually worked as 227 days. The same facts are also

noted in Ex. W3 representation to the Labour Commissioner

and found place in Ex. W4 para remarks and in the Ex. W5

Minutes of the meeting held on 20.06.1991.

Therefore, the evidence of WW1 corroborated with

the adminission in the evidence of MW1 supported by

Exs. W1 to W6 well established that during the period from

01.01.1989 to 15.10.1989 out of 260 days total working days

the claimant actually worked 227 days.

15. In Hariyana Urban Development Authority Vs

O.M. Pal (2007) 2 SCC (L & S) 255 where their lordships

held that once two establishments are help to be separate

and distinct having different cadre strength of the

workman the period during which the workman was

working in one establishment could not ensure to his

benefit when he was recruited separately in another

establishment particularly when he was not transferred

from one sub-division to other.

16. In Hariyana State FCCW Store Limited and

Another Vs Ramniwas and Another 2002 (5) ALD 14 (SC)

where their lordhsips held that the workman engage for

a specific purpose and termination on the completion of

the purpose does not amount to retrenchment within the

meaning of Sec. 2 (oo) (bb) of the Act.

And

In S.M. Nilajkar and others Vs Telecom, District

Manager, Karnataka 2003 LHR 79 where their lordship

held that the termination of service of a workman engaged

in a scheme or project may not amount to retrenchment

within the meaning of sub-clause (bb). The engagement

of the workman as a daily-wager does not by itself amount

to putting the workman on notice that he was being

engaged in a scheme or project which was to last only for

a particular length of time or upto to the occurrence of

some events. The contract of employment consciously

entered into by the workman with the employer would

result in a notice to the workman on the date of

commencement of the employment itself that his

employment was short-lived and as per the terms of the

contract the same was liable to termination on the expiry

of contract and the scheme or project coming to an end.

The workman may not therefore compliant that by the act

of the employer is employing was coming to an abrupt

termination. To exclude the termination of a scheme or

project employee from the definition of retrenchment it is

1114

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

for the employer to prove the above said ingredients so as

to attract the applicability of sub-clause (bb) above said.

From the above decision it is very clear that for the

purpose of Sec. 25B (2) (a), (ii) of I.D. Act for the purpose

chapter V-A the workman shall actually work not less than

240 days within a period of 12 months immediately preceding

the date of termination of service. Further to establish

retrenchment within the meaning of sub-clause 2(bb) the

workman shall not be engaged in a scheme or project in

separate, distinct and different divisions for a specific

purpose.

17. In the instant case the evidence of MW1 is that

the WW1/Claimant was engaged as Casual Mazdoor for

temporary works of laying cables, erection of poles and

digging trenches, which is not regular work. He was never

engaged continuously and there are breaches is engaging

the claimant for casual works and during the entire month

of May 1989 no work was entrusted to the claimant as

there were no works. The Claimant as WW1 admitted that

in the month of May 1989 he did not work which is also

reflect from Ex. W6. Further his evidence that though he

worked on Sundays not paid any salary.

Further the admissions of WW1 during cross

examination that he worked at Jadcharla Nagarkurnool, Sub-

Division for 20 days, later worked at Gadwal from 02/1989

to 04/1989. Again he worked at Jadcharla and there is break

in works. The breaking works is shown in Ex. W2 as well as

in Ex. W6 Kacha record.

18. The evidence of WW1 corroborated by the

evidence of MW1 supported by Exs. W1 to W6 well

established that out of the period from 01.01.1989 to

15.10.1989 there was no work for the claimant from

01.05.1989 to 30.05.1989. The Claimant was the Casual

Mazdoor engaged for casual works in different sub-division

Nagarkurnool and Gadwal, which are distinct and different

divisions. The works for which the Claimant engaged in

laying cables, erection of poles and digging trenches, are

separate works in separate divisions as such there is no

continuity of works engaged entrusted to the Claimant.

According to MW1 the 227 days includes Sundays and

national holidays, for whcih he was not paid salary which

itself clinches the issue that the Claimant was not paid

salary or wages even for the 227 days. Admittedly there is

no appointment order in proof of that the Claimant was

engaged for the casual works.

19. Relaying the decision in Hariyana State FCCW

Store Limited and Another Vs Ramniwas and Another

2002(5) ALD 14 (SC), I find since the Claimant was engaged

for a specific purpose of engaged in laying cables, erection

of poles and digging trenches in different divisions

Nagarkurnool and Gadwal in different periods and he was

re-engaged after completion of the work at Jadcharla,

Nagarkurnool sub-division at Gadwal division and again

after completion of works at Gadwal Division, again freshly

engaged at Jadcharla, Nagakurnool, Sub-division. There is

no continuous engagement of works either regular nor

temporary. The Claimant was dis-engaged due to non

availability of work and the work for which the Claimant

was engaged completed and no new work was taken up.

He was never retrench or terminate, but on completion of

work he was stopped to work. Accordingly the claimant

workman was engaged for a specific purpose and after

completion of the purpose there is no work, hence there is

no literally retrenchment or termination within the meaning

of Sec. 2(oo) and (bb) of I.D. Act.

20. In the decision Pandicherry Khadi and Village

Industries Board Vs P. Kulothangan and Another (2004)

1 SCC 68 where their lordship held that although the

entire CPC is not applicable to Industrial adjudication,

the principles of res-judicata laid down under Sec. 11 of

C.P.C. are applicable including the principles of

constructive res-judicator. Hence since the industrial

dispute pertained to the same subject matter dealt with in

the earlier proceedings it was barred by res-judicator.

In the instant case there is no whisper about the

alleged W.P. No. 12285/1996, W.P. No. 12185/1996, W.P.

No. 13155/1996, Writ Appeal No. 1084/2002 and W.A. No.

560/2012, in the evidence of MW1, but gave a suggestion

to the WW1 about the dismissal of Writ Petition and Writ

Appeals for which the answer of WW1 is he was not aware

of earlier dismissal of Writ petition and not stating the

same in the Writ Appeal, hence he cannot say whether this

Court has no jurisdiction to re-hear the matter. To

substantiate the contention, the Respondents did not

brought on record the orders in writ petitions and writ

appeals. Accordingly there is no either oral or documentary

evidence for consideration on the point of res-judicata.

21. In the facts and circumstances discussed above

and findings therein, I find that the evidence of WW1 and

the admissions made by MW1 supported by Exs. W1 to

W6 well established that the Respondent engaged the

Claimant as casual Mazdoor for the works laying cables,

erection of poles and digging of trenches during the period

from 01.01.1989 to 30.04.1989 and again 01.06.1989 to

15.10.1989 with breaking service in different, separate and

distinct Jadcharla in Nagarkunool sub-division and Gadwal

Division of the above purpose and after completion

schedule works the Claimant was dis-engaged. The Claimant

himself deposed that he was not paid wages for Sundays

worked. Accordingly for the actual working days only the

claimant was paid wages, out of 260 days of work the

claimant worked only for 227 days including Sundays.

Accordingly the claimant did not work 240 days within a

period of 12 months under the employer to treat as

continuous service for one year under Sec. 25-B(2)(a)(ii) to

say that the Claimant was terminated in violation of Sec.

25-F of I.D. Act.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1115

22. The Claimant was disengage due to non

availability of work. Since the claimant was engaged for a

specific purpose and after completion of the said work, he

was disengaged, which does not amount to retrenchment

or termination within the meaning of Sec. 2(oo) and (bb) of

I.D. Act. There is no retrenchment or termination in violation

of Sec. 25-F of I.D. Act. Accordingly the Petitioner/Claimant

is not entitled for any declaration and relief as prayed for.

23. In the result, the petition is dismissed and the

petitioner is not entitled for any relief. Reference is answered

accordingly.

Typed to my dictation directly to the Steno typist on

the computer, corrected and pronounced in the open court

on this the 10th day of June, 2013.

N. BALAYOGI, Chairman

APPENDIX OF EVIDENCE

Witness examined for

Petitioner

Respondents

W W 1 G. Shivaji

M W 1 K. Paramadhamayya

Documents Marked for Petitioner

Ex.W1

02.03.1993

Representation of petitioner.

Ex.W2

21.11.1990

Copy of complaint given to

Regional Labour Officer.

Ex.W3

10.01.1991

Copy

remarks

Respondent.

Ex.W4

15.05.1991

Copy of rejoinder of workman.

Ex.W5

20.06.1991

Copy of Minutes of meeting.

After remand

Ex.W6

Katcha record

Documents Marked for Respondents

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New Delhi, the 17th January, 2014

S.O. 394.—In pursuance of Section 17 of the

Industrial Disputes Act. 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 15/96) of

the Central Government Industrial Tribunal/Labour Court-

1 , Hyderabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of Sub-Divisional Officer, Telecome, West

Godavari and their workman, which was received by the

Central Government on 13/01/2014.

[No. L-40012/238/94-IR(DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CHAIRMAN, INDUSTRIAL TRIBUNAL-I

AT HYDERABAD.

Present : Sri N. Balayogi, B. Com., B.L., Chairman

Dated 24th day of October, 2013,

I.D. No. 15 of 1996

Between:

Sri M.V. Krishna Rao,

S/o M. Satyam (Late) Aged about 52 years,

O/o Sub-Divisional Engineer Urban,

Methevari Building,

BSNL Office, Eluru,

West Godavari Dist.

...Petitioner

AND

1. The Sub-Divisional Officer,

Telecommunication

Nidadavole,

West Godavari Dist- 534-301,

Andhra Pradesh.

....Respondent

This case is come up before me for final hearing on

04.09.2013 in the presence of Sri William Burra, Advocate

for the Petitioner and Sri R.S, Murthy, Advocate for the

Respondent having stood over the same for consideration,

this Court delivered the following Award:

AWARD

1. This is a reference under Sec. 10 (i) (d) (2-A) of I.D.

Act 1947 for adjudication:

1. "Whether the action of the Management of Telecome

District Manager, Eluru is justified in terminating the

services of Shri M.V. Krishna Rao without

conducting a fresh enquiry?

(2) If not, to what relief the workman concerned is entitled

to?"

2. The petitioner filed claim statement contending

that he was initially recruited and employed as casual

Mazdoor w.e.f 01.05.1983. Two months later he was selected

for employment on daily wages. On the ground of

negligence for loss of cable, he was terminated from service

1116

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

w.e.f. 9.05.1988 without complying the mandatory

provisions of I.D. Act requiring issue of one month notice.

The formal termination notice was served on the petitioner

on 09.06.1988.

3. On that the petitioner filed O.A. No. 537/1988. The

Administrative Tribunal set aside the termination orders

by its order dated 02.08.1989. The petitioner was employed

for a period from 16.09.1989 to 30.09.1999 showing his name

as usual in the M/Rs. But his name was removed from the

M/Rs. from 01.10.1989. The petitioner was discontinued

from work through his juniors were continued his service.

Removing his name from M/Rs. is retrenchment.

4. The provision of Rule 77 of the Industrial Tribunal

(Central) Rules 1957 were not complied with and even the

directions of the D.G.P & T not retrench a senior while the

juniors continue in service have also not followed.

5. The Respondent issued letter dated 15.09.1989

calling upon the explanation for the Petitioner on or before

30.09.1989. The petitioner submitted his explanation on

30.10.1989. The UTO Kovvuru issued letter dated 26.05.1988

alleging that the petitioner failed to intimate immediately

alleged that are to show cause why he services could not

be terminated or recommended to be terminated. The JTO

Kovvuru did not allege that the theft is due to negligence

of the petitioner. The criminal; case before II Add;. JFCM,

was closed as "undetectable".

6. The petitioner filed O.A. No. 1007/1990 before the

CAT and the same was dismissed. No enquiry was held

under any rules for orders including any certified standing

orders or even under the model standing orders, if no

certified standing orders are available. Therefore the

termination of the petitioner from service without any

enquiry as per the directions of the CAT is illegal and

vaxatious.

7. The Respondent filed counter denying the

averments of petition and contended that a cable drum

was placed in the exchange compound on the evening of

06.05.1988, when the petitioner was on duty. In the morning

on 08.05.1988 the petitioner noticed theft of cable drum.

For the same was not informed to the JTO concerned on

the day.

8. A departmental open enquiry was conducted by

the D.E. Telecommunications on 09.06.1988, who concluded

that both Watchmen, the petitioner herein and Sri N. Shyam

Prasad were responsible for the loss. As per the D.E.T. oral

instructions dated 09.06.1988 both the Watchmen were

informed that their services are not required, hence no work

was allotted to them while pending enquiry. Accordingly

the services of the petitioner was not terminated, but only

not allotted any work until enquiry proceedings were

issued.

9. As per the directions of the CAT in O.A. No. 537/

1988, the petitioner was reinstated w.e.f. 15.09.1989. Since

CCS/CCA Rules does not apply to the casual mazdoor and

the petitioner is not a regular employee, no departmental

enquiry can be initiated against the petitioner. Hence a

fresh explanation is called for vide letter dated 15.09.1989

giving 10 days time for negligence of duty. The petitioner

received the notice on 19.09.1989, instead of submitting

explanation before 28.09.1989, he submitted letter dated

30.09.1989 requesting five more days time to give reply. Till

31.10.1989 no explanation was received from the petitioner.

Finally termination order was issued to the petitioner on

31.10.1989.

10. The petitioner was engaged during 15.09.1989 to

31.10.1989 and his name was written in M.Rs. Since

termination notice was issued on 31.10.1989 and one month

wages were paid in lieu of one month notice, the petitioner

was not taken to duty from 01.11.1989. He was terminated

from service, but not retrenched.

11. The JTO in his letter dated 26.05.1989 asked the

petitioner about his failure to intimate missing of cable on

08.05.1988. The police compliant was regarding missing of

cable, but not failure of petitioner in discharging his duties,

Hence the judgment in criminal case is not concerned with

negligence of duty. Sri. S.S. Vali, the S.I. was issued with

cable. Since the petitioner is not a regular employee no

disciplinary action can be taken against him as directed by

CAT. The termination of the petitioner was not at all illegal

and it is as per rules. The employee of Telecom department

is not a workman for the purpose of I.D. Act, hence this

petition is not maintainable.

12. On behalf of the petitioner WWs 1 & 2 are

examined and Exs. W1 to W24 are marked. On behalf of the

Respondent MWs 1 & 2 are examined and Exs. M1 to M20

are marked.

