dk£ed] yksd f'kdk;r rFkk isa'ku ea=kky;

(dk£ed vkSj izf'k{k.k foHkkx)

ubZ fnYyh] 6 tuojh] 2014

dk-vk- 402-—fnYyh fo'ks"k iqfyl LFkkiuk vf/fu;e]

1946 (1946 dk vf/fu;e la- 25) dh /kjk 6 ds lkFk ifBr

èkkjk 5 dh mi/kjk (1) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,

dsUæ ljdkj] fgekpy izns'k jkT; ljdkj] x`g foHkkx] f'keyk

n~okjk mudh fnukad 4 fnlEcj] 2012 dh vf/lwpuk la x`g

(,),(9)&7@2010 ds rgr nh xbZ lgefr ls MkW- jkgqy ;kno

(jSad la- ;wvkj&1439 esa Js.kh) n~okjk dfFkr :i ls fd, x,

vijk/ksa_ tks 50% vf[ky Hkkjrh; dksVk ds v/hu vk;ksftr

dkmUlfyax] 2011 rFkk ,e-Mh- tujy esMhflu esa muds nkf[ky

ds nkSjku idMs+ x, NÁO;Drrk ekeys esa laxr /kjkvksa ds v/hu

naMuh; gSa_ rFkk mi;qZDr fyf[kr vijk/ksa ds laca/ esa mdlkus ,oa

"kM;a=k djus dk vUos"k.k djus ds fy, fnYyh fo'ks"k iqfyl

LFkkiuk ds lnL;ksa dh 'kfDr;ksa ,oa vf/dkj {ks=k dks iwjs fgekpy

izns'k jkT; rd foLr`r djrh gS A

¹iQk- la- 228@37@2012&,-oh-Mh&IIº

jktho tSu] voj lfpo

359 GI/2014

(1159)

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- 6]

ubZ fnYyh, iQjojh 2—iQjojh 8] 2014] 'kfuokj@ek?k 13—ek?k 19] 1935

No. 6]

NEW DELHI, FEBRUARY 2—FEBRUARY 8, 2014, SATURDAY/MAGHA 13—MAGHA 19, 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)

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES

AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 6th January, 2014

S.O. 402.—In exercise of the powers conferred

by sub-section (1) of section 5 read with section 6 of the

Delhi Special Police Establishment Act, 1946 (Act No. 5 of

1946), the Central Government with the consent of the State

Government of Himachal Pradesh, Department of Home,

Shimla vide Notification No. Home (A)A(9)-7/2010 dated

4th December, 2012, hereby extends the powers and

jurisdiction of the members of the Delhi Special Police

Establishment to the whole of the State of Himachal Pradesh

for investigation of the offences alleged to have been

committed by Dr. Rahul Yadav (Category in rank No. UR-

1439), punishable under relevant sections in impersonation

case caught during the counseling 2011 held under the

50% All India Quota and his admission in M.D. General

Medicine and abetments and conspiracies in relation to

the above mentioned offences.

[F. No. 228/37/2012-AVD-II]

RAJIV JAIN, Under Secy.

1160

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 403-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr dukZVd jkT; ds

LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v- C;wjks) }kjk

laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu djus rFkk fof/

}kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa esa bu ekeyksa ls

mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu vU; ekeyksa dk

lapkyu djus ds fy, Jh jkts'k dqekj] ds-v- C;wjks ds vfHk;kstu

vf/dkjh dks yksd vfHk;kstd fu;qDr djrh gS A

¹iQk- la- 225@44@2013&,-oh-Mh&IIº

jktho tSu] voj lfpo

New Delhi, the 17th January, 2014

S.O. 403.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints Shri Rajesh Kumar, Prosecuting Officer of

Central Bureau of Investigation as Public Prosecutor for

conducting cases in the local area comprising the whole

State of Karnataka instituted by the Delhi Special Police

Establishment (C.B.I.) in the trial courts and appeals,

revisions or other matters arising out of these cases in

revisional or Appellate Courts, established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 404-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr vksfM'kk jkT; ds

LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v- C;wjks) }kjk

laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu djus rFkk fof/

}kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa esa bu ekeyksa ls

mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu vU; ekeyksa dk

lapkyu djus ds fy, loZJh yky pan iky ,oa vk'kh"k tk;loky]

ds-v- C;wjks ds vfHk;kstu vf/dkjh dks yksd vfHk;kstd fu;qDr

djrh gS A

¹iQk- la- 225@44@2013&,-oh-Mh&IIº

jktho tSu] voj lfpo

New Delhi, the 17th January, 2014

S.O. 404.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints S/Shri Lal Chand Pal and Ashish Jaiswal,

Prosecuting Officer of Central Bureau of Investigation as

Public Prosecutor for conducting cases in the local area

comprising the whole State of Odisha instituted by the

Delhi Special Police Establishment (C.B.I.) in the trial courts

and appeals, revisions or other matters arising out of these

cases in revisional or Appellate Courts, established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 405-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr tEew ,oa d'ehj

jkT; ds LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v- C;wjks)

}kjk laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu djus rFkk

fof/ }kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa esa bu

ekeyksa ls mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu vU;

ekeyksa dk lapkyu djus ds fy, Jh dfiy oekZ] ds-v- C;wjks ds

vfHk;kstu vf/dkjh dks yksd vfHk;kstd fu;qDr djrh gS A

¹iQk- la- 225@44@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 17th January, 2014

S.O. 405.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints Shri Kapil Verma, Prosecuting Officer of

Central Bureau of Investigation as Public Prosecutor for

conducting cases in the local area comprising the whole

State of Jammu and Kashmir instituted by the Delhi Special

Police Establishment (C.B.I.) in the trial courts and appeals,

revisions or other matters arising out of these cases in

revisional or Appellate Courts, established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 406-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr fcgkj jkT; ds

LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v- C;wjks) }kjk

laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu djus rFkk fof/

}kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa esa bu ekeyksa ls

mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu vU; ekeyksa dk

lapkyu djus ds fy, loZJh mek'kadj f=kikBh ,oa vt; iky]

ds-v- C;wjks ds vfHk;kstu vf/dkjh dks yksd vfHk;kstd fu;qDr

djrh gS A

¹iQk- la- 225@44@2013&,ohMh&IIº

jktho tSu] voj lfpo

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1161

New Delhi, the 17th January, 2014

S.O. 406.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints S/Shri Umashankar Tripathi and Ajai Pal,

Prosecuting Officer of Central Bureau of Investigation as

Public Prosecutor for conducting cases in the local area

comprising the whole State of Bihar instituted by the

Delhi Special Police Establishment (C.B.I.) in the trial courts

and appeals, revisions or other matters arising out of these

cases in revisional or Appellate Courts, established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 407-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr egkjk"Vª jkT; ds

LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v- C;wjks) }kjk

laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu djus rFkk fof/

}kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa esa bu ekeyksa ls

mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu vU; ekeyksa dk

lapkyu djus ds fy, Jh xqj¯onjthr ¯lg] ds-v- C;wjks ds vfHk;kstu

vf/dkjh dks yksd vfHk;kstd fu;qDr djrh gS A

¹iQk- la- 225@44@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 17th January, 2014

S.O. 407.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints Shri Gurvinderjit Singh, Prosecuting

Officer of Central Bureau of Investigation as Public

Prosecutor for conducting cases in the local area comprising

the whole State of Maharashtra instituted by the Delhi

Special Police Establishment (C.B.I.) in the trial courts and

appeals, revisions or other matters arising out of these

cases in revisional or Appellate Courts, established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 408-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr jk"Vªh; jkt/kuh {ks=k

fnYyh jkT; ds LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v-

C;wjks) }kjk laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu

djus rFkk fof/ }kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa

esa bu ekeyksa ls mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu

vU; ekeyksa dk lapkyu djus ds fy, Jherh 'kEik fVdSr ,oa

Jh uohu dqekj fxjh] ds-v- C;wjks ds vfHk;kstu vf/dkjh dks yksd

vfHk;kstd fu;qDr djrh gS A

¹iQk- la- 225@44@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 17th January, 2014

S.O. 408.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints Smt. Shampa Tikait and Shri Navin Kumar

Giri, Prosecuting Officer of Central Bureau of Investigation

as Public Prosecutor for conducting cases in the local area

comprising the whole State of National Capital Territory of

Delhi instituted by the Delhi Special Police Establishment

(C.B.I.) in the trial courts and appeals, revisions or other

matters arising out of these cases in revisional or Appellate

Courts, established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 409-—dsUæh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (2)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] leLr mÙkj izns'k jkT; ds

LFkkuh; {ks=k esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v-C;wjks) }kjk

laLFkkfir ijh{k.k U;k;ky;ksa esa ekeyksa dk lapkyu djus rFkk fof/

}kjk LFkkfir iqujh{k.k vFkok vihyh; U;k;ky;ksa esa bu ekeyksa ls

mRiUu vihyksa] iqujh{k.kksa vFkok@;k buls mRiUu vU; ekeyksa dk

lapkyu djus ds fy, loZJh dqynhi iq"dj] v'kksd Hkkjrsanq ,oa

fiz;kalq ¯lg] ds-v- C;wjks ds vfHk;kstu vf/dkjh dks yksd vfHk;kstd

fu;qDr djrh gS A

¹iQk- la- 225@44@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 17th January, 2014

S.O. 409.—In exercise of the powers conferred by

sub-section (2) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints S/Shri Kuldeep Pushkar, Ashok Bhartendu

and Priyanshu Singh, Prosecuting Officer of Central Bureau

of Investigation as Public Prosecutor for conducting cases

in the local area comprising the whole State of Uttar Pradesh

instituted by the Delhi Special Police Establishment (C.B.I.)

in the trial courts and appeals, revisions or other matters

arising out of these cases in revisional or Appellate Courts,

established by law.

[F. No. 225/44/2013-AVD-II]

RAJIV JAIN, Under Secy.

1162

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 21 tuojh] 2014

dk-vk- 410-—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (8)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] fnYyh fo'ks"k iqfyl LFkkiuk

ds }kjk vUosf"kr fd, x, ekeyksa ds vfHk;kstu] vihyksa] iqujh{k.kksa

rFkk mUgha ekeyksa ls mRiUu vU; fo"k;ksa dk lapkyu y[kumQ fLFkr

bykgkckn mPp U;k;ky; ds y[kumQ ihB esa djus gsrq loZJh

fj'kkn eqrZtk vkSj vejthr ¯lg jk[kjk] odhyksa dks dsaæh;

vUos"k.k C;wjks ds fo'ks"k yksd vfHk;kstd fu;qDr djrh gS A

¹iQk- la- 225@17@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 21st January, 2014

S.O. 410.—In exercise of the powers conferred

by sub-section (8) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints S/Shri Rishad Murtaza and Amarjeet Singh

Rakhra, Advocates as Special Public Prosecutor of the

Central Bureau of Investigation in the Lucknow Bench of

Allahabad High Court at Lucknow for conducting the

prosecution, appeals, revisions or other matters arising

out of the cases investigated by the Delhi Special Police

Establishment.

[F. No. 225/17/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 22 tuojh] 2014

dk-vk- 411-—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 25 dh mi-/kjk (1,)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjr ds fdlh jkT; ;k la?k

'kkflr izns'k ds l{ke {ks=kkf/dkj ds U;k;ky;ksa esa] tgka mijksDr

èkkjk ds mica/ ykxw gksrs gSa] fnYyh fo'ks"k iqfyl LFkkiuk }kjk

laLFkkfir ekeyksa dk lapkyu djus gsrq dsanzh; vUos"k.k C;wjks ds

fuEufyf[kr vfHk;kstu vf/dkfj;ksa dks lgk;d yksd vfHk;kstd

ds :i esa fu;qDr djrh gS %&

loZJh

1- t; fgUn

2- Jherh vatyh ih- yks[kaMs

3- dekyqnhu

¹iQk- la- 225@34@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 22nd January, 2014

S.O. 411.—In exercise of the powers conferred by

sub-section (1A) of section 25 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints following Prosecuting Officers of the

Central Bureau of Investigation as Assistant Public

Prosecutor for conducting cases instituted by Delhi Special

Police Establishment in the courts of competent jurisdiction

in any State or Union Territory of India to which the

provision of the aforesaid section apply :—

S/Shri

1. Jai Hind

2. Smt. Anjali P. Lokhande

3. Kamaludin

[F. No. 225/34/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 22 tuojh] 2014

dk-vk- 412-—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi-/kjk (8)

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] fnYyh fo'ks"k iqfyl LFkkiuk

(ds-v-C;wjks) }kjk laLFkkfir] fdlh jkT; ;k la?kh; {ks=k] tgka

mijksfYyf[kr /kjk ds mica/ ykxw gksrs gSa] esa fof/ }kjk LFkkfir

ijh{k.k U;k;ky;ksa vkSj iqujh{k.k ;k vihyh; U;k;ky;ksa esa bu

ekeyksa ls mRiUu vihyksa] iqujh{k.kksa ;k vU; izdj.kksa ds lapkyu

gsrq dsanzh; vUos"k.k C;wjks ds fuEufyf[kr vfHk;kstu

vf/dkfj;ksa dks fo'ks"k yksd vfHk;kstd ds :i esa fu;qDr djrh

gS %—

loZJh

1- v'ouh dqekj tks'kh

2- Jherh dSjkukFk Jh/ju gsek

3- jkds'k dqekj

4- tlfoUnz dqekj HkV~Vh

5- lat; dqekj flag

6- /hjsUnz ukFk ikaMs

7- ch- ,ysDlaMj ysfuu jktk

8- jkts'k dqekj

9- lqJh T;ksfr tksuoky

10- vfer dqekj

11- f'kouank ch-vkj-

12- vt; flag

13- uokl ,e-

14- fou; dqekj flag

15- Jherh 'kf'k fo'odekZ

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1163

16- vkse izdk'k

17- vfuy dqekj dq'kokgk

18- ds- psfUFky dqekj

19- panz 'ks[kj

20- yo dq'k dqekj

21- lqJh mfeZythr dkSj

22- jkgqy feJk

¹iQk- la- 225@34@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 22nd January, 2014

S.O. 412.—In exercise of the powers conferred

by sub-section (8) of section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central Government

hereby appoints following Prosecuting Officers of Central

Bureau of Investigation as Special Public Prosecutor for

conducting cases instituted by the Delhi Special Police

Establishment (C.B.I.) in trials courts and appeals, revisions

or other matters arising out of these cases in revisional or

appellate Courts, established by law in any State or Union

Territory to which the provisions of the aforesaid section

apply :—

S/Shri

1. Ashwani Kumar Joshi

2. Smt. Karanath Sreedharan Hema

3. Rakesh Kumar

4. Jaswinder Kumar Bhatti

5. Sanjay Kumar Singh

6. Dhirendra Nath Pandey

7. B. Alexander Lenin Raja

8. Rajesh Kumar

9. Ms. Jyoti Jonwal

10. Amit Kumar

11. Shivananda B.R.

12. Ajay Singh

13. Navas M.

14. Vinay Kumar Singh

15. Smt. Shashi Vishwakarma

16. Om Prakash

17. Anil Kumar Kushwaha

18. K. Chenthil Kumar

19. Chandra Shekhar

20. Law Kush Kumar

21. Ms. Urmiljeet Kaur

22. Rahul Mishra

[F. No. 225/34/2013-AVD-II]

RAJIV JAIN, Under Secy.

foÙk ea=kky;

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 22 tuojh] 2014

dk-vk- 413-—dkS'ky fodkl ds fy, Î.k xkjaVh fuf/

LFkkfir djus ds laca/ esa eaf=keaMy ds vuqeksnu (ekeyk la- 364)

ds vuqlj.k esa fuf/ ds O;oLFkkid ds :i esa ;g foHkkx ,rn}kjk

fuf/ dh izca/u lfefr dh fu;qfDr djrk gS] ftlesa fuEufyf[kr

'kkfey gSa %

(i) lfpo] foRrh; lsok,a foHkkx

& vè;{k (insu)

(ii) la;qDr lfpo (vkbZ-,iQ-)] foRrh; lsok,a foHkkx& lnL;

(iii) la;qDr lfpo (ih-,iQ--II)] O;; foHkkx & lnL;

(iv) la;qDr lfpo] Je ,oa jkstxkj ea=kky; & lnL;

(v) la;qDr lfpo] vkfFZkd dk;Z foHkkx & lnL;

(vi) egk funs'kd] jk"Vªh; dkS'ky fodkl ,tsalh & lnL;

(vii) funs'kd ;kstuk vk;ksx & lnL;

¹iQk- la- 1@12@2011&vkbZ,iQ&IIº

mn; Hkku ¯lg] voj lfpo

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi , the 22nd January, 2014

S.O. 413.—Pursuant to the Cabinet approval (case

No. 364) for establishment of a Credit Guarantee Fund for

Skill Development, this Department as a settler of the Fund

hereby appoints a Management Committee of the Fund

consisting of the following:

(i) Secretary, Department of Financial Services

- Chairman (ex-officio),

( ii) Joint Secretary(IF), Department of Financial Services

- Member,

(iii) Joint Secretary(PF.II), Department of Expenditure

- Member,

(iv) Joint Secretary, Ministry of Labour and Employment

- Member,

(v) Joint Secretary, Department of Economic Affairs

- Member,

1164

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

(vi) Director General, National Skill Development Agency

- Member,

(vii) Director, Planning Commission

- Member.

[F. No.1/12/2011-IF-II]

UDAI BHAN SINGH, Under Secy.

(jktLo foHkkx)

(dsUæh; izR;{k dj cksMZ)

ubZ fnYyh] 22 tuojh] 2014

dk-vk- 414-—loZlk/kj.k dh tkudkjh ds fy, ,rn~}kjk

;g vf/lwfpr fd;k tkrk gS fd dsUæ ljdkj }kjk vk;dj

fu;ekoyh] 1962 (mDr fu;ekoyh) ds fu;e 5x vkSj 5Ä ds

lkFk ifBr vk;dj vf/fu;e] 1961 (mDr vf/fu;e) dh /kjk

35 dh mi&/kjk (1) ds [kaM (ii) ds iz;kstukFkZ ve`rk fo'o

fo|kihBe ;wfuoflZVh] dksfPp] (iSu&,,,Vh,e 2403,e) laxBu

dks dj fu/kZj.k o"kZ 2013&14 vkSj mlls vkxs fuEufyf[kr 'krks±

ds v/hu vuqla/ku dk;Zdykiksa esa yxs ^fo'ofo|ky;] dkyst

vFkok vU; laLFkku* dh Js.kh esa vuqeksfnr fd;k x;k gS] uker% %µ

(i)

vuqeksfnr laxBu dks iznRr jkf'k;ksa dk mi;ksx oSKkfud

vuqla/ku ds fy, fd;k tk,xk_

(ii)

vuqeksfnr laxBu vius ladk; lnL;ksa vFkok vius

ukekafdr Nk=kksa ds ekè;e ls oSKkfud vuqla/ku djsxk_

(iii)

vuqeksfnr laxBu oSKkfud vuqla/ku ds fy, blds }kjk

izkIr jkf'k ds laca/ esa i`Fkd [kkrk cgh j[ksxk]

ftleas vuqla/ku djus ds fy, iz;qDr jkf'k n'kkZbZ xbZ

gks] mDr vf/fu;e dh /kjk 288 dh mi&/kjk (2) ds

Li"Vhdj.k esa ;Fkk ifjHkkf"kr fdlh ys[kkdkj ls viuh

[kkrk&cgh dh ys[kk&ijh{kk djk,xk vkSj mDr vfèkfu;e

dh /kjk 139 dh mi&/kjk (1) ds varxZr vk; fooj.kh

izLrqr djus dh fu;r frfFk rd ,sls ys[kkdkj }kjk

fof/or lR;kfir ,oa gLrk{kfjr ys[kk ijh{kk fjiksVZ]

ekeys esa {ks=kkf/dkj j[kus okys vk;dj vk;qDr vFkok

vk;dj funs'kd dks izLrqr djsxk_

(iv)

vuqeksfnr laxBu izkIr nku vkSj oSKkfud vuqla/ku ds

fy, iz;qDr jkf'k dk i`Fkd fooj.k j[ksxk vkSj mi;qZDr

ys[kk&ijh{kk fjiksVZ ds lkFk ys[kk&ijh{kd }kjk fof/or

lR;kfir ,sls fooj.k dh izfrfyfi izLrqr djsxk A

2- dsaæ ljdkj ;g vuqeksnu okil ys ysxh ;fn vuqeksfnr

laxBu %µ

(d)

iSjkxzkiQ 1 ds mi&iSjkxzkiQ (iii) esa mfYyf[kr i`Fkd

ys[kk cgh j[kus esa vliQy jgrk gS_ vFkok

([k)

iSjkxzkiQ 1 ds mi&iSjkxzkiQ (iii) esa mfYyf[kr viuh

ys[kk&ijh{kk fjiksVZ izLrqr djus esa vliQy jgrk gS_

vFkok

(x)

iSjkxzkiQ 1 ds mi&iSjkxzkiQ (iv) esa mfYyf[kr oSKkfud

vuqla/ku ds fy, izkIr ,oa iz;qDr nku dk viuk fooj.k

izLrqr djus esa vliQy jgrk gS_ vFkok

(?k)

viuk vuqla/ku dk;Z djuk can dj nsxk vFkok blds

vuqla/ku dk;Z dks okLrfod ugha ik;k tk,xk_ vFkok

(M+)

mDr fu;ekoyh ds fu;e 5x vkSj 5M+ ds lkFk ifBr

mDr vf/fu;e dh /kjk 35 dh mi&/kjk (1) ds

[kaM (ii) ds izko/kuksa ds vuq:i ugha gksxk vkSj mudk

ikyu ughsa djsxk A

¹vf/lwpuk la- 08@2014@iQk- la- 203@03@2013&vk-d-fu-&IIº

Ípk jLrksxh] voj lfpo (vk-d-fu-&II)

( Department of Revenue)

( CENTRAL BOARD OF DIRECT TAXES)

New Delhi, the 22nd January, 2014

S.O. 414 .— It is hereby notified for general

information that the organization Amrita Vishwa

Vidhyapeetham University Kochi, (PAN - AAATM2403M)

has been approved by the Central Government for the

purpose of clause (ii) of sub-section (1) of section 35 of

the Income-tax Act, 1961 (said Act), read with Rules 5C and

5E of the Income- tax Rules, 1962 (said Rules), assessment

year 2013-2014 and onwards in the category of "University

College and other Institution", engaged in research

activities subject to the following conditions, namely:-

(i) The sums paid to the approved organization shall be

utilized for scientific research;

(ii) The approved organization shall carry out scientific

research through its faculty members or its enrolled

students;

(iii) The approved organization shall maintain separate

books of accounts in respect of the sums received by

it for scientific research, reflect therein the amounts

used for carrying out research, get such books audited

by an accountant as defined in the explanation to

sub-section (2) of section 288 of the said Act and

furnish the report of such audit duly signed and

verified by such accountant to the Commissioner of

Income-tax or the Director of Income-tax having

jurisdiction over the case, by the due date of furnishing

the return of income under sub- section (1) of

section 139 of the said Act;

(iv)

The approved organization shall maintain a separate

statement of donations received and amounts applied

for scientific research and a copy of such statement

duly certified by the auditor shall accompany the

report of audit referred to above.

2. The Central Government shall withdraw the

approval if the approved organization:-

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1165

(a)

fails to maintain separate books of accounts as

referred to in sub-paragraph (iii) of paragraph 1; or

(b)

fails to furnish its audit report as referred to in sub-

paragraph (iii) of paragraph 1; or

(c)

fails to furnish its statement of the donations received

and sums applied for scientific research as referred

to in sub-paragraph (iv) of paragraph 1; or

(d)

ceases to carry on its research activities or its research

activities are not found to be genuine; or

(e)

ceases to conform to and comply with the provisions

of clause (ii) of sub-section (1) of Section 35 of the

said Act read with rules 5C and 5E of the said Rules.

[Notification No. 08 /2014/ F. No. 203/03/2013-ITA-II]

RICHA RASTOGI, Under Secy. (ITA-II)

ubZ fnYyh] 22 tuojh] 2014

dk-vk- 415-—loZlk/kj.k dh tkudkjh ds fy, ,rn~}kjk

;g vf/lwfpr fd;k tkrk gS fd dsUæ ljdkj }kjk vk;dj

fu;ekoyh] 1962 (mDr fu;ekoyh) ds fu;e 5x vkSj 5M- ds

lkFk ifBr vk;dj vf/fu;e] 1961 (mDr vf/fu;e) dh /kjk

35 dh mi&/kjk (1) ds [kaM (ii) ds iz;kstukFkZ baLVhV~;wV vkWiQ

yhoj ,aM fcfy,jh lkbalsl] ubZ fnYyh] (iSu&,,,,yvkbZ0055vkj)

laxBu dks dj fu/kZj.k o"kZ 2012&13 vkSj mlls vkxs fuEufyf[kr

'krks± ds v/hu vuqla/ku dk;Zdykiksa esa yxs ^fo'ofo|ky;]

dkyst vFkok vU; laLFkku* dh Js.kh esa vuqeksfnr fd;k x;k gS]

uker%µ

(i)

vuqeksfnr laxBu dks iznRr jkf'k;ksa dk mi;ksx oSKkfud

vuqla/ku ds fy, fd;k tk,xk_

(ii)

vuqeksfnr laxBu vius ladk; lnL;ksa vFkok vius

ukekafdr Nk=kksa ds ekè;e ls oSKkfud vuqla/ku djsxk_

(iii)

vuqeksfnr laxBu oSKkfud vuqla/ku ds fy, blds }kjk

izkIr jkf'k ds laca/ esa i`Fkd [kkrk cgh j[ksxk]

ftleas vuqla/ku djus ds fy, iz;qDr jkf'k n'kkZbZ xbZ

gks] mDr vf/fu;e dh /kjk 288 dh mi&/kjk (2) ds

Li"Vhdj.k esa ;Fkk ifjHkkf"kr fdlh ys[kkdkj ls viuh

[kkrk&cgh dh ys[kk&ijh{kk djk,xk vkSj mDr vfèkfu;e

dh /kjk 139 dh mi&/kjk (1) ds varxZr vk; fooj.kh

izLrqr djus dh fu;r frfFk rd ,sls ys[kkdkj }kjk

fof/or lR;kfir ,oa gLrk{kfjr ys[kk ijh{kk fjiksVZ]

ekeys esa {ks=kkf/dkj j[kus okys vk;dj vk;qDr vFkok

vk;dj funs'kd dks izLrqr djsxk_

(iv)

vuqeksfnr laxBu izkIr nku vkSj oSKkfud vuqla/ku ds

fy, iz;qDr jkf'k dk i`Fkd fooj.k j[ksxk vkSj mi;qZDr

ys[kk&ijh{kk fjiksVZ ds lkFk ys[kk&ijh{kd }kjk fof/or

lR;kfir ,sls fooj.k dh izfrfyfi izLrqr djsxk A

2- dsaæ ljdkj ;g vuqeksnu okil ys ysxh ;fn vuqeksfnr

laxBu %µ

(d)

iSjkxzkiQ 1 ds mi&iSjkxzkiQ (iii) esa mfYyf[kr i`Fkd

ys[kk cgh j[kus esa vliQy jgrk gS_ vFkok

([k)

iSjkxzkiQ 1 ds mi&iSjkxzkiQ (iii) esa mfYyf[kr viuh

ys[kk&ijh{kk fjiksVZ izLrqr djus esa vliQy jgrk gS_

vFkok

(x)

iSjkxzkiQ 1 ds mi&iSjkxzkiQ (iv) esa mfYyf[kr oSKkfud

vuqla/ku ds fy, izkIr ,oa iz;qDr nku dk viuk fooj.k

izLrqr djus esa vliQy jgrk gS_ vFkok

(?k)

viuk vuqla/ku dk;Z djuk can dj nsxk vFkok blds

vuqla/ku dk;Z dks okLrfod ugha ik;k tk,xk_ vFkok

(M-)

mDr fu;ekoyh ds fu;e 5x vkSj 5M+ ds lkFk ifBr

mDr vf/fu;e dh /kjk 35 dh mi&/kjk (1) ds

[kaM (ii) ds izko/kuksa ds vuq:i ugha gksxk vkSj mudk

ikyu ughsa djsxk A

¹vf/lwpuk la- 07@2014@iQk- la- 203@55@2012&vk-d-fu-&IIº

Ípk jLrksxh] voj lfpo (vk-d-fu-&II)

New Delhi, the 22nd January, 2014

S.O. 415.— It is hereby notified for general

information that the organization Institute of Liver & Biliary

Sciences, New Delhi, (PAN - AAALI0055R) has been

approved by the Central Government for the purpose of

clause (ii) of sub-section (1) of Section 35 of the Income-

tax Act, 1961 (said Act), read with Rules 5C and 5E of the

Income- tax Rules, 1962 (said Rules), assessment year 2012-

2013 and onwards in the category of "University College

and other Institution", engaged in research activities

subject to the following conditions, namely:-

(i) The sums paid to the approved organization shall be

utilized for scientific research;

(ii) The approved organization shall carry out scientific

research through its faculty members or its enrolled

students;

(iii) The approved organization shall maintain separate

books of accounts in respect of the sums received by

it for scientific research, reflect therein the amounts

used for carrying out research, get such books audited

by an accountant as defined in the explanation to

sub-section (2) of section 288 of the said Act and

furnish the report of such audit duly signed and

verified by such accountant to the Commissioner of

Income-tax or the Director of Income-tax having

jurisdiction over the case, by the due date of furnishing

1166

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

the return of income under sub- section (1) of

section 139 of the said Act;

(iv)

The approved organization shall maintain a separate

statement of donations received and amounts applied

for scientific research and a copy of such statement

duly certified by the auditor shall accompany the

report of audit referred to above.

2. The Central Government shall withdraw the

approval if the approved organization:-

(a)

fails to maintain separate books of accounts as

referred to in sub-paragraph (iii) of paragraph 1; or

(b)

fails to furnish its audit report as referred to in sub-

paragraph (iii) of paragraph 1; or

(c)

fails to furnish its statement of the donations received

and sums applied for scientific research as referred

to in sub-paragraph (iv) of paragraph 1; or

(d)

ceases to carry on its research activities or its research

activities are not found to be genuine; or

(e)

ceases to conform to and comply with the provisions

of clause (ii) of sub-section (1) of Section 35 of the

said Act read with rules 5C and 5E of the said Rules.

[Notification No. 07 /2014/ F. No.203/55/2012-ITA-II]

RICHA RASTOGI, Under Secy. (ITA-II)

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 22 tuojh] 2014

dk-vk- 416-—jk"Vªh;Ñr cSad (izca/ ,oa izdh.kZ mica/)

Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM (1) vkSj [kaM 8 ds

mi&[kaM (1) ds lkFk ifBr] cSaddkjh daiuh (miØeksa dk vtZu

,oa varj.k) vf/fu;e] 1970@1980 dh /kjk 9 dh mi&

/kjk (3) ds [kaM (d) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,]

dsUnzh; ljdkj] ,rn~}kjk] fot;k cSad ds egkizca/d Jh ds- ohjk

czãkth jko (tUe frfFk 16&05&1959)] dks muds }kjk inHkkj

xzg.k djus dh rkjh[k ls ik¡p o"kks± dh vof/ ds fy, vFkok vxys

vkns'kksa rd] tks Hkh igys gks] iatkc uS'kuy cSad ds dk;Zikyd

funs'kd ds :i esa fu;qDr djrh gS A

¹iQk- la- 4@5@2012&chvks&Iº

fot; eYgks=kk] voj lfpo

(Department of Financial Services)

New Delhi, the 22nd January, 2014

S.O. 416.—In exercise of the powers conferred by

clause (a) of sub-section (3) of Section 9 of the Banking

Companies (Acquisition & Transfer of Undertakings) Act,

1970/1980 read with sub-clause (1) of clause 3 and sub-

clause (1) of clause 8 of The Nationalised Banks

(Management & Miscellaneous Provisions) Scheme, 1970/

1980, the Central Government hereby appoints Shri K.Veera

Brahmaji Rao (DoB : 16-05-1959), General Manager, Vijaya

Bank as Executive Director, Punjab National Bank, for a

period of five years from the date of his taking over the

charge of the post or until further orders, whichever is the

earlier.

[ F. No. 4/5/2012-BO-I]

VIJAY MALHOTRA, Under Secy.

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 417-—jk"Vªh;Ñr cSad (izca/ ,oa izdh.kZ

mica/) Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM (1) vkSj [kaM

8 ds mi&[kaM (1) ds lkFk ifBr] cSaddkjh daiuh (miØeksa dk

vtZu ,oa varj.k) vf/fu;e] 1970@1980 dh /kjk 9 dh mi&

/kjk (3) ds [kaM (d) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,]

dsUnzh; ljdkj] ,rn~}kjk] dkiksZjs'ku cSad ds egkizca/d Jh ch-ds-

fnokdj (tUe frfFk 17&07&1960)] dks muds }kjk inHkkj xzg.k

djus dh rkjh[k ls ik¡p o"kks± dh vof/ ds fy, vFkok vxys

vkns'kksa rd] tks Hkh igys gks] lsaVªy cSad vkWiQ bafM;k ds dk;Zikyd

funs'kd ds :i esa fu;qDr djrh gS A

¹iQk- la- 4@5@2012&chvks&Iº

fot; eYgks=kk] voj lfpo

New Delhi, the 23rd January, 2014

S.O. 417.—In exercise of the powers conferred by

of sub-section (3) of Section 9 of The Banking Companies

(Acquisition & Transfer of Undertakings) Act, 1970/1980

read with sub-clause (1) of clause 3 and sub clause (1) of

clause 8 of The Nationalised Banks (Management &

Miscellaneous Provisions) Scheme, 1970/1980, the Central

Government hereby appoints Shri B. K. Divakara (DoB :

17-07-1960), General Manager, Corporation Bank as

Executive Director, Central Bank of India, for a period of

five years from the date of his taking over the charge of

the post or until further orders, whichever is the earlier.

[ F. No. 4/5/2012-BO-I]

VIJAY MALHOTRA, Under Secy.