13. Both petitioner and Respondent filed their written

arguments respectively.

14. Point No. 1:

"Whether the action of the Management of Telecom

District Manager, Eluru is justified in terminating

the services of Shri M.V. Krishna Rao without

conducting a fresh enquiry?"

The petitioner filed written arguments and contended

that the casual mazdoor is also a workman and the

termination amounts to retrenchment, for which the

conditions under Sec. 25 has to be fulfilled. On the other

hand, the Respondent contended that Telecom

Communication Department is not an Industry, hence the

petitioner is not a workman to attract the provisions under

I.D. Act.

The petitioner herein is examined as WWI

besides examining the Wireman as WW2. The D.E.,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1117

Telecommunications and the Sub-Divisional Engineer of

the Respondent are examined as MWs 1 & 2. The

undisputed facts spell out from the evidence of WW1 and

MW 1 are that the petitioner was initially appointed as

Casual Mazdoor on 29.04.1983, w.e.f. 01.05.1983. Ex. W1

dated 29.06.1983 is the selection proceedings of the

petitioner in pursuance of interview dated 29.04.1983.

Subsequently the SDO, Telecommunications issued Ex. W2

proceedings dated 08.10.1986 accorded payment of

increased casual wages including the petitioner casual

mazdoors, who have completed 720 days in three years as

on 1.04.1986. The working days particulars in respect of

the petitioner were noted and certified in Ex.W3 workbook

for the actual days worked during period from 01.05.1983

to 30.09.1989. Ex. W4 is the personal record of employment

and muster rolls pertains to the petitioner for the period

from 02.01.1987 to 01.04.1988. The JTO, Kuvvru under Ex.W5

working sheet certified that the petitioner has worked 342

days during the year 1985-1986, 345 days during the year

1986-1987 and 344 days during the year 1987-1988 in total

1041 days. There is no cross examination of WW1 on

Exs.W1 to W5. In Ex.W2 dated 08.10.1986 the SDOT

certified that the petitioner has completed 720 days in the

three years as on 01.04.1986. In the Ex.W1 appointment

letter also the SDOT, Nidadavole, clearly noted that the

petitioner has been working at different places was

interviewed on 29.04.1983.

15. The evidence of WW1 remained unchallenged

and supported by Exs.W1 to W5 well established that the

petitioner was appointed as casual mazdoor on his sponsor

by employment exchange in the interview held on 29.04.1983

and since then till termination on 09.05.1988. He worked

more than five years till termination, since 01.05.1983. The

existing wages as on 08.10.1986 noted in Ex.W2 was Rs.

10.50 ps, which was enhanced to Rs. 15 per day w.e.f.

01.04.1986. The Ex.M18 payment sheet for the month of

10/1989 established that the petitioner was paid Rs. 1,005

towards monthly wage in that particular month.

Accordingly the monthly wage of the petitioner as on 1989

was Rs. 1,005. The petitioner worked more than 240 days

within twelve months period. Accordingly the petitioner

worked more than five years as on the date of termination

w.e.f. 9.05.1988.

16. The petitioner contention is that he is a workman

within the meaning of Sec. 2(S) of I.D. Act, whereas the

Respondent contention is that he engaged as a casual

mazdoor, due to shortage of "D" staff, hence he is not a

workman. In support of the petitioner contention relied on

decision in Dharangadhara Chemical Works Limited Vs

State of Saurashtra and others [1957 SC 264(1)] where their

lordship held that the essential condition of a person being

a workman within the terms of definition in Sec. 2(s) of I.D.

Act is that he should be employed to do the work in the

Industry, that there should be in other words an employment

of his by the employer that there should be the relationship

between the employer and him as between employer and

employee or master and servant. Unless the person is thus

employed there can be no question of his being the workman

within the definition of the terms as contained in the Act.

In another case relied on by the Respondent in The

Divisional Superintendent (now called Divisional Railway

Manager) SC Railways, Vijayawada and Others Vs The

Labour court, (Central), Guntur and another [1987 (2) ALT

119] where their lordship held that a casual labour, who

acquires temporary status by virtue of continues

employment of a period of six months does not become a

temporary railway servant, he does not become a member

of railway service either temporarily or permanently. In such

case where a casual labour claims to have acquired

temporary status does not fall within the four corners of

Sec. 14(1)(a) of Administrative Tribunals Act.

In the instant case, the evidence of WW1 and MW1

is that the petitioner was initially appointed as Casual

Mazdoor on 29.04.1983 w.e.f. 01.05.1983. Ex.W1 selection

proceedings goes to suggest that in pursuance of interview

on 29.07.1983 the petitioner was appointed as Casual

Mazdoor. The increased wages were paid to WW1 along

with others as per Ex.W2, who had completed 720 days of

service as on 01.04.1986. Ex.W3 workbook and Ex.W4

personal record of the petitioner, Ex.W5 work sheet

certificate, corroborated with the evidence of WW! and

admitted by MW1 well established that the petitioner had

worked 342 days during 1985-1986, 345 days during 1986-

1987 and 344 days during 1987-1988 in total he worked

1,041 days till 1988 i.e. till termination on 09.08.1988. His

monthly pay was Rs. 1,005 by 1989. Accordingly the

petitioner worked more than 240 days within twelve months

period. There is employer and employee relationship

between the petitioner and the Respondent, which is not

disputed by the Respondent. The Respondent is having

supervision and control over the work of the petitioner in

the matter of entrustment of duties and also the manner in

which the petitioner has to work. Therefore, the petitioner

is a workman within the meaning of Sec. 2(s) of I.D. Act.

17. The further contention of the Respondent is that

the Telecom Department is not an Industry, hence the

petition under the reference of Sec. 10(1d) (2-A) of I.D. Act

is not maintainable. On the other hand, the petitioner

contended that the Telecom Department is an Industry as

under Sec. 2(j) of I.D. Act, hence this reference is

maintainable.

In the decision relied on by the Respondent reported

in Sub-Divisional Inspector of post, VAIKAM and others

Vs Theyyam Joseph etc. [1996 (72) FLR 690] where their

lordships held that directive principles of State policy

enjoin on the state diverse duties under part-IV of the

constitution and performance of the duties are

constitutional functions. One of the duty is of the state to

provide Telecom Service to the general public and an

1118

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

amenity, and so is one essential part of the sovereign

functions of the State as a welfare state. It is not therefore

an Industry within the definition of Sec. 2(j) of the I.D. Act

1947.

This decision was considered by the Hon'ble Supreme

Court of India and was over ruled. In the case of General

Manager, Telecom Vs. S. Srinivas Rao and Others (AIR

1998 Supreme Court 656) where their lordship held

"incidentally the decision in Theyyam Joseph's case was

rendered without any reference to the Seven-Judge Bench

decision in Bangalore Water supply (AIR 1978 SC 548)

(supra). In a later two-Judge Bench decision in Bombay

Telephone Canteen Employees Associations case (AIR

1997 SC 2817) this decision was followed for taking the

new that their Telephone Nigam is not an "Industry".

Reliance was placed in Theyyam Joseph's case (1996 AIR

SCW 1365) (Supra) for that view. However in Bombay

Telephone Canteen Employees Associations case we find

a reference to the Bangalore Water Supply case. After

referring to the decision in Bangalore Water Supply it was

observed that if the doctrine enunciated in Bangalore

Water Supply is strictly applied, the consequences is

"catastrophic". With respect we are unable to subscribe to

this view for the obvious reason that it is in direct conflict

with the seven-Judge Bench decision in Bangalore Water

Supply case (supra) by which we are bound. It is needless

to add that it is not permissible for us or for that matter any

bench of lesser strength, to take a view contrary to that in

Bangalore Water Supply (supra) or to by-pass that decision

so long as it holds the field. Moreover the decision was

rendered long back-nearly two decades earlier and we find

no reason to think otherwise. Judicial discipline requires

us to follow the decision in Banglaore Water Supply case.

We must therefore add that the decision in Theyyam Joseph

(1996 AIR SCW 1365) and Bombay Telecom Canteen

Employees Association AIR 1997 SC 2817 cannot be treated

as laying down the correct law.

In the instant case as find in the earlier paragraph

that the petitioner was initially appointed as casual

Mazdoor w.e.f. 01.05.1983. By 01.04.1986 he has completed

720 days of service and 1041 days of service by 09.08.1988,

on which date he was terminated. By 1989 the monthly pay

of the petitioner was Rs. 1,005. Accordingly the petitioner

worked more than 240 days within 12 months period, there

is employer and employee relationship between the

petitioner and the Respondent. The Respondent is having

supervision and control over the work of the petitioner in

the matter of entrustment of duties and also the manner in

which the petitioner has to work, accordingly the petitioner

is a workman within the definition of Sec. 2(s) of I.D. Act.

MW1 clearly deposed that Sri K.S.V.R. Prasad JTO, was in-

charge of Kuvvuru under SDOT Nidadavole. During cross

examination MW1 admitted that the petitioner worked as

Watchman for sometime and in other occasions worked in

indoors.

18. Though the Respondent took a specific plea that

the Telecom Department is not an Industry as defined under

Sec. 2(j) of I.D. Act, 1947, it would not adduce any oral or

documentary evidence. The Telecommunication

Department is engaged in a commercial activity and the

Department is not engaged in discharging any of the

sovereign functions of the State.

19. In the present case the petitioner herein filed W.P.

No. 7967/1998 seeking to set aside the Award in I.D. No. 15/

1996 dated 30.06.1997 R/W I.A.No. 246/1996 on the file of

this Tribunal. The Hon'ble High Court of A.P. disposed of

W.P. No. 7967/1998 on 06.08.1999 in terms of Judgment in

W.P. No. 7987/1998.

The Hon'ble High Court disposed of in W.P. No. 7987/

1998 on 21.12.1998 holding that in the light of decision in

the case of General Manager, Telecom Vs. A. Srinivas Rao

(AIR 1998 SC 656) where under the Department of

Telecommunication was declared as Industry, while setting

aside the Award in I.D. No. 30/1996 dated 29.06.1997 and

the matter is remanded back for fresh consideration.

20. In the fact and circumstances discussed above, I

find that the Hon'ble High Court in the present case in I.D.

No. 15/1996, itself relying on decision in General Manager,

Telecom Vs. A. Srinivas Rao (AIR 1998 SC 656) where

under held that the Department of Telecommunication

was declared as Industry. Accordingly, I find that

Telecommunication is an Industry as defined under Sec.

2(j) of I.D. Act, 1947 and the petitioner is a workman as

defined under Sec. 2(s) of I.D. Act.

21. The further contention of the petitioner is that

since the petitioner is a workman entitled for the benefit of

Sec. 25-F of the I.D. Act. On the other hand, the Respondent

contended that as the Management lost the confidence

decided to disengage the petitioner under Sec. 25-F of I.D.

Act. The petitioner is not governed by CCA rules except

opportunity having regard to principles of natural justice.

In the case of State Bank of India Vs Sri N. Sundara

Money AIR 1976 SC 1111(1) where their lordships held

that whatever the reason every termination spells

retrenchment. So the sole question is has the employee's

services has been terminated. Termination embraces not

merely the act of the termination by the employer, but the

fact of termination however produced. May be the present

may be a hard case, but we can visualize abuses by

employers by suitable verbal devices, circumventing the

armour of Sec. 25-F and Sec. 2(oo) of I.D. Act.

In the instant case the evidence of WW1 is that

while he was working as casual mazdoor, the JTO

telephones Kovvuru issued Ex.W6 dated 26.05.1988 calling

for his explanation for the theft of 20 pairs of cable from the

telephone exchange on 08.05.1988. Which fact is also

evident from the evidence of MW1 that on 06.05.1988

theWW1 the was the Watchman who received the material

and signed Ex.M2 entry in Ex. M1 stores register,

¹Hkkx II—[k.M 3(ii)º

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1119

acknowledging that the petitioner received from Sri S.S.

Vali, S.I., (P) Kovvuru, 20 pairs of cable drum. The receipt

and acknowledgement under Ex. M2 in the Ex. M1 is not

disputed by the petitioner. Therefore, it is evident that the

petitioner was the Watchman and received 20 pairs of cable

drum by making entry in the Stores register/ Ex. M1 by

acknowledgement under Ex. M2 relevant entry dated

06.05.1988.

22. The evidence of MW1 further established that

WW1 presented Ex. M3 dated 09.05.1988 report to the Jr.

Telecomm Officer stating that WW1 found missing of drum

containing 20 pairs of cable on 08.05.1988. One Shri Shyam

Prasad was night Watchman on 06.05.1988 and WW1 was

Watchman on 07.05.1988. On the night 07.05.1988 Sri Shyam

Prasad was the night Watchman. On 8.05.1988 morning

WW1 is the Watchman and on the evening of 08.05.1988

one Sri Jairaj was the night Watchman. In the morning of

09.05.1988 WW1 reported the missing of cable drum in the

report under Ex. M3. Actually WW1 found missing of the

drum in the morning of 08.05.1988 itself, but not reported to

the Jr. Telecomm Officer. The evidence of WW1 supported

by Ex.W8 goes to suggest that on 09.05.1988 at 5.30 p.m.

the Jr. Telecomm Officer submitted a report to the police

alleging that there was a theft of cable drum in between 19

hrs. on 07.05.1988 to 7 hrs. on 08.05.1988. The police after

investigation filed final report under Ex.W9 referring the

case as "undetectable". The II Addl. Munsiff Magistrate

Kovuur by its order under Ex.W10 dated 05.10.1988

recorded Ex.W9 as "undetectable" and closed the case.

23. The evidence of WW1 further established that

this Tribunal passed an Award in I.D. No. 15/1996 dated

31.12.1999 directing the Respondent to reinstate the

petitioner into service within 30 days from the date of

publication of the Award and futher held that the petitioner

is entitled to wages from 01.01.2000 irrespective of the

petitioner is reinstated. Aggrieved by the orders in this I.D.

No. 15/1996 dated 31.12.1999 the Respondent preferred

W.P. No. 760/2001, which was allowed on 28.02.2012 while

setting aside the Award in I.D. No. 15/1996 dated 31.12.1999

and remanded the matter for fresh disposal.

24. The evidence of WW1 and admission of MW1

further established that in pursuance of interim orders in

W.P.M.P. No. 879/2001 dated 23.01.2001 in W.P. No. 760/

2001 the petitioner was reinstated on 26.02.2001. The Sec.

25-F connotes that the workman shall be given one month

notice or pay one month salary in lieu of notice and shall

be paid compensation which is equalent to 15 days average

pay for every completed year of service before

retrenchment of the employee. The evidence of MW1 is

silent with regard to one month notice or payment of salary

in lieu of one month notice as contemplated under Sec. 25-

F of I.D. Act.

25. The termination order Ex. M19 goes to suggest

that the petitioner was terminated from the service of casual

Mazdoor w.e.f. today i.e. 31.10.1989. With regard to payment

of one month salary Ex. M19 contains the words "you are

herewith paid one month salary in lieu of notice". The mode

of payment of one month salary is not noted in Ex. M19. If

really the one month salary in lieu of notice was paid by

way of D.D. or Cheque or Banker challan or M.O., it should

have contain the number and date of the document by

enclosing to the Ex. M19. More ever MW2 during cross

examination deposed that the Management followed the

procedure under Sec. 25-F of I.D. Act before termination,

he has no idea whether any compensation were paid to the

petitioner. Which itself shows that the own witness of the

Respondent MW2 is uncertain about the compliance of

Sec. 25-F of I.D. Act which is mandatory. MW1 during

evidence is chief though deposed that WW1 worked on

31.10.1989 and one month wages in lieu of one month notice

was paid to him. He did not produce any proof of payment

of one month salary in lieu of notice. In the absence of any

such convincing oral or documentary evidence, I find that

the Respondent has not complied the provisions and

conditions stipulated under Sec. 25-F of I.D. Act.

26. The petitioner further contended that the

Respondent while continuing the juniors in service

terminated the petitioner which is against Sec. 25-G of I.D.

Act. In support of his contention relied in a case Jaipur

Development Authority Vs. Ramsahai and Another (2006)

11 SCC 684 where their lordships held that Sec. 25-G

introduces the rule of "last come first go". It is not a rule

which is imperative in nature. The said rule would be

applicable when a workman belongs to a particular category

of workmen. An employer would in terms thereof, the

ordinary required to retrench the workman who was the

last person to be employed in that category. However, for

reasons to recorded the employer may retrench any other

workman.

In the instant case the evidence of WW1 is that the

petitioner was terminated without conducting any enquiry

as contemplated under the rules and standing orders of

the Respondent. However, he was terminated and

subsequently reinstated as Casual Mazdoor w.e.f.

15.09.1989 under Ex. W12 proceedings issued by the JTO,

Kovvuru. He was employed from 16.09.1989 to 30.09.1989

showing his name in muster rolls and he was employed on

01.10.1989 also, but his name is not shown in the muster

rolls and the wage was paid on ACG-17 voucher. From

02.10.1989 he was discontinued from service and again

employed during 16.10.1989 to 31.10.1989 without showing

his name in the muster rolls, while his juniors Sri B. Prakash

Rao, Sri O. Manohar Kumar, Sri B. Appala Swamy, and Sri

K. Samuel who came from other Units to Nidadavol Sub-

Division for continuation in service, but they were later

terminated. Similarly Sri J. Ganaiah, Sri B. Srinivasa Rao, Sri

K. Satyanarayana, Sri. G. Satyanarayana and Sri Chitti Babu

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

who are also to the Juniors to the petitioner continued in

the SDOT office, Nidadavol as casual mazdoor. There are

other juniors who are also continued in service like Sri

Satyanarayana, Sri P. Vijaya Kumar, Sri Ganesh and Sri Sharif,

Sri Ramarao, Sri Prasad, Sri George Mullar, Sri V. Samuel, Sri

Bothaiah as per the Ex.W13 seniority list of Mazdoor

workers as on 31.03.1987. As can be seen from Ex.W13 the

workers at serial no. 16 to 40 outdoor mazdoor have less

number of working day as compared the petitioner, similarly

the indoor mazdoor at serial no. 7 to 9 who were from other

sub-divisions are also juniors to the petitioner. Inspite of

the consistent plea and evidence of WW1, the Respondent

did not choose to cross examine WW1 with regard to

continuing his juniors in service terminated the petitioner.

In the absence of any such cross examination of WW1 on

the about aspects, I find that the Respondent is not

disputing the fact that the petitioner was terminated while

continuing his juniors in service, which is in gross violation

of Sec. 25-G of I.D. Act the rule of last come first go.

Accordingly the termination of petitioner while continuing

in service his juniors is in violation of Sec. 25-F of I.D. Act.

27. The contention of the Respondent is that the

petitioner was terminated for his negligence in duties, in

not reporting the theft immediately and on the ground loss

of confidence. On the other hand the petitioner contended

that the termination without an enquiry is illegal.

In support of the Respondent contention relied on

decision Divisional Controller, Karnatake State Road

Transportation Vs. N.G. Vittal Rao (2012) 1 SCC 442 where

their lordship held that an employer is not bound to keep

an employee in service with whom relations have reached

the point of complete loss of confidence/faith between the

two. Loss of confidence cannot be subjective but there

must be objective facts which would lead to definite

interference of apprehension in the mind of the employer

regarding trustworthiness of the employee and which must

be alleged and proved. In a case of misconduct of grave

nature like corruption or theft, no punishment other then

the dismissal may be appropriate.

In the instant case the evidence of MW1

corroborated with MW2 and supported by Exs.M1 to M6

and the admissions made in the evidence of WW1 goes to

suggest that on 06.05.1988 WW1 was the Watchman, who

signed and acknowledged under Ex.W2, the receipt of 20

pairs of cable length for about 118 meters in the Ex.M1

stores register. On 08.05.1988 at 10.00 a.m. WW1 noticed

the missing of the cable drum, but he submitted the report

on 09.05.1988 and surprised the theft which the WW1

noticed on 08.05.1988 till 09.05.1988. On that the JTO, has

submitted FIR which was registered as crime No. 63/1988

under Ex.W8. On that the WW1 was put-off service as per

Ex.W7 without allotting any work. A memo under Ex.W6/

Ex.M4 dated 26.05.1988 was issued to the WW1 calling for

his explanation for alleged failure to intimate the theft

immediately to the JTO (phones), Kovvuru. The petitioner

submitted his explanation under Ex.W15 to the letter under

Ex.W14 stating that there is a conflicting allegations in the

letter of the JTO and the Sub-Divisional Officer that in the

letter the allegations the theft occur due to negligence of

the duty, where as the JTO Kovvuru, in the letter dated

25.08.1988 alleged failure to intimate the alleged theft

immediately. Further the evidence of WW1 is that there is

no negligence on his part the wire was not theft and he

made Ex.M5 representation stating that on enquiries he

came to know that the cable drum with the S.I. Sri. S.S. Valli

and so he could not intimate the same immediately.

28. To substantiate the said reply the petitioner

examined Sri G. Nageshwar Rao, Wireman as WW2 who

produced his identity card Ex.W22 and appointment letter

Ex.W23 showing that the petitioner Sri G. Nageshware Rao

is a Wireman in the Telecommunication Department as per

the appointment letter dated 01.01.1981 Ex.W23. The

evidence of WW2 supported by Exs.W22 & 23 well

established that WW2 is a Wireman and employee in the

Telecommunication Department.

29. The consistent evidence of WW1 & WW2

corroborated and supported by Exs.W15 & M5 goes to

suggest that the S.I. Sri S. Valli has already utilized the

cable wire. The police after investigation filed referred

charge sheet under Ex.W9 which was recorded by the Court

under Ex.W10 as "Undetectable".

In view of the very consistent evidence of WW1 &

WW2 that Sri S. Valli, S.I. utilized the cable and the police

referred the FIR after thorough investigation as

undetectable the evidence of Sri S.S. Valli is of material, but

the management could not choose to examined the said Sri

S.S. Valli as a witness to prove the allegation of theft while

WW1 was on duty. Absolutely there is no evidence that

due to negligence of the petitioner the theft was committed.

The Management made inconsistent allegations against

the petitioner. The JTO alleged that the petitioner was

negligent in not reporting the theft immediately, whereas

the Sub-Divisional (Phones) alleged that the theft was due

to the negligence of the petitioner.

30. In the facts and circumstances discussed above,

I find that the Management failed to established any

negligence on the part of the petitioner, whereas the

petitioner by examining himself as WW1 and the other

Wireman as WW2 rebutted the allegations of negligence,

by establishing that Sri S.S. Valli, S.I. utilized the cable wire.

31. The evidence of WW1 supported by Ex.W11

goes to suggest that the CAT under Ex.W11 ordered

reinstatement of the petitioner, the back wages and the

period shall be decided as per the result of the Departmental

enquiry.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1121

32. In the above decision the lordships observed

that even if a person stands acquitted by a Criminal Court,

domestic enquiry can be heard since standard of rules

required in a domestic enquiry and that in a criminal case is

different. In the evidence WW1 clearly stated that no

domestic enquiry was conducted. MW1 deposed that as

per the Divisional Engg. Telecommunication proceedings

after an open enquiry under Ex.M10 the petitioner was

terminated from service. During cross examination MW1

stated that he was not aware whether there are any rules or

orders or instructions under which an enquiry has to be

conducted against casual workman. There is no any

departmental enquiry against the petitioner before issuing

termination order Ex.M19. MW2 also stated that he do not

know whether the Divisional Engg. was appointed as

Enquiry Officer, he issued any notice to the petitioner fixing

the date of enquiry, recorded any evidence of the witnesses

and submitted any report. The petitioner belatedly Ex.M17

explanation to the Management, but according to MW2 he

has no acknowledge whether the Management has

considered the Ex.M17 explanation of the petitioner. MW2

the responsible officer is also not aware whether any charge

memo was issued to the petitioner. The evidence of MW1

and MW2 does not inspire any confidence to established

any such enquiry was held before termination. Even

according to the termination orders the petitioner was

terminated basing on the only open enquiry report under

Ex.M10 submitted by the sub-divisional Engg., which is

only a fact find enquiry, but not a detailed final domestic

enquiry report. The Ex.M10 open enquiry report itself is

not sufficient to terminate the services of the petitioner.

33. The facts and circumstances discussed above

goes to suggest that there is no any such domestic enquiry

following the principles of natural justice giving

opportunity to abduce evidence. The termination of

petitioner is biased, who is put in more than 1041 days and

he is selected by conducting due interview and issued

appointment orders as Casual Mazdoor and subsequently

he was paid enhanced salaries, accordingly he was a

temporary employee of the Respondent. The petitioner who

worked more than 1041 days continuously acquired

temporary status. There is no break in service.

34. The termination of the petitioner spells

retrenchment on the ground loss of confidence for non-

reporting theft immediately. It is not the allegation that the

petitioner has committed any theft or the termination was

on the ground of misconduct. In view of the clear findings

that the Respondent failed to established any negligence

on his part. The very termination of the petitioner from

service is in gross violation of Sec.25-F R/W Sec.25-B and

Sec.25-G of I.D. Act, without following the principles of

natural justice and conducting enquiry in accordance with

standing orders or rules of the Respondent.

35. In the decision in Jagbir Singh Vs. Haryana State

Agriculture Marking Board and another (2010) 1 SCC

(L & S) 545 where their lordships held that if the termination

of an employee was found to be illegal the relief of

reinstatement with full back wages would ordinarily follow.

However in recent past there has been a shift in the legal

position and in a long line of cases the Supreme Court has

consistently taken the view that the relief by way of

reinstatement with back wages is not automatic and may

be wholly in appropriate in a given fact situation even

though the termination of an employee is an contravention

of the prescribed procedure.

An order of retrenchment passed in violation of Sec.

25-F although may be set aside, but an Award of

reinstatement should not be automatically passed. The

Award of reinstatement of full back wages in a case where

the workman particularly a daily wager, who has completed

240 days of work in a year proceeding the date of

termination has not be found to be proper. Compensation

instead of reinstatement has been held to meet the ends of

justice.

In the said case, the employee was engaged as a

daily wager on 01.09.1995. He was paid consolidated

monthly wages of Rs. 1,498. He worked upto 18.07.1996.

Thereafter his services came to an end. But in the present

case the facts are different.

In the instant case the petitioner was interviewed on

29.04.1983 in pursuance of sponsored by Employment

Exchange and he was appointed as daily wager. On

interview as per Ex. W1 and he has completed 720 days in

a period of three years as per Ex. W2 proceedings and he

worked 1041 days during the period from 01.04.1985 to

26.03.1988 under Ex. W5, accordingly the petitioner has

become temporary employee. He was terminated on the

allegation that he was negligent in not intimating theft

immediately. But not on completion of term. Therefore the

above decision has no application to the facts of the

present case.

36. In Eagle Fashions Vs Secretary (Labour) and

others 1999 LLJ 232 where their lordships held that in a

reference under Sec. 10 of the Act the term of reference

should be clearly spelled out between the parities on the

real dispute and it is not so, the order of the reference is

liable to be interfered in it writ proceedings.

In the said case the term of reference has not been

properly drawn up hence the reference is held vitiated. In

the instant case there is a clear reference for adjudication

of dispute.

1. "Whether the action of the Management of Telecom

District Manager, Eluru is justified in terminating the

services of Shri M.V. Krishna Rao without

conducting a fresh enquiry?

2. If not, to what relief the workman concerned is entitled

to?"

1122

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

To prove the dispute the Management examined

two witnesses MW1 & MW2 and produced Exs. M1 to

M20. The petitioner produced WW1 & WW2 and marked

Exs. W1 to W24. The SDTO issued Ex. W14 dated 15.09.1989

signed on 16.09.1989 alleging due to negligence of WW1

the theft has been committed and called for his explanation

within 10 days. The petitioner submitted Ex. W15

explanation dated 31.10.1989. The JTO issued memo Ex.