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 418-—jk"Vªh;Ñr cSad (izca/ ,oa izdh.kZ mica/)

Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM (1) vkSj [kaM 8 ds

mi&[kaM (1) ds lkFk ifBr] cSaddkjh daiuh (miØeksa dk vtZu

,oa varj.k) vf/fu;e] 1970@1980 dh /kjk 9 dh mi&

/kjk (3) ds [kaM (d) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,]

dsUnzh; ljdkj] ,rn~}kjk] nsuk cSad ds egkizca/d Jh ty dju

¯lg [kcZ (tUe frfFk 12&06&1956)] dks muds }kjk inHkkj xzg.k

djus dh rkjh[k ls 30&06&2016 vFkkZr~ muds n~okjk vf/o£"krk

dh vk;q izkIr dj ysus rd vFkok vxys vkns'kksa rd] tks Hkh igys gks]

bykgkckn cSad ds dk;Zikyd funs'kd ds :i esa fu;qDr djrh gS A

¹iQk- la- 4@5@2012&chvks&Iº

fot; eYgks=kk] voj lfpo

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1167

New Delhi, the 23rd January, 2014

S.O. 418.—In exercise of the powers conferred by

clause (a)of sub-section (3) of Section 9 of The Banking

Companies (Acquisition & Transfer of Undertakings) Act,

1970/1980 read with sub-clause (1) of clause 3 and sub

clause (1) of clause 8 of The Nationalised Banks

(Management & Miscellaneous Provisions) Scheme, 1970/

1980, the Central Government hereby appoints Shri Jal

Karan Singh Kharab (DoB : 12-06-1956), General Manager,

Dena Bank as Executive Director, Allahabad Bank from

the date of taking over charge of the post, for a period

upto 30-06-2016 i.e. the date of his attaining the age of

superannuation or until further orders, whichever is the

earlier.

[ F. No. 4/5/2012-BO-I]

VIJAY MALHOTRA, Under Secy.

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 419-—jk"Vªh;Ñr cSad (izca/ ,oa izdh.kZ mica/)

Ldhe] 1970@1980 ds [kaM 9 ds mi&[kaM (1) vkSj (2) ds lkFk

ifBr] cSaddkjh daiuh (miØeksa dk vtZu vkSj varj.k) vfèkfu;e]

1970@1980 dh /kjk 9 dh mi&/kjk (3) ds [kaM (M-) }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] Hkkjrh; fjtoZ cSad ls

ijke'kZ ds i'pkr~ ,rn~}kjk] Jh vkj- lEir dqekj (tUe frfFk

16&02&1958)] fo'ks"k lgk;d] bafM;u vksojlht+ cSad dks mudh

fu;qfDr dh vf/lwpuk dh rkjh[k ls rhu o"kZ dh vof/ ds fy,

vFkok vksojlh”k cSad esa muds deZpkjh ds in ij cus jgus rd

vFkok vxys vkns'kksa rd] buesa ls tks Hkh igys gks] bafM;u

vksojlh”k cSad ds funs'kd e.My esa deZdkj&deZpkjh funs'kd ds

:i esa fu;qDr djrh gS A

¹iQk- la- 6@8@2013&chvks&Iº

euh"k dqekj] voj lfpo

New Delhi, the 24th January, 2014

S.O. 419.—In exercise of the powers conferred by

clause (e) of sub-section (3) of Section 9 of The Banking

Companies (Acquisition & Transfer of Undertakings) Act,

1970/1980 read with Sub-clause (1) & (2) of Clause 9 of

The Nationalised Banks (Management & Miscellaneous

Provisions) Scheme, 1970/1980, the Central Government

hereby appoints Shri R. Sampath Kumar (DoB : 16-02-1958),

Special Assistant, Indian Overseas Bank as Workmen

Employee Director on the Board of Directors of Indian

Overseas Bank for a period of three years with effect from

the date of his taking over the charge of the post or until

he ceases to be a Workmen Employee of Indian Overseas

Bank or until further orders, whichever is the earliest.

[ F. No. 6/8/2013-BO-I]

MANISH KUMAR, Under Secy.

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 420-—jk"Vªh;Ñr cSad (izca/ ,oa izdh.kZ mica/)

Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM (1) ds lkFk

ifBr] cSaddkjh daiuh (miØeksa dk vtZu vkSj varj.k)

vf/fu;e] 1970@1980 dh /kjk 9 dh mi&/kjk 3(t) vkSj

(3&d) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj]

,rn~}kjk] Jh xkSre izseukFk [k.Msyoky (tUe frfFk 01&04&1962)]

dks mudh fu;qfDr dh vf/lwpuk dh rkjh[k ls rhu o"kZ dh vof/

ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys gks] iatkc uS'kuy

cSad ds funs'kd e.My esa va'k&dkfyd xSj&ljdkjh funs'kd ds

:i esa ukfer djrh gS A

¹iQk- la- 6@27@2013&chvks&Iº

euh"k dqekj] voj lfpo

New Delhi, the 24th January, 2014

S.O. 420.—In exercise of the powers conferred by

of sub-section 3 (h) and (3-A) of Section 9 of The Banking

Companies (Acquisition & Transfer of Undertakings) Act,

1970/1980 read with sub-clause (1) of clause 3 of The

Nationalised Banks (Management & Miscellaneous

Provisions) Scheme, 1970/1980, the Central Government

hereby nominates Shri Gautam Premnath Khandelwal

(DoB : 01-04-1962), as Part-time Non-official Director on

the Board of Directors of Punjab National Bank, for a

period of three years from the date of notification of his

appointment or until further orders, whichever is earlier.

[ F. No. 6/27/2013-BO-I]

MANISH KUMAR, Under Secy.

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 421-—Hkkjrh; LVsV cSad (leuq"kaxh cSad)

vfèkfu;e] 1959 (1959 dk 38) dh /kjk 26 dh mi/kjk 2(d)

ds lkFk ifBr /kjk 25 dh mi&/kjk (1) ds [k.M (x [k) }kjk

iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] Hkkjrh; fjtoZ

cSad ls ijke'kZ djus ds i'pkr~ ,rn~}kjk] LVsV cSad vkWiQ eSlwj ds

eq[; izc/d Jh ds- xqjQLokeh (tUe frfFk % 01&06&1958) dks

mudh fu;qfDr dh vf/lwpuk dh rkjh[k ls rhu o"kks± dh vof/ ds

fy, vFkok LVsV cSd vkWiQ eSlwj ds vf/dkjh ds in ij muds cus

jgus rd vFkok vxys vkns'kksa rd] buesa ls tks Hkh igys gks] LVsV

cSad vkWiQ eSlwj ds funs'kd e.My esa vf/dkjh deZpkjh funs'kd

ds :i esa fu;qDr djrh gS A

¹iQk- la- 3@6@2013&chvks&Iº

euh"k dqekj] voj lfpo

New Delhi, the 24th January, 2014

S.O. 421.—In exercise of the powers conferred by

clause (cb) of the sub-section (i) of Section 25 read with

sub-section (2A) of Section 26 of the State Bank of India

(Subsidiary Banks) Act, 1959 (38 of 1959), the Central

Government, after consultation with the Reserve Bank of

1168

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

India, hereby appoints Shri K. Guruswamy (DoB :

01-06-1958), Chief Manager, State Bank of Mysore, as

Officer Employee Director on the Board of Directors of

State Bank of Mysore for, a period of three years from the

date of notification of his appointment or till he ceases to

be an officer of the State Bank of Mysore or until further

orders, whichever is the earliest.

[F. No. 3/6/2013-BO-I]

MANISH KUMAR, Under Secy.

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 422-—jk"Vªh;Ñr cSad (izca/ vkSj izdh.kZ

mica/) Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM (1) ds lkFk

ifBr cSaddkjh daiuh (miØeksa dk vtZu vkSj varj.k)

vf/fu;e] 1970@1980 dh /kjk 9 dh mi&/kjk 3(t) vkSj

(3&d) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj]

,rn~}kjk Jherh js.kqdk eqVw (tUe frfFk % 15-09-1950) dks mudh

fu;qfDr dh vf/lwpuk dh rkjh[k ls rhu o"kZ dh vof/ ds fy,

vFkok vxys vkns'kksa rd] tks Hkh igys gks] ;qukbVsM cSad vkWiQ

bafM;k ds funs'kd e.My esa va'k&dkfyd xSj&ljdkjh funs'kd ds

:i esa ukfer djrh gS A

¹iQk- la- 6@49@2013&chvks&Iº

euh"k dqekj] voj lfpo

New Delhi, the 24th January, 2014

S.O. 422.—In exercise of the powers conferred by

sub-section 3(h) and (3-A) of Section 9 of the Banking

Companies (Acquisition and Transfer of Undertakings) Act,

1970/1980 read with sub-clause (1) of clause 3 of the

Nationalized Banks (Management and Miscellaneous

Provisions) Scheme, 1970/1980, the Central Government

hereby nominates Smt. Renuka Muttoo (DoB : 15-09-1950)

as Part-time Non-official Director on the Board of Directors

of United Bank of India for a period of three years, from the

date of notification of her appointment or until further

orders, whichever is earlier.

[F. No. 6/49/2013-BO-I]

MANISH KUMAR, Under Secy.

isVªksfy;e vkSj izkÑfrd xSl ea=kky;

ubZ fnYyh] 11 fnlEcj] 2013

dk-vk- 423-—rsy m|ksx (fodkl) vf/fu;e] 1974

(1974 dk 47) dh /kjk 3 dh mi&/kjk (3) ([k) }kkjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk] Jherh

vatqyh fpc nqXxy] vij lfpo (O;;)] foÙk ea=kky; dks fnukad

15&11&2013 ls 14&11&2015] ;k vxys vkns'k gksus rd] rsy

m|ksx fodkl cksMZ ds lnL; ds :i esa iqufuZ;qDr djrh gS A

¹iQk- la- th&35012@2@91&foÙk&IIº

uksol fdUMks] voj lfpo

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 11th December, 2013

S.O. 423.—In exercise of the powers conferred by

sub-section (3)(b) of Section 3 of the Oil Industry

(Development) Act, 1974 (47 of 1974), the Central

Government hereby re-appoints Smt. Anjuly Chib Duggal,

Addl. Secretary (Exp.), Ministry of Finance, as a member of

the Oil Industry Development Board with effect from

15-11-2013 to 14-11-2015, or until further orders.

[F. No. G-35012/2/91-Fin. II]

NOAS KINDO, Under Secy.

ubZ fnYyh] 11 fnlEcj] 2013

dk-vk- 424-—rsy m|ksx (fodkl) vf/fu;e] 1974

(1974 dk 47) dh /kjk 3 dh mi&/kjk (3) (x) }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj fuEufyf[kr vf/

dkfj;ksa dks muds uke ds lkeus n'kkZ;h xbZ vof/ ds fy, ;k

vxys vkns'k gksus rd] tks Hkh igys gks] rsy m|ksx fodkl cksMZ ds

lnL; ds :i esa] ,rn~}kjk fu;qDr@iqufuZ;qDr djrh gS %—

Øe vf/dkjh dk uke

la-

1- Jh lq/hj oklqnsok]

03&10&2013 28&02&2014

vè;{k ,oa izca/ funs'kd

vks,uthlh

2- Jh ch- lh- f=kikBh]

01&08&2013 31&07&2015

vè;{k ,oa izca/ funs'kd

xsy

3- Jh ,l- ojnjktu]

01&10&2013 30&09&2015

vè;{k ,oa izca/ funs'kd

chihlh,y

¹iQk- la- th&35012@2@91&foÙk&IIº

uksol fdUMks] voj lfpo

New Delhi, the 11th December, 2013

S.O. 424.—In exercise of the powers conferred by

sub-section (3)(c) of Section 3 of the Oil Industry

(Development) Act, 1974 (47 of 1974), the Central

Government hereby appoints/re-appoints the following

officers as a member of the Oil Industry Development Board

for the period shown against their names or until further

orders, whichever is earlier :

Name of the officer

From

No.

Shri Sudhir Vasudeva,

03-10-2013

28-02-2014

CMD, ONGC

Shri B. C. Tripathi,

01-08-2013

31-07-2015

CMD, GAIL

Shri S. Varadarajan,

01-10-2013

30-09-2015

CMD, BPCL

[F. No. G-35012/2/91-Fin. II]

NOAS KINDO, Under Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1169

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

(miHkksDrk ekeys foHkkx)

(Hkkjrh; ekud C;wjks)

ubZ fnYyh] 3 tuojh] 2014

dk-vk- 425-—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e (1) ds [kaM ([k) ds vuqlj.k esa Hkkjrh; ekud C;wjks

,rn~n~okjk vf/lwfpr djrk gS fd ftu Hkkjrh; ekudksa ds fooj.k uhps vuwlwph esa fn, x, gSa os LFkkfir gks x;s gSa A

vuqlwph

Øe la[;k

LFkkfir Hkkjrh; ekud (dkas)

LFkkfir frfFk

Hkkjrh; ekud (dksa) tks fd jí gksus gS]

jí gksus dh frfFk

dh la[;k o"kZ vkSj 'kh"kZd

vxj gS] dh la[;k o"kZ vkSj 'kh"kZd

(1)

(2)

(3)

(4)

(5)

vkbZ ,l 133% 2013

31 vDrwcj]

vkbZ,l 133% 2004 buSey] Hkhrjh&

31 ekpZ] 2014

buSey] Hkhrjh&(d)v/ysiu]

2013

(d) v/ysiu] ([k) ifjlTtk

([k) ifjlTtk&fof'k"V Hkkx 1

fof'k"V Hkkx 1 ?kjsyw vkSj ltkoVh

?kjsyw vkSj ltkoVh iz;ksx ds

iz;ksx ds fy, (pkSFkk iqujh{k.k)

fy, (ikapoka iqujh{k.k)

vkbZ ,l 427% 2013 visf{kr

31 vDrwcj]

vkbZ,l 427% 2005 visf{kr jax

31 ekpZ] 2014

jax ds 'kq"d fMlVsEij &

2013

ds 'kq"d fMlVsEij &fof'kf"V

fof'kf"V (rhljk iqujh{k.k)

(nwljk iqujh{k.k)

vkbZ ,l 428% 2013 /ksus

31 vDrwcj]

vkbZ,l 428% 2000 /ksus ;ksX;

31 ekpZ] 2014

;ksX; fMlVsEij &fof'kf"V

2013

fMlVsEij &fof'kf"V

(rhljk iqujh{k.k)

(nwljk iqujh{k.k)

vkbZ ,l 2339% 2013 lkekU;

31 vDrwcj]

vkbZ,l 2339% 1963 lkekU;

31 ekpZ] 2014

iz;kstuksa ds fy, ,Y;wehfu;e

2013

iz;kstuksa ds fy, ,Y;wehfu;e

jax jksxu (igyk iqujh{k.k)

jax jksxu

vkbZ ,l 2932% 2013 buSey]

31 vDrwcj]

vkbZ,l 2932% 2003 buSey]

31 ekpZ] 2014

laf'y"V] ckgjh (d) v/ysiu

2013

laf Üy"V] ckgjh] (d)v/ysiu

([k) ifjlTtk&fof'kf"V Hkkx 1

([k) ifjlTtk&fof'kf"V

?kjsyw vkSj ltkoVh iz;ksx ds

(rhljk iqujh{k.k)

fy, (pkSFkk iqujh{k.k)

vkbZ ,l 2933% 2013 buSey]

31 vDrwcj]

vkbZ,l 2933% 1975 buSey]

31 ekpZ] 2014

ckgjh ds fy, fof'k"V (d)

2013

ckgjh ds fy, fof'kf"V (d)

v/ysiu] ([k) ifjlTtk &

v/ysiu] ([k)ifjlTtk

fof'k"V Hkkx 1 ?kjsyw vkSj

(igyk iqujh{k.k)

ltkoVh iz;ksx ds fy,

(nwljk iqujh{k.k)

vkbZ ,l 5410% 2013 lhesaV

31 vDrwcj]

vkbZ,l 5410% 1992

31 ekpZ] 2014

jax jksxu &fof'kf"V

2013

lhesaV jax jksxu&fof'kf"V

(nwljk iqujh{k.k)

(igyk iqujh{k.k)

vkbZ ,l 12744% 2013 jsM

31 vDrwcj]

vkbZ,l 12744% 1989 jsM

31 ekpZ] 2014

vkDlkbM&tLrk iQkLiQsV

2013

vkDlkbM&tLrk iQkLiQsV

vk/kfjr igys djus ds ok;q

'kq"du rS;kj fefJr jksxu&

fof'k"V Hkkx 1 ?kjsyw vkSj

fof'kf"V

ltkoVh iz;ksx ds fy,

(igyk iqujh{k.k)

1170

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

vkbZ ,l 15489% 2013 jax

31 vDrwcj]

vkbZ,l 15489% 2004 jax jksxu]

31 ekpZ] 2014

jksxu] IykWfLVd beY'ku&

2013

IykWfLVd beY'ku &fof'kf"V

fof'kf"V

(igyk iqujh{k.k)

10-

vkbZ ,l 252% 2013

31 vDrwcj]

vkbZ,l 252% 1991 dkfLVd

31 ekpZ] 2014

dkfLVd lksMk &fof'kf"V

2013

lksMk&fof'kf"V

(pkSFkk iqujh{k.k)

(rhljk iqujh{k.k)

11-

vkbZ ,l 7742% 2013

31 fnlacj]

vkbZ,l 7742% 1975 flFkSafVd

03 tuojh] 2014

flFkSafVd beY'ku jsftu

2013

beY'ku jsftu ckabMjk ds fy,

ckbaMjk &fof'kf"V

fof'kf"V

(igyk iqujh{k.k)

bl Hkkjrh; ekud dh izfr;k¡ Hkkjrh; ekud C;wjks] ekud Hkou] 9 cgknqj'kkg tiQj ekxZ] ubZ fnYyh&110 002 {ks=kh; dk;kZy;ksa%

ubZ fnYyh] dksydÙkk] 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 fczdh gsrq miyC/ gSa A Hkkjrh; ekudksa dks http:/www.standardsbis.in

n~okjk baVjuSV ij [kjhnk tk ldrk gS A

¹lanHkZ la- ih;wch@,lVhMh&1@th,uº

dyk ek/oh okfj;j] funs'kd (fons'kh Hkk"kk ,oa izdk'ku)

MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

(BUREAU OF INDIAN STANDARDS)

New Delhi, the 3rd January, 2014

S.O. 425.—In pursuance of Clause (b) of sub-rule (1) of Rules 7 of the Bureau of Indian Standards Rules, 1987,

the Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the second

column of Schedule hereto annexed has been established on the date indicated against it in third column. The particulars

of the standards, if any, which are given in the fourth column shall also remain in force concurrently till they are

cancelled on the date indicated against them in the fifth column.

SCHEDULE

Sl.

No. & Year of the

Date of Established

No. & Year of the Indian Standards

Date of

No.

Indian Standards

to be cancelled, if any

Cancellation

Established

(1)

(2)

(3)

(4)

(5)

IS 133: 2013 Enamel,

31 October 2013

IS 133: 1991Enamel, Interior: (A)

31 March 2014

Interior, (A) Undercoating

Undercoating (B) Finishing—

(B) Finishing—Specification

Specification Part 1 For Household

Part 1 For Household and

and Decorative Purposes

Decorative Purposes

(Fourth Revision)

IS 427:2013 Distemper, Dry

31 October 2013

IS 427: 2005 Distemper, Dry,

31 March 2014

Colour As Required -

Colour As Required

Specification (Third

—Specification (Second

Revision)

IS 428:2013 Washable

31 October 2013

IS 428: 2000 Washable

31 March 2014

Distemper-

Distemper- Specification

Specification (Third

(Second Revision)

Revision)

(1)

(2)

(3)

(4)

(5)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1171

IS 2339 : 2013

31 October 2013

IS 2339 : 1963

31 March 2014

Specification for

Aluminium Paints For

General Purposes

(First Revision)

IS 2932 (Part 1) : 2013

31 October 2013

IS 2932 : 2003

31 March 2014

Enamel, Synthetic,

Exterior ; (a) Under

Coating (b) Finishing-

Specification (Fourth

(Third Revision)

Revision)

IS 2933 (Part 1) : 2013

31 October 2013

IS 2933 : 1975

31 March 2014

Specification for

Enamel, Exterior ; (a)

Enamel, Exterior,

Under Coating (b)

(a) Under Coating

Finishing Part 1 : For

(b) Finishing

Domestic and Decorative

Application

(First Revision)

IS 5410 : 2013 Cement

31 October 2013

IS 5410 : 1992

31 March 2014

Paint- Specification

Cement Paint-Specification

(Second Revision)

(First Revision)

IS 12744 (Part 1) : 2013

31 October 2013

IS 12744 : 1989

03 January 2014

Ready mixed Paint,

Airdrying, Red-oxide

Airdrying, Red-

Zinc Phosphate,

oxide Zinc

Framing- Specification

Phosphate, Framing

Part 1 : For Domestic

-Spcification

and Decorative Application

(First Revision)

IS 15489 : 2013 Paint,

31 October 2013

IS 15489 : 2004 Paint,

31 March 2014

Plastic Emulsion-

Specification

(First Revision)

10.

IS 252 : 2013 Caustic

31 October 2013

IS 252 : 1991

31 March 2014

Soda- Specification

Caustic Soda, Pure

(Forth Revision)

& Technical-

Specification

(Third Revision)

11.

IS 7742 : 2013

31 October 2013

IS 7742 : 1975

03 January 2014

Synthetic Emulsion

Resin Binder

Resin Binder-

Specification

Copies of these standards are available for sale with the Bureau of Indian Standards, Manak Bhavan, 9, Bahadur

Shah Zafar Marg, New Delhi-110002 and Regional Offices: Kolkatta, Chandigarh, Chennai, Mumbai and also Branch

Offices: Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur, Patna,

Pune, Kochi.

[Ref. No. PUB/STD-1/GN]

KALA M VARIAR, Director (Foreign Languages & Publication)

(1)

(2)

(3)

(4)

(5)

1172

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 10 tuojh] 2014

dk-vk- 426-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gaS] os LohÑr dj fn, x, gSa %—

vuqlwph

Øe

ykblsal

LohÑr djus

ykblsal/kjh dk

Hkkjrh;

Hkk- ek-

Hkkx vuq

o"kZ

la-

la[;k

dh frfFk]

uke o irk

ekud dk

la[;k

ekg@o"kZ

'kh"kZd

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

3936779

02&04&2013

us'kuy baMLVªht]

IykbZoqM iQkj tujy

303

& 1989

iapoVh] ,u ,p uacj 59]

ijil

vgenkckn jksM] [ksMk] ,V

dkByky&387630

3936476

04&04&2013

xksiky vk;ju rFkk LVhy

gkyks LVhy lSD'ku

4923

& 1997

dEiuh (xqt) fyfeVsM]

iQkj LVdpyZ ;wl

IykV uacj 1401@12]

th vkbZ Mh lh] dsjkyk

baMfLVª;y ,LVsV]

,u ,p uacj 8 ,] rk ckoyk]

vgenkckn&382220

3936577

05&04&2013

ukjk;.kjko ds ikjs[k]

Lo.kZ rFkk Lo.kZ

1417

& 1999

'kkWi uacj 2] e;wfufliSfyVh

/krqvksa ds vkHkw"k.kksa

ekdsZV] okih Vkmu iksfyl

f'kYidkjh 'kq¼rk

LVs'ku ds ikl] esu jksM]

,oa eqgjkadu

usg: LVªhV] okih]

oylkn&396191

3936678

05&04&2013

pkSdlh cPpwHkkbZ izhreyky]

Lo.kZ rFkk Lo.kZ

1417

& 1999

pksdlh cktkj] oMksnjk

/krqvksa ds vkHkw"k.kksa

iknjk&391440

f'kYidkjh 'kq¼rk

,oa eqgjkadu

3942269

05&04&2013

LokfLrd iQSYV baMLVªht]

fcVwesu iQSYV iQkj

1322

& 1993

IykV uacj 187 rFkk 182]

okVj izq¯iQx rFkk

th vkbZ Mh lh] uansljh]

MSai izq¯iQx

oMksnjk&390005

3938581

08&04&2013

LisDVªe dscy Vsd

ih oh lh balwysfVM

694

& 1990

vacj xe b.MfLVªt ds ikl]

dscy

ekjh;k ikdZ dsuy jksM]

ukjksy]

vgenkckn&382405

3937680

09&04&2013

,l ds b.MfLVªt]

ih oh lh balwysfVM

694

& 1990

,y&204] thvkbZMhlh ,LVsV]

dscy

fHk{kqd x`g ds ikl] vks<o]

vgenkckn&382415

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1173

3937882

09&04&2013

,jks IykLV ,UVjizkbZt

vuIykfLVlkbZM

4985

& 2000

IykWV u- 2] xka/h ,LVsV]

ih oh lh ikbZIl

vklksikyo gksVsy ds ihNs]

iQkj iksVscy okVj

;l VkVk eksVj l£ol LVs'ku

liykbZl

ds ikl] ukjksy]

ftyk % vgenkckn&382405

3938480

12&04&2013

lqfize feujy izksMDV~l]

iSdstcan is;ty

14543

& 2004

C@87] tosjh baMLVªh;y

(vnj nSu iSdsTM

,LVsV] dBokMk]

uspqjy feujy

rkyqdk % nldkWbZ]

okVj)

ftyk % vgenkckn&382430

10-

3939078

15&04&2013

oksYV&VsDl dscy b.MfLVªt

ih oh lh balwysfVM

694

& 1990

37] ujukjk;u ,LVsV]

dscy

jk;iqj fey ds ikl] ljliqj

vgenkckn

11-

3939179

15&04&2013

vHkh"ksd TosylZ]

Lo.kZ rFkk Lo.kZ

1417

& 1999

5] lat; dksEiysDl]

/krqvksa ds vkHkw"k.kksa

l;kth jksM] fycZVh

f'kYidkjh 'kq¼rk

cl LVksi]

,oa eqgjkadu

uolkjh&396445

12-

3941166

15&04&2013

,Mh,l okVj]

iSdstcan is;ty

14543

& 2004

110] egksn; ,lVsV]

(vnj nSu iSdsTM

dsuky ds ikl]

uspqjy feujy

lh Vh ,e] ,V xkWo

okVj)

vgenkckn&380026

13-

3939886

17&04&2013

ts ds ok/ok ,.M daiuh

,Y;wfeuks iQSfjd

299

& 2012

IykV ua- 2920@A,

iQsl 1 thvkbZMhlh] okih]

ftyk % oylkM&396195

14-

3940063

18&04&2013

fo'kky iQk;j izksVSD'ku

ySa¯Mx okYo~l

5290

& 1993

bD;wieSaV~l] IykV uacj 858@1]

th vkbZ Mh lh] edjiqjk]

oMksnjk&390010

15-

3941368

23&04&2013

bafM;u iQqM dkiksZjs'ku]

iSdstcan is;ty

14543

& 2004

'kSM uacj 1 rFkk 2]

(vnj nSu iSdsTM

IykV uacj Mh 64]

uspqjy feujy

Mk;eaM ikdZ] ujksMk]

okVj)

th vkbZ Mh lh] ukuk

fpyksMk Økl jksM ds ikl

,u ,p uacj 8]

vgenkckn&382330

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

1174

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

16-

3943978

26&04&2013

tsulu dscYl bafM;k izk-

Økl¯yDM

7098

1988

fyfeVsM] losZ uacj 16]

ikyfFk¯yu

IykV uacj 16 , rFkk ch]

balwysfVM ihohlh

xkWo pankjMk] rk dMh]

'khFkM dscy

fM esglkuk&382718

17-

3942370

30&04&2013

jkt IykfLVd bUMLVªht

bZjhxs'ku bD;wieSaV&

12785

& 1994

IykWV ua- 426] jksM ua- 10]

LVsuj VkbZi fiQYVlZ

th vkbZ Mh lh] dBokMk]

xkWo % dkUHkk] rkyqdk % n'kØksbZ]

ftyk % vgenkckn

¹la- lh,eMh@13%11º

MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the 10th January, 2014

S.O. 426.—In pursuance of sub-regulation (5) of the Regulation 4 of the Bureau of Indian Standards (Certification)

Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in

the following schedule :—

SCHEDULE

Sl.

Licences

Grant Date

Name and

Title of the

IS No.

Part Sec.

Year

No.

Address of

Standard

the Party

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8)

(9)

3936779

02-04-2013

National Industries,

Plywood for

303

- -

1989

Panchawati, N. H. No. 59,

general purposes

Ahmedabad Road,

Kheda

At : Kathlal-387630

3936476

04-04-2013

Gopal Iron & Steels Co.

Hollow steel

4923

- -

1997

(GUJ) Ltd., Plot No.1401/

sections for

2, G. I. D. C. Kerala

structural use

Industrial Estate,

N. H. No. 8 A Taluka,

Bavla,

Ahmedabad-382220

3936577

05-04-2013

Narayanrao K. Parekh

Gold and gold

1417

- -

1999

Shop No. 2, Municipality

alloys, Jewellery/

Market, Near Vapi Town

artefacts—fineness

Police Station, Main Road

and marking -

Nehru Street, Vapi,

Valsad-396191

3936678

05-04-2013

Choksi Bachubhai

Gold and gold

1417

- -

1999

Pritamlal, Choksi Bazar,

alloys, Jewellery/

Vadodara,

artefacts—fineness

Padra-391440

and marking

3942269

05-04-2013

Swastik Felt Industires

Bitumen felts for

1322

- -

1993

Plot No. 187 & 182,

water proofing and

G. I. D. C., Nandesari,

damp-proofing

Vadodara-390005

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1175

3938581

08-04-2013

Spectrum Cable Tech

PVC insulated

694

- -

1990

Near Amber Gum

Industries, Near Maria

Park, Canal Road

Ahmedabad,

Narol-382405

3937680

09-04-2013

S. K. Industries

PVC insulated

694

- -

1990

L-204 GIDC Estate

cables

Near Bhikshuk Gruh,

Ahmedabad,

Odhav-382415

3937882

09-04-2013

Aoplast Enterprise

Unplasticized

4985

- -

2000

Plot No. 2, Gandhi Estate

pvc pipes for

Behind Asopalav Hotel,

potable water

Near Yes Tata Motor

supplies

Service Station

Ahmedabad

Narol-382405

3938480

12-04-2012

Supreme Mineral

Packaged drinking

14543

- -

2004

Products, C/87, Zaveri

water (other than

Industrial Estate,

packaged natural

Kathwada, Ahmedabad

mineral water) -

Tal : Dascroi-382430

10.

3939078

15-04-2013

VOLT-TEX Cableis

PVC insulated

694

- -

1990

Industries, 37, Narayan

cables

Estate, Near Raipur Mill

Saraspur, Ahmedabad

11.

3939179

15-04-2013

Abhishek Jewellers

Gold and gold

1417

- -

1999

5, Sanjay Copmplex,

alloys, Jewellery/

Sayaji Oad Library Bus

artefacts—fineness

Stop, Navsari-396445

and marking -

12.

3941166

15-04-2013

ADS Water

Packaged drinking

14543

- -

2004

110, Mahadev Estate,

water (other than

On Canal, C T M,

packaged natural

At Village

mineral water)

Ahmedabad-380026

13.

3939886

17-04-2013

J. K. Wadhwa and

Alumino-ferric

299

- -

2012

Company, Plot No. 2920/A,

Phase 1, GIDC Vapi

Valsad-396195

14.

3940063

18-04-2013

Vishal Fire Protection

Landing valves

5290

- -

1993

Equipments, Plot No.

858/1, GIDC, Makarpura,

Vododara-390010

15.

3941368

23-04-2013

Indian Food Corporation

Packafed drinking

14543

- -

2004

Shed No. 1 & 2, Plot No.

water (other than

D 64, Diamond Park,

packaged natural

Naroda, GIDC, Near Nana

mineral water)

Chiloda Cross Road, N H 8,

Ahmedabad-382330

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

1176

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

16.

3943978

26-04-2013

Jainson Cables India Pvt

Crosslinked

7098

1 -

1988

Ltd. Survey No. 16,

polyethylene

Plot No. 16 A & B,

insulated pvc

Village - Chandarda,

Sheathed cables

Taluka - Kadi

Dist Mehsana - 382718

17.

3942370

30-04-2013

Raj Plastic Industries

Irrigation

12785

- -

1994

Plot No. 426, Road,

equipment-

No. 10, Phase-2

strainer-type

GIDC, Kathwada

filters

Village : Kanbha

Ahmedabad, Tal : Daskroi

[No. CMD/13 : 11 ]

Dr. S. L. PALKAR, Scientist ‘F’ & Head

ubZ fnYyh] 10 tuojh] 2014

dk-vk- 427-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e 5 ds mi&fofu;e (6) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jí@LFkfxr dj fn;k x;k gS %µ

vuqlwph

Ø-

ykblsal la[;k ykblsal/kjh dk uke

ykblsal ds vUrxZr oLrq@izØe

jí djus dh frfFk

la-

lh,e@,y

o irk

lEc¼ Hkkjrh; ekud dk 'kh"kZd

(1)

(2)

(3)

(4)

(5)

3749174

,lh,l fcojsftl]

iSdstcan is;ty (vnj nSu

15&04&2013

djhecsyh LVs'ku jksM] eksgu

iSdstM uspqjy feujy

iQkVd ds ikl] okyokMk

okVj)

ftyk % oylkM&396105

vkbZ ,l 14543% 2004

7523774

yqch bySDVªhdy fyfeVsM

lce£lcy iEilSV

18&04&2013

dY;k.k fey ds lkeus]

vkbZ ,l 8034% 2002

ujksMk jksM]

ftyk % vgenkckn

7551476

oqM rFkk isij baMLVªht]

oqMu iQy'k Mksj 'kVlZ

18&04&2013

,V rFkk iksLV cktok]

(lkfyM dksj VkbZi)

cktok jsyos LVs'ku ds ikl]

vkbZ ,l 2202% ikVZ 1 % 1999

oMksnjk&391310

3736367

x.kifr oqM IykbZ baMLVªht]

oqMu iQy'k Mksj 'kVlZ

18&04&2013

IykWV ua- 7] losZ ua- 276]

(lkfyM dksj VkbZi)

xk¡o /jeiqjk]

vkbZ ,l 2202% ikVZ 1 % 1999

r- [ksMk&387560

1688170

oS'kkyh bysfDVªdYl

ih oh lh balwysfVM dscy

22&04&2013

115&ch ¯ox] jk/kÑ".kk ÝysV]

vkbZ ,l 694 % 1990

vdksVk xkMZu ds ikl]

ftyk % oMksnjk&390020

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1177

1726253

oS'kkyh bysfDVªdYl

ih oh lh balwysfVM dscy

22&04&2013

115&ch ¯ox] jk/kÑ".kk ÝysV]

(gSoh M;wVh) bySfDVªd dscy

vdksVk xkMZu ds ikl]

vkbZ ,l 1554% (ikVZ 1) % 1999

ftyk % oMksnjk&390020

¹la- lh,eMh@13%13º

MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the 10th January, 2014

S.O. 427.—In pursuance of sub-regulation (6) of the Regulation 5 of the Bureau of Indian Standards (Certification)

Regulations 1988 , of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below

have been cancelled with effect from the date indicated against each :—

SCHEDULE

Sl. No.

Licences

Name and Address of the

Article/Process with relevant Indian

Date of

No.