W6 alleging that the petitioner failed to intimate the theft

immediately. WW1 clearly explained the delay has he

enquired from other workers, therefore the petitioner filed

OA No. 1007/90 questioning the termination which was

dismissed under Ex. W16. Then the petitioner approached

the RLC under Ex. W17. The SDTO issued Ex. W18 letter to

the Conciliation Officer. The conciliation Officer conducted

proceedings under Ex. W19 and issued the proceeding

under Ex. W20 datred 23.09.1994 Minutes and submitted

Ex. W21 FOC. In pursuance of orders under Ex. W11 the

petitioner was appointed under Ex. W12 and after

reinstatement the Respondent issued Ex. W14 notice then

again he approached the CAT which was dismissed as per

orders under Ex. W16. Then the petitioner Ex. W17

representation to the Labour Department, which gave reply

under Ex. W18 rejecting the request of the petitioner to

condone the delay in raising the dispute. The Central

Government referred the dispute under Sub-Sec. 10(1) (2A)

of I.D. Act for adjudication accordingly this Tribunal

entertained the dispute. Hence there is no delay in entertain

the dispute as referred.

37. In the facts and circumstances discussed above

and findings therein, I find that the petitioner is a temporary

employee who put in 1041 days of continuous service

within a period of 01.05.1985 to 26.03.1988 under Ex. W5.

The Respondent failed to prove any negligence in discharge

legitimate duties. The Respondent without following the

principles to natural justice and conducting any domestic

enquiry simply on open enquiry under Ex. M10 without

affording any opportunity in gross violation of principles

of natural justice, standard orders, rules and regulations

and Sec. 25-F R/W Sec. 25-B and Sec. 25-G of I.D. Act

terminated the services of the petitioner. The termination is

disproportionate to the allegation even though no domestic

enquiry. The termination without any reasons while

continuing his juniors in service is illegal and void.

Consequently the termination of the petitioner being

temporary employee of the Respondent is void, illegal and

unjustified. Accordingly this point is answered.

38. Point No. 2

2. If not, to what reflief the workman concerned is

entitled to?"

In the facts and circumstances discussed above and

findings therein, I find that the petitioner is a temporary

employee who put in 1041 days of continuous service

within a period of 01.05.1985 to 26.03.1988 under Ex. W5.

The Respondent failed to prove any negligence in

discharging legitimate duties. The Respondent without

following the principles of natural justice and conducting

any domestic enquiry simply on open enquiry under Ex.

M10 without affording any opportunity in gross violation

of principles of natural justice, standard orders, rules and

regulations and Sec. 25-F R/W Sec. 25-B and Sec. 25-G of

I.D. Act terminated the services of the petitioner. The

termination is disproportionate to the allegation even

though no domestic enquiry. The termination without any

reasons while continuing his juniors in service is illegal

and void. Consequently the termination of the petitioner

being temporary employee of the Respondent is void, illegal

and unjustified. The reinstatement of the petitioner with

back wages will meet the ends of justice.

39. There is no evidence that the petitioner was

gainfully employed during the period preceding the

reference. In the absence of any such evidence having

considered that the petitioner is a worker. The petitioner

was already reinstated on 26.02.2001 as per the interim

orders in W.P.M.P. No. 879/2001 in W.P. No. 760/2001 dated

23.01.2001 and he is continuing in service. Even though

the main W.P. No. 760/2001 was disposed off on 28.02.2012.

40. Accordingly an Award is passed without costs,

directing the Respondent Management to continue the

petitioner in service with all attendant benefits and also

pay 50% of back wages for the period, which he was out of

service within a period of two months from the date of

publication of the Award.

Typed to my dictation directly to the Steno typist on

the computer, corrected and pronounced in the open court

on this the 24th day of October, 2013.

N. BALAYOGI, Chairman

APPENDIX OF EVIDENCE

Witnesses examined for

the Petitioner

the Respondent

WW1: M.V. Krishna Rao

MW1: NVVSSS Nageswara

Rao

PW2: Nageshwar Rao

MW2: S. Satyanarayana

Documents Marked for the Petitioner

Ex. W1

True copy of Selection Order dt. 29.06.83

Ex. W2

Letter dt. September, 86 increasing the wages of

Casual Mazdoor

Ex. W3

Working days particulars book of WW1

Ex. W4

Personal record of WW1 on N.M.R.

Ex. W5

Working days sheet for the period from

01.04-85 to 25.03.88.

Ex. W6

Memo dt. 26.05.88 issued to WW1

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1123

Ex. W7

True copy of the letter dt. 09.06.88 regarding

discontinuation of Service of WW1

Ex. W8

Certified copy of the FIR in Cr. No. 63/88

Ex. W9

Case Diary

Ex. W10

Order in R.C. No. 50/88 on the file of II Addl.

MM, Kovvur dt. 05.10.88

Ex. W11

Order dt. 2.08.89 of CAT in O.A. No. 537/88

Ex. W12

Appointment letter dt. 15.09.89 given to WW1

Ex. W13

Seniority list of Mazdoors as on 31.3.87

Ex. W14

Letter dt. 15.09.89 issued to WW1 asking for

explanation

Ex. W15

Explanation submitted by WW1 dt. 31.10.89

Ex. W16

Order of CAT dt. 04.01.91 in O.A. No. 1007/90

Ex. W17

Complaint made to the RLC, Hyderabad

Ex. W18

S.D.O.T.'s ltter dt. 28.09.94 addressed to the

conciliation Officer.

Ex. W19

Minutes of discussion dt. 23.09.94

Ex. W20

Minutes of conciliation proceedings dt. 06.10.94

Ex. W21

Failure report dt. 31.10.94

Ex. W22

Proforma of Mazdoor identity/Services/Card

Ex. W23

Certificate dt. 22.08.81 issued to WW1.

Ex. W24

Judgement copy in O>A. No. 1137/98 dt. 04.08.99

Documents marked for the Respondent

Ex. M1

Stores Register

Ex. M2

Relevant entry at Page 45 of Ex, M1

Ex. M3

Complaint dt. 09.05.88 given by WW1 to the Jr.

Engineer

Ex. M4

Letter calling for explanation of WW1

Ex. M5

Explanation of WW1

Ex. M6

Open Enquiry proceedings conducted

Ex. M7

Order of JTO not to engage WW1

Ex. M8

Final report of Police

Ex. M9

Joining Report of WW1

Ex. M10

Open enquiry report dt. 15.09.89

Ex. M11

Show cause notice calling for explanation

Ex. M12

Postal acknowledgement for Ex. M11

Ex. M13

Letter extending the time to submit explanation

Ex. M14

Postal Act. fo Ex. M13

Ex. M15

Letter dt. 30.09.89 of petitioner

Ex. M16

Letter extending the time

Ex. M17

Explanation dt. 31.10.89 submitted by WW1

Ex. M18

Payment sheet made to the petitioner

Ex. M19

Attested copy of Termination 31.10.89

Ex. M20

Proceedings dt. 6-1094 before ALO (Central)

Hyderabad.

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New Delhi, the 17th January, 2014

S.O. 395.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 38/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERBAD

Present :

Smt. M. Vijay Lakshmi, Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 38/2006

Between:

Smt. B. Anasuya,

W/o B. Narasaiah,

R/o H. No. 5-24/26,

Rajiv Gandhi Nagar, Uppal Mandal,

Ranga Reddy District

...Petitioner

1124

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderbad-500 062

...Respondent

Appearances:

For the Petitioner:

M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent:

Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec. 2 A(2) of

Industrial Disputes Act, 1947 by the Petitioner who is

claiming to be the person who worked as sweeper in the

Respondent unit seeking for setting aside the oral

termination of services dated 23.10.1998 by the Respondent

consequently to direct the Respondent to reinstate the

Petitioner into service with continuity of service, back

wages and all other attendent benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

w.e.f 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping. dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them. The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec. 10(1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

siad act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statuory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs. 25 per

day. Subsequently it was enhanced to Rs. 45 per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Pettioner along

with other similarly situated persons filed WP No. 29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition, Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No. 13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e. within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e. contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Pettioner is an uneducated

woman and she has been exploited by the Respondent by

paying less than minimum wages and terminating her

services abruptly without any notice consequent to her

filing WP before the Hon'ble High Court of A.P. and without

following the precedure contemplated under Industrial

Disputes Act, 1947 as well as Contract Labour Regulation

and Abolition Act. There is violation of the provision of

Sec. 25F of Industrial Disputes Act, 1947. Petitioner is the

only earning member of her family and consequent to

illegal termination of her services it has become difficult to

eak out livelihood of her family.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1125

3. Respondent filed his counter with the averments in brief

as follows:

Pettioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the services matters as held by the Hon'ble

Supreme Cort of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No. 5592 of 1991 filed by Sri Kewal Singh and 17 others

vide order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri. P. Narasimha, the contractor, Respondent No. 2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an Area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into laks of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is keeping met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petititoners were in service as on that date. Ultimately by

virture of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitoner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R&A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scale as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, this matter i.e. LC No. 38/2006 along

with other LC Nos. taking from L.C. No. 29 to 40/2006 are

clubbed together in L.C. 28/2006 in pursuance of the memo

filed by the Petitioner and it has been ordered that evidence

is to be adduced in first case i.e., L.C. 28/2006. Accordingly

in respect of all these case i.e., LC 28 to 40 of 2006, Smt. T.

Saradha, WW1 in L.C. 28/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex. M1 to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

1126

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between that Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

Vs. Union of India (AIR 1997 SC 1125) Petitioner is

supposed to have his legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a central

government organisation. This forum is Central Government

Industrial Tribunal-cum-Labour Court whose function is

to decide the industrial disputes arising from the industries

which are Central Government undertakings. All the

industrial disputes which arose within the jurisdiction of

this tribunal and which concern with the Central

Government organisation Central Government

undertakings, are to be decided by this forum only as per

the power conferred on this tribunal. As to the Central

Administrative Tribunal is concerned, all the service and

administration related isputes pertaining to the officers and

employees of all the central government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec. 2A(2) of Industrial Disputes Act, 1947,

this tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No. 1602/2000 in WP No. 29210/1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicate for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and other have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent.

Whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceedings and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1127

11. In the given circumstanaces, it can safely be held

that the proceedings of WP No. 29210/1998 will not act as

res judi cata for the present proceedings.

This point is answered accordingly.

12. Point No. 4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving slary directly

from the Respondent but however, Respondent brought

non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care by

the CAPRA municipality, whereas requirement of plant of

the Respondent is being met throught helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers (COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e. a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petiioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Water front Workers and Others

[(2001) 7 SCC page 1], which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex.M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri. P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex. M4 order, in every

likelihood the daily report indicating details of labourers

1128

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, palce and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex. M4 has never been acted

upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner soughts for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal procedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decide and it has been decided while deciding

point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.1.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

not dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec. 25 F reads as follows:-

"25-F: Conditions precedent to retrenchment of

workmen: No workman employed in any industry who has

been 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 incicating the reasons for retrenchment and

the period of notice 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

appropriate Government [or such authority as may

be specified by the appropriate Government by

notification in the official Gazette]."

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1129

26, As cab be gathered from the facts on record,

Petitioner worked for one year continuously even a per the

contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respodent since year together

which has not been disproved by producing the record

maintained by the Respondent regarding the service of the

Petitioner with the Respondent. Therefore, it can safely be

held that Petitioner comes under the purview of the

workman mentioned in Sec. 25F by working with the

Respondent for not less than one year. As per Sec. 25F

such a workman can not be retrenched, until he has 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 liew of such

notice for the period of notice. Further more, the workman

has to be paid retrenchment compensation as mentioned

in Sec. 25F (b) and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to held as null and void, illegal and

inoperative, as per the well established legal perinciples

laid down by Hon'ble the Apex Court. In the case of

Devinder Singh Vs. Municipal Council Sanaur, {(2011) 6

SCC page 584} and in the case of Anup Sharma Vs. Public

Health Division [(2010) 5 SCC 497] Hon'ble Supreme Court

of India considerered the effect of violation of Sec. 25F and

held that termination of service of a workman without

complying with the mandatory provisions contained uner

Sec. 25F (A) and (B) should ordinarily result in his

reinstatement.

28. In the present case, evidently there is no

compliance of the mandataory pre-requisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29 Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:-

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW I: Smt. B. Anasuya

MW 1: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex. W1:

Photostate copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. W2:

Photostate copy of representation dt. 11.4.98

Ex. W3:

Photostate copy of order in SLA (Civil) Np.

13451/2001

Ex. W4:

Photostate copy of representation dt. 3.5.96

Ex. W5:

Photostate copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex. W6:

Photostate copy of representation dt. 9.10.98

Ex. W7:

Photostate copy of order in WA No. 1602/1999

Ex. W8:

Photostate copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex. M1:

Photostate copy of order in WP No. 5592/1991

Ex. M2:

Photostate copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3:

Photostate copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4:

Photostate copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M5:

Photostate copy of order in contempt case No.

1903/98

Ex. M6:

Photostate copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. M7:

Photostate copy of order in WA No. 1602/1999

Ex. M8:

Photostate copy of receipt from Kapra

Municipality dt. 1.1.1999

1130

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

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New Delhi, the 17th January, 2014

S.O. 396.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No 3/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : Smt. M. Vijaya Lakshmi, Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C.No. 3/2006

Between:

Smt. D. Devamma,

W/o Kamanna,

C/o R. Ramulu,

H. No. 6-158/54/1, Durga Nagar,

Nacharam, Ranga Reddy District,

Hyderabad - 62.

...Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad - 500 062.

...Respondent

Appearances:

For the Petitioner :

M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K. Bhaskar

& G. Pavan Kumar, Advocates

For the Respondent:

Sri K. Suryanarayana, Advocate

AWARD

This is a petition filed invoking Sec. 2A (2) of

Industrial Dispute Act, 1947 by the Petitioner who is

claiming to be the person who worked as sweeper in the

Respondent unit seeking for setting aside the oral

termination of services dated 23.10.1998 by the Respondent

consequently to direct the Respondent to reinstate the

Petitioner into service with continuity of service, back

wages and all other attendant benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

along with other similarly situated persons. Petitioner was

engaged for cleaning, sweeping, dusting, watching of bend

dumps. This work is perennial nature. Petitioner was

working directly under the control of the Respondent and

the salary of the Petitioner is being paid directly by the

Respondent. However, Respondent brought non-existing

contractor between the Petitioner and the Respondent, to

show that there is no master and servant relationship

between them. The Central Government, exercising the

power under Sec. 10 of Abolition of Contract Labour Act

on the basis of the recommendations and in conciliation

with the Central Advisory Board constituted under Sec.