Licensee

Standards covered by the licence

Cancellation

CM/L-

cancelled

(1)

(2)

(3)

(4)

(5)

3749174

ACS Beverages

Packaged drinking

15-04-2013

Survey No. 24/15, Karembele

water (other than

Station Road, Near Mohan

packaged natural

Fatak, Valvada,

mineral water)

Distt : Valsad-396105

IS 14543 : 2004

7523774

Lubi Electricals Ltd.

Submersible pumpsets

18-04-2013

Near Kalyan Mill Naroda Road,

IS 8034 : 2002

Ahmedabad-380025

7551476

Wood and Paper Industries

Wooden flush door

18-04-2013

At & Post Bajwa, Near

Shutters (solid core type)

Bajwa Railway Station,

IS 2202 : Part 1 : 1999

Vadodara, Bajwa-391310

3736367

Ganpati Wood Ply Industries

Wooden flush door

18-04-2013

Plot No. 7, Survey No. 276,

Shutters (solid core type)

Village Dharmpura (Naika),

IS 2202 : Part 1 : 1999

TA & Dist Kheda,

Distt : Kheda-387560

1688170

Vaishali Electricals

PVC Insulated Cables

22-04-2013

115-B Wing, Radha Krishna

IS 694 : 1990

Flat, Near Akota Garden,

Vadodara

Distt : Panchamahal-390020

1726253

Vaishali Electricals

PVC Insulated (Heavy

22-04-2013

115-B Wing, Radha Krishna

Duty) Electric Cables

Flat, Near Akota Garden,

IS 1554 (Part 1) : 1999

Vadodara

Distt : Panchamahal-390020

[No. CMD/13:13]

Dr. S. L. PALKAR, Scientist ‘F’ & Head

(1)

(2)

(3)

(4)

(5)

1178

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 10 tuojh] 2014

dk-vk- 428-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gaS] os LohÑr dj fn, x, gSa %—

vuqlwph

Øe

ykblsal

LohÑr djus

ykblsal/kjh dk

Hkkjrh;

Hkk- ek-

Hkkx vuq

o"kZ

la-

la[;k

dh frfFk

uke o irk

ekud dk

la[;k

o"kZ@ekg

'kh"kZd

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

3943170

02&05&2013

fo'kky bLikr]

gkbZ LVSaªFk fMiQkeMZ

1786

& 2008

losZ uacj 38@2 ih] 39@4]

LVhy ckj rFkk

5 rFkk 6] 4@1] 2 rFkk 3

ok;j iQkj dkaØhV

xkWo eksjkbZ] rk- ikjkMh]

jsfuiQkslZeSaV

oylkn&396191

3944778

08&05&2013

dksBkjh oSyuSl]

iSdstcan is;ty

14543

& 2004

IykV uacj 40] egkxqtjkr

(vnj nSu iSdstM

baMfLVª;y ,lVsV] fouk;d

uspqjy feujy

,lVsV] ds lkeus] iQkekZ ySc

okVj)

ds ikl] lj[kst ckoyk jksM]

,u ,p uacj 8] ekSjs;k]

vgenkckn rk- lkuan&382213

3945881

08&05&2013

vf'ouh LVhy izk- fyfeVsM]

dkcZu LVhy dkLV

2830

& 2012

2 ds ,e LVksu] ckoyk lkuan

fcysV buxksVl]

gkbos] xkWo yksMfj;ky ckoyk]

fcysVl] Cywel rFkk

vgenkckn&382220

Lyscl iQkj fjjks¯yx

baVw LVhy iQkj tujy

LVdpyZ ijil

3945376

09&05&2013

vLVeaxy]

Lo.kZ rFkk Lo.kZ

1417

& 1999

101] Jh ohjdyk dkEiySDl]

/krqvksa ds vkHkw"k.kksa

MsMdk dh iksy ds lkeus]

f'kYidkjh 'kq¼rk

,eth gosyh jksM] ekusd pkSd]

,oa eqgjkadu

vgenkckn

3945477

09&05&2013

gkbZ iQs'ku ToSylZ

Lo.kZ rFkk Lo.kZ

1417

& 1999

6@860 Nkifj;k 'ksjh]

/krqvksa ds vkHkw"k.kksa

efgnjiqjk]

f'kYidkjh 'kq¼rk

lwjr&395003

,oa eqgjkadu

3945578

10&05&2013

lksuh lat; dqekj euwHkkbZ

Lo.kZ rFkk Lo.kZ

1417

& 1999

^^xksYM gkml**] [ksrjiky

/krqvksa ds vkHkw"k.kksa

uh iksy] ekusd pkSd]

f'kYidkjh 'kq¼rk

vgenkckn

,oa eqgjkadu

3946479

13&05&2013

lkcjdkaBk fMfLVªDV dks-

fLde feYd

13334

1992

vkijsfVo feYd izksMwllZ

ikmMj

;wfu;u fyfeVsM] ih- vks-

ckDl 21] lc iksLV cksfj;k]

lkcjdkaBk] fgEeruxj

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1179

3948685

16&05&2013

xqtjkr ¯Vcj baMLVªht]

oqMu iQy'k Mksj

2202

1999

CykWd uacj 104] IykWV

'kVlZ (lkfyM dksj

uacj ,&1] ,&2] ch rFkk lh]

VkbZi)

ikyksM] eaxjksy] fde pkj

jLrk ds ikl]

lwjr

3949485

17&05&2013

, ou Fkzs'kj]

ikoj Fkzs'kj&lsiQVh

9020

& 2002

losZ ucj 42] iSdh 1] edrqiqj]

fjDok;jeSaV

lgkjk gksVy ds ikl] ma>kk

fl¼iqj gkbos jksM] edrqiqj]

esglkuk]

ma>k&384170

10-

3947885

17&05&2013

jkt/kuh iQqM fcojsftl]

iSdstcan is;ty

14543

& 2004

IykWV uacj] th vkbZ Mh

(vnj nSu iSdstM

,LVsV] lkcjdkaBk rkyksM

uspqjy feujy

okVj)

11-

3948584

20&05&2013

uhydaB ,Uthuh;¯jx

lce£lcy iEilSV

8034

& 2002

77@1] je.k dksVu dEikWmUM]

dPN dMok ikVhnkjokMh

ds ikl] ujksMk jksM]

vgenkckn&382330

12-

3952272

20&05&2013

laxe bySfDVªdyl]

,lh liykbZM

13021

2004

bZ@9] fcjtw vikVZeSaV]

bySDVªkfud cyklV

vktkn lkslkbVh ds lkeus]

iQkj V;wcyj

vackokMh]

iQyksjlSaV ySai

vgenkckn&380015

13-

3949687

23&05&2013

f'koe bUMLVªht]

lce£lcy iEilSV

8034

& 2002

lh&17] Øh"uk xksiky ,LVsV]

iQkstZ ,UM Cyksj daikWmUM]

ujksMk jksM]

vgenkckn&380025

14-

3949384

24&05&2013

dY;k.k ToSylZ izk- fyfeVsM]

Lo.kZ rFkk Lo.kZ

1417

& 1999

Ñ".kk fc¯YMx] bPNkukFk

/krqvksa ds vkHkw"k.kksa

eafnj ds ikl] ,loh,uvkbZ

f'kYidkjh 'kq¼rk

Vh ds lkeus] M;wel jksM

,oa eqgjkadu

lwjr&395007

15-

3949586

27&05&2013

eSVdksj LVhy iz-k fyfeVsM]

gkbZ LVSaªFk fMiQkeMZ

1786

& 2008

IykWV uacj 210 ls 216]

LVhy ckj rFkk

th vkbZ Mh lh ,LVsV]

ok;j iQkj dkaØhV

,V rkyksM] lkcjdkaBk]

jsfuiQkslZeSaV

rk rkyksM&382415

16-

3949990

27&05&2013

gjhgj e'khu VqYl

Fkzh iQsl baMD'ku

325

& 1996

,&9] egksn; ,LVsV]

eksVlZ

foHkkx 2] jkeksy iksyhl

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

1180

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

LVs'ku ds ihNs] lhVh,e&

jkeksy jksM]

vgenkckn&382449

17-

3950571

27&05&201

tsu;wu ,Dl js rFkk

Mk;xuksfLVd

7620

1994

jsfM;ksyksftdy bD;wieSaV izk-

eSfmdy ,Dl

fyfeVsM] 3] jk/s baMfLVª;y

js bD;wieSaV

,LVsV] Cykd uacj 497 (ih)

rstiqj jksM] xkWo pkaxjsnj

lj[kst ckoyk jksM]

vgenkckn] lkuan&382213

18-

3951674

29&05&2013

jSuk TosYl

Lo.kZ rFkk Lo.kZ

1417

& 1999

94] lu foyk jks gkml]

/krqvksa ds vkHkw"k.kksa

ljtu iQysV ds lkeus]

f'kYidkjh 'kq¼rk

eseuxj]

,oa eqgjkadu

vgenkckn&380052

19-

3951977

30&05&2013

Vs{yk ,Uthuh;¯jx

vksiuuSy lce£lcy 14220

& 1994

vHkh"ksd ,LVsV] iQkstZ

iEilSV

,UM Cyksj daikmUM ds ihNs]

vksedkj fey ds lkeus]

ujksMk jksM]

vgenkckn&380025

20-

3952070

30&05&2013

'kxqu TosYlZ

Lo.kZ rFkk Lo.kZ

1417

& 1999

ch@2] esgrk ekdsZV LVs'ku

/krqvksa ds vkHkw"k.kksa

jksM] ckjMksyh]

f'kYidkjh 'kq¼rk

lqjr&394601

,oa eqgjkadu

21-

3952575

31&05&2013

Jh lqn'kZu TosYlZ

Lo.kZ rFkk Lo.kZ

1417

& 1999

ukxjdqok pkSd] isVykn

/krqvksa ds vkHkw"k.kksa

ftyk % vkuan&388450

f'kYidkjh 'kq¼rk

,oa eqgjkadu

¹la- lh,eMh@13%11º

MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the 10th January, 2014

S.O. 428.—In pursuance of sub-regulation (5) of the Regulation 4 of the Bureau of Indian Standards (Certification)

Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in

the following schedule :—

SCHEDULE

Sl.

Licences

Grant Date

Name and

Title of the

IS No.

Part Sec.

Year

No.

Address of

Standard

the Party

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8)

(9)

3943170

02-05-2013

Vishal Ispat

High Strength

1786

- -

2008

Survey No. 38/2 P,

deformed steel

39/4, 5 & 6, 4/1, 2 & 3

bars and wires

Village : Morai,

for concrete

Taluka : Paradi

reinforcement

Valsad-396191

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8) (9)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1181

3944778

08-05-2013

Kothari Wellness

Packaged drinking

14543

- -

2004

Plot No. 40, Mahagujart

water (other than

Industrial Estate,

packaged natural

Opp Vinayak Estate,

mineral water) -

Near Pharma Lab.

Sarkhej-Bavla Road,

N. H. No. 8, Moraiya

Ahemdabad,

Tal Sanand-382213

3945881

08-05-2013

Ashwini Steel Private

Carbon steel cast

2830

- -

2012

Limited, 2 KM Stone,

billet ingots, billets,

Bavla Sanand Highway

blooms and slabs for

Vill : Lodriyal Bavla,

re-rolling into steel

Ahemdabad-382220

for general struct-

ural purposes

3945376

09-05-2013

Astmangal

Gold and gold

1417

- -

1999

101, Shree Virkala Complex,

alloys, Jewellery/

Opp. Dedka Ni Pole,

artefacts—fineness

M. G Haveli Road

and marking

Menek Chowk,

Ahmedabad

3945477

09-05-2013

High Fashion Jewellers

Gold and gold

1417

- -

1999

6/860 Chhaparia Sheri

alloys, Jewellery/

Mahidharpura,

artefacts—fineness

Surat-395003

and marking

3945578

10-05-2013

Soni Sanjay Kumar

Gold and gold

1417

- -

1999

Manubhai ‘‘Gold

alloys, Jewellery/

House’’ Khetarpal

artefacts—fineness

Ni Pole, Manek Chowk

and marking

Ahemdbad

3946479

13-05-2013

Sabarkantha Dist. Co-Op

Skim milk powder

13334

2 -

1992

Milk Producers, Union

Limited, P. O. Box No. 21,

Sub Post Boria

Sabarkantha,

Himatnagar

3948685

16-05-2013

Gujarat Timber Industries

Wooden flush

2202

1 -

1999

Block No. 104, Plot No.

door shutters

A-1, A-2, B & C Palod,

(solid core type)

Mangrol. Nar Kim

Char Rasta,

Surat

3949485

17-05-2013

A-One Thresher

Power threshers-

9020

- -

2002

Survey No. 42 Paiki 1,

Safety require-

Maktupur, Near Sahara

ments

Hotel, Unjha-Siddhpur

High way Road,

Maktupur, Mahesana

Unjha-384170

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8)

(9)

1182

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

10.

3947885

17-05-2013

Rajdhani Food Beverages

Packaged drinking

14543

- -

2004

Plot No. 291, GIDC

water (other than

Estate, Sabarkantha,

packaged natural

Talod

mineral water) -

11.

3948584

20-05-2013

Nilkanth Engineering

Submersible

8034

- -

2002

77/1, Raman Cotton

Pumpsets

Compound, Nr. Kachchh

Kadva, Patidarvadi

Naroda Road,

Ahmadabad-382330

12.

3952272

20-05-2013

Sangam Electricals

Ac supplied

13021

1 -

1991

E/9, Birju Apartments,

electronic

Opp. Azad Society,

ballasts for

Ambawadi

tubular flores-

Ahmadabad-380015

cent lamps.

13.

3949687

23-05-2013

Shivam Industries

Submersible

8034

- -

2002

C/17, Krishna Gopal

Pumpsets

Estate, Forge &

Blower Compound,

Naroda Road,

Ahmedabad-380025

14.

3949384

24-05-2013

Kalyan Jewellers India

Gold and gold

1417

- -

1999

Pvt. Ltd. Krishna Building,

alloys, Jewellery/

Near Ichhanath Temple,

artefacts—fineness

Opp Svnit, Dumas Road,

and marking

Surat -395007

15.

3949586

27-05-2013

Metcor Steel Private

High Strength

1786

- -

2008

Limited, Plot No. 210

deformed steel

to 216, GIDC Estate,

bars and wires

At : Talod, Sabarkantha

for concrete

Taluka : Talod-382415

reinforcement

16.

3949990

27-05-2013

Hareehar Machine Tools

Three phase

325

- -

1996

A-9, Mahadev Estate,

induction motors

Part 2, B/H Ramol Police

Station, CTM- Ramol

Ahmedabad-382449

17.

3950571

27-05-2013

Genuine X-Ray and

Diagnostic

7620

1 -

1986

Radiological Equipment

medical

Pvt. Ltd., 3, Radhe

x-ray

Industrial Estate,

equipment

Block No. 497 (P)

Tajpur Road ,

Village : Changodar

Sarkhej-Bavla Road,

Ahmedabad

Sanand-382213

18.

3951674

29-05-2013

Raina Jewels,

Gold and gold

1417

- -

1999

94. Sun Villa Row Houses,

alloys, Jewellery/

Opp Sarjan Flat,

artefacts—fineness

Memnagar,

and marking

Ahmedabad-380052

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8)

(9)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1183

19.

3951977

30-05-2013

Texla Engineering,

Openwell

14220

- -

1994

1, Abhishek Estate,

Submersible

Behind Forge &

Pumpsets

Blower Compound,

Opp Omkar Mill,

Naroda Road,

Ahmedabad 380025

20.

3952070

30-05-2013

Shagun Jewellers

Gold and gold

1417

- -

1999

B/2 Mehta Market,

alloys, Jewellery/

Station Road,

artefacts—fineness

Bardoli

and marking

Surat 394601

21.

3952575

31-05-2013

Shree Sudarshan Jewellers

Gold and gold

1417

- -

1999

Nagarkuva Ckowk,

alloys, Jewellery/

Petlad,

artefacts—fineness

Anand- 388450

and marking

[No. CMD/13 : 11 ]

Dr. S. L. PALKAR, Scientist ‘F’ & Head

ubZ fnYyh] 10 tuojh] 2014

dk-vk- 429-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e 5 ds mi&fofu;e (6) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jí@LFkfxr dj fn;k x;k gS %µ

vuqlwph

Ø-

ykblsal la-

ykblsal/kjh dk uke

ykblasal ds vUrxZr oLrq@izde

jí djus dh frfFk

la-

lh,e@,y&

o irk

lEc¼ Hkkjrh; ekud dk 'kh"kZd

dksbZ ugha

¹la[;k lh ,e Mh@13%13º

MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the10th January, 2014

S.O. 429.—In pursuance of sub-regulation (6) of the Regulation 5 of the Bureau of Indian Standards (Certification)

Regulations, 1988 of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below

have been cancelled/suspended with effect from the date indicated against each :

SCHEDULE

Sl. No.

Licences

Name and Address of the

Article/Process with relevant Indian

Date of

No.

Licensee

Standards covered by the licence

Cancellation

CM/L-

cancelled

NIL

[No. CMD/13:13]

Dr. S. L. PALKAR, Scientist ‘F’ & Head

(1)

(2)

(3)

(4)

(5)

(6)

(7) (8)

(9)

1184

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYYkh] 23 tuojh] 2014

dk-vk- 430-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e 1988 ds fofu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gSa] os LohÑr dj fn, x, gaS %—

vuqlwph

Øe

ykblsal la-

LohÑr djus

ykblsal/kjh dk uke o irk

Hkkjrh; ekud dk 'kh"kZ

Hkk ek la- (Hkkx@

la-

dh frfFk o"kZ@

vuqHkkx) % o"kZ

ekg

1 2 3 4 5 6

4660264

20131108

eSllZ Jh enqjS ehuk{kh vEeu LVhy

lkekU; lajpuk bLikr esa

IS 2830 % 2012

jh&jksfyax fey bafM;k izkbosV fyfeVsM

iquosZYYku ds fy, dkWcZu]

;wfuV&1] 92] ih- ,u- iky;e jksM] ds-

<yok¡ bLikr fcysV baxV]

vkj- iqje] x.kifr] dks;EcÙkwj&641006

fcysV] C;we ,oa LySc

4662672

20131118

eSllZ Jh dUnu bathfu;fjax] la- 6] 8ok¡

LoPN BaMs ikuh ds fy,

IS 8472 % 1998

lM+d] /juh uxj ,DlVsa'ku] x.kifriqnqj]

vidsUnzh; iqujQRiknd iEi

x.ifr] dks;EcÙkwj&641006

4665577

20131125

eSllZ oSDdS baMLVªhl] lkbV la- 9]

[kqys dqvksa ds fy, fuEetuh;

IS 14220 % 1994

,l- ,iQ- la- 362@1] vxzoky Ldwy

iEilsV

jksM] iatkch vlksfl;s'ku ds lkeus]

ds- ,u- th- iqnwj fifjoq] d.kqokbZ iksLV]

dks;EcÙkwj&641108

4665880

20131125

eSllZ Jh vjdye baMLVªhl] lkbV la- 2]

fuEetuh; iEilsV

IS 8034 % 2002

VkWoj fcfYMax] ckykxqjQ xkMZu] ihykesMw]

dks;EcÙkwj&641004

4665779

20131125

eSllZ Jh vjdye baMLVªhl] lkbV la- 2]

fuEetuh; iEilsV ds fy,

IS 9283 % 1995

VkWoj fcfYMax] ckykxqjQ xkMZu] ihykesMw]

eksVj

dks;EcÙkwj&641004

¹la- lh ,e Mh&13 % 11º

,e- lnkf'koe] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the 23rd January, 2014

S.O. 430.—In pursuance of sub-regulation (5) of the regulation 4 of the Bureau of Indian Standards (Certification)

Regulation 1988, of the Bureau of Indian Standards, hereby notifies the grant of licence particulars of which are given in the

following schedule :

SCHEDULE

Sl.

Licence

Grant

Name and Address (Factory) of

Title of the Standard

IS No. Part/

No.

Date

the Party

Sec. Year

1 2 3 4 5 6

4660264

20131108

M/s. Sri Madurai Meenakshi Amman

Covered electrodes for

IS : 2830 : 2012

Steel Re-Rolling Mill India Private

manual metal arc welding

Limited Unit-1, 92, P. N. Palayam

of carbon and carbon

Road, K. R. Puram, Ganapathy,

manganese steel

Coimbatore-641006

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1185

4662672

20131118

M/s. Sri Kandan Engineering No. 6,

Centrifugal Regenerative

IS 8472 : 1998

8th Street, Dharani Nagar Extension,

Pumps for clear, cold water

Ganapathy puthur, Ganapathy,

Coimbatore-641006.

4665577

20131125

M/s. Vaikkai Industries, Site No. 9,

Opewell Submersible

IS 14220 : 1994

SF No. 362/1, Agarwal School Road,

Pumpsets

Opp. Punjabi Association, KNG

Pudur Pirivu, Kanuvai Post,

Coimbatore-641108.

4665880

20131125

M/s. Sri Arkalam Industries, Site

Submersible Pumpsets

IS 8034 : 2002

No. 2, Tower Building, Balaguru

Garden, Peelamedu,

Coimbatore-641004.

4665779

20131125

M/s. Sri Arkalam Industries, Site

Motors for Submersible

IS 9283 : 1995

No. 2, Tower Building, Balaguru

Pumpsets

Garden, Peelamedu,

Coimbatore-641004.

[No. CMD/13 : 11]

M. SADASIVAM, Scientist ‘F’ & Head

ubZ fnYYkh] 23 tuojh] 2014

dk-vk- 431-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e 1988 ds fofu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gSa] os LohÑr dj fn, x, gSa %—

vuqlwph

Øe

ykblsal la-

LohÑr djus

ykblsal/kjh dk uke o irk

Hkkjrh; ekud dk 'kh"kZ

Hkk ek la- (Hkkx@

la-

dh frfFk o"kZ@

vuqHkkx) % o"kZ

ekg

4670772

20131205

eSllZ t; 'kfDr ,Dok iQkeZ] njoktk

iSdstcan is;ty (iSdstcan

IS : 14543 % 2004

la- 8@1139A] ,l- ,iQ- la- 148-B/1L,

feujy ty ds vykok)

iwyqokiV~Vh cl LVkWi ds ikl] iwyqokiV~Vh

iksLV vkWfiQl] ih- ,u- jksM]

frjQIIkqj&641602

4674477

20131216

eSllZ oh- vkj- ikWojtsu ,D;wiesaV~l]

lkiQ vkSj BaMs ikuh ds fy,

IS : 6595 (Part 1) :

# 9 & 10] ihyesMq baMfLVª;y ,LVsV]

{kSfrt vidsUnzh iEi&

2006

oh- ds- jksM] rUuhj iUny]

Hkkx 1—Ñf"k ,oa ty

dks;EcÙwkj&641004

vkiwfrZ ds fy,

4678182

20131217

eSllZ feMkl lsÝVh izksMDV~l izk;osV

futh lqj{kk miLdj—

IS : 15298 (Part 2) :

fyfeVsM] ,l- ,iQ- la- 527]

Hkkx 2—lqj{kk iQqVos;j

2011

dkjsxkSUMeiky;e] iksxywj&dksoS jksM]

vUuwj] dks;EcÙwkj&641697

4682678

20131224

eSllZ vYiQk bathfu;afjax baMLVªh] la- 2A]

fuEetuh; iEilsV ds fy,

IS : 9283 % 1995

6oka Økl] oh- ds- jksM] rUUkhj iUny]

eksVj

ihyesMq] dks;EcÙwkj&641004

1 2 3 4 5 6

1186

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

4678485

20131224

eSllZ fueZy iEIl (izkbZosV) fyfeVsM]

Ñf"k ,oa ty vkiwfrZ ds fy,

IS : 9079 % 2002

,l ,iQ la- 434] 6oka Økl] foyUdqfjph

fctyh ds eksukslsV iEIl

jksM] rUuhj iUny ds ikl] ihyesMq]

dks;EcÙwkj&641004

¹la- lh ,e Mh&13 % 11º

,e- lnkf'koe] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the 23rd January, 2014

S.O. 431.—In pursuance of sub-regulation (5) of the regulation 4 of the Bureau of Indian Standards (Certification)

Regulation 1988, of the Bureau of Indian Standards, hereby notifies the grant of licence particulars of which are given in the

following schedule :

SCHEDULE

Sl.

Licence

Grant

Name and Address (Factory) of

Title of the Standard

IS No. Part/

No.

Date

the Party

Sec. Year

4670772

20131205

M/s. Jai Sakthi Aqua Farm,

Packaged Drinking Water

IS 14543 : 2004

D. No. 8/1139A, S. No. 148-B/1L,

(other than Packaged

Near Pooluvapatti Bus-stop,

Natural Mineral Water)

Pooluvapatti (P.O.), P. N. Road,

Tiruppur-641602.

4674477

20131216

M/s. V. R. Powergen Equipment,

Horizontal Centrifugal

IS 6595 (Part 1) :

# 9 & 10, Peelamedu Industrial

Pumps for Clear, cold

2006

Estate, V. K. Road, Thanneer

water—Part 1—Agri-

Panthal, Coimbatore-641004.

cultural and Water

Supply purposes

4678182

20131217

M/s. Midas Safety Products

Personnal Protective

IS 15298 (Part 2) :

Private Limited, Sf No. 527,

Equipment—Part 2—

2011

Karegoundampalayam, Pogalur-

Safety Footwear

Kovai Road, Annur,

Coimbatore-641697.

4682678

20131224

M/s. Alfaa Engineering Industry,

Motors for Submersible

IS 9283 : 1995

No. 2A, 6th Cross, V. K. Road,

Pumpsets

Thaneer Pandal, Peelamedu,

Coimbatore-641004.

4678485

20131224

M/s. Nirmal Pumps (Pvt.) Limited,

Electric, Monoset Pumps

IS 9079 : 2002

SF No. 434, 6th Cross, Vilankrichi

for Clear, Cold Water for

Road, Near Thanneerpandhal,

Agricultural and Water

Peelamedu, Coimbatore-641004.

Supply purposes

[No. CMD/13 : 11]

M. SADASIVAM, Scientist ‘F’ & Head

ubZ fnYYkh] 23 tuojh] 2014

dk-vk- 432-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e 1988 ds fofu;eu 5 ds mi&fofu;eu (6) ds vuqlj.k esa Hkkjrh;

ekud C;wjks ,rn~}kjk vf/lwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZbZ xbZ rkjh[k ls jn~n@LFkfxr dj fn;k x;k

gS %—

1 2 3 4 5 6

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1187

vuqlwph

Øe

ykblsal la-

ykblsal/kjh dk uke o irk

LFkfxr fd, x,@jn~n fd, x, ykblsal ds

jn~n gksus dh

la-

lh ,e@,y

varxZr oLrq@izØe lEc¼ Hkkjrh; ekud dk frfFk

'kh"kZd

4532154

eSllZ tkfLeu fclyjht] ,l ,iQ la- 482]

iSdstcan is;ty (iSdstcan feujy ty ds

12&11&2013

osfYyiky;e] vyUxksEcw iksLV] fljQeqxS ds

vykok) IS 14543 : 2004

jkLRks] esVwiky;e rkyqd] dks;EcÙkwj&641302

6186171

eSllZ iQkbuVsd ikbi izksMDV~l] 1@359]

is;ty vkiwfrZ ds fy, mPp ?kuRo okys

12&11&2013

iqfy;eiV~Vh jksM] iksyokiky;e iksLV]

ikWyh,fFkyhu ikbIl

ufEc;wj] xksch rkyqd] bZjksM&638458

IS 4984 : 1995

¹la- lh ,e Mh&13 % 13º

,e- lnkf'koe] oSKkfud ^,iQ* ,oa izeq[k

New Delhi, the 23rd January, 2014

S.O. 432.—In pursuance of sub-regulation (6) of the regulation 5 of the Bureau of Indian Standards (Certification)

Regulation 1988, of the Bureau of Indian Standards, hereby notifies that the licence particulars of which are given below

have been cancelled/suspended with effect from the date indicated against each :

SCHEDULE

Sl.

Licence

Name & Address of the Licensee

Article/Process with relevant Indian

Date of

No.

No. CM/L

Standard covered by the licence

Cancellation

cancelled/suspension

4532154

M/s. Jasmine Bisilaries, SF No. 482,

Packaged Drinking Water (Other

12-11-2013

Vellipalayam, Alangombu (P.O.), Sirumugai

than Packaged natural mineral

(Via), Mettupalayam (TK), Coimbatore-641302 water)

IS : 14543 : 2004

6186171

M/s. Finetech Pipe Products, 1/359,

HDPE pipes for water supply

12-11-2013

Puliampatty Road, Polava Palayam (P.O.),

IS 4984 : 1995

Nambiyur, Gobi (TK), Erode-638458.

[No. CMD/13 : 13]

M. SADASIVAM, Scientist ‘F’ & Head

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 433-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e 5 ds mi&fofu;e (6) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jí@LFkfxr dj fn;k x;k gS %µ

vuqlwph

Ø-

ykblsal la

ykblsal/kjh dk uke

LFkfxr fd, x,@jí fd, x,

jí gksus dh frfFk

la-

lh,e@,y&

o irk

ykblsal ds vUrxZr oLrq@izØe

lEc¼ Hkkjrh; ekud dk 'kh"kZd

fnlEcj 2013 &'kwU;

¹la- lh,eMh@13%13º

,e- lnkf'koe] oSKkfud ^,iQ* ,oa izeq[k

1188

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

New Delhi, the 23rd January, 2014

S.O. 433.—In pursuance of sub-regulation (6) of the Regulation 5 of the Bureau of Indian Standards (Certification)

Regulations, 1988 of the Bureau of Indian Standards, hereby notifies that the licence particulars of which are given below

have been cancelled/suspended with effect from the date indicated against each :—

SCHEDULE

Sl. No.

Licence

Name and Address of the

Article/Process with relevant Indian

Date of

No.

Licensee

Standards covered by the licence

Cancellation

CM/L-

cancelled/suspension

December 2013 - NIL

[No. CMD/13:13]

M. SADASIVAM, Scientist ‘F’ & Head

ubZ fnYyh] 31 tuojh] 2014

dk-vk- 434-—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e (1) ds [kaM ([k) ds vuqlj.k esa Hkkjrh; ekud C;wjks

,rn~n~okjk vf/lwfpr djrk gS fd ftu Hkkjrh; ekudksa ds fooj.k uhps vuwlwph esa fn, x, gSa os LFkkfir gks x;s gSa A

vuqlwph

Øe la[;k

LFkkfir Hkkjrh; ekud (dkas)

LFkkfir frfFk

Hkkjrh; ekud (dksa) tks fd jí gksus gSa]

jí gksus dh frfFk

dh la[;k] o"kZ vkSj 'kh"kZd

vxj gS dh la[;k] o"kZ vkSj 'kh"kZd

vkbZ ,l 16129% 2013

izLrkfor rkjh[k

fMftVy VsjsLVªS;y

rRdky

,pMhVh@,lMhVhoh dh izkfIr

ds fy;s lsV VkWi ckWDl fof'kf"V

bl Hkkjrh; ekud dh izfr;k¡ Hkkjrh; ekud C;wjksa] ekud Hkou] 9 cgknqj'kkg tiQj ekxZ] ubZ fnYyh&110 002 {ks=kh; 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 fczdh gsrq miyC/ gSa A Hkkjrh; ekudksa dks http:/www.standards.in

n~okjk baVjuSV ij [kjhnk tk ldrk gS A

¹ih;wch@,lVhMh&1@th,u&vkbZ,l@6@29º

dyk- ,e- ofj;j] funs'kd (fons'kh Hkk"kk ,oa izdk'ku)

New Delhi, the 31st January, 2014

S.O. 434.—In pursuance of Clause (b) of sub-rule (1) of Rules 7 of the Bureau of Indian Standards Rules, 1987,

the Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the second

column of Schedule hereto annexed has been establised on the date indicated against it in third column. The particulars of

the standards, if any, which are given in the fourth column shall also remain in force concurrently till they are cancelled

on the date indicated against them in the fifth column.—

SCHEDULE

No. & Year of the

Date of Establishment

No. & Year of the Indian

Date of cancellation

No.

Indian Standards

Standards to be cancelled,

in any

IS 16129 : 2013

Proposed date—immediate

Set top box for digital

terrestrial HDTV/SDTV

reception- specification

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1189

Copies of these standards are available for sale with the Bureau of Indian Standards, Manak Bhavan, 9 Bahadur

Shah Zafar Marg, New Delhi-110002 and Regional Offices: Kolkatta, Chandigarh, Chennai, Mumbai and also Branch

Offices: Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur ,

Patna, Pune, Kochi.

[PUB/STD-1/GN-IS/6/29]

KALA M. VARIAR, Director (Foregin Languages & Publication)

fo|qr ea=kky;

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 435-—dsaæh; ljdkj] jktHkk"kk (la?k ds 'kkldh; iz;kstuksa ds fy, iz;ksx)fu;e] 1976 ds fu;e 10 ds mi&fu;e (4)

ds vuqlj.k esa fo|qr ea=kky; ds iz'kklfud fu;a=k.kk/hu ikoj fxzM dkjiksjs'ku vkWiQ bafM;k fyfeVsM ds fuEufyf[kr dk;kZy;ksa dks] ftuds

80 izfr'kr deZpkjhoa`n us ¯gnh dk dk;Zlk/d Kku izkIr dj fy;k gS] ,rn~}kjk vf/lwfpr djrh gS &

(i)

ikoj fxzM dkjiksjs'ku vkWiQ bafM;k fyfeVsM]

iwohZ {ks=k ikjs"k.k iz.kkyh &II {ks=kh; eq[;ky;]

ts&1&15] ^bZih CykWd] lkYVysd] lsDVj&V

dksydkrk&700 091

(ii) ikoj fxzM dkjiksjs'ku vkWiQ bafM;k fyfeVsM]

lqo.kkZ Hkou] edku la- 12] th,l jksM]

mywckjh] xqokgkVh] vle&781 007

¹la- 11017@10@2013&¯gnhº

jhrk vkpk;Z] la;qDr lfpo

MINISTRY OF POWER

New Delhi, the 27th January, 2014

S.O. 435.—In pursuance of Sub Rule (4) of Rule 10 of the Official Language (use for officical purpose of the

union) Rules, 1976, the Central Government hereby notify the following offices of the Power Grid Corporation of India Ltd.

under the administrative control of Ministry of Power, where 80% of the staff have acquired working knowledge of Hindi:—

(i)

Power Grid Corporation of India Limited,

Eastern Region Transmission System-II

RHQ, K-1-15, ‘EP’ Block, Salt Lake

Sector-V, Kolkata- 700091

(ii)

Power Grid Corporation of India Limited,

Suwarna Bhavan, House No.-12, G.S. Road,

Ulubari, Guwahati, Assam-781007

[No. 11017/10/2013-Hindi]

RITA ACHARYA, Jt. Secy.

dks;yk ea=kky;

vkns'k

ubZ fnYyh] 31 tuojh] 2014

dk-vk- 436-—dks;yk /kjd {ks=k (vtZu vkSj fodkl) vf/fu;e] 1957 (1957 dk 20) (ftls blesa blds i'pkr~ mDr vf/

fu;e dgk x;k gS) dh /kjk 9 dh mi&/kjk (1) ds v/hu tkjh] Hkkjr ds jkti=k] lkIrkfgd Hkkx II] [akM 3] mi&[akM (ii)] rkjh[k 21

ls 27 flrEcj] 2008 esa izdkf'kr Hkkjr ljdkj ds dks;yk ea=kky; dh vf/lwpuk dk-vk- la[;kad 2692] rkjh[k 22 flrEcj] 2008 ds

izdk'ku ij] mDr vf/lwpuk ls layXu vuqlwph esa o£.kr Hkwfe (ftls blesa blds i'pkr~ mDr Hkwfe dgk x;k gS) vkSj ,slh Hkwfe esa ;k ml

ij ds lHkh vf/dkj] mDr vf/fu;e dh /kjk 10 dh mi&/kjk (1) ds v/hu] lHkh foYyaxeksa ls eqDr gksdj] vkR;afrd :i esa dsUæh;

ljdkj esa fufgr gks x, Fks_

vkSj] dsUæh; ljdkj dk ;g lek/ku gks x;k gS] fd osLVuZ dksyiQhYM~l fyfeVsM] ukxiqj (ftls blesa blds i'pkr~ ljdkjh daiuh

dgk x;k gS)] ,sls fuca/uksa vkSj 'krks± dk] tks dsUæh; ljdkj bl fufeÙk vf/jksfir djuk mfpr le>s vuqikyu djus ds fy, jtkean gS_

1190

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

vr% vc] dsUæh; ljdkj] mDr vf/fu;e dh /kjk 11 dh mi&/kjk (1) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] ;g funs'k nsrh

gS fd mDr Hkwfe vkSj mDr Hkwfe esa ;k ml ij ds bl izdkj fufgr lHkh vf/dkj rkjh[k 27 flrEcj] 2008 ls dsUæh; ljdkj esa bl izdkj

fufgr cus jgus ds ctk,] fuEufyf[kr fuca/uksa vkSj 'krks± ds v/hu jgrs gq,] ljdkjh daiuh esa fufgr gks tk,axs] vFkkZr~

(i)

ljdkjh daiuh] mDr vf/fu;e ds mica/ksa ds v/hu ;Fkk vo/kfjr izfrdj] C;kt] uqdlkfu;ksa vkSj oSlh gh enksa dh ckcr~

fd, x, lHkh lank;ksa dh dsUæh; ljdkj dks izfriw£r djsxh_

(ii)

'krZ (1) ds v/hu ljdkjh daiuh }kjk] dsUæh; ljdkj dks lans; jdeksa dk vo/kj.k djus ds iz;kstuksa ds fy, mDr

vfèkfu;e dh /kjk 14 ds v/hu ,d vf/dj.k dk xBu fd;k tk,xk vkSj ,sls fdlh vf/dj.k rFkk vf/dj.k dh

lgk;rk ds fy, fu;qDr O;fDr;ksa ds laca/ esa mixr lHkh O;;] ljdkjh daiuh }kjk ogu fd, tk,axs vkSj bl izdkj fufgr

mDr Hkwfe esa ;k ml ij ds vf/dkjksa ds fy, ;k muds laca/ esa tksfd vihy] vkfn] lHkh fof/d dk;Zokfg;ksa dh ckcr~

mixr lHkh O;; Hkh ljdkjh daiuh }kjk ogu fd, tk,axs_

(iii)

ljdkjh daiuh] dsUæh; ljdkj ;k mlds in/kfj;ksa dh] ,sls fdlh vU; O;; ds laca/ esa {kfriw£r djsxh] tks bl izdkj

fufgr mDr Hkwfe esa ;k ml ij ds vf/dkjksa ds ckjs esa] dsUæh; ljdkj ;k mlds in/kfj;ksa }kjk ;k muds fo#¼ fdUghas

dk;Zokfg;ksa ds laca/ esa vko';d gks_

(iv)

ljdkjh daiuh dks dsUæh; ljdkj ds iwoZ vuqeksnu ds fcuk mDr Hkwfe vkSj ml ij ds vf/dkjksa dks fdlh vU; O;fDr dks

varfjr djus dh 'kfDr ugha gksxh_ vkSj

(v)

ljdkjh daiuh] ,sls funsZ'kksa vkSj 'krks± dk ikyu djsxh] tks dsUæh; ljdkj }kjk] tc dHkh vko';d gks] mDr Hkwfe ds

fof'k"V {ks=kksa ds fy, fn, tk,a ;k vf/jksfir fd, tk,a A

¹iQk- la- 43015@06@2005&ihvkjvkbZMCY;w&Iº

nksfefud MaqxMqax] voj lfpo

MINISTRY OF COAL

ORDER

New Delhi, the 31st January, 2014

S.O. 436.—Whereas on the publication of the notification of the Government of India in the Ministry of Coal,

number S.O. 2692, dated the 22nd September, 2008, published in the weekly Gazette of India, Part II, Section 3, Sub-section

(ii), dated 21st to 27th September, 2008, issued under sub-section (1) of Section 9 of the Coal Bearing Areas (Acquisition and

Development) Act, 1957 (20 of 1957) (hereinafter referred to as the said Act), the land and all rights in or over the land

described in the Schedule appended to the said notification (hereinafter referred to as the said land) are vested absolutely

in the Central Government free from all encumbrances under sub-section (1) of Section 10 of the said Act;

And whereas, the Central Government is satisfied that the Western Coalfields Limited, Nagpur (hereinafter

referred to as the Government Company) is willing to comply with such terms and conditions as the Central Government

thinks fit to impose in this behalf,

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 11 of the said Act, the Central

Government hereby directs that the said land and all rights in or over the said land so vested shall, with effect from

27th September, 2008 instead of continuing to so vest in the Central Government, shall vest in the Government Company,

subject to the following terms and conditions, namely:-

(i)

the Government Company shall reimburse the Central Government all payments made in respect of compensation,

interest, damages and the like, as determined under the provisions of the said Act;

(ii)

a Tribunal shall be constituted under section 14 of the said Act, for the purpose of determining the amounts

payable to the Central Government by the Government Company under condition (1) and all expenditure

incurred in connection with any such Tribunal and persons appointed to assist the Tribunal shall be borne by

the Government Company and similarly, all expenditure incurred in respect of all legal proceedings like appeals,

etc. for or in connection with the rights, in or over the said land, so vested, shall also be borne by the

Government Company;

(iii)

the Government Company shall indemnify the Central Government or its officials against any other expenditure

that may be necessary in connection with any proceedings by or against the Central Government or its officials

regarding the rights in or over the said land so vested;

(iv)

the Government Company shall have no power to transfer the said lands and rights to any other person

without the prior approval of the Central Government; and

(v)

the Government Company shall abide by such directions and conditions as may be given or imposed by the

Central Government for particular areas of the said land, as and when necessary.

[F. No. 43015/06/2005-PRIW-I]

DOMINIC DUNGDUNG, Under Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1191

Je ,oa jkstxkj ea=kky;

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 437-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,y ds

izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@

Je U;k;ky; ua-&2] /uckn ds iapkV (lanHkZ la[;k 62 dk 2012)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 17&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&20012@122@2011&vkbZ vkj (lh,e-I)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 17th January , 2014

S.O. 437.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 62/2012)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the Management of Katras

Area of M/s. BCCL and their workmen, received by the

Central Government on 17-1-2014.

[No. L-20012/122/2011-IR (CM-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. 62 OF 2012

PARTIES :

The Jt.Gen.Secretary,

Bahujan Mazdoor Union,

Dhansar, Dhanbad

Vs.

General Manager,

Katras Area of

M/s. BCCL, Dhanbad,

APPEARANCES :

On behalf of the :

Mr.R. R. Ram, Ld. Advocate

workman/Union

On behalf of the :

Mr. D.K.Verma, Ld. Advocate

Management

State : Jharkhand

Industry: Coal

Dated, Dhanbad, the 18th December, 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-20012/122/2011-IR(CM-I) dt. 06.09.2012 .

SCHEDULE

“Whether the action of the Management of

Anagarpathar Colliery of M/s BCCL in dismissing

Sri Sanjay Lohar, Ex-M/Loader from the services of

the Company vide order dt.6/10.4.1995 is fair and

justified? To what relief is the workman concerned

entitled?

2. Mr.R.R.Ram,the Ld.Advocate for the Bahujan

Mazdoor Union/Workman Sanjay Lohar present just as

Mr. D.K. Verma the Ld.Advocate for the OP/Management.

Heard both the Ld.Counsels for the respective parties

over the petition of the Management dt. 20.5.2012 for

maintainability of the present Reference.Mr. D.K.Verma

the Ld. Counsel for the O.P./Management has submitted

that the present reference is not maintainable either in

Law or fact, as previously the Reference No.295/2000 of

the present workman Sanjay Lohar, Ex-M/Loader,who was

dismissed by the Management from his service on the

ground of absentism after legally conducting the domestic

enquiry into it, was already closed and awarded

accordingly as no dispute between the same parties and

it was published by the Government of India as per

Notification dt.19.8.2011,and the aforesaid previous Ref.,

was adjudicated as No dispute award by the CGIT-cum-

Labour Court No.1,Dhanbad .On the other hand,Mr.R.R.

Ram, the Ld. Union Representative-cum- Advocate for the

workman has failed to respond to it even in a single word.

In view of the aforesaid existent facts between both

the parties for the same cause of action, the present

Reference is barred by the Principle of Res-judicata.Hence

the case is closed as no Industrial Dispute just as

unmaintainable.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 438-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,y ds

izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@

Je U;k;ky; ua-&2] /uckn ds iapkV (lanHkZ la[;k 60 dk 2012)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 17&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&20012@112@2011&vkbZ vkj (lh,e-I)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

1192

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

New Delhi, the 17th January , 2014

S.O. 438.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 60/2012)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the Management of Kusunda

Area of M/s. BCCL and their workmen, received by the

Central Government on 17-1-2014.

[No. L-20012/112/2011-IR (CM-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. 60 OF 2012

PARTIES :

The Vice President,

Janta Mazdoor Sangh,

Jhaira, Dhanbad

Vs.

General Manager,

Kusunda Area of

M/s. BCCL, Kusunda,

Dhanbad

APPEARANCES :

On behalf of the

Mr. K. N. Singh, Ld. Advocate

workman/Union

On behalf of the

Mr. U. N. Lal, Ld. Advocate

Management

State : Jharkhand

Industry: Coal

Dated, Dhanbad, the 17th December, 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-20012/112/2011-IR(CM-I) dt. 06.09.2012 .

SCHEDULE

“Whether the action of the Management of Khas

Kusunda Colliery of M/s BCCL in not regularizing

Sri Karim Ansari as Trammer w.e.f. 30.11./13.12.1999

is fair and justified? To what relief is the workman

concerned entitled?”

2. Neither Vice President, Janta Mazdoor Sangh,

Jharia, nor workman Karim Ansari appeared nor Written

statement-cum-Rejoinder filed on behalf of the

workman.Mr.U. N. Lal, the Ld. Advocate for the

Management is present. Later on, Mr.K.N.Singh, the

Ld.Advocate for the Union/workman presented and

submitted that the workman is not at all interested in

pursuing the case. Under these circumstances of

disinterestedness of the workman, the case is closed and

accordingly, an order is passed as “No Industrial Dispute”

existent between both the parties.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 439-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,y ds

izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k@

Je U;k;ky; ua-&2] /uckn ds iapkV (lanHkZ la[;k 42 dk 2004)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 17&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&20012@252@2003&vkbZ vkj (lh,e-I)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 17th January , 2014

S.O. 439.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 42/2004)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the Management of M/s.

BCCL and their workman, received by the Central

Government on 17-1-2014.

[No. L-20012/252/2003-IR (CM-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. 42 OF 2004

PARTIES :

Joint General Secretary,

Janta Shramik Sangh, Nunudih,

Patherdih, Dhanbad

Vs.

Project Officer,

Lodna Colliery of

M/s. BCCL, Dhanbad

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1193

APPEARANCES :

On behalf of the workman/Union

: Mr. Nazir Mia

(the workman)

On behalf of the Management

: Mr. D. K.Verma,

Ld. Advocate

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 20th November, 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-20012/252/2003-IR(C-I) dt.12.03.2004.

SCHEDULE

“Whether the management of Lodna Colliery of

M/s. BCCL declaring workman Nazir Mia unfit from

service after the accident on 14.10.95 but not giving

the appointment of his dependent and other benefit

is proper and just. If not, then what relief the workman

or his dependent is entitled to.”

2. The present reference came into existence

consequent upon its remanding for an afresh adjudication

after hearing both the parties as per the Order No.4

dt.13.9.2010 of the Hon’ble High Court of Jharkhand at

Ranchi in the W.P.(L) No. 4125/2007, Nazir Mia Vs. Union

of India & Ors, setting aside the previous Award

dt. 6^th Jan, 2005 passed as “No dispute” by predecessor

P.O. of the Tribunal in the reference. In result, workman

Nazir Mia himself in place of the Joint General Secretary,

Janta Shramik Sangh, Nunudih, Dhanbad, the initial I.D.

raiser as noted in the reference, and the Management of

Lodna Colliery of M/s. BCCL appeared and contested the

case.

3. The case of workman Nazir Mia as stated in his

written statement is that while serving as the Heavy Tyndel

under the Management of Lodna Colliery, he met the

accident on 14.10.1995 requiring the five major operations

of serious nature, out of which for two wrong and defective

operations at the C.H.D. (the Central Hospital Dhanbad).,

he had got its treatment at the C.M.C.H.,Vellore (a photo

copy of the Accidental Slip-Annexure-1-ineligible).The

Management continued the expense of his treatment but

not to the last, and treating him not as a disabled person,

disagreed to provide an employment to his dependent

son Nazim Mia, though in his latter treatment Vellore,

seting right to his leg was ruled out, resulting in his being

a ‘Diabled” person which comes within the definition of

“Handicapped”. The Management stopped to send him

to Vellore for one major operation due as 15^th visit. In order

to avoid employment, the management in course of

treatment and plaster sent the victim to the Medical Board

of BCCL with instruction to declare his “FIT” for duty,

and accordingly intimated him of his fitness for duty,

though the report of the Medial Board could never

surfaced. All the authorities concerned of Lodna Colliery

as well as its Doctor specifically wanted him to grease

their palms in order to declare him unfit and he had also

paid Rs.5,000 to the Doctor concened.while declaring ‘FIT”

for duty, the Management declared 25% compsneation,and

showed his attendance form 14.10.1995 as if the injured

victim were on duty, whereas he was in Vallore, and he

never performed any duty for a single day after the accident.

4. Further the workman alleged his victimization

and exploitation at the hands of the O.P./management in

various ways. On his first visit to Vellore, the Victim

workman was paid Rs.9,000 only out of his sanctioned

amount Rs.10,000 after deduction of Rs.1,000 by the

concerned clerk at the instruction of the Finance Manager

S.K.Dey. Every time the demand of Sri Rajballam Yadav for

Rs.500 per Medical Bill for sanction, just as the Clerk

Md.Afzal Ansari used to ask for Rs.200 for maintaining

the Attendance /Muster Roll and Pay slip, failing which, it

resulted in removal of his name from the E.D.P section

(Koyla Bhawan) for eight months, for which no wages

paid in 1998.Prior to his superannuation on 01.08.2001

though signed by the Project Officer on 3.2.2001, yet

delivered one month before (Annexure 3). The

Management stopped the payment of wages to the

workman as the Accidental action despite having been

declared by the I.O.D. for the period of four months from

6.4.2001 to 31.7.2001. Despite declaring the workman as

permanently physically Handicapped as per the Certificate

issued by the C.M.C.H,Vellore (Annexure 2), he was never

paid any compensation, rather was paid less to the tune of

25%.The Management tampered the Service records of

the workman, and displayed his superannuation on

01.08.2001.Whereas Sri Nazim Mia,the dependent son of

the workman is entitled to an employment on

compassionate ground, on account of his (workman’s)

permanent physically disablement/handicappedness

caused by the accident in course of his employment of the

Company, as he had been employed in the year 1968 prior

to the Nationalization of the Collieries and its taking over

by the BCCL/CIL.

5. Whereas the contra pleaded case of the O.P./

Management with categorical denials is that the reference

is unmaintainable either in Law or in fact, as the workman

retired from service of the Company w.e.f. 01.08.2001 on

his superannuation at 60 years. The retired workman is

not a workman as defined under Sec.2 (S) of the I.D.Act,

.No employer-employee relationship exists between the

retired employee and the Management. The workman was

not declared medically unfit by the Apex Medical Board.

The Management has not terminated his service due to

medical unfitness. The workman was initially an employee

of Lodna Coke Plant as a casual General Mazdoor who

was transferred to Lodna Colliery on 4.2.1976.While

1194

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

working as a Casual General Mazdoor at Lodna Coke Plant,

the Identity card and form ‘B’ Register of Casual Labour

were maintained but the date of birth was unmentioned.

On the transfer of the workman, his date of birth was not

recorded in any records but his date of appointment as

2.7.1973 was recorded.

So as per the policy decision of the Company in the

year1986 regarding the employees whose the date of birth

not available in any records-Form B or CMPF, their date of

birth was assessed by the Apex Medical Board constituted

in the Area. Since his age was unrecorded in any of the

statutory Records of the Mine, he was referred to Apex

Medical Board on 2.7.1986 for assessment of his age. The

Medical Board had assessed his age as 45 years as on

2.7.1986, the workman never disputed it, and accordingly

he retired on completion of 60 years of age in the company.

The workman in service had met with the Mine accident

on ‘4.10.1995, and was treated at the Company’s Hospital,

as well as referred to the outside C.M.C.H. Vellore for his

treatment. He was sent to the Disability Medical Board of

the Company at the Central Hospital, Dhanbad, on

25.11.1999 by which his disability caused by the Mine

accident was assessed as 25%.The Medical Board also

declared him fit for surface job,and accordingly he was

deployed in the Engineering department on surface.

On resumption of his duty in the engineering section

on surface on 28.11.1999 as per his report, he continued

his duty till the date of his retirement. All the benefits

under the provision of N.C.W.A. regarding his dues and

other wages during the above period have been paid to

him. The NCWA nowhere provides for an employment to

the dependent of a retired employee.

6. The O.P./Management in its rejoinder has

categorically denial all the allegations of the workman as

false and baseless and stated that all possible treatment

was provided to the workman by the Hospital of the

Company. He was also granted his injury wages during

the period of his treatment as per the provision of

NCWA.The Certificate has been issued to him for enabling

facility extended to the permanent handicapped persons.

Normally this type of Certificate is issued by the District

Authority as per the recommendation of the treating

Medical Officer. But the Doctor of CMCH had not declared

him medically unfit for any kind of job.

FINDING WITH REASONS

7. In the instant case,WWI Nazir Mia,the petitioner

himself on his affidavited chief has been examined.

In view of the terms of the reference, it is an

indisputable fact that workman Nazir Mia (WWI) had got

the serious accident while on duty on 14.10.1995; and

that he got medical treatment and twice operations at the

Central Hopital, Dhanbad,as well as at C.M.C.H.,Vellore

on his reference at the cost of the management; The

workman in cross has admitted to have undergone the

Medical Board at the initiation of the Officer of the

management;factully the Medical Board found him 25%

disabled; and fit for the surface duty; the Management

did not give him any document to stop his duty which he

performed up to 60 years. It is also indisputable that on

his superannuation (on 01.08.2001), he got his gratuity of

Rs.70, 000 and provident fund.

The Oral statement of the workman (WWI) in his

very chief para,I affirms that he has not any grievance

against the present officials except the fact that he is in

need of one employment to his dependent son Nazim Mia.

The claim of the workman for employment of his

dependent son appears to be based on him having been

declared “Permanently Physically Disable” by the

C.M.C.H.,Vellore, which is unacceptable in the present

case.

8. Mr. D. K.Verma, the Learned Counsel for the O.P./

Management has contended that admittedly due to his

25% declared hurt, he was allowed to continue his work,

and accordingly retired, so there is no provision for an

employment to a dependent son of the workman who has

retired.

9. On perusal and consideration of the materials on

the record, I find that the present reference is not the case

of permanently disabledness related to the workman. Now

where the N.C.W.A. provides for an employment of a

dependent son of the workman who has availed of all the

benefits including his injury wages, and retirement.

In result, it is responded in the terms of the reference,

and accordingly hereby.

ORDERED

The Award be and the same is the Management of

Lodna Colliery of M/s. B.C.C.L. has never declared

workman Sri Nazir Mia unfit for service after his accident

on 14.10.1995.Not giving an employment by the

Management to his dependent son Nazim Mia and other

benefits is quite proper and justified. Hence neither the

workman nor his dependent is entitled to any relief.

KISHORI RAM, Presiding Officer

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1195

New Delhi, the 17th January , 2014

S.O. 440.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 7/2006)

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 13-1-2014.

[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 30^th day of August, 2013

INDUSTRIAL DISPUTE L.C.No. 7/2006

Between :

Smt. E. Ratnamma,

W/o Manikya Rao,

R/o H.No.6-98/2,

Baba Nagar, Nacharam,

Hyderabad

....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 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

9.11.2001. 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

1196

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1197

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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition

No.29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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.

1198

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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

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.

¹Hkkx II—[k.M 3(ii)º

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1199

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

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 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

1200

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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.

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 30^th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

: Witnesses examined for

the Petitioner

the Respondent

WW1: Smt E. Ratnamma

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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1201

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. 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

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New Delhi, the 17th January , 2014

S.O. 441.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 8/2006)

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 13-1-2014.

[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 30^th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 8/2006

Between :

Smt. B. Savitri,

D/o Somaiah,

R/o H. No. 3-17-16,

Chinna Kamala (V), Lal Bazar,

Tirumalagiri, Secunderabad

....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 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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 such as jungle cutting in the sprawling

Nuclear Fuel Complex, cleaning of storm water drains

and clearance of garbage on roads vide letter dated

¹Hkkx II—[k.M 3(ii)º

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1203

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 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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition

No.29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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.

1204

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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

¹Hkkx II—[k.M 3(ii)º

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1205

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 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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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.2 5 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 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.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1207

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 30^th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

: Witnesses examined for

the Petitioner

the Respondent

WW1: Smt. B. Savitri

MW1 : Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1 :

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 WA 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 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. 442.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 28/2006)

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 13-1-2014.

[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 30^th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 28/2006

Between :

Smt. T. Saradha,

W/o T. Muthyalu,

R/o H. No. 2-88,

Chiryala, Kesara Mandal,

Ranga Reddy District,

Hyderabad-62

....Petitioner

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 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. 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 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

9.11.2001. 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.

¹Hkkx II—[k.M 3(ii)º

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1209

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 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 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, this matter and L.C. 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., L.C. Nos. 28/2006.

Accordingly in respect of all these cases ie.e., L.C. Nos. 28

to 40 of 2006, Smt. T. Saradha, WW1 in this case 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

1210

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition

No.29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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

jud-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

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.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1211

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

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

1212

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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

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 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1213

(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 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 30^th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

the Petitioner

the Respondent

WW1: Smt. B. Savitri

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. 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.

1214

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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New Delhi, the 17th January, 2014

S.O. 443.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 29/2006)

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 13-1-2014.

[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. 29/2006

Between:

Smt. G. Ambi,

W/o G. Gopaiah Nayak,

R/o H.No.1-9-381/268/1,

Krishan Reddy Colony, Near Kushaiguda,

ECIL Post, Ranga Reddy District,

Hyderabad.

...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 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1215

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

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 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.

1216

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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 and 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 this 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 this case 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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition

No.29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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 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

¹Hkkx II—[k.M 3(ii)º

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1217

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 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

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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1219

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 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 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.

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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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

the Respondent

WW1: Smt. G. Ambi

MW1: Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1:

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 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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New Delhi, the 17th January , 2014

S.O. 444.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 30/2006)

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 13-1-2014.

[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. 30/2006

Between:

Smt. G. Bharathamma,

W/o G. Narayana,

R/o H.No.C-37/2,

Ashok Nagar, ECIL Post,

Ranga Reddy District,

Hyderabad

..….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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1221

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

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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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. 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

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, this matter i.e.LC No.30/2006 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, 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

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?

¹Hkkx II—[k.M 3(ii)º

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1223

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

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.

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1225

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 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 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 Sec.25F

1226

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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.

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

Witnesses examined for the

for the Petitioner

Respondent

WW1: Smt. G. Bharathamma MW1:Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1:

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 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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1227

New Delhi, the 17th January , 2014

S.O. 445.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 32/2006)

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 13-1-2014.

[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.32/2006

Between :

Smt. D. Sayamma,

W/o Mattaiah Naik,

R/o H.No.10-l/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 - 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.l998 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/

1228

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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.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.l997. 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,292I 0 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

¹Hkkx II—[k.M 3(ii)º

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1229

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

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 i.e. LC No.32/2006 along

with other L.C. Nos. taking from L.C. No. 29 to 40/2006 are

clubbed together in i.e. 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 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:

Whether this dispute is not maintainable before

this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition No.

29210 of 1998 operate as re judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

Whether there is termination of the service of

the Petitioner by the Respondent through oral

termination order dated 23.l0.l998? If so, whether

the said order is liable to be set aside?

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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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. l602/2000 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.l0.l998 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.292l 0/1998 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

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

¹Hkkx II—[k.M 3(ii)º

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1231

[(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 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 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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 for 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 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

Witnesses examined for the

for the Petitioner

Respondent

WWl: Smt. D. Sayamma

MW1 :Smt. A. Rama Devi

¹Hkkx II—[k.M 3(ii)º

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1233

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. l3 .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 ofletter 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 W A 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. 446.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 34/2006)

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 13-1-2014.

[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 No. L.C. 34 /2006

Between:

Smt. A. Susheela,

W/o A. Mallaiah,

R/o H.No.3-5-24/R/151,

Rajiv Gandhi Nagar, Kapra Municipality,

Ranga Reddy District.

Hyderabad.

….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.

1234

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 9.11.2001. 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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1235

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

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, this matter i.e.LC No.34/2006 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, 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

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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition No.

29210 of 1998 operate as res judicata?

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[PART II—SEC. 3(ii)]

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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 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.

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1237

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 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

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[PART II—SEC. 3(ii)]

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 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 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

¹Hkkx II—[k.M 3(ii)º

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1239

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.

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

WW1: Smt. A. Susheela

Witnesses examined for the

Respondent

MW1:Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1:

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 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 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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New Delhi, the 17th January, 2014

S.O. 447.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 33/2006)

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 13-1-2014.

[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 30^th day of August, 2013

INDUSTRIAL DISPUTE L. C.No. 33/2006

Between :

Smt. D Maroni W/o Kallaram,

R/o Nehru Nagar Colony,

Block-III, H.C.I.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.

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

¹Hkkx II—[k.M 3(ii)º

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1241

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 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 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

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[PART II—SEC. 3(ii)]

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, this matter i.e. LC No. 33/2006

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, 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 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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition

No.29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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

¹Hkkx II—[k.M 3(ii)º

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1243

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

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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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 otherwise 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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1245

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 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 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.

1246

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 30^th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

: Witnesses examined for

the Petitioner

the Respondent

WW1: Smt. D. Maroni

MW1 : Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1 :

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 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.

vkns'k

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 448-—tcfd dsUnzh; ljdkj dk ;g er gS fd

ctkt bySDVªhdYl ds izca/u vkSj muds dkexkjksa ds chp ,d

vkS|ksfxd fookn Fkk A

vkSj tcfd bl fookn esa jk"Vªh; egRo dk iz'u 'kkfey gS

,oa ,slh izÑfr dk Hkh gS fd blesa ,d jkT; ls vf/d esa fLFkr

ctkt bySDVªhdYl ds izfr"Bkuksa ds blesa #fp j[kus vFkok izHkkfor

gksus dh laHkkouk gS A

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vf/fu;e]

1947 (1947 dk 14) dh /kjk 7[k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, eqacbZ esa eq[;ky; lfgr Je ea=kky; ds vkns'k la[;k

,y&42011@07@2009&vkbZvkj (Mh;w) fnukad 4&6&2013 }kjk jk"Vªh;

vkS|ksfxd vf/dj.k xfBr fd;k rFkk U;k;ew£r Jh xkSjh 'kadj

ljkZiQ dks blds ihBklhu vf/dkjh ds :i esa fu;qDr fd;k vkSj

mDr vf/fu;e dh /kjk 10 dh mi&/kjk (1d) }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/dj.k dks fu£n"V dj fn;k_

vkSj tcfd dsUnz ljdkj us fnukad 4&2&2011 ds vkns'k

}kjk jk"Vªh; vkS|ksfxd vf/dj.k dk iquxZBu fd;k vkSj U;k;ew£r

Jh xkSjh 'kadj ljkZiQ dks blds ihBklhu vf/dkjh ds :i esa

fu;qDr fd;k_

vkSj tcfd U;k;ew£r Jh xkSjh 'kadj ljkZiQ us viuh lsok

fuo`fÙk ij mi;qZDr jk"Vªh; vkS|ksfxd U;k;kf/dj.k dk dk;ZHkkj

NksM+ fn;k_

vr% vc] eqacbZ esa eq[;ky; lfgr jk"Vªh; vkS|ksfxd vfèkdj.k

xfBr fd;k tkrk gS ftlds ihBklhu vf/dkjh dsUnzh; ljdkj

vkS|ksfxd vf/dj.k&lg&Je U;k;ky; la[;k 1 ds ihBklhu

vfèkdkjh U;k;ew£r Jh lR;iwr egjks=kk gksaxs vkSj mi;qZDr fookn dks

U;k;fu.kZ;u gsrq mi;qZDr jk"Vªh; vkS|ksfxd vfèkdj.k dks bl funs'k

ds lkFk fu£n"V fd;k tkrk gS fd U;k;ew£r Jh lR;iwr egjks=kk bl

ekeys esa ml pj.k ls vkxs dk;Zokgh djsaxs ftl pj.k ij ;g bls

U;k;ew£r Jh xkSjh 'kadj ljkZiQ }kjk NksM+k x;k Fkk vkSj bls rnuqlkj

fuiVk,axs A

¹la- ,y&42011@07@2009&vkbZvkj (Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

ORDER

New Delhi, the 17th January , 2014

S.O. 448.—Whereas the Central Government is of

the opinion that an industrial dispute existed between the

management of Bajaj Electricals and their workmen :

And whereas, the industrial dispute involves

question of national importance and also is of such nature

that are likely to be interested in or affected;

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-42011/07/2009-IR (DU)

dated 4-6-2013 with headquarters at Mumbai and appointed

Justice Shri Justice Gauri Shanker Sarraf as its Presiding

Officer and in exercise of the powers conferred by sub-

secition (1A) of Section 10 of the said Act, referred the said

Industrial Dispute to the said National Industrial Tribunal

for adjudication;

And whereas, Central Government vide order dated

4-2-2011 reconstituted the National Tribunal and appointed

Justice Shri Gauri Shanker Sarraf as its Presiding Officer;

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1247

And whereas, Justice Gauri Shanker Sarraf

relinquished the charge of the said National Industrial

Tribunal on his retirement;

Now therefore, 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-42011/07/2009-IR (DU)]

P. K. VENUGOPAL, Section Officer

vkns'k

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 449-—tcfd dsUnzh; ljdkj dk ;g er gS fd

ctkt bySDVªhdYl ds izca/u vkSj muds dkexkjksa ds chp ,d

vkS|ksfxd fookn Fkk A

vkSj tcfd bl fookn esa jk"Vªh; egRo dk iz'u 'kkfey gS

,oa ,slh izÑfr dk Hkh gS fd blesa ,d jkT; ls vf/d esa fLFkr

ctkt bySDVªhdYl ds izfr"Bkuksa ds blesa #fp j[kus vFkok izHkkfor

gksus dh laHkkouk gS A

vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vf/fu;e]

1947 (1947 dk 14) dh /kjk 7[k }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq, eqacbZ esa eq[;ky; lfgr Je ea=kky; ds vkns'k la[;k

,y&42011@42@2013&vkbZvkj (Mh;w) fnukad 27&1&2011 }kjk

jk"Vªh; vkS|ksfxd vf/dj.k xfBr fd;k rFkk U;k;ew£r Jh xkSjh

'kadj ljkZiQ dks blds ihBklhu vf/dkjh ds :i esa fu;qDr fd;k

vkSj mDr vf/fu;e dh /kjk 10 dh mi&/kjk (1d) }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/dj.k dks fu£n"V dj fn;k_

vkSj tcfd dsUnz ljdkj us fnukad 4&2&2011 ds vkns'k

}kjk jk"Vªh; vkS|ksfxd vf/dj.k dk iquxZBu fd;k vkSj U;k;ew£r

Jh xkSjh 'kadj ljkZiQ dks blds ihBklhu vf/dkjh ds :i esa

fu;qDr fd;k_

vkSj tcfd U;k;ew£r Jh xkSjh 'kadj ljkZiQ us viuh lsok

fuo`fÙk ij mi;qZDr jk"Vªh; vkS|ksfxd U;k;kf/dj.k dk;ZHkkj NksM+

fn;k_

vr% vc] eqacbZ esa eq[;ky; lfgr jk"Vªh; vkS|ksfxd vfèkdj.k

xfBr fd;k tkrk gS ftlds ihBklhu vf/dkjh dsUnzh; ljdkj

vkS|ksfxd vf/dj.k&lg&Je U;k;ky; la[;k 1 ds ihBklhu

vfèkdkjh U;k;ew£r Jh lR;iwr egjks=kk gksaxs vkSj mi;qZDr fookn dks

U;k;fu.kZ;u gsrq mi;qZDr jk"Vªh; vkS|ksfxd vfèkdj.k dks bl funs'k

ds lkFk fu£n"V fd;k tkrk gS fd U;k;ew£r Jh lR;iwr egjks=kk bl

ekeys esa ml pj.k ls vkxs dk;Zokgh djsaxs ftl pj.k ij ;g bls

U;k;ew£r Jh xkSjh 'kadj ljkZiQ }kjk NksM+k x;k Fkk vkSj bls rnuqlkj

fuiVk,axs A

¹la- ,y&42011@42@2013&vkbZvkj (Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

ORDER

New Delhi, the 17th January , 2014

S.O. 449.—Whereas the Central Government is of

the opinion that an industrial dispute existed between the

management of Bajaj Electricals and their workmen :

And whereas, the industrial dispute involves

question of national importance and also is of such nature

that are likely to be interested in or affected;

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-42011/42/2013-IR (DU)

dated 27-1-2011 with headquarters at Mumbai and

appointed Justice Shri Justice Gauri Shanker Sarraf as its

Presiding Officer and in exercise of the powers conferred

by sub-secition (1A) of Section 10 of the said Act, referred

the said Industrial Dispute to the said National Industrial

Tribunal for adjudication;

And whereas, Central Government vide order dated

4-2-2011 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;

Now therefore, 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-42011/42/2013-IR (DU)]

P. K. VENUGOPAL, Section Officer

ubZ fnYyh] 17 tuojh] 2014

dk-vk- 450-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj phiQ ,XthD;wfVo

U;wfDy;j Ý;wy fMikVZeasV vkWiQ ,VkWfed ,uthZ] gSnjkckn ds izcaèkra=k

ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V

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

U;k;ky;] gSnjkckn ds iapkV (lanHkZ la[;k 35@2006) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 13&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&42012@03@2014&vkbZ vkj (Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

1248

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

New Delhi, the 17th January , 2014

S.O. 450.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 35/2006)

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 13-1-2014.