10(1) of the said act issued notification dated 9.12.1976

prohibiting employment of contract labourers in respect of

cleaning seeeping, dusting and watching of the building

owned by or occupied by the establishment in respect of

which the apropriate government under the said act is the

Central Government. Petitioner's job is cleaning and

sweeping. Once engaging contract labourers for said job

is abolished, there is an obligation for the Respondent to

consider regularising the Petitioner and similarly placed

persons basing on the availability of vacancies. Even as

per the mandate of the Apex Court it is the statutory

obligation of the Principal Employer to absorb the contract

labourer once the contract labour is abolished and to treat

them as regular employees. It is the statutory obligation

under Sections 11,19 and 20 of the Factories Act to maintain

cleanliness of the area in which the factory is situated.

Respondent company is a factory. Even as per the condition

contained in format of the license under Contract Labour

Regulation and Abolition Act, Petitioner is entitled for

regular pay of the minimum wages prescribed by the

Government. Initially Petitioner was paid Rs. 25/- per day.

Subsequently it was enhanced to Rs. 45/- per day. Petitioner

worked from May, 1992 to October, 1998 continuosuly

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1131

without any break in service. Petitioner along with other

similarly situated persons filed WP No. 29210 of 1998 before

the Hon'ble High Court of A.P. for absorbing as a regular

employee and to pay other benefits on par with other

employees. During the pendency of the said Writ petition,

Petitioner was terminated from the service in the month of

October, 1998 and the writ petition was allowed by an order

dated 25.9.2000. Against the said order WA No. 1602/1999

was filed by the Respondent before the Division Bench of

the Hon'ble High Court of A.P. The said appeal was allowed

on 23.2.2001. Against the said order Petitioner filed Special

Leave to Appeal (Civil) No. 13451/2001 before the Hon'ble

Supreme Court of India and the same was withdrawn with

a liberty to raise industrial dispute before the appropriate

forum on 9.11.2001. Thus, the Petitioner raised the dispute.

The premises of the Respondent including the residential

quarters of the officers of the Respondent is in the same

campus, i.e., within the premises of the Respondent.

Cleaning activities of the Respondent quarters which

includes, roads and maintenance of the buildings is to be

taken care off by the Respondents only. An officer from

the civil department used to take care of the work in respect

of cleaning and maintenance of the factory buildings

including the residential quarters. No work was entrusted

to any outsider at any point of timei.e., contractor.

Respondent used to maintain details of casul labourers,

who were entrusted with works of cleaning, gardening,

civil works etc., which are perennial in nature. Petitioner

was deputed to work as sweeper. Respondent never issued

any appointment letter. However, salary was being paid by

the Respondent Management on monthly basis.

Attendance register and wages register were maintained

by the Respondent and the same are in their custody.

Respondent used to take the signature of the Petitioner in

the wage register every month while paying salary in cash.

There was no contract given to any contractor who is in

between Respondent and Petitioner. In view of the

notification issued by the Central Government. Respondent

should not engage any contract labour. Admittedly,

Petitioner is an uneducated woman and she has been

exploited by the Respondent by paying less than minimum

wages and terminating her services abruptly without any

notice consequent to her filing WP before the Hon'ble High

Court of A.P. and without following the procedure

contemplated under Industrial Disputes Act, 1947 as well

as Contract Labour Regulation and Abolition Act. There is

violation of the provisions of Sec. 25F of Industrial Disputes

Act, 1947. Petitioner is the only earning member of her

family and consequent to illegal termination of her services

it has become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP No.

5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha, the contractor, Repondent No. 2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time Petitioner filed WP No, 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No.1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

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[PART II—SEC. 3(ii)]

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and Exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, i.e., L.C. Nos. 2 to 8/2006 including

this case are clubbed with L.C. 1/2006 in pursuance of the

memo filed by the Petitioner and it has been ordered that

evidence is to be adduced in LC 2/2006. Accordingly in

respect of all these cases i.e., LC 1 to 8 of 2006, Smt. B.

Lakshmi, Petitioner in L.C. 2/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex. M1 to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief? Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is

supposed to have his legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a

Central Government organisation. This forum is Central

Government Industrial Tribunal-cum-Labour Court whose

function is to decide the industrial disputes arising from

the industries which are Central Government undertakings.

All the industrial disputes which arose within the

jurisdiction of this tribunal and which concern with the

Central Government organisations Central Government

undertakings, are to be decided by this forum only as per

the powers conferred on this tribunal. As to the Central

Administrative Tribunal is concerned, all the service and

administration related disputes pertaining to the officers

and employees of all the Central Government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec. 2A(2) of Industrial Disputes Act, 1947,

this tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No.1602/2000 in WP No.29210 /1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

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1133

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No. 29210/1998 will not act as

res judi cata for the present proceedings.

This point is answered accordingly.

12. Point No. 4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers (COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and The said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

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[PART II—SEC. 3(ii)]

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed cither on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract Is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Workers and Others

{(2001) 7 SCC page 1}, which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex.M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in Furtherance of Ex.M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex.M4 has never been acted upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent foiled to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

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1135

wise is to be decided and it has been decided white deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organisation which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act. 1947

deals with conditions precedent to retrenchment of

workman. Sec. 25 F 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]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in

continuous service with the Respondent since years

together which has not been disproved by producing the

record maintained by the Respondent regarding the service

of the Petitioner with the Respondent. Therefore, it can

safely be held that Petitioner comes under the purview of

the workman mentioned in Sec.25F by working with the

Respondent for not less than one year. As per Scc.25F

such a workman can not be retrenched, until he has 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 workman

has to be paid retrenchment compensation as mentioned

in Sec. 25F (b) and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, {(2011) 6 SCC page

584} and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supreme Court of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory prerequisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of his services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

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[PART II—SEC. 3(ii)]

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesscs examined for the

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. D. Devamma

MWl: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex. W1:

Photostat copy of Order in WP No. 29210/1998

dt. 25.9.2000

Ex. W2:

Photostat copy of representation dt. 11.4.98

Ex. W3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex. W4:

Photostat copy of representation dt. 3.5.96

Ex. W5:

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex. W6:

Photostat copy of representation dt. 9.10.98

Ex. W7:

Photostat copy of order in WA No. 1602/1999

Ex. W8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex. M1:

Photostat copy of order in WP No. 5592/1991

Ex. M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M5:

Photostat copy of order in contempt case No.

1903/98

Ex. M6:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. M7:

Photostat copy of order in WA No. 1602/1999

Ex. M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999

ubZ fnYyh] 17 tuojh] 2014

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FkkA

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New Delhi, the 17th January, 2014

S.O. 397.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No. 4/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workmen, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR (DU)]

P.K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT :

Smt. M. Vijaya Lakshmi, Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 4/2006

Between:

Smt. M. Teja,

W/o Chandraiah,

R/o H.No. 10-1/611,

Ashok Nagar, Near N.F.C.,

ECIL Post, Ranga Reddy District,

.....Petitioner

Hyderabad

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad-500 062.

.....Respondent

APPEARANCES:

For the Petitioner

M/s. G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K.

Bhaskar & G. Pavan Kumar,

Advocates

For the Respondent :

Sri K. Suryanarayana, Advocate

AWARD

This is a petition field invoking Sec. 2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

¹Hkkx II—[k.M 3(ii)º

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1137

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

from 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them. The Central Government,

exercising the power under Sec.10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec.10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs. 25/-

per day. Subsequently it was enhanced to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No. 292l0 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition, Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A.P. The said

appeal was allowed on 23.2.2000. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No.13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with 3 liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated woman and she has been exploited by the

Respondent by paying less than minimum wages and

terminating her services abruptly without any notice

consequent to her filing WP before the Hon'ble High Court

of A.P., and without following the procedure contemplated

under Industrial Disputes Act. 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec.25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of her family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in

brief as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No.5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha, the contractor, Respondent No.2 in

WP No. 29210/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

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THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and strom water

drains in housing colony. Here engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunbal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and Exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, i.e., L.C. Nos. 2 to 8/2006 including

this case are clubbed with L.C. 1/2006 in pursuance of the

memo filed by the Petitioner and it has been ordered that

evidence is to be adduced in LC 2/2006. Accordingly in

respect of all these cases i.e., L.C. 1 to 8 of 2006, Smt. B.

Lakshmi, Petitioner in L.C. 2/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex.M1 to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

¹Hkkx II—[k.M 3(ii)º

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1139

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No.1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But. Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

Vs. Union of India (AIR 1997 SC 1125) Petitioner is

supposed to have her legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a central

government organisation. This forum is Central Government

Industrial Tribunal-cum-Labour Court whose function is

to decide the industrial disputes arising from the industries

which are Central Government undertakings. All the

industrial disputes which arose within the jurisdiction of

this tribunal and which concern with the Central

Government organisations Central Government

undertakings, are to be decided by this forum only as per

the powers conferred on this tribunal. As to the Central

Administrative Tribunal is concerned, all the service and

administration related disputes pertaining to the officers

and employees of all the central government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec. 2A(2) of Industrial Disputes Act, 1947,

this tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No.2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P, decided WA No.1602/2000 in WP No.29210 /1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.2A(3)

of the said act. Thus, as on the relevant date, there was no

prescription of period of limitation for preferring industrial

disputes. It is not for the courts to prescribe any period of

limitation. When the Act is silent as to the question of

limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P, the

Petitioner has invoked extraordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'bfe

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal(Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of tlie Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No.29210/1998 will not act as

res judi cata for the present proceedings. This point is

answered accordingly.

12. Point No.4:

Admittedly. Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

1140

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers(COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers(COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that “the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer.”

This is the legal principle laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Workers and

Others[(2001) 7 SCC page 1], which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex.M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex.M4 it is averred that “A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order”. If

the work was done in furtherance of Ex.M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex.M4 has never been acted upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

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1141

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondenl failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

21. Point No. 5

As can be gathered from the line of the defence

taken in this case by the Respondent and the arguments

built up and advanced for them, what one can see is that

they are meeting the claim of the Petitioner, as if the

Petitioner is seeking for regularization of services. But the

fact remains that Petitioner is seeking for setting aside the

order under which Petitioner's services were terminated

and for reinstatement into service and other consequential

reliefs. In the writ proceedings Petitioner sought for

regularization of service but while writ appeal was pending

disposal, as the Petitioner's services were terminated, this

industrial dispute is raised seeking for setting aside the

said termination order and consequential reinstatement of

the Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decided and it has been decided while deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therfore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec. 25F 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 months' notice in

writing indicating the reasons for retrenchment and

the period of notice has expired, or the workman has

been paid in lieu of such notice, 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

appropriate Government [or such authority as may

be specified by the appropriate Government by

notification in the official Gazette]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in continous

service with the Respondent since years together which

has not been disproved by producing the record maintained

by the Respondent regarding the service of the Petitioner

with the Respondent. Therefore, it can safely be held that

Petitioner comes under the purview of the workman

mentioned in Sec. 25F by working with the Respondent for

not less than one year. As per Sec. 25F such a workman can

not be retrenched, until he has 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 workman has to be paid

retrenchment compensation as mentioned in Sec. 25F (b)

and there shall be compliance of Sec. 25F (c).

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[PART II—SEC. 3(ii)]

27. Unless there is compliance of all the above

mentioned mandatory pre-requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, [(2011) 6 SCC page

584] and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supreme Court of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory pre-requisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petition is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending, it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:-

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. M. Teja

MW1: Smt A. Rama Devi

Documents marked for the Petitioner

Ex.Wl:

Photostat copy of order in WPNo.29210/1998

dt. 25.9.2000

Ex.W2:

Photostat copy of representation dt.11.4.98

Ex.W3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex.W4:

Photostat copy of representation dt.3.5.96

Ex.W5:

Photostat copy of provisional receipt from

Kapra Municipality dt.13.11.98

Ex W6:

Photostat copy of representation dt.9.10.98

Ex,W7:

Photostat copy of order in W A No. 1602/1999

Ex.W8:

Photostat copy of representation dt.24.10.2005

Documents marked for the Respondent

Ex,Ml:

Photostat copy of order in WP No. 5592/1991

Ex.M2:

Photostat copy of receipt from Kapra

Municipality dt l3.11.98

Ex.M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex.M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex.M5:

Photostat copy of order in contempt case

No.1903/98

Ex.M6:

Photostat copy of order in WP No. 29210/1998

dt.25.9.2000

Ex.M7: Photostat copy of order in WA No.1602/1999

Ex.M8:

Photostat copy of receipt from Kapra

Municipality dt.1.1.1999.

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New Delhi, the 17th January, 2014

S.O. 398.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (I.D. No 5/2006)

¹Hkkx II—[k.M 3(ii)º

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1143

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 The Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present :

Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 5/2006

Between:

Smt. L. Pushpa,

W/o Devaiah,

R.o H.No.3-5-24/R 105,

Rajeev Gandhi Nagar, A.P.H.B. Colony,

Moula-Ali, Hyderabad-40.

....Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad -500 062.

....Respondent

Appearances:

For the Petitioner

M/s. G. Ravi Mohan, G. Narersh

Kumar,

Vikas

Sharma,

K. Bhaskar & G. Pavan Kumar,

Advocates

For the Respondent

Sri K. Suryanarayana,

Advocate

AWARD

This is a petition filed invoking Sec.2A(2) of Industrial

Disputes Act, 1947 by the Petitioner who is claiming to be

the person who worked as sweeper in the Respondent unit

seeking for setting aside the oral termination of services

dated 23.10.1998 by the Respondent consequently to direct

the Respondent to reinstate the Petitioner into service with

continuity of service, back wages and all other attendant

benefits.

2. The averments made in the peiition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

w.e.f. 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them.The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec.10 (1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning sweeping, dusting and watching of the

building owned by or occupied by the establishment in

respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similarly placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the license under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Government. Initially Petitioner was paid Rs.25 per

day. Subsequently it was enhanced to Rs. 45 per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No.29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition. Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No. 1602/1999 was filed by the Respondent before the

Division Bench of theHon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001 Against the said order

Petitioner filed Special Leave to Appeal (Civil) No 13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondents only. An officer from the civil department

used to take care of the work in respect of cleaning and

1144

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of causal labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment fetter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not engage

any contract labour. Admittedly, Petitioner is an

uneducated woman and she has been exploited by the

Respondent by paying less than minimum wages and

terminating her services abruptly without any notice

consequent to her filing WP before the Hon'blc High Court

of A.P. and without following the procedure contemplated

under Industrial Disputes Act, 1947 as well as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec.25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of her family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of her family.