[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 30^th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 35/2006

Between :

Smt. B. Jayamma W/o Mallaiah,

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.

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

9.11.2001. 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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1249

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 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 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

1250

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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, this matter i.e. LC No. 35/ 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 ie.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. 28/2/2006

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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition No.

29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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.

¹Hkkx II—[k.M 3(ii)º

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1251

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

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.

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[PART II—SEC. 3(ii)]

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

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 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

¹Hkkx II—[k.M 3(ii)º

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1253

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 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.

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 30^th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

: Witnesses examined for

the Petitioner

the Respondent

WW1: Smt B. Jayamma

MW1 : Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1 :

Photostat copy of order in WPNo.29210/1998

dt.25.9.2000

Ex.W2 :

Photostat copy of representation dt.11.4.98

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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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New Delhi, the 17th January , 2014

S.O. 451.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 62/2006)

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 13-1-2014.

[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 30^th day of August, 2013

INDUSTRIAL DISPUTE L.C. No. 62/2006

Between :

Smt. K. Vijaya W/o K. Rajender,

R/o H.No. A-10/2,

D.A.E. Colony, ECIL(P),

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 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

¹Hkkx II—[k.M 3(ii)º

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1255

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 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

1256

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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.

On behalf of the Respondent MW1 was examined and

Exhibits M1 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:

Whether this dispute is not maintainable

before this tribunal for want of jurisdiction?

Whether this dispute is barred by limitation?

Whether the proceedings in writ petition

No.29210 of 1998 operate as res judi cata?

Whether there is no relationship of workman

and Management between the Petitioner and

Respondent?

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?

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.

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1257

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 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

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 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

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1259

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 otherwise 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 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 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.

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.

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 30^th day

of August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for

: Witnesses examined for

the Petitioner

the Respondent

WW1: Smt. K. Vijaya

MW1 : Smt. A. Rama Devi

Documents marked for the Petitioner

Ex.W1 :

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 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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New Delhi, the 20th January , 2014

S.O. 452.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 53/2001)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the Management of M/s. BCCL

and their workman, received by the Central Government

on 20-1-2014.

[No. L-20012/460/2000-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 53 OF 2001

PARTIES :

The Secretary,

United Coal Workers’ Union,

Gandhi Road, Dhanbad

Vs.

The Chief General Manager,

Sijua Area of M/s. BCCL,

PO : Sijua, Dhanbad

APPEARANCES :

On behalf of the

Mr. D. Mukherjee, Ld. Advocate

workman/Union

On behalf of the

Late H. Nath, Ld. Advocate

Management

State : Jharkhand

Industry: Coal

Dated, Dhanbad, the 12th November, 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

¹Hkkx II—[k.M 3(ii)º

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1261

dispute to this Tribunal for adjudication vide their Order

No. L-20012/460/2000(C-I) dt. 19.2.2001.

SCHEDULE

“Whether the demand of the union to provide

employment on compassionate ground to Sri

Krishnamurari Singh, dependent son of Late Baijnath

Singh,Ex-Night Guard as per provision of 9.4.2. of

NCWA-IV is proper and justified? If so, to what

relief is the said dependent entitled?.

2. The case of sponsoring union Coal Workers

Union for petitioner Krishnamurari Singh is that late

Baijnath Singh, father of the petitioner, was a permanent

Night Guard working since long at Nichitpur Colliery, but

unfortunately the workman died on 26.12.1990, during the

tenure of his service, and his wife had also died. The

petitioner, the only dependent son of the workman, had

represented to the management for providing him an

employment as per provision of the NCWA, following the

death of his father workman. At that time, the petitioner

was not 18 years old, so the management informed his

name having been kept in Live Roster, advising him to

wait for until his becoming a major of that age. But instead

of providing him an employment, the Management turned

down his employment on the ground of its unapproval of

the Head Quarter. At last the Industrial Dispute raised by

the Union before the Conciliation Officer, but its failure

resulted in the reference for an adjudication. The demand

of the union for providing an employment on

compassionate ground to the petitioner is proper and

justified, but its denial by the management is illegal and

unjustified.

The Union in its rejoinder has categorically denied

the allegations of the OP/management, and stated that

Baijnath Singh was a permanent employee as Night Guard

who died on 26.12.1990 during the tenure of his service,

but the Management belatedly informed the concerned

person of the rejection of his claim.

3. Whereas the contra pleaded case of the OP/

Management is that Late Baijinath Singh, Ex-Night Guard

was a permanent employee at Nichitpur Colliery. He died

on 26.12.90; on his death, his dependent son Krishnamurari

Singh submitted an employment Form for his employment.

It was sent to the Head Quarter, Koyla Bhawan.His case

was considered, but the competent Authority regretted

the same and it was informed to the petitioner as per the

G.M.’s Letter No.569 dt.21.2.1998 of the Koyla Bhawan.The

action of the Management in not providing employment

to Krishnamurari Singh as per provisions of clause 9.4.2.

of NCWA –IV is proper and justified. The petitioner is not

entitled to any relief.

FINDING WITH REASONS

4. In the instant reference,WWI Krishnamurari

Singh, the petitioner himself for the Union, has been

examined, but not a single witness has been examined on

behalf of the OP/Management despite ample opportunity.

Mr. D.Mukherjee , the Learned Counsel for the

Union/the petitioner submits that Late workman Baijnath

Singh, the father of the petitioner, was the Night Guard at

Nichitpur Colliery who died in harness on 26.12.1990

(photocopy of his death Certificate–Ext.W.1) and at the

relevant time petitioner Krishna Murari Singh who was 15

years old as per the copy of his Father’s Service Excerpt

(Ext.W.2), had made two representations (dt. 29.4.91 and

01.06.1996,the photocopies thereof-Extt.W.3 and 3/1

respectively) to the Management for his employment. But

the Management refused his employment on

compassionate ground. Relying upon the decision of the

Hon’ble Supreme Court reported in 2007(115)FLR 427,

Mohan Mahato Vs. CC Ltd., Mr.Mukherjee submits, as

held therein, that the management is statutorily bound to

provide the dependent an employment, as in Coal Industry

dependent employment is provided as per the provision

of the NCWA which is Settlement, and that the Public /

Sector undertaking such as CCL,BCCL is a state within

the meaning of Art.12, so is under a constitutional

obligation to act fairly, reasonably and bonafide.It is also

submitted as per his written argument on his behalf that

same view has been reiteratuted by the Hon’ble High

Court, Jharkhand, in the cases of Basmatia Devi Vs,.CCL

and Lakhjma Kumar Vs.CCL reported in JLJR 2006(2) 464

and JLJR2005(3) 190 respectively. According to

Mr.Mukherjee, Ld.Counsel for the union the petitioner is

entitled to his employment on compassionate ground.

5. In fact, every of the NCWAs is an Agreement/

Settlement between the members of the concerned

Industrial Organizations and those of recognized Labour

Unions INMWF(INTUC) & Ors concerned for the specific

terms and conditions laid down for the wages, various

specified reliefs including the Social Security of the

workmen for specified period of time whenever required

for their interest. In the instant case, the death of Late

workman Jai Nath Singh in harness on 26.12.1990 is an

acknowledged fact, so the NCWA IV enforced w.e.f.

1.1.1987 to 30. 06.1991 as evident from the preamble to

NCWA-V appears to be applicable to the case of the

petitioner dependent son of Workman. In clause 9.4.02

with heading Employment of one dependent of the workers

who dies while in service under Social Security Chapter-

IX reads as under:

(i)

The dependent for this purpose means the

wife/husband as the case may be, unmarried

daughter, son legally adopted son… wholly

dependent on the earning of the deceased

may be considered to be the dependents of

the deceased,

(ii)

The dependents to be considered for

employment should be physically fit and

1262

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

suitable for employment and aged not more

than 35 years provided that the age limit shall

not apply in the case of spouse.

In the instant case, the minority of the petitioner at

the relevant time of his father’s death or of his aforesaid

two representations to the O.P./Management for his

employment is indisputable. The provision under the

clause 9.4.02 (ii) of the NCWAIV the requisite qualification

for employment on compassionate ground seeks that

“dependent should be physically fit and suitable for

employment, and aged not beyond 35 years. Its implied

conditions involve that the dependent should not be a

minor, rather be legally a major for such employment at the

relevant time. It is also significant to note that the said

provision nowhere bars to the dependent of the workman

dying in harness from making an application to the O.P./

Management for his compassionate employment in view

of the extensive period, .i.e., “aged not more than 35 years”

as laid down in the provision of the NCWA -IV.It is

remarkable to signify that each NCWA has its existence

for its specified period.

In result, it is hereby responded to the Reference,

and accordingly,

ORDERED

The Award be and the same is passed that the

demand of the Union to provide employment on

compassionate ground to Sri Krishnamurari Singh,

dependent son of Late Baijnath Singh, Ex-Night Guard as

per provision of 9.4.2. of the NCWA-IV is/was not proper

and justified on account of minority of the petitioner. In

that aspect he was not entitled to it. However, in view of

the nature of the said provison, the afresh application of

the petitioner for his employment may be considerable by

the O.P./Management, but subject to the said provision

only. The Management may be directed to consider it,

provided afresh application is made in the prescribed Form

by the petitioner who is not beyond 35 years of his age.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 453-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y

ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k 148

dk 2001) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20&01&2014

dks izkIr gqvk Fkk A

¹la- ,y- 20012@35@2001&vkbZvkj (lh&I)º

,e-ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 20th January, 2014

S.O. 453.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. No. 148/2001) 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 20-01-2014.

[No. L-20012/35/2001-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 148 of 2001.

Parties :

The Secretary,

Rashtriya Colliery Mazdoor

Sangh, Rajendre Path,

Dhanbad,

Vs.

Project Officer, Tetulmari

Colliery under Sijua area of

M/s BCCL

Appearances :

On behalf of the work-

: None

man/Union

On behalf of the

: Mr. D. K. Verma, Ld. advocate

Management

State

: Jharkhand

Industry : Coal

Dated, Dhanbad the 13th Nov., 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/

35/2001-IR (C-I) dt. 30-04-2001.

SCHEDULE

“Whether the action of the management of Tetulmari

Colliery under Bharat Coking Coal India in not regularizing

the services of Shri Hardwar Rai, Pump operator as

Dhowrah Supervisor is proper and justified. If not, to what

relief the workman is entitled to and from which date.”.

2. Neither any Representative for the Rashtriya

Colliery Mazdoor Sangh, Dhanbad, nor workman Hardwar

Rai appeared nor any witness of the workman produced

despite ample opportunities for it. Mr. D. K. Verma, the Ld.

Counsel for the O. P./ Management is present.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1263

On perusal of the case record, it is clear that the case

has been pending for the evidence of workman since

12-4-2005, for which Regd. Notices 27th May and 25th July,

2013 have been issued to the Secretary of the Union. The

Union Representative and the workman by their own

conduct appeared to be quite disinterested in contesting

the case which is related to an issue of regularization. Under

these circumstances, the case is closed as no Industrial

Dispute existent now. Accordingly an order is passed.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 454-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y

ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k 13

dk 1991) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20&01&2014

dks izkIr gqvk Fkk A

¹la- ,y- 20012@202@1990&vkbZvkj (lh&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 20th January, 2014

S.O. 454.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 13/1991 ) 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 he Central Goverment on 20-01-2014.

[No.-L-20012/202/1990-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 13 of 1991.

PARTIES :

Member Exec. Committee

Janta

Mazdoor

Sangh,

Vihr Building, Jharia Dhanbad,

Vs.

General Manager, Sijua Area of

M/s BCCL, Sijua, Dhanbad.

APPEARANCES :

On behalf of the :

Mr. K. N. Singh, Ld. Advocate

workman

On behalf of the

: Mr. D. K. Verma, Ld. Advocate

Management

State : Jharkhand

Industry : Coal

Dated, Dhanbad the 18th Nov., 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/

202/90-I.R. (Coal-I) dt. 11-12-1990.

SCHEDULE

“Whether the action of the management of in

dismissing S/Shri Sukhdeo Bhuian, Fitter helper, Suresh

Ram, fitter Helper and Sarda, Shovel Operator vide their

letter No. Sen/Bans/PER/89/393, Sen. Bans Per/89/19/

392, Sen. Bans/PER/89/19/385 dt. 31-3-89 respectively

is justified ? If not, to what relief the workmen are

entitled ?”

2. The case of the workmen as sponsored by the

Janta Mazdoor Sangh, Dhanbad, is that all three

workmen Sukhdeo Bhuia, Suresh Ram and Sarad were

initially appointed as Miner/Loaders by the

Management after their full identity duly certified by

the Competent Authorities. Consequently, they were

converted from piece rated to Time rated men. After

their long satisfactory services, the management raised

the question of fresh identification certificate, and

stopped the from working from 24-10-1987 followed by

the charge sheet on 16-12-1987 which was devoid of

precise nature of misconduct alleged against each of

the them. At raising an Industrial Dispute before the

RLC. (C), Dhanbad for the relief of resumption of duties

or payment of subsistence allowance as per the Standing

Orders, the Management held domestic enquiries and

issue them their dismissal letters on 31-3-1989 against

which the dispute arose.

In course of the ex-parte enquiry proceeding, Sri

K. N. Panda, the Clerk though deputed as the

Representative for the Management , yet roled as a

witness, put against the workmen the allegations that

they individually secured their employment by giving

false information about their names, father’s names and

home addresses :

Sri Sukhdeo Bhuia’s real name was Sri Shivji

Singh S/o Ayodhya Singh of Village Lumbani, Distt.

Bhojpur, but not of village Ugra, PO : Balapur,

Dist : Mongher as recorded in the Company’s documents.

The father’s name of workman Suresh Ram was Teju Chamar

and not Teju Ram as informed by him, and the name of

Teju’s wife was Doju Kamin and she was his mother, whereas

there was no real difference between the surnames

“Chamar” and “Ram”.

1264

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

And Sri Sarda was not son of Late Jirwa Kamin, but

in fact the Late Jirwza Kamin, the mother of Sardam, was

second wife of his father. The information furnished by

him was not false.

All the statement/evidence of Sri R. N. Panda was

not based on his personal knowledge, but allegedly

collected from the O.C., Loyabad P.S. the same was not

substantiated by oral or documentary evidence. The

hearsay evidence of Sri Panda, not worthy of credence,

can not be the basis of their dismissal. The Management

miserably failed to establish the charges in all the cases,

and wrongly shifted the onus of proof on the workmen.

The action of the Management in dismissing the workmen

on the perverse finding of the Enquiry Officer is not

justified.

3. The Union concerned in its rejoinder for the

workmen categorically denied all the allegations of the

Management as vague, and stated that in fact the difference

L.C. Applications u/s 33  (2) were filed before the central

Labour Court, No. 2, Dhanbad, for the wages differences

for the period of stoppage prior to dismissal.

4. Whereas challenging the maintainability of

Industrial dispute, the contra pleaded case of the

management is that that the three workmen concerned had

entered into the employment of M/s Bharat Coking Coal

Ltd. in 1981 surrpetiously as dependent sons of the

workmen who had opted for voluntarily retirement under

the Voluntary Retirement Scheme for female employees.

Sri Suresh Ram sneaked into employment of the

Management by falsely disclosing his identity as

dependent son of Chandwa Kamin, female workers of the

same colliery, but he was not her dependent son, as he was

factually son of Teju Ram, of village Kaslea Khas Muskiya,

P.O. Mirza, Jamalpur, Ghoshi Pargana, Thana Ghoshi, Dist :

Azamgarh in U.P. His photograh was attached as such by

the Mukhiya of the village Panchyat concerned and the

District Officer of Azamgarh District.

Sri Sukhdeo Bhuiya also got employment of the

Management by falsely disclosing his identity as

dependent son of Ayodhya Bhuia of Vill : Ugra, P.O.

Baliapur, Dist; Munger, Bihar, whereas he was

factually the son of Ayodha Singh of Village : Laghmani

Dist : Bhojpur.

Likewise Sri Sarda also got his employment of the

Management as dependent son of Smt. Jirwa Kamin but

in reality he is Sarda Singh Yadav of Village : Govindpur,

Dist : Gazipur (U.P.), and Smt. Jirwa Kamin was wife of

Sri Chandrika Bhuiya so the initial appointments of all

the workmen concerned were illegal and void. At the

time of their employment. The concerned workmen gave

false information about name, age, father's name which

was misconduct under the Certified and Model Standing

Orders applicable to Coal Mines.

5. Later on it was learnt in 1987 of their

employments based on false information and a few

others, so they were directed by the Dy.C.M.E.,Sendra

Bansjora colliery to submit their fresh identifications

by their respective B.D.O. . The District Officer by a

letter No. SB/PD/87/21/950 dt.10.08.1987.But the

concerned workmen did not produce the same within

stipulated period therein.Therefore, they were stopped

from work as per the letter No.SB/Dy.CME/87 /37 /1114

dt.24.10.1987 with immediate effect.

Again as per another letter No. SB/SPO/87/21/

1372 dt.16.12.1987,the workman were given seven days

time to produce their identification from their respective

B.D.O. and District Officer, failing which the disciplinary

action would be taken against them under the Model

Standing Order para 17(1)(O) applicable to the colliery.

Subsequently to those events, the Standing Orders had

been certified for all the Coal Mines of M/s Bharat Coking

Coal Ltd.

6. These workmen Suresh Ram,Sukhdeo Bhuia and

Sarda as per the Orders dtd. 30th Oct. and 13th Nov.1991

of the Central Government Labour Court No. 2, Dhanbad,

in their respective L.C.Nos. 06.4 and 5/1990 were allowed

the payment of wages Rs. 22,567.42, Rs. 21,161.63 and

Rs. 24,809.46 for the period of their stoppage of work

from 24.10.1987 till 31.03.1989 respectively.

The domestic enquiry was fully held against the

workmen in accordance with the principles of natural

justice, after giving the full opportunity for their

defiance. They participated in the domestic enquiry.

They were found guilty of the charges. The Enquiry

Officer submitted his report based on reasons. The

Employees agreed with the Enquiry Findings of the

Enquiry Officer and the workmen were dismissed from

service as per their letters dt.31.3.1989 after the approval

of the competent Authroity.The action of the

Management in dismissing the workmen from services

was justified. The workmen are not entitled to any relief.

In 'case of holding the domestic enquiry unfair, the

management sought a relief for leading evidence for

justification of its action.

FINDING WITH REASONS

7. At the onset, it is worth noting that at the

demise of one workman Sukhdeo Bhuiya on 26.12.1993,

his son Santosh Kumar on his petition has been

substituted in his place as per the Order No.41

dt.26.07.2013 of the Tribunal.

In the instant case, after the examination of the

Management witness and the workmen's ones at the

preliminary issue of fairness, the Tribunal as per its

Order No. 100 dt. 31.8.2004 held the domestic enquiry

unfair and improper. Hence, the management further

produced its evidence on merit as allowed for

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1265

substantiating the charges against the workmen, In

result, the MWI Rabindra Nath Panda, the Clerk and

MW2 Rakesh Ranjan.the Sr. Legal Inspector were

examined on merits on behalf of the Management.

8. Mr. K.N. Singh, the Learned Counsel for the

Union/workmen submits that even on merits, none of

the afresh two witnesses of the Management could

prove the impersonation of these three workmen in their

employment nor any police document to that effect;

and that the workmen were provided their employment

under V.R.S,neither any complain proved nor lady

concerned was examined; so their dismissal in lack, of

the substantial evidence of the O.P/Management or

merely on a hearsay evidence at the charge was not

justified; they are entitled to re-instatement in the

services.

In response to it, Mr. D.K.Verma,the Learned

Counsel for the O.P./Management has contended that

all the three workmen had got their employment under

V.R.S. Scheme, none of them examined himself or any

witness on their behalf as to their identity of their being

genuine, and in the departmental/domestic proceeding

into it, it turned out evidently none of them was genuine

workmen; it is settled law that preponderance of

probabilities, not the proof, prevails in the departmental

proceeding.

On perusal of the fresh materials/evidence on

merits on the case record, I find that MWI Rabinda

Nath Panda (R.N.Panda) has stated that the workmen

were not genuine persons, so they were charge- sheeted

for it. MW2 Prakesh Ranjan,the Sr.Legal Inspector for

the OP/Management on merits has clearly stated that

after the enquiry against the workmen Sukhdeo Bhuia,

Sarda and Suresh Ram for their impersonation, they were

dismissed; and as per the photocopy of the seizure list

(Ext.M.l0) regarding the Jogda P.5.Case No. 51/87

instituted against the workmen and some others, the

police had seized all the papers.

In the reference, no charges of impersonations

under clause 17.(1)(0) of the Standing Orders of the

Company could be substantiated.Therefore,the

dismissals of the workmen were not proper, so are liable

to be set aside.

In the result, it is, in the terms of the reference,

responded and hereby

ORDERED

That the Award be and the same is passed that

the action of the management in dismissing S/Shri

Sukhdeo Bhuian (now dead during pendency), Suresh

Ram, both fitter Helper and Sarda, Shovel Operator as

per their concerned letters dt.31.03.89 respectively is

unjustified. Therefore,were Late Sukhdeo Bhuian alive,

he like Suresh Ram and Sarda would have been entitled

to re-instatement in their services without their back

wages. In case Late Sukhdeo Bhuiyan died prior to his

retirement age, his substituted dependent son Santoh

Kumar in his place is entitled to an employment as per

the rule of the Company, otherwise to the all retrial

benefits of his father subject to the rules accordingly.

Likewise workmen Suresh Ram and Sarda are

entitled to re-instatement in their services but without

back wages, if not superannuated, otherwise to their

own all retrial benefits.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

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dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y

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vf/dj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k 80

dk 2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20&01&2014

dks izkIr gqvk Fkk A

¹la- ,y- 20012@22@2005&vkbZvkj (lh,e&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

New New Delhi, the 20th January, 2014

S.O. 455.—In pursuance of Section 17 of the

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

Government hereby publishes the Award Ref. 80/2005 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 he Central Goverment on 20-01-2014

[No.-L-20012/22/2005-I R (CM-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 80 of 2005.

PARTIES :

Secretary,

Bihar Colliery Kamgar Union,

Hirapur, Dhanbad

Vs.

G. M. Kusunda Area of

M/s BCCL, Kusunda,

Dhanbad.

APPEARANCES :

On behalf of the work-

Mr. K.Chakraborty, Ld.

man

Advocate

1266

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

On behalf of the

Mr. U. N. Lal, Ld. Advocate

Management

State : Jharkhand

Industry : Coal

Dated, Dhanbad the 23rd Dec., 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/

22/2005-I.R. (C-I) dt. 26-07-2005.

SCHEDULE

“Whether the action of the management of Godhur

Colliery under Kusunda Area of M/s BCCL in posting

Sri Pradip Kumar Layak, Trainee (Typist) Cat. I as

General Mazdoor Cat-.1 instead of regularizing him as

Clerk Grade-III is justified? If not, to what relief is Sri Pradip

Kumar layak entitled and from what date ?”

2. Neither Mr. K. Chakraborty, the Ld. Advocate for

the Bihar Colliery Kamgar Union nor workman Pradip

Kumar Layak appeared nor any witness on behalf of the

workman produced since pending for a long time from

9-11-2011, for which last chance was also given in addition

to Regd. notices Mr. U. N. Lal, the Ld. Advocate for O. P. /

Management is present.

On perusal of the case record, it is quite clear that

the Present reference relates to an issue of regularization

of the workman as Clerk Gr. III, but not a single witness

produced so far one behalf of the workman. The Union

Representative and the workman by their conducts appear

to be quite uninterested in contesting the Reference. Under

these circumstances, proceeding with the case for

uncertainty is not only useless but also a mere wastage of

time of the Tribunal . In result, the case is closed as no

Industrial Dispute existent and accordingly it is ordered as

‘No Dispute award.’

KISHORI RAM, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 456-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y

ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k 172

dk 1998) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20&01&2014

dks izkIr gqvk Fkk A

¹la- ,y- 20012@238@1996&vkbZvkj (lh&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 20th January, 2014

S.O. 456.—In pursuance of Section 17 of the

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

Government hereby publishes the Award Ref. 172/1998 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 Goverment on 20-01-2014.

[No.-L-20012/238/1996-I R (CM-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 172 of 2008.

PARTIES :

Mr. D. Mukherjee,

Secretary, Bihar Colliery

Kamgar Union, Hirapur,

Dhanbad

Vs.

The Dy. Chief Mining

Engineer/Agent, Balihari

Colliery of M/s BCCL,

Dhanbad-826001

APPEARANCES :

On behalf of the work-

Mr. D. Mukherjee, Ld.

man/Union

Advocate

On behalf of the

Mr. D. K. Verma, Ld.

Management

Advocate

State : Jharkhand

Industry : Coal

Dated, Dhanbad the 14th Nov., 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/

238/96-I.R. (C-I) dt. 14-07-1998.

SCHEDULE

“Whether the action of the management of Balihari

Colliery of M/s BCCL, Dhanbad in illegal and arbitary

denial of services to Shri Hareram Ram & others (as per

list) is justified ? If not, to what relief these workers are

entitled and from what date ?.”

2. The case of sponsoring Bihar Colliery Kamgar

Union, Dhanbad for workmen S/Sri Hareram (Hariram) Ram

& others is that the concerned workmen had been

performing the cutting of stone, cleming coal, drains,

driving, galary, drilling, isolation-stopping digging in stone,

cleaning coal from conveyer belt etc, as permanent

workmen in Balihari Colliery under the direct control and

supervision of the management since long. Those were

the jobs of prohibited category. They put in more than 190/

¹Hkkx II—[k.M 3(ii)º

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1267

240 days attendance in each calendar year. They were

being supplied all the implements by the Management for

the jobs. They were being paid their wages below the rates

of NCWA through different intermediaries only to

camouflage the real issue. They rendered their service,

and produced goods for the benefit of the management.

But the management managed different paper arrangement

to deprive the poor workmen of their legitimate wages and

other benefits. As the workman began to demand for their

regularization, the anti labour management unreasonablely

and illegally stopped them from working in the year 1996

against the principles of natural justice. The Management

had also not maintained any statutory Register regarding

the workmen. At last, the failure in the conciliation

proceeding in the Industrial Dispute raised by the Union

before the ALC©,Dhanbad,resulted in the reference finally

as per the Order of the Hon’ble High Court .Patna, Ranchi

Bench in CWJC No. 3390/97. The action of the Management

was illegal,vindictive,anti-Labour and unjustified. All

underground workmen are legally bound to work under

the direct control and supervision of the management.

3. The Union in its rejoinder categorically denied all

the allegations of the OP/Management as false,

4. Whereas the contra pleaded case of the OP/

Management is that no employer-employee relations existed

any time between the management and the concerned

persons. The sponsoring Union had already represented

before the ALC©,Dhanbad,Sri HariramRam and others as

the Co-operative Labourers and members of the

Co-operative Society "Azad Shramik Sammittee" were

working at Balihri Colliery since 1989, so far the absorption

of the co-operative labourers on regular basis. The

aforesaid Co-operative Society was awarded contracts by

the work- orders for the jobs of Civil Construction once or

twice in a year for a period of 15 days in one month at a

time. The said Co-operative Society accordingly

constructed ventilation stopping in underground Mines.

In the ventilation stopping work, the workmen of the

Cooperative society, were required to load the materials

bricks, sand, cement etc. into tubs on the surface, which

were transported by the Trammer who deposited at the

appropriate place inside the Mine wherefrom they carried

the materials to the working place of ventilation Stoppage.

For it, the construction of the Brick wall followed by its

plastering is made to prevent leakage of air between in-

take and return inside the Mine. The works in order to

ensure supply of fresh air at the working places for the

benefits of employed workmen are available intermittently

once or twice a year in the Mine. Contractors are

occasionally deployed for performance of such temporary

and casual work.

The Cooperative Society formed as per the policy

decision of the State Government under the Co-operative

Societies Act acted as a contract of the Company, and

engaged their members on the contract jobs awarded to it

as per the work- order issued in its name. But the Society

was never engaged for any contract jobs of prohibiting

character as per the Notification issued by the Central

Government u/s 10 of the Central Labour (Regularization

and Abolition) Act, 1970.The allegation that the workmen

worked the jobs of prohibited nature is an imaginery.The

Union by including many jobs seekers in some contract

workers as 31 Co-operative labourers raised the Industrial

Dispute before the A.L.C. for their regularization. Initially

the matter devoid of merits was rejected by the Central

Government, but as per the order of the Hon'ble High Court

of Patna, Ranchi Bench, it was referred to the Tribunal for

adjudication. The claim of the workmen for regularization

is baseless. They are not entitled to any relief.

5. The O.P./Management in its rejoinder specifically

denied all the allegations of the Union, and stated that no

isolation stoppings were built during the relevant period,

so also making duggis in stone and cleaning of coal from

conveyor belt etc., are absurdities, no question arises as to

carrying on any contract job under the control and

supervision of the management.The payment was to the

Co-operative Society as per the scheduled rates which

paid its all members who actually performed the jobs, and

all the members of the society got dividend on the profits

made out of the contract. As the management of Balihari

Colliery could not provide sufficient contract jobs, they

engaged themselves various in other jobs elsewhere, as

they did not depend on the contract job of Balihari Colliery.

As they were not on duty, the question of stopping them

from duty neither arose nor arises. The Management

followed the provisions of laws as applicable to the Mines.

FINDING WITH REASONS

6. In the reference, WWI Sahadeo Mahato

(SL. No.10 as per the List),one of the workmen examined in

behalf of the Union for them, but not any witness examined

from the side of the O.P./Management.

Mr. D. Mukherjee, the Learned Advocate-cum-Union

Representative has vociferously submitted that

Sri Sahadeo Mahato (WW1) has unchallengably

established all the workmen concerned to have

continuously done the perennial job of cutting

drain,duggi,stone,loading of stones on the Trolley as per

their engagement slips (Ext.W.1 Series) etc. since 1989 as

per instruction of the In- charge concerned; but their wages

were paid not in accordance with NCWA provision; when

they demanded their wages for the jobs, they were stopped

by the management from working from 1996. According to

Mr.Mukherjee , the evidence of the workman (WW1) being

devoid of cross-examination by the Management remained

unchallenged; when the witnesses were not tested in that

way, their evidence is to be accepted as held in the case of

KarmidamSarda Vs.Sailaja Kanta Mitra, AIR 1940(Pat)

683;and the failure to cross-examine witnesses in respect

of materials assertion-Party should be presumed to have

admitted of that assertion [1977 Cr.L.J.(Del) 410, Bal Kishna

Vs,. Shet & Ors].

1268

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

7. Further argument by Mr.Mukherjee on their behalf

as also witnessed by Sahadeo Mahato (WW1) is that

Sri Gaya Ram Mahato and 75 others of Reference No.204/

94 as their colleagues of same Balihari Colliery and the

same Co-operative Society are working as per the Award of

the CGIT.No.1 which was affirmed upto the Hon'ble

Supreme Court in the Civil Appeal No.3962/2006,though

the Award was for regularsation,the Hon'ble Apex Court

directed for reinstatement. This plea is untenable, as every

ratio decidendi has its own factum. In the instant case, I

find that Sri Sahadeo Mahato (WW1) has asserted that

they had got the nine(engagement)slips (Extt.W.1 series)

from the office of the Colliery since that time, but he appears

to have intentionally denied in cross by the Court whether

each slip bears the Azad Samittee or Azad Shramik Sahayog

Samittee. All the nine original engagement slips disclose

their heading “Azad Samittee”, but one of them bears “Azad

Shramik Sahayog Samittee”.

All the nine slips relate to the period of Jan, 18, 2, 23,

Feb 5, 10, 11, 15, May 24 and Sept 9, 1993 only;Out of total

31 listed workmen, only 13, namely SI. Nos. Kishore Turi, 2.

Hareram Ram, 8. Churaman Mahato, 9. MithulalMahato,10.

Sahadeo Mahato(WW1), 21.Bameshwar Rajwar, 22.Suresh

Pd. Mahato,24. Narendra Yadav, 25 .Krishna Mahato, 26.

Raj Kumar Bharti, 27. Chota Lal Mahato, 28Avilash

Mahato.iand 29.Naresh Mahato appear to have irregularly

worked for 01.6, 01, 06, 01, 05, 7, 5, 5, 7, 2, 3 and 2 days

respectively during the said nine days in the year 1993,

but 24 other unlisted persons are named in the said same

slips.

8. So far as the period of the workmen's working is

concerned, their initial period is vague as "since long" in

their pleading para first as compared to the specific year

"since 1989" firstly disclosed in the evidence of WWI

Sahadeo Mahato.Whereas the calling for Attendance

management as per the petition as per list dt.7.5.99 devoid

of any documents as per the list appears to be baseless.

Besides, the fact of Sri Gaya Ram Mahato and 75 others as

their colleagues as per the award of the Tribunal concerned

in the Ref,. No. 204/94 as brought forward by WWI Sahadeo

Mahato in his evidence has no base of their pleadings.

Hence it is inadmissible.

9. Besides,Mr.Mukherjee,the learned Advocate-cum-

Union Representative quoting many rulings (to be cited)

has to submit that Hon'ble Supreme Court has been pleased

to hold that where the workmen were engaged through so-

called contractors known as "Mukdama" as also pleaded

by the management no employer- employee relationship

existent between the workmen and the management, the

workmen concerned were held as the employees of the

Management in the case of the United Salt Works &

Industries,Kandla Vs. their workmen,1962 lU(L&J)131,and

Basti Sugur Mills Ltd. Vs. Ram Ujagar, SCLJ (V 10) 4867

respectively; The Hon'ble Apex Court also held the

contractor workmen as the employees of Factory Owner in

the case of D.C.Dewan Saheb Vs. United Bidi Workers'

Union, LLJ(Vol.lI) 1964(SC)633,wherein the Bidi Factory

Owners used to supply Bidi leaves and tobacco to the

contractor, who supplied the same to the workmen, who

deposited their products to the contractor, who lastly did

so to the Factory Owner.

Same view was held by the Hon'ble Apex Court

regarding the Cycle Stand workers in the case of Royal

Talkies Vs. employees State Insurance Corp. SCJ

(Vol.10)(SC)101 wherein the concerned workmen were

working in the Cycle Stand of the Cinema Hall. At the

direction of the E.S.I.Authority to the Management of the

Cinema Hall to, pay E.S.I. contribution, the Cinema Hall

Owner refused to pay it on the plea that the Cycle Stand

was maintained by contractor, and he had no concern with

the cycle stand. It was held that the Cycle Stand is

maintained for the benefit of the Cinema Hall, so the owner

of is as liable to pay contribution as employer. •

10. In the case of catering cleaners Vs. South Eastern

Railway,1987 lab.l.c.(SC) 619 at the direction of the Hon'ble

Supreme Court, the concerned workmen working in the job

of permanent nature in the Train catering as just as the

award dt.8.8.97 of the same Tribunal passed in Ref.Nos.

156/94 and 72/95 in favour of the workmen permanent

nature as remained confirmed up to the Hon'ble Supreme

Court in S.L.P.15253/1993 were regularized as the employee

of the Railway.

Further stressing on the Award of the CGIT No.1,

Dhanbad, passed in Ref. No. 58/1992 concerning the

contractor's workmen of Swang Washery of M/s CCL

having been confirmed upto the Hon'ble Apex Court of

five Judges in S.L.P. (C) No.1939/99 reported in 2001 L.L.R.

SC 961, Steel Authority of India Ltd. Vs. National Water

Frost Workers & Ors., Mr. Mukherjee submitted that the

CGITNo.1,Dhanbad, by the award dt.3rd Oct.,1996 had

directed the Appellant to absorb the contract labour;and

that likewise the awards dt.21.2.1992 & 8.8.91 of the same

CGIT No.1, Dhanbad, in the Ref. Nos. 151/1989,156/94 and

72/95 related cases of similar nature remain confirmed by

the Hon'ble Supreme Court in the S.L.P.(C) Nos. 14964/98

and No. 15253/99 respectively.

11. Further the plea of Mr.Mukherjee is that in the

case of G.B.Pant University of Agri.Tech vs.state of U.P.,

2000(87) F.L.R. (Sc)7 , the cafeteria workers in university

providing food to the inmates of the hostels "were held as

employees of the university to be entitled to regularization

of their services in terms of Award passed by the Labour

Court, that if the fact of employment of workmen with

Appellant (Employer Establishment) to work in their

premises found established after removing the mask of

employment under contractor, the Appellant can not escape

its liability- Respondents were its employees as held in the

case of M/s Bharat Heavy Electrical Ltd Vs. State of U.P.,

2003 (98)F.L.R.(SC)826. Underlining the observation of the

¹Hkkx II—[k.M 3(ii)º

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1269

Hon'ble Apex Court in para 2 of the Judgment in the case

of Bhillwara Dugdh Utpadak Sahakari Ltd. Vs. Vinod Kumar

Sharma reported in 2011 L.L.R.(SC)1079, Mr. Mukherjee,

Learned Advocate cum Union Representative has quoted

it as such in order to avail their liability under various

labour statutes employers are very often resorting to

subterfuge by trying to show that their employee are, in

fact, the employees of a contractor. It is high time that the

subterfuge must come to an end.

12. On the perusal and consideration of the oral and

documentary evidence of the workmen as on the case

record, I find that the case of the workmen as brought up

by the Union concerned itself suffers from obscurity and

vagueness. Having due regards to the aforesaid rulings, I

am of the view that none of the rulings appears to be

helpful to the present case which is itself devoid of

substantial merits, because only 13(thirteen) workmen

under Sl. Nos.1, 2, 8 to 10, 22.22 and 24 to 29 out of total 31

as per the list enclosed appeared to have worked not more

than 1 to 7 days in the year 1993 as per their original nine

engagement slips (Ext.W.1 series) issued by the Azad

Samittee or Azad Shramik Sahayog Sahayog which carry

18 unlisted workmen. The said 13 named workmen were

neither regular nor completed 190/240 days works in any

calendar year. The union has no account of the names of

rest 18 workmen as per the list enclosed with the Reference

under adjudication.

In view of the aforesaid facts and circumstances, it

is, in the terms of the reference hereby resonded, as such

ORDERED

That the Award be and the same is passed that the

action of the management of Balihari Colliery of

M/s. BCCL, Dhanbad, in denial to the services of Shri

Hareram Ram and others (as per the list) is quite justified.

It is not illegal and arbitrary. Hence, none of the workmen

are entitled to any relief from any date.

KISHORI RAM, Presiding Officer

List of the workmen as per Ministry’ File

No. L-20012/238/96-IR(C-I)

Sl.

Name (S/Sh.)

Father's Name

(S/Sh.)

Kishore Turi

Muneshwari Turi

Hariram Ram

Rajbali RamI

Kali Pado Mahato

Anand Mahato

Shankare Mahato

Adu Ram Mahato

Jaleshwar Mahato

Somare Mahato

Faloveri Mahato

Chandu Mahato

Gajo Paeamanik

Somar Paramanik

Churaman Mahato

Atul Mahato

Mithulal Mahato

Balichand Mahato

10.

Sahadeo Mahato

Ratan Mahato

11.

Kailash Thakur

Bhulah Thakur

12.

Azad Mahato

Dashan Mahato

13.

Tapan Mahato

Diwakar Mahato

14.

Prabhakar Kr.Singh

N.K.Singh

15.

Vinod Kumar Mahato

Rajeshanadan Mahato

16.

Yudhusthir Mahato

Khagen Ch.Mahato

17.

Biswajit Kumar Singh

Mandashar Pd.singh

18.

Ram Chandra Sao

Kishun Sao

19.

Brij Mohan Kumar

Bhikan Kumar

20.

Ajit Kumar Singh

Mandashar Pd.singh

21.

Baneshwar Rajware

Manik Rajware

22.

Suresh Pd.Mahato

Tej Narayan Mahato

23.

Sudhakare Kumar Singh N.N.singh

24.

Narendra Yadav

RamChandra Yadav

25.

Krishna Mahato

Bidu Mahato

26.

Raj Kr.Bharti

Ram Narayan Bharti

27.

Chota Lal Mahato

Raju Mahato

28.

Avilash Mahato

Bhusan Mahato

29.

Naresh Mahato

Gulu Mahato

30.

Biswanth Mahato

Fulchand Mahato

31.

Had Nath Kumhar

Mohit Kumhar

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New Delhi, the 20th January, 2014

S.O. 457.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref.No. 34/2011

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 Bastacolla Area of

M/s. BCCL and their workmen, received by the Central

Goverment on 20-01-2014.

[No. L-20012/92/2011-IR (CM-I)]

M. K. SINGH, Section Officer

1270

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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. 34 of 2011

PARTIES :

Vice President, Janta Mazdoor

Sangh, Vihar Building, Jharia,

Dhanbad

Vs.

Chief Gen. Manager,

Bastacolla Area of M/s. BCCL,

Jharia, Dhanbad

APPEARANCES :

On behalf of the work-

Mr. K. N. Singh, Ld.

man/Union

Advocate

On behalf of the

Nil

Management

State : Jharkhand

Industry : Coal

Dated, Dhanbad the 23rd Dec., 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/

92/2011-I.R. (CM-I) dt. 07-12-2011.

SCHEDULE

“Whether the action of the management of

Bastacolla Colliery of M/s. BCCL, in not providing

employment initially to Smt. Rambatee Bhuiani @ Rama

Bhuini dependant wife of the deceased workman, there

to Sri Kailash Bhuia dependant son of Late Khuri Bhuia

under the provision of NCWA is justified and fair? To

what relief Smt. Rambatee Bhuini and Sri Kailash Bhuia

dependant son of Late Khuri Bhuia are entitled to ?”

2. Neither Union Representative for the Janta

Mazdoor Sangh, Bihar Building, Jharia, Dhanbad, nor

petitioner Smt. Rambatee Bhuini alias Rama Bhuini or Shri

Kailash Bhuiya the dependant wife and son of Late Khuri

Bhuiya respectively appeared nor written statement of the

petitioners has been filed despite three Regd. Notices

dtd. 10-1-2012, 17-10-2012 and 4-7-2013 on the addresses

of both the parties, yet the O. P. /Management as well as

the Union Representative/petitioners have not appeared.

The Regd. notices have been issued to the Vice President

of the Union concerned as well as the O. P./Management

on their respective addresses as noted in the reference

itself. The conducts of the Union Representative as well as

the petitioner (s) by their conducts appear to be

uninterested in pursuing the case for finality.

Under these circumstances there is no alternative

except closure of the case as no Industrial dispute existent.

In resut, the case is closed and accordingly an order is

passed as no Industrial Dispute existent.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

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New Delhi, the 20th January, 2014

S.O. 458.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 325/

2011) of the Cent. Govt. Indus. Tribunal/Labour Court No.

1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relatio to the

management of The Commissioner, Muncipal Corporation

of Delhi and their workman, which was received by the

Central Government on 18-01-2014.

[No. L-42012/13/2011-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURT COMPLEX, DELHI

I.D. No. 325/2011

Smt. Vandana

C/o Nagar Nigam Karmchari Sangh,

Delhi Pradesh, P-2/624,

Sultanpuri, New Delhi ...Workman

Versus

The Commissioner,

MCD, Town Hall,

Chandni Chowk,

Delhi-110006 ..Management

AWARD

Smt. Vandana, was engaged as a part-time safai

karamchari at School Health Services Najaigarh Zone by

Municipal Corporation of Delhi (hereinafter referred to as

the Corporation) from 20-09-2007 till 23-09-2008. Her

services were dispensed with, when requirement to engage

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1271

her came to an end. She raised a demand for reinstatement

of her services. When needful was not done, A dispute

was raised on her behalf before the Conciliation Officer.

Since conciliation proceedings failed, the appropriate

Government referred the dispute to this Tribunal for

adjudication, vide order No. L-42012/13/2011- IR (DU), New

Delhi, dated 16th of September, 2011, with following

terms :—

“Whether the action of the management of

Municipal Corporation of Delhi in terminating the

services of Smt. Vandana with effect from 24-09-2008

is legal and justified? What relief the workman is

entitled ?”

2. Claim statement was filed by the claimant

pieading therein that she was initially appointed on

20.09.2007 under control of School Health Services

Department at Najafgarh Zone of the Corporation. She

worked without any break till 23-9-2008. She had not qiven

any chance of complaint to the Corporation. She was not

allowed to discharge her routine duty with effect from

24-09-2008, despite several visits. Since she joined her duty

as per directions of the Deputy Health Officer as per policy

and recruitment rule of the Corporation, hence without

passing any speaking order, the Corporation cannot

discontinue her service. No prior notice was given nor

was any charge sheet served upon her. A legal notice dated

01-12-2008 was served on the Corporation, which is duly

received by it. However, the Corporation has failed to

comply with her notice of demand . She seeks reinstatement

in service of the Corporation will full back wages alongwith

all consequential benefits of continuity of service.

3. Claim was resisted by the Corporation pleading

that the claimant was engaged as a part time safai karamchari

on 20-09-2007 for a short term, vide office order No. DHO

(S)/NGZ/2007/165 dated 20-09-2007. She worked only for

four hours per day. She was relieved on 23-09-2008 after

joining of regular employee of the post. She has no right to

claim reqular post/appointment with the Corporation.

Corporation further pleads that no legal notice dated

01-12-2008 was served on it. Her claim is, therefore, liable

to be dismissed.

4. On perusal of pleadings, following issues were

settled :

(1) Whether management complied with provisions

of section 25-F of the Industrial Disputes Act, 1947?

(2) As in terms of reference.

5. The claimant failed to adduce her evidence despite

grant of several opportunities. Instead of adducing

evidence, she absented from putting her appearance before

the Tribunai from 17-5-2012 till the date of the award. Hence

matter was proceeded with under rule 22 of the Industrial

Disputes (Central) Rules, 1957 and evidence of the claimant

was closed. Dr. Gaju Toppo, Deputy Health Officer (School)

cum Chief Administrative Medical Officer, tendered his

affidavit as evidence on behalf of the Corporation. No other

witness was examined on behalf of the Corporation.

6. Arguments were heard at the bar. None came

forward on behalf of the claimant to advance arguments.

Shri Umesh Gupta, authorized representative, raised

submissions on behalf of the Corporation. I have given my

careful considerations to the arguments advanced at the

bar and cautiously perused the record. My findings on

issues involved in the controversy are as follows

Issue No.1

7. As unfolded by Dr. Gaju Toppo, claimant was

engaged as part-time safai karamchari on 20-09-2007, for a

short term. He details that she was working for a period of

four hours per day. She was relieved from service on

23-09-2008 when regular incumbent of the post joined. Out

of facts projected by Dr. Toppo, it came to light that the

claimant was engaged as leave substitute, An employee

who is engaged in an industrial establishment in place of

another workman, whose name is borne on muster rolls of

the establishment, is called a badli workman. A badli

workman shall be ceased to be regarded as such for the

purpose of section 25C of the Industrial Disputes Act, 1947

(in short the Act) if he completes one year of continuous

service in the establishment. In other words, a badli is a

workman appointed against the post, permanent or

temporary, when incumbent of the post is temporarily

absent. Unless he completes one year of continuous service

in the establishment, a badli cannot claim status of

permanent workman, even though the management fails to

satisfactorily prove that permanent incumbent was there

in the respective place or was temporarily absent.

8. Here in the case, Smt. Vandana was engaged as a

part time safai karamchari on 20-09-2007. She was relieved

from service on 23-09-2008 when regular employee

happened to join the post. Out of these facts, unfolded by

Shri Toopo it came to light that the claimant rendered

continuous service of one year with the Corporation. When

she completes service for a period of one year, she sheds

off status of badli workman. Question for consideration

would be as to whether a part time employee is a workman

within the meaning of section 2(s) of the Act. For sake of

convenience, definition of term 'workman' is reproduced

thus:

“2(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 proceedinq 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

1272

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 of 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

(i v) 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. 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 person falls within the

definition of workman on that day, the Tribunal would be

vested with jurisdiction to entertain it and the jurisdiction

would not cease merely because subsequently the

workman ceases to be a workman.

10. 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 lay 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 one of the exceptions.

11. In cases where an employee is employed to do

purely skilled or unskilled manual work, or supervisory

work or technical work or clerical work there would be no

difficulty in holding him to be a workman under the

appropriate classification. Frequently, however, an

employee 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 work he is

required to do even though he may incidentally doing

other type of work.

12. As projected above, definition of workman does

not make any difference between part time or full time

employees. The Apex Court in Birdichand Sharma [1961 (3)

SCR (161)] and Silver Jubilee Tailoring House [1974 (3)

SCC 498] was confronted with a proposition as to whether

part time employee answers definition of workman. It was

conclusively ruled therein that there was absolutely no

distinction between full time and part time employee and

that an employee who was working on part time basis

would not loose his status of workman, if he answers

ingredients of section 2(s) of the Act.

13. In General Manager Telecom, Nagpur (2001

Lab.I.C. 2127), the Bombay High Court also reaffirmed the

same proposition. It was ruled therein that definition of

workmen as given in the Act does not make any distinction

between full time employee and part time employee.

It does not lay down that only a person employed for full

time will be said to be a workman and that the one who is

employed for part time should not be taken as workman.

What is required is that the person should be employed

for hire to discharge work manual, skilled or unskilled etc.

in any industry. If this test is fulfilled, part time employee

can also be said to be a workman.

14. As admitted by Dr.Toppo the claimant was

engaged to work as a sweeper, on part time basis. It is a

¹Hkkx II—[k.M 3(ii)º

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1273

matter of common knowledge that sweeping job is unskilled

manual work. She was doing that job for hire or reward.

Thus it is crystal clear that the work performed by the

claimant clothes her with the status of a workman. It is,

therefore, announced that the claimant was a workman

within the meaning of section 2(s) of the Act.

15. The Corporation nowhere projects that when

services of the claimant were dispensed with, notice or

pay in lieu thereof and retrenchment compensation as

contemplated by provisions of section 25F of the Act was

given to her. The Act defines "termir:ation by the employer

of the service of a workman for any reasons whatsoever",

except the categories exempted in sub-section 2(oo), to be

retrenchment. The definition of the term "retrenchment",

as enacted by the Act, is extracted thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted by

way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age

of superannuation if the contract of employment

between the employer and the workman concerned

contains a stipulation in that behalf; or

(bb) termination of the services of the workman as a

result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such contract

being terminated under a stipulation in that behalf

contained therein; or

ground of continued ill-health".

16. 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 (11) LLJ 363].

17. Section 25F of the Act lays down conditions pre-

requisite to retrenchment, which are as follows :

(i) There should be one month's notice in writing to

the workman concerned.

(ii) The notice should specify the reasons for

retrenchment.

(iii) The period of one month's notice should have

expired before retrenchment is enforced, or the

workman has been paid in lieu of such notice the

wages for the period.

(iv) The workman has been paid retrenchment

compensation which should be equivalent to

15 days' average pay for everyone years' service or

any part thereof provided it exceeds six months.

(v) The notice is also given to the appropriate

Government.

18. For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub-section (1) of section 25B

of the Act. Sub-section (2) of the said section introduces a

fiction to the effect that even if a workman is not in

"continuous service" within the meaning of clause (1) for a

period of one year or six months, he shall be deemed to in

continuous service for that period under an employer if he

has actually worked for the days specified in clauses (a)

and (b) thereof. In Vijay Kumar Majoo (1968 Lab.I.C.1180)

it was held that one year's period contemplated by

sub-section (2) furnished a unit of measure and if during

that unit of measure the period of service actually rendered

by the workman is 240 days, then he can be considered to

have rendered one year's continuous service for the

purpose of the section. The idea is that if within a unit

period of one year a person had put in at least 240 days of

service, then he must get the benefit conferred by the Act.

Consequently, an enquiry has to be made to find out

whether the workman actually worked for not less than

240 days during the period of 12 calendar months

immediately preceding the retrenchment.

19. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders continuous

service of not less than 240 days in 12 calendar months, he

is deemed to have completed one years' service in the

industry. It would be expedient to reproduce observations

made by the Apex Court in that regard, which are extracted

thus :

"Under Section 25-B a workman who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days is to be deemed

to have completed One year's service in the industry.

Consequently an enquiry has to be made to find out

1274

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

whether the workman had actually worked for not

less than 240 days during period of 12 calendar

months immediately preceding the retrenchment.

These provisions of law do not show that a workman

after satisfying' the test under Section 25-B has

further to show that he has worked during all the

period he has been in the service of the employer for

240 days in the year".

20. Interruption of service occurred during the

course of job has to be included in uninterrupted services.

Fiction under section 25-B of the Act will operate if workmen

has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act specifically

includes the days on which workman was laid off under an

agreement or he has been on leave with full wages, or he

has been absent due to temporary disablement caused by

accident arising out of and in the course of his employment

and in the case of a female, maternity leave, under the

expression 'actually worked' used under sub-section (2) of

section 25-B of the Act. Question for consideration would

be as to whether the words 'actually worked' would not

include holidays, Sundays and Saturdays for which full

wages are paid. The Apex Court was confronted with such

a " proposition in American Express Banking Corporation

(1985 (2) LLJ 539), wherein it was ruled that the expression

'actually worked under the employer cannot mean those

days only when the workman worked with hammer, sickle

or pen, but must necessarily comprehend all those days

during which he was in the employment of the employer

and for which he had been paid wages either under express

or implied contract of service or by compulsion of statute,

standing orders etc. The Court ruled that Sundays and

other holidays, would be comprehended in the words

'actually worked" and it countenanced the contention of

the employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days.The Court observed that the explanation is only

clarificatory, as all explanations are, and cannot be used to

limit the expanse of the main provision. Precedent in Lalappa

Lingappa [1981 (1) LJ 308] was distinguished by the Apex

Court in the case referred above. The precedent was

followed in Standard Motor Products of India Ltd. [1986

(1) LLJ 34]. Thus, it is crystal clear from the law laid above

that Sundays and holidays shall be included in computing

continuous service under section 25-B of the Act.

21. Dr. Toppo unfolds that the claimant was engaged

as part time safai karamchari on 20-9-2007. She served the

Corporation till 23-9-2008, when, regular incumbent joined

the post. By way of relieving her from duties, her services

were retrenched by the Corporation. This act of the

Corporation does not fall within the exception provided in

section 2 (oo) of the Act. Hence her non-continuance in

service on 23-9-2008 amounts to retrenchment. When her

continuous service is counted from 23-9-2008, in preceding

twelve months from that date, it came to light that she

rendered more than 240 days service. Hence it is concluded

that she rendered continuous service of one year, as

contemplated by section 25-B of the Act.

22. The Corporation nowhere claims that one month's

notice or pay in lieu thereof, besides retrenchment

compensation, was given to the claimant. Pre-requisite of

valid retrenchment, as enacted by section 25-F of the Act,

are not claimed to have been complied with by the

Corporation. In view of these circumstances it is concluded

that the Corporation has not complied with section 25-F of

the Act. The issue, is therefore, answered in favour of the

claimant and against the Corporation.

Issue No. 2.

23. Corporation contests the dispute on the count

that no notice of demand was served on it prior to raising

a dispute before the Conciliation Officer. These facts also

remained uncontroverted. The object of the Act is to protect

workman against victimization by the employer and ensure

termination of industrial dispute in a peaceful manner. The

Act, however, does not provide for any set of social and

economic principles for adjustment of conflicting interests.

Such norms have been evolved and devised by industrial

adjudication, keeping in view the social and economic

conditions, the needs of the workmen, the requirement of

the industry, social justice, relative interests of the parties

and common good. These norms have given rights to the

industrial employees what may be called industrial rights,

as such rights may not be available at common law. Disputes

as to the conditions of employment can be resolved by

resorting to a technique known as collective bargaining.

This tool is resorted to between an employer or group of

employers and a bonafide labour union. Policy behind this

is to protect workmen as a class against unfair labour

practices. What imparts to the dispute of a workman the

character of an "industrial dispute" is that it affects the

right of the workmen as a class.

24. An industrial dispute comes into existence when

the employer and the workman are at variance and the

dispute/difference is connected with the employment or

non-employment, terms of employment or with conditions

of labour. In other words. dispute or difference arises when

a demand is made by the workman on the employer and it

is rejected by him and vice versa. In Sindhu Resettlement

Corporation Ltd.[1968(1) LLJ 834], the Apex Court has held

that mere. demand, asking the appropriate Government to

refer a dispute for adjudication, without being raised by

the workmen with their employer, regarding such demand,

cannot become an industrial dispute. Hence, an industrial

dispute cannot be said to exist until and unless a demand

is made by the workman or workmen on the employer and

it has been rejected by him. In Fedders Lloyd Corporation

¹Hkkx II—[k.M 3(ii)º

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1275

Pvt. Ltd.(1970 Lab. I.C. 421), High Court of Delhi went a

step ahead and held that “... demand by the workman must

be raised first on the management and rejected by it, before

an industrial dispute can be said to arise and exist and that

the making of such a demand to the Conciliation Officer

and its communication by him to the management, who

rejected the demand, is not sufficient to constitute an

industrial dispute.”

25. The above decision was followed by Orissa High

Court in Orissa Industries Pvt. Ltd. (1976 Lab.I.C. 285) and

Himachal Pradesh High Court in Village Paper Pvt. Ltd.(1993

Lab.I.C. 99). However, the Apex Court in Bombay Union of

Journalists [1961 (2) LLJ 436] had ruled that an industrial

dispute must be in existence or apprehended on the date

of reference. If, therefore, a demand has been made by the

workman and it has been rejected by the employer before

the date of reference, whether direct or through the

Conciliation Officer, it would constitute an industrial

dispute. In Shambhunath Goyal [1978(1) LLJ 484], the Apex

Court appreciated facts that the workman had not made a

formal demand for his reinstatement in service. However,

he had contested his dismissal before the Enquiry Officer

and claimed reinstatement. Against the findings of the

enquiry Officer, he preferred an appeal to the Appellate

Authority, claiming reinstatement on the ground that his

dismissal was bad in law. Then again, he claimed

reinstatement before the Conciliation Officer in the course

of Conciliation proceedings, which was contested by the

employer. Appreciating all these facts, the Apex court

inferred that there was impeccable evidence that the

workman had persistently demanded reinstatement,

rejection of which brought an industrial dispute into

existence.

26. In New Delhi Tailor Mazdoor Union [1979(39) FL

T 195], High Court of Delhi noted that Shambunath Goyal

had not overruled Sindhu Resettlement Pvt. Ltd. But it had

distinguished it on facts. It was also pointed out that

decision of three Judges bench in Sindhu Resettlement

Pvt. Ltd. could not have been overruled by two Judge

bench in Shambunath Goyal. The High Court concluded

that decision in Sindhu Resettlement Pvt. Ltd., in case of

any conflict between the two decisions, must prevail. The

High Court held that making of the demand by the workman

on the management was sine qua non for giving rise to an

industrial dispute.

27. The High Court of Madras in Management of

Needle Industries [1986(1) LLJ 405] has held that dispute

or difference between management and the workman,

automatically arises when the workman is dismissed from

service. His dismissal per se creates a dispute or difference

between the management and the workman. The Court

further observed that "it is nowhere stipulated in the Act,

particular in section 2(k), that existence of the dispute as

such is not enough but then there should be a demand by

the workman on the management to give rise to an

industrial dispute". However, this decision appears to be

inconsistent with the ratio of decision in Bombay Union of

Journalists(supra) and Sindhu Resettlement (supra). No

doubt, for existence of an industrial dispute, there should

be a demand by the workman and refusal to grant it by the

management. However, a demand should be raised, cannot

be a legal notion of fixity and rigidity. Grievances of the

workman and demand for its redressal must be

communicated to the management. Means and mechanism

of the communication adopted are not matters of much

significance, so long as demand is that of the workman

and it reaches the management. Reference can be made to

the precedent in Ram Krishna Mills Coimbatore Ltd. [1984

(2) LLJ 259].

28. The Act nowhere contemplates that the industrial

dispute can come into existence in any particular, specific

or prescribed manner nor there is any particular or

prescribed manner in which refusal should be

communicated. For an industrial dispute to come into

existence, written claim is not sine qua non. To read into

the definition, requirement of written demand for bringing

an industrial dispute into existence would tantamount to

rewriting the section, announced the Apex Court in

Shambunath Goyal(supra). In other words, oral demand

and its rejection will as much bring into existence an

industrial dispute, as written one. If facts and circumstances

of the case show that the workman had been making a

demand, which the management had been refusing to grant,

it can be said that there was an industrial dispute between

the parties.

29. Since the claimant had not come forward to project

that demand notice was served on the corporation, under

these circumstances, stand taken by the corporation is to

be believed. Corporation projects that no notice of demand

was served on it, before industrial dispute was raised before

the Conciliation Officer. Thus, it is emerging over the record

that it has not been established that demand was raised on

the Corporation, which was rejected by it and as such,

dispute has not acquired status of an industrial dispute.

30. Since the dispute has not acquired status of an

industrial dispute, it remains an individual dispute. The

appropriate Government was not competent to refer an

individual dispute for adjudication to this Tribunal. Even

otherwise, the Tribunal cannot invoke its jurisdiction to

adjudicate the dispute being an individual dispute. Under,

this situation, the Tribunal refrains its hands from

adjudicatory process.

31. Since an individual dispute has been referred for

adjudication, the Tribunal cannot adjudicate it. Relief of

reinstatement in service cannot be granted in favour of the

claimant. In view of these facts, an award is passed in

favour of the Corporation and against the claimant. It be

sent to the appropriate Government for publication.

Dated : 01-01-2014

Dr. R. K. YADAV, Presiding Officer

1276

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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New Delhi, the 20th January, 2014

S.O. 459.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 299/

2011) of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of The Commissioner, Municipal Corporation

of Delhi and their workman, which was received by the

Central Goverment on 18-01-2014.

[No. L-42011/58/2011-I R (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURT COMPLEX, DELHI

I.D. No. 299/2011

Shri Jitender Kumar S/o Sh. Mangal Singh,

C/o The General Secretary,

Municipal Employees Union,

Agarwal Bhawan, G. T. Road

Tis Hazari, Delhi. - 110054

...Workman

Versus

The Commissioner,

Municipal Corporation of Delhi,

Town Hall, Chandni Chowk,

Delhi-110006

..Management

AWARD

One Ms. Patasho Devi, working with Municipal

Corporation of Delhi (in short the Corporation), died in

harness on 27.01.1999. Her son, namely, Shri Jitender Kumar

applied for appointment on compassionate grounds. Since

no regular post was available for his appointment on

compassionate grounds, he was engaged on muster roll as

beldar with his consent, vide office order No. HC(CG)/Engg/

HQ/2001/1960 dated 28.02.2001. He worked as such upto

17-10-2002. He was involved in a case of abduction of a

woman and criminal case was registered against him at

Police Station, Kanjhawala Delhi. On account of registration

of that case, he abandoned his job. On his acquittal from

the case he approached the Corporation for his re-

engagement on 24-10-2007. His application was processed

and he was engaged afresh as beldar on muster roll vide

order dated 20-06-2009. He gave an undertaking to the effect

that he will not claim any relief in respect of intervening

period from 18-10-2002 to 24-06-2008.

2. After his engagement afresh, he approached the

Municipal Employees Union (in short the union) for

espousal of his case in respect of his regularization in

service of the Corporation with retrospective effect. The

union took up his cause and raised a dispute before the

conciliation Officer. Since the claim was contested by the

Corporation, conciliation proceedings ended into a failure.

On consideration of failure report submitted by the

Conciliation Officer, the appropriate Government referred

the dispute to this Tribunal for adjudication vide order

No.L-42011/58/2011-IR(DU), New Delhi dated 12.08.2011,

with following terms:

"Whether action of the management of MCD in

denying regularization to Shri Jitender, S/o Shri Mangal

Singh with retrospective effect with all consequential

benefits is legal and justified? What relief is the workman

entitled to and from which date?"

3. Claim statement was filed by Shri Jitender Kumar

pleading therein that his mother, Ms, Patasho Devi,

working as coolie with the Corporation in Ward No. 29,

Works Department, Narela Zone, Kanjhawala Delhi, expired

on 27-01-1999. He applied for his appointment on

compassionate grounds. In February 2001, he was

appointed as daily wager beldar. His appointment as daily

wager was illegal. However, he was assured of his

regularization in service very soon. In October 2000, he

was refused duty on account of registration of a criminal

case against him. Said act of the Corporation was illegal

and unjustified. On his acquittal, by the competent court

of law on 27-09-2007, he was again taken on job in June

2008. He is discharging his duties with the Corporation

since then. He claims that on the death of Ms. Patasho

Devi, he ought to have been given appointment on

regular basis and not as a daily wager. He is eligible for

appointment on compassionate grounds in accordance with

the scheme formulated by the Government of India, which

has been adopted by the Corporation. Persons who were

similarly placed, have been given appointment on

compassionate grounds on regular basis but he has been

denied regular appointment by the Corporation.

Appointment on compassionate grounds is to mitigate

hardship caused to the family due to death of its bread

earner. His employment as muster roll employee results in

less remuneration to him than regular employees of his

¹Hkkx II—[k.M 3(ii)º

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1277

category. Shri Radhey Shyam, junior to him has been

regularized but his case has been ignored. Shri Amarjit and

Shri Sonu have also been regularized though they have

joined on compassionate grounds as daily wager beldar.

He seeks award. in his favour directing the Corporation to

regularize his services on the post of beldar retrospectively

with effect from February 2001 with all consequential

benefits.

4. Claim was demurred by the Corporation pleading

that no notice of demand was served and as such dispute

has not acquired status of an industrial dispute. Person

who claim appointment on compassionate grounds, is not

a workman within the meaning of section 2(s) of the

Industrial Disputes Act, 1947 (in short the Act). He has no

right to raise an industrial dispute, when he claims

appointment on compassionate grounds. As per policy of

the Government, compassionate appointment can be made

only upto 5% of total post in the category. Since there is

huge backlog of persons awaiting compassionate

appointment, the Corporation, as welfare friendly

organization, has framed a policy to offer appointment as

daily wager on compassionate ground as immediate relief

to the bereaved family. After appointment on

compassionate grounds as daily wager, case is sent to

Scrutiny committee and thereafter appointment is given to

such incumbent against a regular vacancy as and when

vacancy is available for him. Claimant was given

appointment as daily wager beldar vide order No. HC(CG)/

Engg/HQ/2001/1960 dated 28-02-2001.

5. The Corporation further projects that the

claimant worked as a muster roll beldar till 17-10-2002.

Thereafter, he abandoned his services on 18-10-2002. He

again appeared on scene on 24.10.2007, when he requested

for his engagement again on muster roll. He informed that

due to his involvement in a criminal case, he could not

attend to his duties till then. His application was processed

and he was again engaged as .a beldar on muster roll vide

order dated 20-06-2008. He himself has given an

unde.rtaking to the effect that he will not make any claim

for the period from 18-10-2002 till 25-06-2008. Cases of

Shri Radhey Shyam, Amarjit and Sonu are placed on

different pedestal since they never left their job till

regularization of their services. His service will be regularized

as per policy of the Corporation as and when vacancy

would be available for him. He is not entitled to any relief,

not to talk of regularization in service retrospectively with

effect from February 2001.

6. Claimant has examined himself in support of his

claim. No witness was examined on behalf of the

Corporation. Case was listed for evidence of the

Corporation for 31-12-2013, on which date none attended

the Tribunal on its behalf. Matter was proceeded under

rule 22 of the Industrial Disputes (central) Rules, 1957 and

evidence of the Corporation was closed.

7. Arguments were heard at the bar. Shri Surender

Bhardwaj, authorized representative, advanced arguments

on behalf of the claimant. None came forward on behalf of

the Corporation to raise submissions. I have given my

careful considerations to the arguments advanced at the

bar and cautiously perused the record. My findings on

issues involved in the controversy are as follows :

8. In affidavit Ex.WW1/A, tendered as evidence,

claimant swears that his mother Ms.Patasho Devi was

working as a coolie with the Corporation, who expired on

27-01-1999. He applied for his appointment on

compassionate grounds. Though he would have been

given regular apoointment on compassionate grounds, but

he was illegally engaged as a daily wager in February 2001

vide letter dated 28.02.2001. He claims that the said action

is unwarranted. To appreciate facts testified by the claimant

in this regard, it would be in the fitness of things to

consider policy of compassionate appointment formulated

by the Government of India, which has been adopted by

the Corporation.

Scheme of compassionate appointment applies

to dependent family member-

(A) of a Government servant who

(a) dies while in service (including death by

suicide), or

(b) is retired on medical grounds under Rule 2 of the

CCS (Medical Examination) Rules, 1957, or

the CCS (Pension) Rules, 1972, or

(B) of a member of the Armed Forces who-

(i) dies during service; or

(ii) is killed in action; or

(iii) is medically boarded out and is unfit for civil

employment

Government servant for the purpose of the scheme

means, a Government servant appointed on regular basis

and not one working on daily wage or casual or apprentice

or ad hoc or contract or re-employment basis.