3. Respondent filed his counter with the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction given in WP

No.5592 of 1991 filed by Sri Kewal Singh and 17 others vide

order dated 22.4.1991. Petitioner's claim is barred by

limitation as services of the Petitioner said to have been

terminated way back in 1995 as the contract entered into

with Sri P. Narasimha. the contractor, Respondent No.2 in

WP No. 292l0/1998 expired by 30.6.1995. On this ground

also petition is not maintainable. The Nuclear Fuel Complex

has constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vests with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

such as jangle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. Her engagement is not within

the knowledge and control of the Respondent at any time.

It was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of her services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP No. 29210 of 1998 regularization

of the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impungned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by her was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to her by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R & A) Act, 1970. Petitioner's employer was not

having any contractual obligation with her as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

¹Hkkx II—[k.M 3(ii)º

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1145

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as of the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and she was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. She can not claim for regularization of

her services. In the writ proceedings for the similar cause

of action, litigation was launched seeking for same relief in

this proceedings is hit by res judi cata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and Exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, i.e., L.C. Nos. 2 to 8/2006 including

this case are clubbed with L.C. 1/2006 in pursuance of the

memo filed by the Petitioner and it has been ordered that

evidence is to be adduced in LC 2/2006. Accordingly in

respect of all these cases i.e., LC 1 to 8 of 2006, Smt. B.

Lakshmi, Petitioner in L.C. 2/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex.M1 to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judi cata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal can not entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

Vs. Union of India (AIR 1997 SC 1125) Petitioner is

supposed to have his legal recourse from the Central

Administrative Tribunal. This contention can not be

accepted as a correct contention. It is undoubtedly an

industrial dispute and the Respondent is admittedly a

Central Government organisation. This forum is Central

Government Industrial Tribunal-cum-Labour Court whose

function is to decide the industrial disputes arising from

the industries which are Central Government undertakings.

All the industrial disputes which arose within the

jurisdiction of this tribunal and which concern with the

Central Government organisations Central Government

undertakings, are to be decided by this forum only as per

the powers conferred on this tribunal. As to the Central

Administrative Tribunal is concerned, all the service and

administration related disputes pertaining to the officers

and employees of all the Central Government offices,

organisations and undertakings are to be dealt with by the

said forum. Since the present dispute is an industrial dispute

raised under Sec. 2A(2) of Industrial Disputes Act, 1947,

this tribunal got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No. 1602/2000 in WP No. 29210/1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filing of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said Act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

1146

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extraordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

22.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal (Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of her services while

the writ apeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendant benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No. 29210/1998 will not act as

re judi cata for the present proceedings.

This point is answered accordingly.

12. Point No. 4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that she has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE housing colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers (COS)

deployed for the said purpose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers (COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admitedly Petitioner has been working

for the Respondent unit, and she was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When once Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for clearning work entrusted to her by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principal that "the

Industrial Tribunal/court will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere rule/camouflage to evade compliance with various

beneficial legislations so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so-called contract labour will

have to be treated as employees of the principal employer."

This is the legal principal laid down by the Hon'ble Supreme

Court of India in the case of Steel Authority of India and

ors. Vs. National Union Waterfront Workers and Others

[(2001) 7 SCC page 1], which is relied upon by Learned

Counsel for the Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

¹Hkkx II—[k.M 3(ii)º

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1147

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross-examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge with

2 (two) weeks from the date of issue of this order". If the

work was done in furtherance of Ex. M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex. M4 has never been acted

upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that she is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can safely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master ans servant relationship

between them.

This point is answered accordingly.

21. Point No. 5

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in the

writ proceedings for regularization of services. The said

arguments are to be taken as not helpful for the proceedings

of this case. The various legal precedents cited for the

Respondent are also not helpful for furtherance of this

case as they are all in respect of the regularization of the

services of the contract employees. In this case, the relief

sought for is not for regularization of service but it is for

reinstatement into service. But in this case also the question

whether Petitioner has been a contract labourer or other

wise is to be decided and it has been decided while deciding

Point No. 4 alone.

22. Evidently, Respondent ceased to take services of

the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them and the

Petitioner. Thus, it can sefely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination is

by way of an oral order and therefore, it is not possible for

the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

1148

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947 deals

with conditions precedent to retrenchment of workman.

Sec. 25F reads as follows:—

"25-F: Conditions precedent to retrenchement 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

appropriate Government [or such authority as may

be specified by the appropriate Government by

notification in the official Gazette]."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that she has been in coninuous

service with the Respondent since years together which

has not been disproved by producing the record maintained

by the Respondent regarding the service of the Petitioner

with the Respondent. Therefore, it can safely be held that

Petitioner comes under the purview of the workman

mentioned in Sec. 25F by working with the Respondent for

not less than one year. As per Sec. 25F such a workman can

not be retrenched, until he has been given one month's

notice in writing indicating the reasons for retrenchement

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 workman has to be paid

retrenchement compensation as mentioned in Sec. 25F (b)

and there shall be compliance of Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchement of

the workman is to be held as null and void, illegal and

inoperative, as per the well established legal principles laid

down by Hon'ble the Apex Court. In the case of Devinder

Singh Vs. Municipal Council, Sanaur, [(2011) 6 SCC page

584] and in the case of Anup Sharma Vs. Public Health

Division [(2010) 5 SCC 497] Hon'ble Supere Court of India

considered the effect of violation of Sec. 25F and held that

termination of service of a workman without complying

with the mandatory provisions contained under Sec. 25F

(A) and (B) should ordinarily result in his reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory pre-requisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

Therefore, the impugned termination order is bad and is

liable to be set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No. 6:

In view of the findings given in Point No. 5 above,

the impugned oral termination order dated 23.10.1998 is

liable to be set aside. Consequently Petitioner is entitled

for reinstatement into service as Sweeper with continuity

of service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending. it can safely be held that Petitioner is entitled for

all back wages, and all other attendant benefits.

This point is answered accordingly.

30. Result:

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the service of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of her services till the date of the

Petitioner's reinstatement into service. Petitioner is entitled

for all other consequential benefits as well.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Smt. L. Pushpa

MW 1: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex. W 1:

Photostat copy of order in WPNo. 29210/1998

dt. 25.9.2000

Ex. W 2:

Photostat copy of representation dt. 11.4.98

Ex. W 3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex. W 4:

Photostat copy of representation dt. 3.5.96

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1149

Ex. W 5:

Photostat copy of provisional receipt from

KaparaMunicipality dt. 13.11.98

Ex. W 6:

Photostat copy of representation dt. 9.10.98

Ex. W 7:

Photostat copy of order in WA No. 1602/1999

Ex. W 8:

Photostat copy of representation dt. 24.10.2005

Documents marked for the Respondent

Ex. M 1:

Photostat copy of order in WP No. 5592/1991

Ex. M 2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M 3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC toCommissioner, Kapra Municipality.

Ex. M 4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M 5:

Photostat copy of order in contempt case No.

1903/98

Ex. M 6:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. M 7:

Photostat copy of order in WA No. 1602/1999

Ex. M 8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999

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New Delhi, the 17th January, 2014

S.O. 399.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (I.D. No. 6/2006)

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 Chief Executive, Nuclear Fuel Complex,

Department of Atomic Energy, Hyderabad and their

workman, which was received by the Central Government

on 13/01/2014.

[No. L-42012/03/2014-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

PRESENT :

Smt. M. VIJAYA LAKSHMI,

Presiding Officer

Dated the 30th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 6/2006

Between:

Sri. K. Narayana,

S/o Yellaiah,

C/o B. Lakshmi,

H.No.6-24/1, Subash Nagar,

Mallapur Railway Bridge, N.F.C., Nacharam(P),

Uppal(M), Ranga Reddy District.

....Petitioner

AND

Chief Executive,

Nuclear Fuel Complex,

Department of Atomic Energy,

Hyderabad - 500 062.

....Respondent

APPEARANCES:

For the Petitioner

: M/s G. Ravi Mohan, G. Naresh

Kumar, Vikas Sharma, K.

Bhaskar & G. Pavan Kumar,

Advocates

For the Respondent

: Sri

Suryanarayana,

Advocate

AWARD

This is a petition filed invoking Sec.2A(2) of

Indusutrial Disputes Act, 1947 by the Petitioner who is

claiming to be the person who worked as sweeper in the

Respondent unit seeking for setting aside the oral

termination of services dated 23.10.1998 by the Respondent

consequently to direct Respondent to reinstate the

Petitioner into service with continuity of service, back

wages and all other attendant benefits.

2. The averments made in the petition in brief are as follows:

Petitioner worked as Sweeper in the Respondent unit

w.e.f. 1.5.1992 along with other similarly situated persons.

Petitioner was engaged for cleaning, sweeping, dusting,

watching of bend dumps. This work is perennial nature.

Petitioner was working directly under the control of the

Respondent and the salary of the Petitioner is being paid

directly by the Respondent. However, Respondent brought

non-existing contractor between the Petitioner and the

Respondent, to show that there is no master and servant

relationship between them. The Central Government,

exercising the power under Sec. 10 of Abolition of Contract

1150

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Labour Act on the basis of the recommendations and in

conciliation with the Central Advisory Board constituted

under Sec.10(1) of the said act issued notification dated

9.12.1976 prohibiting employment of contract labourers in

respect of cleaning, sweeping, dusting and watching of

the building owned by or occupied by the establishment

in respect of which the appropriate government under the

said act is the Central Government. Petitioner's job is

cleaning and sweeping. Once engaging contract labourers

for said job is abolished, there is an obligation for the

Respondent to consider regularising the Petitioner and

similalry placed persons basing on the availability of

vacancies. Even as per the mandate of the Apex Court it is

the statutory obligation of the Principal Employer to absorb

the contract labourer once the contract labour is abolished

and to treat them as regular employees. It is the statutory

obligation under Sections 11, 19 and 20 of the Factories

Act to maintain cleanliness of the area in which the factory

is situated. Respondent company is a factory. Even as per

the condition contained in format of the licence under

Contract Labour Regulation and Abolition Act, Petitioner

is entitled for regular pay of the minimum wages prescribed

by the Govenment. Initially Petitioner was paid Rs. 25/- per

day. Subsequently it was enhancned to Rs. 45/- per day.

Petitioner worked from May, 1992 to October, 1998

continuously without any break in service. Petitioner along

with other similarly situated persons filed WP No. 29210 of

1998 before the Hon'ble High Court of A.P. for absorbing

as a regular employee and to pay other benefits on par with

other employees. During the pendency of the said Writ

petition, Petitioner was terminated from the service in the

month of October, 1998 and the writ petition was allowed

by an order dated 25.9.2000. Against the said order WA

No.1602/1999 was filed by the Respondent before the

Division Bench of the Hon'ble High Court of A.P. The said

appeal was allowed on 23.2.2001. Against the said order

Petitioner filed Special Leave to Appeal (Civil) No. 13451/

2001 before the Hon'ble Supreme Court of India and the

same was withdrawn with a liberty to raise industrial dispute

before the appropriate forum on 9.11.2001. Thus, the

Petitioner raised the dispute. The premises of the

Respondent including the residential quarters of the officers

of the Respondent is in the same campus, i.e., within the

premises of the Respondent. Cleaning activities of the

Respondent quarters which includes, roads and

maintenance of the buildings is to be taken care off by the

Respondent only. An officer from the civil depaprtment

used to take care of the work in respect of cleaning and

maintenance of the factory buildings including the

residential quarters. No work was entrusted to any outsider

at any point of time i.e., contractor. Respondent used to

maintain details of casual labourers, who were entrusted

with the works of cleaning, gardening, civil works etc.,

which are perennial in nature. Petitioner was deputed to

work as sweeper. Respondent never issued any

appointment letter. However, salary was being paid by the

Respondent Management on monthly basis. Attendance

Respondent and the same are in their custody. Respondent

used to take the signature of the Petitioner in the wage

was no contract given to any contractor who is in between

Respondent and Petitioner. In view of the notification issued

by the Central Government. Respondent should not

engaged any contract labour. Admittedly. Petitioner is an

uneducated man and he has been exploited by the

Respondent by paying less than minimum wages and

terminating his services abruptly without any notice

consequent to his filing WP before the Hon'ble High Court

of A.P., and without following the procedure contemplated

under Industrial Disputes Act, 1947 as welll as Contract

Labour Regulation and Abolition Act. There is violation of

the provisions of Sec. 25F of Industrial Disputes Act, 1947.

Petitioner is the only earning member of his family and

consequent to illegal termination of her services it has

become difficult to eak out livelihood of his family.

3. Respondent filed his counter with the averments in brief

as follows:

Petitioner is supposed to approach Hon'ble Central

Administrative Tribunal. Which has the requisite

jurisdiction over the service matters as held by the Hon'ble

Supreme Court of India in the case of Chandra Kumar Vs.

Union of India and in view of the direction in WP No. 5592

of 1991 filed by Sri Kewal Singh and 17 others vide order

dated 22.4.1991. Petitioner's claim is barred by limitation as

services of the Petitioner said to have been terminated way

back in 1995 as the contract entered into with Sri P.

Narasimha, the contractor, Respondent No. 2 in WP No.