10. Dependent family members has been advised to

mean :

(a) spouse; or

(b) son (including adopted son); or

(d) brother or sister in the case of unmarried

Government servant or member of the Armed

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[PART II—SEC. 3(ii)]

Forces referred above, who was wholly dependent

on the Government servant/member of the Armed

Forces at the time of his death in harness or

retirement on medical grounds, as the case may

be.

11. Compassionate appointment can be made to

Group 'C' or Group 'D' posts against direct recruitment

quota. For consideration of' application for compassionate

appointment family of the Government servant who died in

harness or retired on medical grounds should be indigent

and deserves immediate assistance for relief from financial

destitution and applicant for compassionate appointment

should be eligible and suitable for the post in all respects.

Compassionate appointments are exempted from

observance of :

(a) Recruitment procedure

(b) Clearance from the Surplus Cell of the

Department of Personnel and Training/Directorate

of Employment and Training

Ministry of Finance (Department of Expenditure)

12. Upper age-limit could be relaxed wherever found

to be necessary. The lower age-limit should, however, in

no case be relaxed below 18 years of age. Age eligibility is

to be determined with reference to the date of application

and not the date of appointment. Secretry to the Ministry/

Department concerned is competent to relax temporarily

educational qualifications as prescribed in the relevant

recruitment rules. In case of appointment at the lowest

level, that is Group 'D' or LDC post, in exceptional

circumstances where the condition of the family is very

hard, such relaxation will be permitted up to a period of

2 years beyond which no relaxation of educational

qualification will be admissible and services of the person

concerned, if still unqualified are liable to be terminated.

Where widow is appointed on compassionate ground to a

Group 'D' post, she will be exempted from the requirement

of possessing the educational qualification prescribed in

the relevant rules, provided the duties of the post can be

satisfactorily performed by her without possessing such

educational qualifications.

13. Appointment on compassionate grounds should

be made only on regular basis and that too only, if regular

vacancies meant for that purpose are available. Such

appointments can be made upto 5% of the vacancies falling

under direct recruitment quota in any Group 'C' or 'D' posts.

Ceiling of 5% for making compassionate appointment

against regular vacancies should not be circumvented by

making appointment of dependent family members of

Government servant on casual, daily wage, ad hoc, contract

basis against regular vacancies. There is no bar in

considering him for such appointment if he is eligible as

per the normal rules/orders governing such appointments.

14. Application for compassionate appointment can

be considered, if it is made belatedly, say moved after

5 years of the death of the Government servant or so. While

considering such belated requests, it should, however, be

kept in view that concept of compassionate appointment

is largely related to the need for immediate assistance to

the family of the Government servant in order to relive it

from economic distress. The very fact that the family has

been able to manage somehow all these years should

normally be taken as adequate proof that the family had

some dependable means of subsistence. So such belated

requests call for a great deal of circumspection. Request

for compassionate appointment is belated or not may be

decided with reference to the date of death or retirement on

medical grounds of Government servant and not the age of

the applicant at the time of consideration.

15. The person appointed on compassionate grounds

under the scheme should give an underjaking in writing

that he/she will maintain properly other family members

who were dependent on the Government servant and in

case it is proved subsequently that the family members are

being neglected or are not being maintained properly, his

appointment may be terminated forthwith. While

considering request for appointment on compassionate

grounds, balanced and objective assessment of financial

condition of the family is, to be made taking into account

its assets and liabilities (including benefits received under

various welfare schemes) and all other relevant factors,

such as, presence of an earning member, size of the family,

age of the children and the essential needs of the family.

The whole object of granting compassionate appointment

is to enable the family to tide over the sudden crises and to

relive the family from financial destitution and to help it get

over the emergency.

16. The Apex court in G.Anantha Rajeshwara Rao

[1994 (1) SCC 192] had considered the scheme of

compassionate appointments formulated by the

Government of India and ruled that appointment on

grounds of descent clearly violates article 16(2) of the

Constitution, but if the appointment is confined to the

son or daughter or widow of the Government servant who

die in harness, who need immediate appointment on the

ground of immediate need of assistance in the event of

there being no other earning member in the family to

supplement the loss of economies from the bread winner

to relieve to distress of the members of the family, it is

unexceptionable. Again in Umesh Kumar Nagpal [JT 1994

(3) SC 5325] the Apex Court considered the scheme and

laid down following principles in that regards :

(1) Only dependents of an employee dying in harness,

leaving his family in penuiary and without any

source of livelihood can be appointed on

compassionate grounds.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1279

(2) The posts in group "C" and "D" are the lowest

posts in non managerial and managerial categories

and hence those posts alone can be offered on

compassionate grounds.

(3) The whole object of granting compassionate

appointments is to enable the family to tide over

the crisis and to relieve the family of the deceased

from destitution and to help it get over the

emergency.

(4) Offering compassionate appointments as a matter

course,

irrespective

financial

condition of the family of the deceased or

medically retired government servant, is legally

impermissible.

(5) Neither the qualification of the applicant

(dependent family member) nor the post held by

the deceased or medically retired government

servant is relevant. If the applicant finds it below

his dignity to accept the post offered, he is free

not to accept it. The post is not to be offered to

cater his status but to see family through the

economic calamity.

(6) Compassionate appointment cannot be granted

after lapse of a reasonable period and it is not a

vested right which can be exercised at any time in

the future, and

(7) Compassionate appointment cannot be offered

by an individual functionary or an ad hoc basis.

17. In Asha Ram Chander Ambedker and others (Jt

1994 (2) SC 183) the Apex Court ruled that the High Courts

and Administrative Tribunals cannot give directions for

appointment of a person on compassionate ground but

can merely direct consideration of the claim for such

appointment. In Dinesh Kumar (JT 1996 (5) SC 319) and

Smt. A. Radhika Therumalai (JT 1996 (9) SC 197) it was

announced that appointment on compassionate ground

can be made only, if a vacancy is available for that

purpose. In Rami Devi and others (JT 1996 (6) SC 646) it

was ruled that if the scheme relating to appointment on

compassionate ground is accepted to all-sort of casual,

ad hoc employees, including those who are working as

apprentice, then the scheme cannot be justified on

constitutional grounds.

18. Now coming to facts, the Corporation can offer

5% of posts on compassionate grounds to wards of its

deceased employees. Claimant had not been able to project

that post was lying vacant which could be offered to him

for appointment on compassionate grounds in February

2001. On the other hand, he gave application on 19-01-2001

wherein he conceded that he was willing to be appointed

as daily wager beldar. Therefore, out of these facts, it is

emerging over the record that when no regular post was

available for appointment of the claimant on compassionate

grounds, he accepted his appointment as daily wager beldar,

pursuant to policy of the Corporation. By his own conduct,

claimant brings it over the record that there was no vacancy

available fur him in February 2001 for his appointment on

compassionate grounds. Since there was no vacancy

available for appointment of the claimant on compassionate

grounds in February 2001, it does not lie in his mouth to

contend that the Corporation ought to have appointed him

against a regular post on compassionate grounds.

19. In October 2002, claimant was involved in a

criminal case, registered at police station Kanjhawala,

Delhi. As testified by him, he served the Corporation upto

17-10-2002. Thereafter he stopped attending to his duties

and did not inform the Corporation reasons for his absence

from duties. He went to the office of the Corporation

thereafter for the first time on 24.10.2007. His submitted his

affidavit EX.WW1/M1 wherein he assured the Corporation

for not claiming any relief for the intervening period from

18-10-2002 to 25-06-2008. Out of facts, referred above, it

emerged over the record that on registration of criminal

case against the claimant, he absented from joining his

duties.

20. As facts of the controversy project, the claimant

absented himself from his duties for a considerable long

period in an unauthorized manner. An employee is under

an obligation not to absent himself from work without

good cause. Absence without leave is misconduct in

industrial employment, warranting disciplinary punishment.

Habitual absence from duty without leave has been made a

misconduct under Model Standing Orders, framed under

Industrial Employment Standing Orders Act, 1946. Likewise,

industrial employers also include "absence from duty",

without leave in the list of misconduct in their standing

orders. Sanction of leave can be a significant defence to

misconduct of absence without leave. No employee can

claim leave of absence as a matter of right and remaining

absent without leave will constitute violation of discipline.

The fact that the claimant was continuously absent from

work without leave, on account of his detention in jail for

an offence, will not give an immunity to the claimant and

the employer will be justified in discharging him from

services, announces the Apex Court in Burn & Company,

(1959 (1) L.L.J. 450).

21. In Indian Iron and Steel Company Ltd. (1958

(1) L.L.J.260) the Apex Court was confronted with a

proposition as to whether provisions in the standing

orders authorizing the employer to terminate services of its

employee on account of absence without leave was an

inflexible rule. In that matter seven workmen were absent

without leave for 14 consecutive days, as they were in

police custody. During police custody they applied for

leave which were refused by the company and services of

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

the workmen were terminated under relevant standing

order for remaining absent without leave. The Industrial

Tribunal took a view that the relevant standing order was

not an inflexible rule and mere application for leave was

sufficient to arrest the operation of the standing order. In

appeal, though the Labour Appellate Tribunal did not

maintain the award of the Tribunal on that count, yet it

held that in view of the circumstances that the workmen

were in custody, the company was not justified in refusing

leave. When the matter reached the Apex Court, it set

aside the order of the Labour Appellate Tribunal, relying

its precedent in Burn & Company Ltd. (supra) and ruled

thus :-

"It is true that the arrested men were not in a

position to come to their work, because they had

been arrested by the police. This may be unfortunate

for them, but it would be unjust to hold that in such

circumstances the company must always give leave

when an application for leave is made. If a large

number of workmen are arrested by the authorities in

charge of law and order by raising of their

questionable activities in connection with a labour

dispute (as in this case), the work of the company

will be paralysed if the company is forced to give

leave to all of them for more or less indefinite period.

Such a principle will not be just, nor will it restore

harmony between labour and capital or ensure normal

flow of production. It is immaterial whether the

charges on which the workmen are arrested by the

police are ultimately proved or not in a court of law.

The company must carry on its work and may find it

impossible to do so if a large number of workmen are

absent. Whether in such circumstances leave

should be granted or not must be left to the discretion

of the employer. It may be rightly accepted that if the

workmen are arrested at the instance of the company

for the purpose of victimization and in order to get

rid of. them on the ostensible pretext of continued

absence, the position will be different. It will then be

a colorable or malafide exercise of power under the

relevant standing order, that however, is not the case

here."

22. Defence open to an employee, against factum of

his absence without leave, is that the absence was on

account of circumstances beyond his control. For

instance, where absence of a workman was on account of

his sudden or serious illness or serious illness of a relation

that would be an extenuating circumstance which the

employer will have to take into consideration. However, if

a workman feigns sickness in order to avoid duty by

producing a false medical certificate, this would itself

be a serious act of misconduct. No such case of absence

beyond control has been set up by the claimant, in the

present controversy. Claimant failed to perform duties and

intentionally remained absent with effect from 17-10-2002

till 24-10-2007.

23. He moved an application for his re-engagement

before the Corporation and assured the Corporation that

he will not claim any benefit for the intervening period

from 18-10-2002 to 25-06-2008, as unfolded in his affidavit

EX.WW1/M1. Thus it is evident that the claimant made

representation to the effect that no benefit would be

claimed by him for the intervening period referred above.

question for consideration would be as to whether

assurances made in affidavit Ex.WW1/M1 would

constitute valid estoppel against him. Following must

accrue in order to constitute a valid estoppel by

representation :

(i)

That the party to be estopped is the same person,

who made the representation.

(ii)

That the case, which the party sought to be

stopped, is making or setting up or attempting

to prove contradicts in substance original

representation.

(iii)

When such original representation was of the

nature to induce, and was made with the

intention of inducing the party raising the

estoppal to alter his position to his detriment.

(iv)

That the party raising the estoppal actually

altered its position to its detriment on the faith

of such original representation.

(v)

That the original representation was made to

the party setting up estoppel or te some person

in right of whom he claims.

24. When facts of representation made in EX.WW1/

1 are scanned, it came to light that the claimant made a

representation to the Corporation to the effect that he will

not seek any claim for intervening period from 18-0-2001 to

25-06-2008. He projects a case in contradiction to the

representation so made. On his representation, referred

above, fresh appointment as dairy wager beldar was offered

to him by the Corporation. Representation was made by

the claimant to the Corporation, and it acted upon the same.

Thus, all constituents, referred above, have been

established here in the case. Claimant is hereby estopped,

to project a different case than the representation made by

him vide EX.WW1/M1. It does not lie in his mouth to claim

any benefit for the period referred above.

25. Claimant was given fresh engagement as daily

wager beldar by the Corporation with effect from

26-06-2008. As projected above, there was no post for the

claimant for his appointment on regular basis on

compassionate grounds. His fresh engagement nowhere

confer any right to him to seek regularization of his

services retrospectively with effect from February 2001.

He had not set up a case for his regularization after his

fresh engagement on 26-06-2008. Therefore it is obvious

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1281

that the Corporation was justified in denying regularization

of the services of the claimant with retrospective effect

with all consequential benefits .

26. Phased manner regularization policy of the

Corporation to regularize services of casual employees,

appointed on humanitarian grounds, was adopted by the

Corporation vide its resolution No.273 dated 27-06-1988.

This policy of regularization of such employees in a phased

manner does not come to the rescue of the claimant, since

he was recently engaged again on 26-6-2008. His case for

regularization would be considered by the Corporation as

and when vacancy would arise for him. He is not entitled to

relief of regularization as claimed for by him. His claim

statement deserves dismissal. The same is, accordingly,

brushed aside. An award is passed in favour of the

Corporation and against the claimant. It be sent to the

appropriate Government for publication.

Dated : 09-01-2014

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 460-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj dfe'uj]

E;qfufliy dkjiksjs'ku vkWiQ fnYyh ds izca/ra=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky; ua- 1]

fnYyh ds iapkV (lanHkZ la[;k 158@2012) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 18&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&42012@38@2012&vkbZvkj (Mh;w)º

ih-ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 20 January, 2014

S.O. 460.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 158/

2012) of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of The Commissioner, Municipal Corporation

of Delhi and their workman, which was received by the

Central Goverment on 18-01-2014

[No. L-42012/38/2012-I R (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL NO. 1, KARKARDOOMA COURTS

COMPLEX, DELHI

I.D. No. 158/2012

Smt. Meena W/o Sh. Rajesh,

Through Nagar Nigam Karamchari Sangh,

Delhi Prades, P-2/624,

Sultanpuri, New Delhi.

...Workman

Versus

The Commissioner,

Municipal Corporation of Delhi,

Town Hall, Chandni Chowk,

Delhi-110006

...Management

AWARD

Smt. Meena was engaged as part time safai karamchari

by Municipal Corporatior of Delhi (in short the Corporation)

on consolidated salary of Rs. 560.00 per month. She

belaboured under a belief that her services ought to have

been reqularized with effect from 01-10-2000. She

approached the Nagar Nigam Karamchari Sangh, (in short

the union) for redressal of her grievances. The union raised

a dispute before the Conciliation Officer. Since the claim

was contested by the Corporation, hence conciliation

proceedings ended into a failure. On consideration of

failure report, so submitted by the Conciliation Officer, the

appropriate Government referred the dispute to this

Tribunal for adjudication, vide order No.L-42012/38/2012-

IR(DU) New Delhi dated 08-11-2012 with following terms

"Whether action of the management of Municipal

Corporation of Delhi (MCD) in denying

regularization of services of Smt. Meena W/o

Shri Rajesh from the date she was appointed on

compassionate grounds as safai kararmchari, i.e. with

effect from 01.10.2000 in proper pay scale with all

consequential benefits is justified or not? If not,

what relief the workman is entitled to and from which

date?"

2. In the reference order, the appropriate Government

cornmanded the parties to the dispute to file statement of

claim, complete with relevant documents, list of reliance

and witnesses with this Tribunal within 15 days of receipt

of the reference order and to forward a copy of such

statement of claim to the opposite parties involved in the

dispute. Despite directions, so given, Smt.Meene opted

not to file her claim statement with the Tribunal.

3. Notice was sent to Ms. Meena by registered post

on 03-12-2012, calling upon her to file claim statement

before the Tribunal on or before 02-01-2013. This notice

was sent to her through the union, at P-2/624, Sultanpuri,

Delhi, the address provided by the appropriate Government

in order of reference. Neither the claimant nor the union

responded to the notice, so sent.

4. Since none came forward on behalf of the claimant

to file her claim statement, fresh notice was sent to her by

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

registered post on 02-01-2013 calling upon her to file claim

statement before the Tribunal on 29-01-2013. Notice was

again transmitted to the claimant by registered post on

31-01-2013 asking her to file her daim statement on or before

20-02-2013. Lastly, notice dated 22-02-2013 was sent by

registered post commanding the claimant to file her claim

statement before the Tribunal on or before 22.03.2013.

Neither the postal articles, referred above, were received

back nor was it observed by the Tribunal that postal

services remained affected in the period, referred above.

Therefore, every presumption lies in favour of the fact that

the above notices were served upon the claimant. Despite

service of these notices, claimant opted to abstain away

from the proceedings. No claim statement was filed on her

behalf.

5. Since onus of the question referred for adjudicaton

was there on the Corporation, it was called upon to file its

response to the reference order. Corporation projects that

the claim is not maintainable since it has not been espoused

by a union or considerable number of workmen. It has

further been projected that the dispute is not maintainable

on account of latches, since the dispute has been raised

after along gap of 12 years.

6. Arguments were heard at the bar. None came

forward on behalf of the claimant to advance arguments.

Shri Umesh Gupta, authorized representative, raised

submissions on behalf of the corporation. I have given my

careful considerations to the arguments advanced at the

bar and cautiously perused the record. My findings

on issues involved in the controversy are as follows :

7. The corporation argues that the dispute has not

acquired status of an lndustial dispute for want of espousal

of the claim by the union or considerable number of the

workmen in its establishment For an answer to this

proposition, definition of the term 'Industrial dispute' is to

be construed Section 2(k) of the Industrial Disputes Act,

1947 (in short the Act), defines the term 'industrial dispute',

which definition is extracted thus :

"2(k) "Industrial dispute" means any dispute or

difference between employers and employers, or

between employers and workmen, or between

workmen and workman, which is connected with

the employment or non-employment or the terms of

employment or with the conditions of labour, of any

person;"

8. The definition of "industrial dispute" referred

above, can be divided into four parts; viz. (i) factum of

dispute, (2) parties to the dispute, viz.(a) employers and

employers, (b) employer and workmen, or (c) workmen and

workman, (3) subject matter of the dispute, which should

be connected with -(i) employment or non employment, or

(ii) terms of employment, or (iii) condition of labour of any

person, and (4) it should relate to an "industry".

9. The definition of "industrial dispute" is worded in

very wide terms and unless they are narrowed by the

meaning given to word "workman" it would seem to include

all "employers", all "employments" and all "workmen",

whatever the nature or scope of the employment may be.

Therefore, except in the case where there can be a dispute

between the employers and employers and workmen and

workman, one of the parties to an industrial dispute must

be an employee or a class of employees, The first point,

therefore, to be noted, perhaps self evident, is that the

phrase "employer and workmen", the plural may include

singular on either side or any permutation of singular or

plural, the masculine including the feminine. In order,

therefore, to determine as to whether a controversy or

difference or a dispute is an 'an industrial dispute' or not, it

must first be determined whether the workman concerned

or workrnen sponsorind his cause satisfy the conditions

of clause(s) of Section 2 of the Act. Here in the case the

Corporation does not dispute status of the claimant to be

of a workman within the meaning of section 2(S) of the Act.

10. The Apex Court put gloss on the definition of

"industrial dispute" in Dimakuchi Tea Estate [1955 (I) LLJ

500] and ruled that the expression "any person" in clause

(k) of section 2 of the Act must be read subject to such

limitetion and qualification as arise from the context, the

two crucial limitations are (i) the dispute must be a real

dispute between the parties to the dispute (as indicated in

the first two parts of the definition clause) so as to .be

capable of settlement or adjudication by one party to the

dispute giving necessary relief to other, and (2) the person

regarding whom the dispute is raised must be one for whose

employment, non ernployment, terms of employment or

conditions of labour, as case may be, the parties dispute

for a direct or substantial interest. Where workman raised a

dispute as against their employment, the person regarding

whose employment, non employer, terms of employment

or conditions of labour, the dispute is raised need not be

strictly speaking "workman" within the meaning of the Act,

but must be one in whose employment, non employment"

terms of employment, or conditions of labour the workmen

as a class have a direct or substantial interest. The

observations made by the Apex Court are to be extracted

thus:

"We also agree with the expression "any person" is

not co extensive with any workman, particular or

otherwise, equal with other, that the crucial test is

one of community of interest and the person

regarding whom the dispute is raised must be one in

whose employment, non employment, terms of

employment, conditions of labour (as the case may

be) the parties to the dispute have a direct or

substantial interest. Whether such direct or

substantial interest has been established in a

particular case will depend on its facts and

circumstances."

¹Hkkx II—[k.M 3(ii)º

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1283

11. In Kyas Construction Company (Pvt.) Ltd. [1958

(2) LLJ 660], the Apex Court ruled that an industrial dispute

need not be a dispute between the employer and his

workman and that the definition of the expression

"industrial dispute" is wide enough to cater a dispute

raised by the employer's workman with regard to non

employment of others, who may not be employed as

workman at the relevant time. The Apex Court in Bombay

Union of Journalist [1961 (11) LLJ 436] has observed that

in each case in ascertaining whether an individual dispute

has acquired the character of an industrial dispute, the test

is whether at the date of reference, the dispute was taken

up as submitted by the union of the workmen of the

employer against whom, the dispute is raised by an

individual workman or by an appreciable number of

workmen. In order, therefore, to convert an individual

dispute into an industrial dispute, it has to be established

that it has been taken up by the union of employees of the

establishment or by an appreciable number of the

employees of the establishment. As far as union of the

workmen of establishment itself is concerned, the problem

of espousal by them generally presents little difficulty, since

such workmen who are members of such unions generally

have a continuity of interest with an individual employee

who is one of their fellow workman. But difficulty arise

when the cause of a workman in a particular establishment

is sponsored by a union which is not of the workmen of

that establishment but is one of which membership is open

to workmen of their establishment as well as in that

industry. In such a case a union which has only

microscopic number of the workmen as its member, cannot

sponsor any dispute arising between the workmen and the

management. A representative character of the union has

to be qathered from the strength of the actual number of

co workers sponsoring the dispute. The mere fact that a

substantial number of workmen of the estanlishment in

which the concerned workman was employee were also

members of the union would not constitute sponsorship.

It must be shown that they were connected together and

arrived at an understanding by a resolution or by other

means and collectively submitted the dispute.

12. The expression "industrial disputes" has been

construed by the Apex Court to include individual disputes,

because of the scheme of the Act. in Raghu Nath Gopal

Patvardhan [1957(1) LLJ 27] the Apex Court ruled as to

what dispute can be called as an industrial dispute. It was

laid thereon that (1) a dispute between the employer and

a single workman cannot be an industrial dispute, (2) it

cannot perse be an industrial dispute but may become if it

is taken up by a trade union or a number of workmen. ln

Dharampal Prem Chand [1965 (1) LLJ 668] it was

commanded by the Apex Court that a dispute raised by a

single workman cannot become an industrial dispute unless

it is supported either. by his union or in the absence of a

union by substantial number of workmen. Same law was

laid in the case of Indian Express Newspaper (Pvt.) Limited

[1970 (1) LLJ 132]. However in Western India Match

Company [1970 (II) LLJ 256], the Apex Court referred the

precedent in Dimakuchi Tea Estate's case [1958 (1) LLJ 500]

and ruled that a dispute relating to "any person becomes a

dispute where the person in respect of whom it is raised is

one in whose employment, non employment, terms of

employment or conditions of labour, the parties, dispute

for a direct or substantial interest",

13. What a substantial or considerable number of

workmen would be in a given case, depend on particular

facts of the case. The fact that an "industrial dispute", is

supported bv other workmen will have to be established

either in the form of a resolution of the union of which

workman may be member or of the workmen themselves

who support the dispute or in any other manner. From the

mere fact that a gereral union, at whose instance an

"industrial dispute" concerning an individual workman is

referred for adjudication, has on. its roll a few of the

workmen of the establishment as its members, it cannot be

inferred that the individual dispute has been converted

into an" industrial dispute". The Tribunal has therefore, to

consider the question as to how many of the fellow workman

actually espoused the cause of' the concerned workman

by participating in the particular resciution of the Union.

In the absence of a such a determination by the Tribunal, it

cannot be said that the individual dispute acquired the

character of an industrial dispute and the Tribunal will not

acquire jurisdiction to adjudicate upon the dispute.

Nevertheless, in order to make a dispute an industrial

dispute, it is not necessary that there should always be a

resolution of substantial or appreciable number of workmen.

What is necessary is that there should be some express or

collective will of a substantial or an appreciable member of

the workmen treating the cause of the individual workman

as their own cause. Law to this effect was laid in

P.Somasundrameran [1970 (I) LLJ 558].

14. It is not necessary that the sponsoring union is a

registered trade union or a recognized trade union. Once it

is shown that a body of substantial number of workmen

either acting through a union or otherwise had sponsored

the workman's cause, it is sufficient to convert it into an

industrial dispute. In Pardeep Lamp Works [1970 (l) LLJ

507) complaints relating to dispute of ten workmen were

filed before the Conciliation Officer by the individual

workrnen themselves. But their case was subsequently

taken up by a new union formed by a large number of co

workmen, if not a majority of them. Since this union was

not registered or recognized, the workmen elected five

representatives to prosecute the cases of ten dismissed

workmen. Thus cases of the dismissed workmen were

espoused by the new union, yet unregistered and

unrecognized. The Apex Court neld that the fact that these

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[PART II—SEC. 3(ii)]

disputes were not taken up by a registered or recognired

union does not mean that they were not "industrial dispute".

15. It is not expedient that same union should remain

incharge of that dispute till its adjudication. The dispute

may be espoused by the workmen of an establishment,

through a particular union for making such a dispute an

Industrial dispute", while the workman may be represented

before the Tribunal for the purpose of Section 36 of the Act

by a member of executive or office bearer of altogether

another union. The crux of the matter is that the dispute

should be a dispute between the employer and his workmen.

It is not necessary that the dispute must be espoused or

conducted only by a registered trace union. Even if a trade

union ceases to be registered trade union during the

continuance of the adjudication proceedings that would

not affect the maintainability of the order of reference. Law

to this effect was laid by the High Court of Orissa in Gammon

India Limited [1974 (II) LLJ 34]. For ascertaining as to

whether an individual dispute nas acquired character of an

individual dispute, the test is whether on the date of the

reference the dispute was taken up as supported by the

union of the workmen of the employer against whom the

dispute is raised by the individual workman or by an

appreciable number of the workman. In other words, the

validity of the reference of an industrial dispute' must be

judged on the facts as they stood on the date of the

reference and not necessarily on the date when the cause

occurs, reference can be made to a precedent in Western

India Match Co.Ltd. [1970 (11) LLJ 256].

16. Here in the case, not even an iota of facts are

brought over the record to the effect that the union took

up the cause of the claimant as their own. It is also not

shown that the members of the union had shown their

collective will in favour of the cause of the claimant. Thus

it is evident that there is a complete vacuum of facts to the

effect that the union espoused the cause of the claimant.

Resultantly there is no material to conclude to the effect

that the dispute acquired status of an industrial dispute.

The reference is liable to be answered against the claimant

on that score.

17. The corporation further projects that a stale claim

has been made, since it has been raised after a long gap of

12 years. Section 10 (1) of the Act does not prescribe any

period of limitation for making reference of the dispute for

adjudication. The words 'at any time' used in sub section

(1) of Section 10 of the Act, does not admit of any limitation

in making an order of reference. Law of limitation, which

rnight bar any Civil Court from giving rernedy in respect of

lawful rights, cannot be applied by Industrial Tribunals.

However, policy of industrial adjudication is that stale claim

should rot be generally encouraged or allowed unless

there is satisfactory explanation for delay. In Shalimar Works

Ltd. [1959 (2) LLJ 26], the Apex Court pointed out that

though there is no limitation prescribed in making reference

of the dispute to Industrial Tribunal, even so, it is only

reasonable that disputes should be referred as soon as

possible after having arisen and on failure of conciliation

proceedings. In Western India Match Company [1970 (2)

LLJ 256] the Apex Court observed that in exercising its

discretion, Government will take into account time which

has lapsed between its earlier decision and the date when

it decides to consider it in the interest of justice and

industrial peace to make the reference for adjudication.

Same view was taken in Mahabir Jute. Mills Ltd. [1975 (2)

LLJ 326]. In Gurmail Singh [2000 (1) LLJ 1080] Industrial

Adjudicator dismissed the reference on the ground that

there was delay of 8 years in raising the dispute, which

delay was condoned by the Apex Court and it was

ordered that the workman would not be entitled to any

back wages for the period of 8 years but would be entitled

to 50% of wages from the date it raised the dispute till the

date of his reinstatement. In Prahalad Singh [2000 (2) LLJ

1653], the Apex Court approved the award of the Tribunal

in not granting any relief to the workman who preferred

the claim after a period of 13 years without any reasonable

or justifiable grounds. From above decisions, it can be said

that the law relating to delay in raising or reference of

dispute is bereft of any principles, which can be easily

comprehended by the litigants.

18. Claimant raised the dispute in respect of denial of

regularization of services to her in the year 2012. For claim

of regularization, it was incumbent upon the claimant to

establish that she was appointed by the Corporation with

effect form 01-10-2000 against a substantive post. As

projected by the Corporation, she was engaged as a part

time safai karamchari on a consolidated salary of

Rs.560.00 per month in the year 2000 and was doing the

work only for four hours per day. She stopped reporting

for duties since 26-06-2009. Even otherwise, there is no

policy of the Corporation to regularize any part time

employee. These factual propositions also disentitle her to

relief of regularization of her services.

19. The foregoing reasons make me to conclude that

Smt. Meena is not entitled to regularization in the service

of the Corporation. Even otherwise an individual dispute

cannot be adjudicated upon by the Tribunal. These

reasons persuade the Tribunal to refrain its hands from

adjudicatory process. No relief can be granted in favour of

Smt. Meena.An award is, accordingly, passed. It be sent

to the appropriate Government for publication.

Dated : 10-01-2014

Dr. R. K. YADAV, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

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1285

ubZ fnYyh] 20 tuojh] 2014

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dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vflLVsaV

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fnYyh ds iapkV (lanHkZ la[;k 259@2011) dks izdkf'kr djrh gS]

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¹la- ,y&42012@42@98&vkbZ vkj (Mh;w )]

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New Delhi, the 20th January , 2014

S.O. 461.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 259/

2011) of the Central Government Industrial Tribunal-cum-

Labour Court No. 1, Delhi now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the Management of The Assistant Engineer, All India

Radio, New Delhi and their workman, which was received

by the Central Government on 18-1-2014.

[No. L-42012/42/98-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE Dr. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL, TRIBUNAL

No. 1, KARKARDOOMA COURTS, DELHI

I.D. No. 259/2011

Sh. Dilwan Singh,

R/o H. No. 288, Block-1,

Dakshin Puri,

New Delhi-110062.

. . . Workman

Versus

The Asstt. Engineer (E),

C.C.W., All India Radio,

Siri Fort Auditorium,

New Delhi-110049.

. . . Management

A W A R D

During International Fi1ms Festival 1992 Directorate

of Film Festival awarded projection system operational

work to a contractor, who engaged projector operator and

film checker to carry out his contractual obligations. Shri

Dilwan Singh was engaged as a film checker by the

contractor. Specialized job of film projections, which was

being supervised by Directorate of Film Festival was

handed over to the Civil Construction Wing of All India

Radio (hereinafter referred to as the management) in May

1993. The management also awarded operation of film

projection work to a contractor namely M/s. Om Prakash.

The claimant, who was earlier engaged by Shri

K.M.Sharma, the contractor, was also engaged by M/s Om

Prakash, to whom work was awarded by the management.

The claimant worked as a film checker, as an employee of

the contractor till 30-8-97, the date when a theft took place

at Shri Fort Auditorium, where film projection work was

being performed by the contractor. When complainant was

made to the contractor in that regard, he allegedly dispensed

with the services of te claimant. Aggrieved by that act the

claimant raised a demand for reinstatement in service of

the management, since by then steps were being taken to

create a post of film checker in its establishment. Demand

of the claimant was declined. He raised a dispute before

the Conciliation Officer. Since his claim was contested by

the management conciliation proceedings ended into a

failure. On consideration of failure report, submitted by the

Conciliation Officer, the appropriate Government referred

the dispute to this Tribunal for adjudication, vide order

No. L-42012/42/98-I(DU), New Delhi dated 10-9-1998, with

following terms :

“Whether the action of the management of CCW/

AIR in dismissing the services of Shri Dilwan Singh,

Film Checker w.e.f. 28-8-97 and in not regularizing his

services w.e.f. 20-12-92 is legal and justified? If not,

what relief the workman is entitled to ?”

2. Clam statement was filed by Shri Dilwan Singh

pleading that he was working as a film checker for the

management since 01-06-1993 at Siri Fort Auditorium. New

Delhi. He was paid his wages at the rate of Rs. 60 per day.

He was appointed byAssistant Engineer(E) of the

management. He assured that his services would be made

permanent. Prior to his engagement on 1-6-93, he worked

as a film checker from 20-12-92 to 31-5-93 in Directorate of

Film Festival, Ministry of Information and

Broadcastig,Govt. of India, New Delhi. The Assistant

Egineer used to assign and supervise his work. He used to

mark his attendance in a register maintained by the

management. His wages were paid at the end of every

English calendar month. No leaves of any nature was given

to him. No provident fund was deducted. He was not paid

any bonus. He was paid overtime wages, when made to

work beyond eight hours a day. His appointment was against

a permanent post. He rendered continuous service with

management till 31-8-97. After termination of his services,

one Ranjeet Singh apointed in his place.

3. The claimant pleads that he is a matriculate and

acquired good experience as a film checker. The

management had issued experience certificate in his favour.

he filed an application before Central Administrative

Tribunal (in short the CAT) for absorption of his services.

His petition was disposed off vide order dated 13-5-97.

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[PART II—SEC. 3(ii)]

Though he was eligible for ad-hoc bonus but it was not

paid to him. He was entitled of same pay as paid to regular

employees of the management. No notice or pay in lieu

thereof and retrenchment compensation was given to him.

Action of terminating his services is in violation of the

provisions of section 25-F of the Industrial Disputes Act

1947 (in short the Act.) Principals of “First come last go”

was not followed. Fresh appointment was made in violation

of the provisions of section 25-G and 25-H of the Act and

rules 76 to 78 of the Industrial Dispute (Central) Rules 1957.