29210/1998 expired by 30.6.1995. On this ground also

petition is not maintainable. The Nuclear Fuel Complex has

constructed manufacturing plants and administrative

buildings with separate enclosures and the ingress and

egress of this premises is guarded by the Central Industrial

Security Force of Ministry of Home Affairs. In so far as

housing colony spreading in an area of 260 acres is

concerned, watch and ward is taken care of by a security

agency. Without any restriction for the entry in the colony

by the general public for the purpose of visit the residents

of the colony. The over all control including allotment of

quarters vest with the Estate Officer, NFC. It is necessary

to pay taxes which include service charges in respect of

the said colony and it has termed within the jurisdiction of

the KAPRA municipality. Since service charges running

into lakhs of rupees have been paid to Kapra Municipality

which facilitated the Respondent approaching them for

taking up the house keeping jobs in DAE colony. The house

keeping works of DAE housing colony is being taken care

of by Kapra municipality. The requirement is being met

through helpers deployed by such persons. Making such

arrangements on the deployment of helpers a running

contract for a period of 12 months executing urgent works

¹Hkkx II—[k.M 3(ii)º

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1151

such as jungle cutting in the sprawling Nuclear Fuel

Complex, cleaning of storm water drains and clearance of

garbage on roads vide letter dated 30.9.1997. Similar contract

was in existence in DAE housing colony where some

contract labourers were also engaged. Petitioner is one

among the labourers engaged by the contractor who was

awarded the work of cleaning of roads and storm water

drains in housing colony. His engagement is not within the

knowledge and control of the Respondent at any time. It

was outside the scope of the notification dated 9.12.1976

issued by the Central Government. There was no scope for

direct payment by the Respondent to the Petitioner at any

point of time. Petitioner filed WP No. 29210 of 1998 seeking

for regularization of his services along with others. By

virtue of order dated 22.10.1998 in WPMP 35709 of 1998

Hon'ble High Court of A.P. was pleased to direct that the

position shall be maintained till further orders if the

Petitioners were in service as on that date. Ultimately by

virtue of order dated in WP 29210 of 1998 regularization of

the services of the Petitioner among others was ordered.

Respondents preferred WA No. 1602/2000 which was

allowed vide order dated 22.3.2001. Whereunder, the

impugned judgement dated 25.9.2000 in WP No. 29210 of

1998 has been set aside. Having maintained silence for a

period of more than 5 years. Petitioner approached this

Tribunal now. It is a belated claim. Statement of the

Petitioner that the work done by him was perennial in nature

was denied. It was a stop gap arrangement prior to approach

the Municipal Authorities of Kapra for taking assistants.

Petitioner never worked directly under the control of the

Respondent and salary paid to him by the Respondent is

outrightly denied. The engagement of the Petitioner by a

contractor was outside the scope of notification dated

9.12.1976 issued by the Central Government under Contract

Labour (R&A) Act, 1970. Petitioner's employer was not

having any contractual obligation with him as on the date

of issuance of the notification dated 9.12.1976. As per the

mandate of Hon'ble Apex Court only those contract

labourers who were working at the time of issuance of the

said notification could be directed to be absorbed in the

establishment of the Principal Employer. Petitioner was not

a casual labourer on the rolls of the Respondent. Even

otherwise as per the mandate of Hon'ble Apex Court casual

labourers employed on temporary works are not entitled

for regularization for absorption as it amounts to back door

entries into service on the basis of completion of 240 days

of work and the appointment to the service has to be made

in accordance with the statutory rules and guidelines

thereunder. Contract labourers are not entitled to the same

pay scales as the regular employees. The residential

quarters are not within factory premises. Petitioner never

directly engaged by the Respondent and he was never

exploited. Petitioner rendered service as a contract labourer

with a contractor. He cannot claim for regularization of his

services. In the writ proceedings for the similar cause of

action, litigation was launched seeking for same relief in

this proceedings is hit by res judicata. Petition is liable to

be dismissed.

4. To substantiate the contentions of the Petitioner

WW1 was examined and Exhibits W1 to W8 are marked.

While WW1 evidence was in progress and by virtue of the

orders dated 17.3.2009, i.e., L.C. Nos. 2 to 8/2006 including

this case are clubbed with L.C. 1/2006 in pursuance of the

memo filed by the Petitioner and it has been ordered that

evidence is to be adduced in LC 2/2006. Accordingly in

respect of all these cases i.e., LC 1 to 8 of 2006, Smt. B.

Lakshmi, Petitioner in L.C. 2/2006 alone has been cross

examined on behalf of respondents, though separate chief

examination affidavits of WW1 have been filed in all these

cases. Further more, Respondent's evidence has been

adduced in all these cases separately by examining MW1

and Management marked Ex. M1 to M8 in each case and

arguments are also advanced in all these cases and

Respondent has filed his written arguments in all these

cases separately. In the given circumstances and for the

sake of effective disposal of all these cases awards are

being passed in all these cases separately and individually.

5. Heard the arguments of either party and written

arguments of either party are also filed and they are

considered.

6. The points that arise for determination are:

1. Whether this dispute is not maintainable before this

tribunal for want of jurisdiction?

2. Whether this dispute is barred by limitation?

3. Whether the proceedings in writ petition No. 29210

of 1998 operate as res judicata?

4. Whether there is no relationship of workman and

Management between the Petitioner and

Respondent?

5. Whether there is termination of the service of the

Petitioner by the Respondent through oral

termination order dated 23.10.1998? If so, whether

the said order is liable to be set aside?

6. To what relief Petitioner is entitled?

7. Point No. 1:

There is no dispute as to the fact that Petitioner is a

workman and Respondent is an industry. But, Respondent

is contending that this tribunal cannot entertain this case

for the reason, that as held in the case of Sri Chandra Kumar

vs. Union of India (AIR 1997 SC 1125) Petitioner is supposed

to have his legal recourse from the Central Administrative

Tribunal. This contention cannot be accepted as a correct

contention. It is undoubtedly an industrial dispute and the

Respondent is admittedly a central government

organisation. This forum is Central Government Industrial

Tribunal-cum-Labour Court whose function is to decide

1152

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

the industrial disputes arising from the industries which

are Central Government undertakings. All the industrial

disputes which arose within the jurisdiction of this tribunal

and which concern with the Central Government

Organisations Central Government undertakings, are to be

decided by this forum only as per the powers conferred on

this tribunal. As to the Central Administrative Tribunal is

concerned, all the service and administration related

disputes petaining to the officers and employees of all the

Central Government Offices, organisations and

undertakings are to be dealt with by the said forum. Since

the present dispute is an industrial dispute raised under

Sec. 2A(2) of Industrial Disputes Act, 1947, this tribunal

got every jurisdiction to entertain this dispute.

This point is answered accordingly.

8. Point No. 2:

It is the contention of the Respondent that present

dispute is barred by limitation for the reason that Petitioner

filed this petition five years after the Hon'ble High Court of

A.P. decided WA No. 1602/2000 in WP No. 29210/1998 by

virtue of judgement dated 22.3.2001. In this regard, it can

clearly be seen that there is no consonance between the

writ proceedings and filling of this industrial dispute before

this court. Further more, as on the date of filing of the

present petition, no limitation was prescribed for preferring

industrial disputes in the Industrial Disputes Act, 1947.

Only recently i.e., in the year 2010 limitation has been

prescribed for preferring industrial disputes invoking Sec.

2A(2) of Industrial Disputes Act, 1947 by enacting Sec.

2A(3) of the said act. Thus, as on the relevant date, there

was no prescription of period of limitation for preferring

industrial disputes. It is not for the courts to prescribe any

period of limitation. When the Act is silent as to the question

of limitation, the courts are bound to entertain the cases,

without looking into the belatedness or otherwise in filing

the same, as it is the duty of the courts to interpret and

implement the law enacted by the Parliament only, but not

to substitute or incorporate any new law. In the given

circumstances, it is to be held that this petition is not barred

by limitation.

This point is answered accordingly.

9. Point No. 3:

The writs filed invoking the extraordinary jurisdiction

of the Constitutional Courts provided under Article 226 of

Constitution of India will never act as res judicata for the

cases filed before the civil courts and tribunals which are

clothed with ordinary jurisdiction by the various

enactments. This tribunal is clothed with the ordinary

jurisdiction to entertain industrial disputes. Whereas while

preferring writs before Hon'ble High Court of A.P. the

Petitioner has invoked extra ordinary jurisdiction provided

under Article 226 of Constitution of India. Further more,

Petitioner and others have withdrawn the special leave

petition filed by them challenging the judgement dated

23.3.2001 rendered in the rendered by Hon'ble High Court

of A.P. in WA No. 1602/2000 only to raise an industrial

dispute and said withdrawal has been accepted by Hon'ble

Supreme Court of India, as can be seen in Ex. W3 the order

rendered in Special Leave to Appeal(Civil) No. 13451/2001.

10. Further more, the writ proceedings were launched

by the Petitioner and other similarly placed persons seeking

for regularisation of their services with the Respondent.

Whereas, the present industrial dispute is raised by the

Petitioner, consequent to termination of his services while

the writ appeal was pending, seeking for setting aside the

oral termination order dated 23.10.1998 of the Respondent,

whereunder Petitioner's services were terminated

consequently directing the Respondent to reinstate the

Petitioner into service with attendent benefits. Therefore,

cause of action for filing the writ proceeding and for raising

the present industrial dispute and also nature of these two

proceedings are totally different and distinct.

11. In the given circumstances, it can safely be held

that the proceedings of WP No. 29210/1998 will not act as

res judicata for the present proceedings.

This point is answered accordingly.

12. Point No. 4:

Admittedly, Petitioner has worked with the

Respondent organisation. It can be said so since, in their

counter Respondent has not disputed regarding the fact

that Petitioner has worked with them.

13. It is the contention of the Petitioner that he has

been engaged by the Respondent for cleaning, sweeping,

dusting, watching bend dumps, the work, nature of which

is perennial and that the Petitioner was working directly

under the control of the Respondent receiving salary

directly from the Respondent but however, Respondent

brought non-existing contractor between the Petitioner and

Respondent to show that there is no master and servant

relationship between them.

14. Whereas, Respondent is contending that house

keeping works in DAE Housing Colony, in which the staff

of the Respondent unit are housed, is being taken care of

by CAPRA municipality, whereas requirement of plant of

the Respondent is being met through helpers(COS)

deployed for the said pupose, however, prior to making

this arrangements through CAPRA municipality and/or

deployment of helpers(COS) a running contract for a period

of 12 months was awarded for executing urgent works such

as, jungle cutting in the NFC works as well as DAE Housing

Colony, where some contract labourers were engaged and

that Petitioner is one among the labourers engaged by the

contractor who was awarded with the work of cleaning of

roads and storm water drains in housing colony.

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1153

15. From the above contention and counter

contention of the Petitioner and Respondent, what one

can gather is, that admittedly Petitioner has been working

for the Respondent unit, and he was awarded with the

work of cleaning of the premises, but it is the contention of

the Respondent, contrary to the contentions of the

Petitioner, that Petitioner has been a contract labourer

engaged by the contractor to whom the cleaning work was

entrusted by the Respondent but not a person directly

engaged by the Respondent.

16. When one Respondent accepted the fact that

Petitioner has worked with him but claimed that there is an

intermediatory between them i.e., a contractor, it is for the

Respondent to establish before the court that there has

been such contractor and the said contractor engaged the

Petitioner for cleaning work entrusted to him by the

Respondent. Further more, it is to be verified by the court,

if it is established before the court that there has been such

a contractor, whether the principal employer i.e., the

Respondent was exercising control over the functioning

of the Petitioner or whether through the contractor only

the work was being done. Who is exercising control over

the conditions of the service of the Petitioner is a crucial

aspect to decide whether there is master and servant

relationship between the principal employer and the

workman or whether the alleged contractor himself remained

as a master for the workman and other such relevant aspects.

In this regard, it is well established legal principle that "the

Industrial Tribunal/court will have to consider the

question whether the contractor has been interposed

either on the ground of having undertaken to produce

any given result for the establishment or for supply of

contract labour for work of the establishment under a

genuine contract or is a mere rule/camouflage to evade

compliance with various beneficial legislations so as to

deprive the workers of the benefit thereunder. If the

contract is found to be not genuine but a mere camouflage,

the so-called contract labour will have to be treated as

employees of the principal employer". This is the legal

principal laid down by the Hon'ble Supreme Court of India

in the case of Steel Authority of India and Ors. Vs. National

Union Waterfront Workers and Others {(2001) 7 SCC

page 1}, which is relied upon by Learned Counsel for the

Respondent himself.

17. All the above referred crucial aspects in this case

can be gathered from the relevant record maintained by the

Respondent in connection with the alleged contract

entrusted to the contractor regarding the way in which the

work was extracted from the Petitioner and other workers

and also the mode of payment of wages to the Petitioner

and other workmen and other related aspects. It is the

burden of the Respondent to place all the relevant record

before this tribunal. But the only record produced by the

Respondent regarding the alleged contract is Ex. M4, the

letter dated 30.9.97 said to have been issued by the

Respondent to one Sri P. Ramana Reddy a contractor. There

is no record to show that Respondent called for tenders for

given contract work and selected any persons as

contractors through any selection process. While she was

under cross examination MW1 had admitted that they have

not filed any document to show that contractor was

engaged or agreement was entered between contractor and

Management.

18. Further, in Ex. M4 it is averred that "A daily report

indicating the details of labourers and vehicle engaged on

the work for each day shall be submitted to the Engineer-

in-charge, before 10.00 AM on every working day. Payment

of wages to contract labourers shall be as per regulations

laid down in CPWD contractors labour regulation to be

applicable to Nuclear Fuel Complex. Intimation regarding

wage period, date of payment, place and time of

disbursement shall be given to the Engineer-in-charge

within 2 (two) weeks from the date of issue of this order". If

the work was done in furtherance of Ex. M4 order, in every

likelihood the daily report indicating details of labourers

and vehicles engaged for the work, would have been

submitted by the contractor to the Engineer-in-charge on

every working day and further intimation regarding the

wage period date of payment, place and time of

disbursement of wages also would have been given to the

Engineer-in-charge and such documents will be available

with the Respondent. But no such documents are placed

before the court which indicates that there are no such

documents and therefore Ex. M4 has never been acted

upon.

19. In the absence of proper proof of the fact that

Petitioner has been a labourer worked under a contractor

but not a direct employee of the Respondent, it is to be

taken that he is the direct employee of the Respondent for

the reason that it is an admitted fact that Petitioner worked

for the Respondent as a sweeper. It can be taken that there

is no proper proof of the contentions of the Respondent

that Petitioner has been working under a contractor, for the

above referred reason that Respondent failed to produce

that all the relevant documents which will certainly will be

in their custody, if actually, Petitioner has been working

under a contractor to whom the Respondent entrusted the

cleaning of the premises as a contract work. Therefore, it

can sefely be held that Respondent failed to establish that

Petitioner has been working under a contractor who has

been entrusted with the job of cleaning of their premises

but not their direct employee.

20. In view of the foregone discussion it can safely

be held that there is relationship of workman and

Management between the Petitioner and the Respondent

which indicates that there is master and servant relationship

between them.

This point is answered accordingly.

1154

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

21. Point No. 5:

As can be gathered from the line of the defence taken

in this case by the Respondent and the arguments built up

and advanced for them, what one can see is that they are

meeting the claim of the Petitioner, as if the Petitioner is

seeking for regularization of services. But the fact remains

that Petitioner is seeking for setting aside the order under

which Petitioner's services were terminated and for

reinstatement into service and other consequential reliefs.

In the writ proceedings Petitioner sought for regularization

of service but while writ appeal was pending disposal, as

the Petitioner's services were terminated, this industrial

dispute is raised seeking for setting aside the said

termination order and consequential reinstatement of the

Petitioner into service and for grant of other attendant

benefits. Ignoring these aspects Respondent is advancing

their arguments regarding the claim of the Petitioner in

the writ proceedings for regularization of services. The

said arguments are to be taken as not helpful for the

proceedings of this case. The various legal precedents

cited for the Respondent are also not helpful for

furtherance of this case as they are all in respect of the

regularization of the services of the contract employees.

In this case, the relief sought for is not for regularization

of service but it is for reinstatement into service. But in

this case also the question whether Petitioner has been

a contract labourer or other wise is to be decided and it

has been decided while deciding Point No. 4 alone.

22. Evidently, Respondent ceased to take services

of the Petitioner since 23.10.1998. In their counter the

Respondent has chosen to plead that the contractor has

terminated the services of the Petitioner in the year 1998

but as discussed above while deciding point No. 4

Respondent failed to establish that there has been a

contractor as an intermediatory between them the

Petitioner. Thus, it can safely be inferred that Respondent

is the organization which terminated the services of the

Petitioner.

23. It is claim of the Petitioner that said termination

is by way of an oral order and therefore, it is not possible

for the Petitioner to produce any termination order. But the

fact remains that even as per contentions of the Respondent

they ceased to take the services of the Petitioner since the

year 1998. Therefore, it can reasonably be accepted that

there has been oral termination of the Petitioner with effect

from 23.10.1998.

24. It is well established principle of law that every

termination spells retrenchment. With this regard there is

no dispute.

25. Sec. 25F of the Industrial Disputes Act, 1947

deals with conditions precedent to retrenchment of

workman. Sec. 25F reas 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)."

26. As can be gathered from the facts on record,

Petitioner worked for one year continuously even as per

the contentions of the Respondent, leaving alone the

contentions of the Petitioner that he has been in continuous

service with the Respondent since years together which

has not been disproved by producing the record

maintained by the Respondent regarding the service of

the Petitioner with the Respondent. Therefore, it can safely

be held that Petitioner comes under the purview of the

workman mentioned in Sec. 25F by working with the

Respondent for not less than one year. As per Sec. 25F

such a workman can not be retrenched, until he has 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

workman has to be paid retrenchment compensation as

mentioned in Sec. 25F (b) and there shall be compliance of

Sec. 25F (c).

27. Unless there is compliance of all the above

mentioned mandatory pre requisites the retrenchment of

the workman is to be held as null and void, illegal and

inoperative. as per the well established legal principles

laid down by Hon'ble the Apex Court. In the case of

Devinder Singh Vs. Municipal Council Sanaur, [(2011) 6

SCC page 584] and in the case of Anup Sharma Vs. Public

Health Division [(2010)] 5 SCC 497] Hon'ble Supreme Court

of India considered the effect of violation of Sec 25F and

held that termination of service of a workman without

complying with the mandatory provisions contained under

Sec. 25F (A) and (B) should ordinarily result in his

reinstatement.

28. In the present case, evidently there is no

compliance of the mandatory pre-requisites contemplated

under Sec. 25F (a) and (b) of Industrial Disputes Act, 1947.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 1] 2014@ek?k 12] 1935

1155

Therefore, the impugned termination order is bad and is

liable to set aside and Petitioner is entitled for

reinstatement into service.

This point is answered accordingly.

29. Point No. 6

In view of the findings given in Point No. 5 above,

the impugned oral termination order date 23.10.1998 is liable

to be set aside. Consequently Petitioner is entitled for

reinstatement into service as Sweeper with continuity of

service. Considering the way in which the Petitioner's

services were terminated while the writ proceedings

launched by the Petitioner seeking for regularization is

pending it can safely be held that Petitioner is entitled for

all back wages and all other attendant benefits.

This point is answered accordingly.

30. Result:-

In the result, petition is allowed. The oral order dated

23.10.1998 of the Respondent terminating the services of

the Petitioner is hereby set aside. Petitioner shall be

reinstated into service forthwith. Respondent shall pay

back wages to the Petitioner for the period from 23.10.1998

the date of termination of his services till the date of

Petitioner's reinstatement into service. Petitioner is entitled

for all order consequential benefits as well.

Award passed according. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the

Petitioner

Respondent

WW1: Sri K. Narayana

MW1: Smt. A Rama Devi

Doucments marked for the Petitioner

Ex. W1:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. W2:

Photostat copy of representation dt. 11.4.98

Ex. W3:

Photostat copy of order in SLA (Civil) Np. 13451/

2001

Ex. W4:

Photostat copy of representation dt. 3.5.96

Ex. W5:

Photostat copy of provisional receipt from

Kapra Municipality dt. 13.11.98

Ex. W6:

Photostat copy of represetation dt. 9.10.98

Ex. W7:

Photostat copy of order in W.A. No. 1602/1999

Ex. W8:

Photostat copy of representation dt. 28.9.2005

Documents marked for the Respondent

Ex. M1:

Photostat copy of order in WP No. 5592/1991

Ex. M2:

Photostat copy of receipt from Kapra

Municipality dt. 13.11.98

Ex. M3:

Photostat copy of letter dt. 9.1.1999 issued by

NFC to Commissioner, Kapra Municipality.

Ex. M4:

Photostat copy of letter dt. 30.9.97 issued by

NFC to Sri P. Ramana Reddy, Contractor

Ex. M5:

Photostat copy of order in contempt case No.

1903/98

Ex. M6:

Photostat copy of order in WP No. 29210/1998

dt. 25.9.2000

Ex. M7:

Photostat copy of order in WA No. 1602/1999

Ex. M8:

Photostat copy of receipt from Kapra

Municipality dt. 1.1.1999.

ubZ fnYyh] 17 tuojh] 2014

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bafM;k ds izca/kr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"B vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky;] p.Mhx<+ ds iapkV ¼1280@2006½ dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17-01-2014 dks izkIr gqvk

FkkA

[lañ ,y&12012@26@2006&vkbZ vkj ¼ch&II½]

jfo dqekj] vuqHkkx vf/kdkjh

New Delhi, the 17th January, 2014

S.O. 400.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 1280/2006)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court No. II,

Chandigarh as shown in the Annexure, in the industrial

dispute between the management of Union Bank of India

and their workmen, received by the Central Government on

17/01/2014.

[No. L-12012/26/2006-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present:

SRI KEWAL KRISHAN, Presiding Officer.

Case No. I.D. No. 1280/2006

Registered on 9.8.2006

Sh. Ramesh Kumar, S/o Sh. Isher Dass, R/o Village Sohal,

Tehsil and district Gurdaspur.

....Petitioner

1156

THE GAZETTE OF INDIA : FEBRUARY 1, 2014/MAGHA 12, 1935

[PART II—SEC. 3(ii)]

Versus

The Chief Manager-cum-Disciplinary Authority Union

Bank of India Veer Pratap Garh, Shastri Market Jalandhar.

....Respondent

APPEARANCES :

For the workman

Ex parte.

For the Management

Ex parte.

AWARD

Passed on 6.12.2013

Central Government vide Notification No. L-12012/

26/2006 IR(B-II) Dated 20.7.2006, by exercising its powers

under Section 10 Sub Section (1) Clause (d) and Sub Section

(2-A) of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'Act') has referred the following Industrial

dispute for adjudication to this Tribunal:-

"Whether the action of the management of Union

Bank of India in imposing the punishment of

dismissal from service of Sh. Ramesh Kumar w.e.f.

15.6.2005 is legal and justified? If so to what relief the

concerned workman is entitled to and from which

date?"

In response to the notice the workman appeared and

submitted statement of claim pleading that he worked as

Peon with the management bank from 1984 to 15.6.2002. He

was convicted under Section 306/498A of IPC vide

judgment dated 9..12.2003 and he preferred an appeal and

the Hon'ble High Court passed the following order—

"The appellant has undergone sentence of one year,

six months and twenty three days inclusive of

undertrial period out of total sentence of five years

under Section 406 IPC.

Appeal is not likely to be heard soon. Sentence

suspended. Bail to the satisfaction of Chief Judicial

Magistrate, Gurdaspur."

After the suspension of his sentence, he approached

the management for joining the duty and the Regional Office

issued a memo dated 28.5.2005. He submitted a written

reply and and on 15.6.2005 he was dismissed from service.

It is pleaded that at the time of passing of the dismissal

order the disciplinary authority did not follow any

procedure and he was not given any opportunity of

personal hearing and as such his termination is illegal.

Therefore he is entitled to be reinstated in service with all

the consequential benefits.

The management filed written reply pleading that as

per terms of para 3(b) of the Bipartite Settlement dated

10.4.2002, workman who was convicted by the Court was

liable to be dismissed from service and accordingly the

impugned order was passed, after serving a show cause

notice dated 28.5.2005. He was also given an opportunity

of personal hearing. That the impugned order is legal and

valid. That the Hon'ble High Court only suspended the

sentence of the workman and not the conviction of the

workman and therefore it was not possible to retain him in

service.

In support of his case, the workman appeared in the

witness box and filed his affidavit supporting the version

as given in the claim petition.

On the other hand the management examined S.K.

Kapoor who filed his affidavit reiterating the case as set

out in the written reply.

It may be added that initially the parties appeared

through counsels; though, thereafter, sometimes either the

workman or the management did not appear. However, both

the workman and the representative of the management

stopped appearing in the Court from 29.11.2012.

Consequently, notice was issued to them through registered

cover for today who did not appear and both the parties

were proceeded ex parte vide separate order to today.

I have perused the file carefully.

It is the case of the workman himself that he was

convicted sentenced by the learned Additional Sessions

Judge under Section 306/498A IPC by the Additional

Sessions Judge, Gurdaspur vide judgement dated 9.12.2003.

It is again admitted case of the workman that a show cause

notice dated 28.5.2005 was issued to him prior to the

termination of services. It is the case of the management

that an opportunity of personal hearing was also given to

the workman. In view of para 3(b) of the Bipartite Settlement

dated 10.4.2002 an employee is liable to be dismissed if

convicted by the Court. In view of this Clause, his services

were terminated and the same cannot be termed as illegal

and void. The Hon'ble High Court only suspended the

sentence and not the conviction of the workman vide order

dated 28.4.2005 and therefore workman cannot take benefit

of the said order to claim reinstatement in service.

Thus it cannot be said that the punishment awarded

to the workman is illegal and unjustified and he is not

entitled to any relief. The reference is accordingly answered

against the workman. Let hard and soft copy of the award

be sent to the Central Government for further necessary

action.

KEWAL KRISHAN, Presiding Officer

ubZ fnYyh] 17 tuojh] 2014

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1157

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djrh gS tks dsUnzh; ljdkj dks 17-01-2014 dks izkIr gqvk FkkA

[la- ,y&36011@8@2011&vkbZ vkj ¼ch&II)]

jfo dqekj] vuqHkkx vf/kdkjh

New Delhi, the 17th January, 2014

S.O. 401.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. 29/2012) of

the Cent. Govt. Indus.Tribunal-cum-Labour Court- No 2,

Mumbai as shown in the Annexure, in the industrial dispute

between the management of Mormugao Port Trust and

their workmen, received by the Central Government on

17/01/2014.

[No. L-36011/8/2011-IR(B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

Present : K.B. KATAKE, Presiding Officer

Reference No. CGIT-2/29 of 2012

Employers in relation to the Management of Mormugao

Port Trust

THE CHAIRMAN

Mormugao Port Trust

Mormugao Harbour

Goa 403 803.

AND

Their Workmen.

The President

Mormugao Port & Railway Workers Union

Main Administrative Office Building

Mormugao Port Trust

Headland Sada

Goa 403 804.

Appearances:

For the Employer

: Mr. M.B. Anchan,

Advocate.

For the Workman

: Mr. G. Vijaychandran,

Advocate.

Camp: Goa dated the 28th October, 2013.

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-36011/8/2011-IR (B-II), dated

24.05.2012 in exercise of the powers conferred by clause

(d) of sub-section (1) and sub-section 2

(A) of Section 10 of the Industrial Disputes Act, 1947

have referred the following industrial dispute to this

Tribunal for adjudication:

''Whether the action of the management of

Mormugao Port Trust, Goa in proposing amendment

in Recruitment Rules to the post of Welfare Officer is

legal and justified? To what relief the workmen are

entitled?''

(2) After receipt of the order of reference from

Ministry, notices were issued to both the parties. In

response to the notice, Union filed their statement of claim

at Ex-3. Union prayed to stop/prohibit the management of

MPT to carry out amendment in Recruitment Rules for the

post of Welfare Officer. Management resisted the statement

of claim of the union vide their written statement at Ex-5.

According to them the category of Labour Inspector does

not fall in the definition of the workman as per Section 2 (iii)

(iv) of the I.D. Act and therefore the reference is not

maintainable. They further contended that the union is

misleading as the management has proposed amendment

to Recruitment Rules to the post of Welfare officer, operated

only in General Administrative Department and not in Cargo

Handling Labour Division. There is no change in service

conditions. Therefore they pray that the reference be

rejected.

(3) By his application dated 04/09/2013 (filed by post)

President of Mormugao Port & Railway Workers Union,

stated that they do not want to pursue the matter any

further and prayed to dispose of the reference as

withdrawn. Advocate for the management filed their no

objection vide Ex-14. In the circumstances, I think it proper

to dispose of the reference as withdrawn. Thus the order :

ORDER

Reference stands dismissed as withdrawn.

Camp: Goa

Date: 28th October, 2013

K. B. KATAKE, Presiding Officer

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.