He claims reinstatement in service with continuity and full

back wages.

4. Claim was demurred by the management pleading

that only the appropriate Govt. has the authority to abolish

contract labour system. No Court of Tribunal can abolish

or ban a genuine contract labour system. It has further

been pleaded that he claimant was engaged by M/s. Om

Prakash, a contractor, under whose direct control he was

working. The management never paid his wages. It has

been disputed that duties were assigned and supervised

by an Assistant Engineer of the management. It is wrong

to assert that there was any permanent vacancy for the

post of film checker with the management. The contractor

used to take duties from the claimant. Application filed by

the claimant before the CAT for his regularization came to

be dismissed. The claimant was neither engaged nor his

services were dispensed with by the management. His claim

statement deserve dismissal being devoid of merits, pleads

the management.

5. Vide order No. Z-22019/6/2007-IR(C-II) New Delhi

dated 11th February, 2008 the case was transferred to the

Central Government Industrial Tribunal No. 2, New Delhi,

for adjudication by the appropriate Government. It was

retransferred to this Tribunal for adjudication, vide order

No. Z-22019/6/2007-IR(C-II), New Delhi, dated 30-03-2011

by the appropriate Government.

6. Claimant examined himself in support of his claim.

Shri Murari Lal, Executive Engineer, was examined by the

management to fend facts. No ohter witness was examined

by either of the parties.

7. Arguments were heard at the bar. Shri B.L. Gupta,

authorized representative, advanced arguments on behalf

of the the claimant Shri A.P. Gupta, authorized

representative raised his submissions on behalf of the

management. Written submissions were also filed on behalf

of the claimant. I have given my careful considerations to

the arguments advanced at the bar and cautiously perused

the records. My findings on issues involved in the

controversy are as follows.

8. In order to appreciate facts testified by rival parties

affidavit Ex. WW1/A, tendered as evidence by the claimant,

the affidavit Ex. MW1/A, tendered as evidence by Shri

Murari Lal, are scanned besides document proved by them.

In affidavit Ex. MW1/A the claimnat reproduced those

very facts which were pleaded by him in his claim statement.

Shri Murari Lal projects a version of awarding work to a

contractor and the claimant being an employee of the

contractor. Therefore it becomes expendient to appreciate

rival facts in the light of documents proved over the record.

The claimant has proved experience certificate Ex. WW1/1,

issued by Junior Engineer (Electrical) of the management.

In Ex. WW1/1 periods for which the claimant worked as a

film checker at Siri Fort Auditorium has been detailed. It

has been specified therein that the claimant worked there

through M/s. Om Prakash. It emerges out of Ex. WW1/1

that the claimant was an employee of the contractor. The

claimant has also proved his duty pass as Ex. WW1/7,

original of which was taken over the record as Ex. WW1/8.

This duty pass projects him to be an employee of the

contractor. Therefore these two documents, on which the

claimant bases his claim, project him to be an employee of

the contractor. Edific of the claimant has been demolished

by these two documents itself. Superstructure of his case

trumbled down when these two documents were brought

over the record.

9. No evidence at all was brought over the record by

the claimant to establish that his wages were ever paid by

the management. Attendance register Ex. WW1/M2 to Ex.

WW1/M8 were confronted to him. In none of these register

his name appears as an employee of the management. No

appointment letter or any document projecting him to be

an employee of the contractor has been brought over the

record. Bald statement of the claimant, to the effect that he

was an employee of the management, gets no support from

any documentary evidence brought over the record by the

claimant or the management. There is a complete vaccume

of evidence to record a finding to the effect that the claimant

was an employee of the management. I am constrained to

conclude that the claimant was an employee of the

constructor, who unsuccessfully attempted to claim himself

to be an employee of the management.

10. No document was brought over the record to the

effect that there was an occasion with the management to

terminate his services. When claimant was an employee of

the contractor, the management was not in a position to

dispensed with his services. Under these circumstances it

cannot be said that the management acted in any manner

and terminated his services. No question to assess legality

and justifiability of action of the management, in

terminating service of the claimant, would arise at all. Under

these circumstances the claimant could not establish any

claim against the management.

11. Whether the claimant, who was an employee of

the contractor, can maintain a dispute against the

management? For an answer to this proposition, the

Tribunal has to take note of the law contained in section 10

of the Contract Labour (Regulation and Abolition) Act,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1287

1970 (in short the Contract Labour Act), which makes

provision for prohibition of employment of contract labour.

For sake of convenience provisions of section 10 of the

Contract Labour Act are reproduced thus :

“10. Prohibition of employment of contract labour :

(1) Notwithstanding anything contained in this Act,

the appropriate Government may, after

consultation with the Central Board or, as the

case may be, a State Board, prohibit, by

notification in the Official Gazetee, employment

of contract labour in any process, operation or

other work in any establishment.

(2) Before issuing any notification under sub-

section (1) in relation to an establishment, the

appropriate Government shall have regard to the

conditions of work and benefits provided for

the contract labour in that establishment and

other relevant factors, such as :

(a) whether the process, operation or other

work is incidental to, or necessay for the

industry, trade, business, manufacture or

occupation that is carried on in the

establishment,

(b) whether it is of perennial nature, that is to

say, it is of sufficient duration having

regard to the nature of industry, trade,

business, manufacture or occupation

carried on in that esablishment;

regular workmen in that establishment or

an establishment similar thereto;

(d) whether it is sufficient to employ

considerable number of whole-time

workmen.

Explanation : — If a question arises

whether any process or operation or other

work in other work is of perennial nature,

the decision of the appropriate

Government thereon shall be final.”

12. As emerges out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the Official Gazette,

prohibit employment of contract labour in any process,

operationor other work in any establishment. Whether

employment of contract labour is prohibited, by issuance

of a notification in Official Gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India

Ltd.(2001(7) S.C.C.1). The Apex Court ruled therein that

there cannot be automatic absorption of contract labour

by principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub-section (1) of Section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extended thus :

“...... they fall in three classes : (1) where contract

labour is engaged in or in connection with the work

of an establishment and employment of contract

labour is prohibited either because the industrial

adjudication/court ordered abolition of contract

labour or because the appropriate Government issued

notification under section 10(1) of the CLRA act, no

automatic absorption of contract labour working in

the establishment was ordered, (2) where contract

was found to be a sham and nominal, rather a

camouflage, in which case the contract labour

working in the establishment of the principal

employer were held, in fact and in reality, the

employees of the principal employer himself. Indeed

such cases do not relate to the abolition of contract

labour but present instances wherein the court pierce

the veil and declared the correct position as a fact at

the stage after employment of contract labour stood

prohibited, (3) where in discharge of a statutory

obligation of maintaining a canteen in an

establishment the principal employer availed the

services of the contractor, the courts have held that

the contract labour would indeed be employees of

the principal employer.”

13. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub-

section (1) of section 10, prohibiting employment of

contract labour, in any process operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the

establishment. The Apex Court ruled that these cases fall

in class (3) mentioned above. Judgment in Hussainbhai

[1978 Lab. I.C. 1264] was considered by the Apex Court in

the said precedent and it was ruled therein that the said

precedent falls in class (2), referred above. The Apex Court

concluded that on issuance of prohibitive notification

under section 10 of the Contract Labour Act prohibiting

employment of contract labour or otherwise, in an industrial

dispute brought before it by any contract labour in regard

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

to conditions of service, the Industrial Adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result for the establishment or for

supply of contract labour for work of the establishment

under a genuine contract or is a mere ruse/camouflage to

evade compliance of various beneficial legislation so as to

deprive the workers of the benefit thereunder. If the contract

is found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour inthe establisment

concerned, subject to the conditions as may be specified

by it for that purpose.

14. An announced by the Apex Court, on issuance

of a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

interposed either on the ground of having undertaken to

produce any given result in the esablishment or for supply

of the contract labour for the work of the establishment

under a genuine contract or it is a mere ruse/camouflage

to evade compliance of beneficial legislation so as to

deprive the workers of the benefits therein. Thus it was

ruled that a contract labour can raise a dispute before the

industrial adjudictor in regard to his conditions of service

and in case the contract is found to be not genuine but a

mere camouflage, the so called contract labour will have to

be treated as employees of the principal employer. Also

see Standard Vacuum Refining Co. of India Ltd. [1960 (II)

LLJ. 233], which was referred with approval in Steel

Authority of India.

15. In Shivanandan Sharma [1955 (1) LLJ 688], the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was : was the appellant an employee of the

Bank ? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down :

“If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master.”

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

16. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

the workers were not engaged, they raised an industrial

dispute that they were denied employment by the petitioner.

On reference of that dispute, the labour court passed an

award against the petitioner. When matter reached the Apex

Court, on examination of various factors and applying the

effective control test, it was held that though there was no

direct relationship between the petitioner and the workers

yet onlifting the veil and looking at the conspectus of

actors governing employment, the naked truth, though

drapped in different perfect paper arrangement, was that

the real employer was the petitioner, not the immediate

contractor. The Apex Court stated law in following words :

“Where a worker of a group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers’ subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the vail or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped indifferent

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelhoood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the interfernce defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management’s adventitious connections

cannot ripen into real employment.”

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

17. In Steel Authority of India (supra) it has been

ruled that the term “contract labour” is a species of workman.

A workman may be hired : (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1289

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai’s case

(supra) and in Indian Petrochemicals Corporation case (1999

(6) S.C.C. 439) etc.; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the management since he agitates that the contract

agreement between the management and the Contractor is

sham and nominal.

18. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act ? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 required the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo onthe principal employer of an

establishment from employing contractor labour in the

establishment when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections

23, 24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

19. In the Steel Authority of India (supra) the Apex

Court laid emphasis “..... the consequence of violation of

Section 7 and 12 of the CLRA Act is explicitly provided in

Section 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section10 or substitute for penal consequences specified

in Section 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principal of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible.” The above authorititative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

20. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the management ? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be

made to precedents in United Salt Works and Industries

Ltd. (1962 (I) LLJ. 131), Shibu Metal workes (1996 (I) LLJ.

717), National Iron & Steel Co. (1967 (II) LLJ. 23) and Ghage

and Patil (Transport) Pvt. Ltd.(1968 (I) LLJ. 566). The

National Commission on Labour (1966) in para 29.11 of its

report, enumerated those factors, on which abolition of

contract labour was ordered, thus :

“29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of the

‘middlemen’.”

21. After Contract Labour Act was brought on

statute book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establihment to

abolish contract labour in Vegoils Private Ltd. (1971(2)

S.C.C. 724) and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus :

“The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry . Therefore, it

is reasonable to conclude that the jurisdiction to

1290

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

decide about the abolition of contract Labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

quesiton whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the apropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinionthat the direction of the Industrial Tribunal

in this regard will have to be set aside. ***. The

legality of the direction given by the Industrial

Tribunal abolishing contract labour in respect of

loading and unloading from May 1, 1971, can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in acordance with the

provisions of the Cntral Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through it award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained inthe award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act.”

22. in Gujarat Electricity Board (1955(5) S.C.C. 27)

the same view was taken by the Apex Court holdings that

the authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. it would be apposite to reproduce

the observation of the Court thus :

“53. Our conclusions and answers to the questions

raised are, therefore, as follows :

(i) In view of the provisions of Section 10 of the

Act, it is only the appropriate Governmetn which

has the authority to abolish genuine labour

contract in accordance with the provisions of

the said Section. No Court including the

industrial adjudicator has jurisdiction to do so.

(ii) If the contract is sham or not genuine, the

workmen of the so-called contractor can raise

an industrial dispute for declaring that they were

always the employees of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is

not a dispute for abolition of the labour contract

and hence the provisions of Section10 of the

Act will not bar either the raising or the

adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is

only if the adjudicator comes to the conclusion

that the contract is sham, that he will have

jurisdiction to adjudicate the dispute. If,

however, he comes to the conclusion that the

contract is genuine, he may refer the workmen

to the appropriate Government for abolition of

the contract labour under Section 10 of the Act

and keep the dispute pending. However, he can

do so if the dispute is espoused by the direct

workmen of the principal employer. If the

workmen of the principal employer have not

espoused the dispute, the adjudicator, after

coming to the conclusion that the contract is

genuine, has to reject the reference, the dispute

being not an industrial dispute within the

meaning of Section 2(k) of the ID Act. He will

not be competent to give any relief to the

workmen of the erstwhile contractor even if the

labour contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for aboliton

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the

principal employer. The industrial adjudicator,

after receipt of the reference of such dispute

will have first to direct the workmen to approach

the appropriate Government for aboliton of the

contract labour under Section 10 of the Act and

keep the reference pending. If pursuant to such

reference, the contract labour is abolished by

the appropriate Government, the industrial

adjudicator will have to give opportunity to the

parties to place the necessary material before

him to decide whether the workmen of the

erstwhile contractor should be directed to be

absorbed by the principal employer, how many

of them and on what terms. If, however, the

contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) Even after the contract labour system is

abolished, the direct employees of the principal

employer can raise an industrial dispute for

absorption of the ex-contractor’s workmen and

the adjudicator on the material placed before

him can decide as to who and how many of the

workmen should be absorbed and on what

terms.”

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1291

23. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system

vests with the appropriate Government, under section 10

of the Contract Labour Act, and not with any court including

the industrial adjudicator. This Tribunal has not been

saddled with any responsibility to abolish contract labour

in an establishment, on parameters enacted in sub-section

(2) of section 10 of the Contract Labour Act.

24. In order to assess as to whether the claimant

could establish a case that agreement entered into between

the management and the contractor was sham and nominal,

evidence is again looked into. The claimant nowhere claims

himself to be an employee of the contractor and questions

genuiness of the contract agreement. His thrust of

contention has been to the effect that he is a direct employee

of the management. The claimant never requested the

Tribunal to command the management to produce contract

agreement entered into between the contrator and the

management. Since the claimant never questioned the

contract agreement nor attempted to set up such a claim,

the Tribunal never thought it expedient to call the

management to produce contract agreements for

appreciation of facts detailed therein. During the course of

arguments a vauge assertion was made in that regard. The

claimant has miserably failed to establish that

administrative, managerial, supervisory, financial and

disciplinary control was exercised over him by the

managment. In such a situation there is no case to raise an

eyebrow against the contract agreements entered into

between the management and the contractor.

25. In view of reasons detailed above claim put

forward by the claimant fails. He has no case for

reinstatement in service of the management. His claim is

discarded, being untenable. An award is passed in favour

of the management and against the claimant. It be sent to

the appropriate Govt. for publication.

Dated : 3-1-2014

Dr. R.K. YADAV, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 462-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMIVh lqifjUVsUMsUV

gks£Vdqyf=kLV vk£d;ksykWftdy losZ vkWiQ+ bafM;k Hkqcus'oj ds izcaèkra=k

ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa fu£n"V

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

U;k;ky;] Hkqcus'oj ds iapkV (lanHkZ la[;k 27@2013) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 18&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&42012@227@2011&vkbZ vkj (Mh;w )]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 20th January, 2014

S.O. 462.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 27/2013)

of the Central Government Industrial Tribunal-cum-Labour

Court, Bhubaneswar now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of Dy. Superintendent Horticultrist,

Archaeological Survey of India, Bhubaneswar and their

workman, which was received by the Central Government

on 18-1-2014.

[No. L-42011/227/2011-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

BHUBANESWAR

Present :

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour Court,

Bhubaneswar.

Industrial Dispute Case No. 27/2013

No. L-42011/227/2011-IR (DU), dated 18-3-2013

Date of Passing Order—8th October, 2013

Between :

The Dy. Superintendent Horticultrist,

Archaeological Survey of India,

Bhubanesar Circle,

Block-VI, Toshali Apartment,

Satyanagar,

Bhubaneswar (Orissa)

...1st Party-Management

AND

The President,

Archaeological Survey of India

Workers Union,

Plot No. 32, Ashok Nagar,

Bhubaneswar, (Orissa)

...2nd Party-Union.

Appearances :

None

...For the 1st Party-Management

None

...For the 2nd Party-Union

ORDER

Case taken up. None of the parties is present. The

2nd Party Union has not filed any statement of claim

despite sending notice on 29-5-2013 through ordinary post

and on 17-7-2013 through registered post. On the last date

the 2nd Party-Union had prayed for time acceding to which

it was given one month’s time to file statement of claim.

But the time has expired on5-10-2013 and no statement of

claim has been filed.

1292

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

2. Under these circumstances, it appears that the

2nd Party-Union is not interested in contesting the case

by filing the statement of claim, though a period of more

than five months has expired. It might be that the dispute

has been amicably settled with the 1st Party-Management.

Therefore there is no use to keep the case pending

indefinitely and the reference is liable to be decided by

way of passing a no-dispute award.

3. According a no dispute award is passed and the

reference is answered on the above terms.

Dictated & Corrected by me.

JITENDRA SRIVASTAVA, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 463-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMIVh lqifjUVsUMsUV

vk£d;ksykWftdy losZ vkWiQ bafM;k] Hkqcus'oj ds izca/ra=k ds lac¼

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

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

Hkqcus'oj ds iapkV (lanHkZ la[;k 26@2013) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 18&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&42011@181@2012&vkbZ vkj (Mh;w )]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 20th January, 2014

S.O. 463.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 26/2013)

of the Central Government Industrial Tribunal-cum-Labour

Court, Bhubaneswar now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of Deputy Superintendent,

Archaeological Survey of India, Bhubaneswar and their

workman, which was received by the Central Government

on 18-1-2014.

[No. L-42011/181/2012-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL,

TRIBUNAL-CUM-LABOUR COURT,

BHUBANESWAR

Present :

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour Court,

Bhubaneswar.

Industrial Dispute Case No. 26/2013

No. L-42011/181/2012-IR (DU), dated 7-3-2013

Date of Passing Order—17th December, 2013

Between :

The Dy. Superintendent,

Archaeological Survey of India,

Horticulture Division,

Bhubanesar Circle,

Block-VI, Toshali Apartment,

Satyanagar,

Bhubaneswar (Orissa)

...1st Party-Management

AND

The President,

Archaeological Survey of India

Workers Union,

Plot No. 32, Ashok Nagar,

Bhubaneswar, (Orissa)

...2nd Party-Union

Appearances :

None

...For the 1st Party-Management

None

...For the 2nd Party-Union

ORDER

Case taken up. Parties are absent. Statement of claim

has not yet been filed by the 2nd Party-Union.

2. The reference was received in this Tribunal on

5-4-2013. The 2nd Party-Union has to file the statement of

claim within fifteen days from the date of receipt of the

order of refernece, but till date no statement of claim has

been filed, though notice to the 2nd Party-Union was issued

twice, first on 28-5-2013 through ordinary post and the

second on 11-7-2013 through regd. post. In response to

the notice issued on 11-7-2013 the Vice President of the

2nd Party Union appeared on 20-8-2013 and moved a time

petition on which time was allowed to the 2nd Party-Union

for filing statement of claim by 24-10-2013, but on the date

fixed neither any person from the side of the 2nd Party-

Union appeared nor filed any statement of claim. Hence it

seems that the 2nd Party-Union has either settled the

dispute amicably with the 1st Party-Management out of

the court or is not interested in pursuing the case.

3. In view of the above there is no use to keep the

case pending indefinitely and the case is to be disposed of

by passing a no-dispute award.

4. Accordingly a no-dispute award is passed.

5. Reference is answered on the above terms.

Dictated & Corrected by me.

JITENDRA SRIVASTAVA, Presiding Officer

ubZ fnYyh] 20 tuojh] 2014

dk-vk- 464-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mk;jsDVj

eysfj;k fjlpZ lsaVj fnYyh ds izca/ra=k ds lac¼ fu;kstdksa vkSj

muds deZdkjksa ds chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1293

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;] Hkqous'oj

ds iapkV (lanHkZ la[;k 30@2006) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 18&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&42012@26@2006&vkbZ vkj (Mh;w )]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 20th January , 2014

S.O. 464.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 30/2006)

of the Central Government Industrial Tribunal-cum-Labour

Court, Bhubaneswar now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of Director, Malaria Research Centre,

Delhi and their workman, which was received by the Central

Government on 18-1-2014.

[No. L-42011/26/2006-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

BHUBANESWAR

Present :

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour Court,

Bhubaneswar.

Industrial Dispute Case No. 30/2006

Date of Passing Award—7th October, 2013

Between :

The Director,

Malaria Research Centre,

22, Sham Nath Marg,

Delhi-110 054

. . . 1st Party-Management.

AND

The General Secretary,

Malaria Research Centre Project

Employee’s Association,

Sector-5,

Distt. Sundargarh (Orissa),

Rourkela

. . . 2nd Party-Union.

Appearances :

Dr. S.K. Sharma,

For the 1st Party

Officer, In-charge

Management

Mr. Sanatan Biswal,

For the 2nd Party-Union.

Jt. Secretary.

AWARD

An Industrail Dispute existing between the employers

in relation to the Management of Malaria Research Centre,

and their workmen has been referred by the Government of

India in the Ministry of Labour vide its Letter No. L-42011/

26/2006-IR(DU), dated 6-10-2006 to this Tribunal 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 in respect of the following matter :

Whether the demand of the Malaria Research Centre

Project Employees Association for merger of 50% of

Dearness Allowance/Dearness Relief with basic pay,

in pursuance of the Ministry of Finance O.M. No.

105/1/2004-IC dated 26-5-2004, for employees/

workers of the Centre, is legal and justified? If yes, to

what relief the concerned workmen are entitled to

and for which date ?

2. The 2nd Party Union espousing the cause of the

workmen filed its statement of claim in which it has been

alleged that the 1st Party Management is an unit of Indian

Council of Medical Research (ICMR), an autonomous body

an has been established by the Government of India with

the sole purpose of findign out ways and means to control

malaria in the country. The service conditions of the

workmen are guided by the bye-laws framed by the

Government of India. The Government of India has framed

fundamental and suplementary rules and further issued

such other Rules and Orders from time to time which apply

mutatis mutandis to the employees of the 1st Party

Management. The 2nd Party-workmen, though they are

called temporary workmen by the 1st Party Management

have been performing the job under the long term Integrated

Disease Vector Control (IDVC) Project perennially. They

have been working for the last twenty years wihtout any

break in their service and are entitled to Dearness

Allowance, House Rent Allowance, City Compensatory

Allowance and Travelling Allowance as per Government

of India instructions. Until 1-4-2004 they were enjoying

these benefits as per recommendations of the 5th Pay

Commssion like their counter-parts in the permanent roll

of the 1st Party Management. The 1st Party-Management

has employed temporary workmen and classified them into

three categories : (a) those who are fitted into scale of pay,

(ii) those who are getting consolidated wage and (c) those

who are casual workers receiving wages on daily rate basis

with reference to the minimum of the pay scales for

corresponding Group-D officials. The 2nd Party-workmen

belong to 1st and 2nd category of workers mentioned above.

On 1-4-2004 the 1st Party Management discriminated in

the matter of revision of dearness allowance etc. for the

temporary employees as compared to permanent

employees and did not merge 50% of dearness allowance

admissible on the existing basic pay with the basic pay as

per O.M. No. 105/1/2004-IC, dated 6-5-2004 issued by the

Ministry of Finance, Government of India in respect of the

so-called temporary employees for the reasons best known

to the Management. But surprisingly this facility was

allowed to the daily wage workers in the temporary roll of

1294

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

the 1st Party-Management. By not merging the 50% of

dearness allowance with basic pay and paying dearness

allowance at a rate different from the rate of the Central

Government, the 1st Party Management has violated the

orders of the Government of India, though they were

entitled to get their pay revised as per the recommendations

of the 5th Pay Commission approved by the Central

Government. This action of the 1st party Management has

created discontentment among the workmen as they started

getting less salary as compared to their counter-parts in

the permanent roll ranging from Rs. 700 to Rs. 2000 per

month. This is arbitrary and illegal and the practice being

followed cannot be changed to the detriment to the

workmen without any compelling reasons. The 1st Party

management has also violated the provisions of Section

9(A) of the Industrial Disputes Act,1947 as no notice was

issued to them prior to withdrawal of privileges enjoyed by

the 2nd Party workmen. The 2nd Party Workmen by writing

letters dated 1-6-2004 and 9-8-2004 requested the 1st Party

Management to consider their case of merger of 50%

dearness allowance with the basic pay and also endorsed

a copy to the Government of India, Ministry of Health and

Family Welfare, but nothing was done. Hence an industrial

dispute was raised before the Regional Labour

Commissioner (Central), Rourkela on which conciliation

proceedings were taken up, but they ended in failure. Hence

this reference was made to this Tribunal. The 2nd Party

Union has prayed for merger of 50% of dearness allowance

with basic pay in pursuance of the Ministry of Finance

O.M. No. 105/1/2004-IC, dated 26-5-2004 and for payment

of arrear of wages with interest with effect from 1-4-2004.

3. The 1st Party Management in its written statement

has replied that the Regional Medical Research Centre,

Bhubaneswar, which is a sister concern of NIMR under

the control of ICMR, New Delhi is not an “industry” as

defined under section 2(j) of the Industrial Disputes Act,

1947 as it is entirely a non-commercial organization engaged

in research activities. Therefore this Tribunal does not

have any jurisdiction to entertain the present reference.

The 2nd Party-workmen are engaged in long term extramural

project namely Integrated Disease Vector Control Project

on Temporary basis. The terms of engagement order/letter

are very clear that their engagement is coterminus with the

said project. Being project employees,they are not in the

regular establishment of the ICMR and therefore they

cannot be equated with regular employees of the

establishment of ICMR and are not entitled to the benefits

which are admissible to the regular employees of ICMR/

Central Government. The principal of “equal pay for equal

work” is not applicable to where there are two separate

categories and in such a case the Management is authorized

to take a decision regarding the pay scale and make a

difference with regard to payments, such as merger of 50%

dearness allowance with basic pay to regular employees of

the Council and between those employees working in

extramural time bound project. The payment of dearness

allowane on the basic pay is not part of the salary and the

Management is well within its power to fix the various

parameters regarding the grant of dearness allowance or

merger of dearness allowance with basic salary for different

categories of the staff. The 2nd Party workmen are not

entitled to party with the Central Government employees

and there is no arbitrariness or illegality on the part of the

Management. There is also no violation of any

constitutional provision. The claim petition is liable to be

dismissed.

4. On the pleadings of the parties the following

issues were framed:

ISSUES

1. Whether the reference is maintainable ?

2. Whether the establishment of the Malaria

Research is an Industry within the definition of

the term ?

3. Whether the action of the Management in

merging 50% of the D.A./Dearness Relief with

the baisc pay, in pursuance of the Ministry of

Finance O.M. No. 105/1/2004-IC dated 26-5-2004

for employees/workers of the Centre, is legal and

justified?

4. If not what relief the disputants are entitled ?

5. On behalf of the 2nd Party Union its General

Secretary Shri Prasanna Kumar Behera has filed his sworn

affidavit in evidence on which opportunity to cross

examination was given to the 1st Party Management. The

2nd Party Union has relied on several documents marked

as Ext. 1 to 32.

6. The 1st Party Management has examined Dr. Surya

Kanta Sharma in evidence and has filed photostate copy

of Award given by the Industrial Tribunal, Bhubaneswar in

I.D. Misc. Case No. 43/98(c) as annexure to its written

statement.

FINDINGS

ISSUE No. 1 and 2

7. These two issues are co-related and inter-

dependant. Hence they are taken up together for

convenience sake.

8. The 1st Party Management has challenged the

maintainability of the reference on the ground that the

establishment of Malaria Research is not an “industry”

within the meaning of “industry” as defined under the

Industrial Disputes Act as it is a non-commercial

organization engaged in the research activities. Since both

the issues are based on the same plea they are dealt with

together. To support its contention the 1st Party

Management has relied on certain rulings. First of all it has

cited the case of “Central Agricultural Research Institute

¹Hkkx II—[k.M 3(ii)º

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1295

& another-Versus-Presiding Officer, Labour Court and

Others (1998 LAB I.C. 1490) in which the Hon’ble Calcutta

High Court has held that Central Agricultural Research

Institute (CARI) is not an Industry and does not come

within the purview of the Act. Therefore reference of matter

relating to CARI for adjudication under the Act is without

jurisdiction. The three other cases relied on by the 1st

Party Management are of courts of concurrent jurisdiction.

The three cases are (i) Tr. I.D. Case No. 148/2001, The

Management of the Director, Regional Research Laboratory

Bhubaneswar and their workmen represented through

General Secretary, Regional Research Laboratory Workers

Union, Bhubaneswar, (ii) I.D. Case No. 1/2005. The

Management of the Director Institute of Minerals and

Materials Technology, Bhubaneswar and their workmen

Shri Akshaya Kumar Gochhayat and others, and (iii) I.D

Misc. Case No. 43/98 (C) The Management of Regional

Medical Research Centre, Indian Council of Medical

Research,Bhubaneswar and their workman Shri D.

Jagannath Rao, Chandrasekharpur, Bhubaneswar. In all

these three cases a categorical finding has been given by

the Presiding Officers of the Tribunal that the Regional

Research Laboratory, Institute of Minerals and Materials

Technology and Regional Medical Research Centre are

not an “Industry”. Hence Malaria Research Centre a sister

concern under the Indian Council of Medical Research is

not an Industry within the meaning of Section 2(j) of the

Industrial Disputes Act and therefore the present reference

is not maintainable.

9. The word “industry” as defined under section 2(j)

of the Industrial Disputes Act, 1947 does mean 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 distribution of goods or services with a view to satisfy

human wants or wishes (not being wants or wishes which

are merely spiritual or religious in nature), whether or not,

(i) any capital has been invested for the purpose

of carrying on such activity; or

(ii) such activity is carried on with a motive to

make any gain or profit.

10. There are certain exceptions, which excludes

some particular activities from the term “industry”. These

exceptions are enumerated as number (1) to (9) in the

definition of “Industry”. One of such exceptions is

enumerated at serial number (3) which excludes any activity

relating to educational, scientific, research or training

institutions from the term “Industry”.

11. The contention of the 1st Party Management is

that the establishment of Malaria Research Centre is

engaged in research activities and does not indulge in any

commercial or business activity. Therefore, it cannot be

called as “Industry”. The Hon’ble High Court of Calcutta

in the case of Central Agricultural Research Institute and

another-versus-Presiding Officer, Labour Court and others

(1998 LAB I.C. 1490) has held that :

“The difference between the guidelines laid down

by the supreme Court and the restructured definition

of “industry” as introduced by legislational

amendment is that under the Supreme Court

guidelines the triple tests determining the status of

an activity bring within its sweep even a research

institute as “industry” if it satisfies those triple tests,

but in the legislatively restructured definition of

“industry” while these triple tests have been

accepted for determining the status, yet an

unqualified exception has been made inter alia in

favour of research institute even if such research

institute satisfies the triple tests. This difference will

have to be borne in mind while examining the

question as to whether an entity or an activity is an

“industry” in the light of the present definition of

the term in Section 2(j) as it stands after the

amendment introduced by the Parliament after the

Supreme Court decision in Bangalore Water Supply.

The result is that after the amendment a reserch

institute will be outside the scope of the definition of

“industry” in Section 2(j) even if it satisfies the triple

tests laid down by the Supreme Court and adopted

in the amended defintion of Section 2(j).

Consequently once it is found-as it has been- that

CARI is a research institute it will be outside the

definition of “industry” even if it satisfies the triple

tests”.

12. At the same parlance the Malaria Research Centre,

which is working under the National Institute of Malaria

Research being basically and functionally a research

institute cannot be placed under the definition of an

“industry”.

13. The three cases relied upon by the 1st Party-

Management as referred to above decided by the Industrial

Tribunals, though have not any binding effect on this

Tribunal have ruled the same view as the management in

these cases were a research organization basically and

prominently dealing with research work.

14. The 2nd Party-Union has filed certain documents,

namely Exts. 2/1, 2/2, 3, 4 and 5 to show that financial

assistance to the 1st Party-Management was provided by

certain agencies meaning thereby that the 1st Party-

Management is engaged in commercial activities. But these

documents do not help in proving this contention. The

financial assistance seems to have been provided by these

agencies in the project sponsored by them. This has been

amply explained by W.W.-1 Shri Prasanna Kumar Behera

in his statement before the court. The ruling cited by the

2nd Party-Union namely “Bangalore Water Supply and

Sewerage Board-versus-A. Rajjappa & others (AIR 1978

SC 969)” has been elaborately dealt with and distinguished

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

in the case of “Central Agricultural Research Institute and

another-versus-Presiding Officer, Labour Court and Others

(1998 LAB I.C. 1490)” by the Hon’ble Calcutta HighCourt

on the basis of amended definition of “industry” as per

Section 2(j) of the Industrial Disputes Act, 1947.

15. In view of the discussions held above, I come to

the conclusion that the 1st Party-Management does not

come within the definition of “Industry”. Therefore the

reference is not maintainable before this Tribunal.

Accordingly both the issues number 1 and 2 are decided in

the negative.

ISSUE No. 3 & 4

16. Since the reference is not maintainable in this

Tribunal/Labour Court, this Tribunal/Labour Court being

benefit of jurisdiction cannot proceed further to decide

these two issues for lack of authority.

17. Reference is answered accordingly.

Dictated & Corrected by me.

JITENDRA SRIVASTAVA, Presiding Officer

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New Delhi, the 21st January , 2014

S.O. 465.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 246/

2011) of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of The Manager, Headquarter Delhi Area

Printing Press, New Delhi and their workman, which was

received by the Central Government on 18-1-2014.

[No. L-14012/12/96-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL, TRIBUNAL

No. 1, KARKARDOOMA COURTS, DELHI

I.D. No. 246/2011

Sh. Inder Narain decease through

His legal representatives

C/o Rajya Mazdoor Sabha,

RZ 15-A/1, Gali No. 3,

Main Sagarpur,

New Delhi-110046

. . . Workman

Versus

The Manager,

Headquarter Delhi Area Printing Press,

Civil Lines, Delhi Cantt.

New Delhi-110010

. . . Management

A W A R D

'Troops Welfare Oriented" regimental setup was

commissioned by the Headquarters Delhi Area (Army) in

the year 1984 with the name "Headquarters Delhi Area

Printing Press" (hereinafter referred to as the Printing

Press). The Printing Press functions to undertake printing

jobs as listed below:

(a) To provide prompt and reasonably priced

printing facility primarily to the Military Units

and servicemen/ex-service personnel in Delhi

Cantt. as well as to those located outside Delhi.

(b) To provide rehabilitation training to junior

commissioned officers/other ranks proceeding

on pension establishment or release within a

year or two.

Association (AWWA) to be utilized for the

welfare of servicemen and other families.

2. The organization of the Printing Press consists of

a patron, a chairman, press manager and machine

supervisor, who all are serving officers, junior

commissioned officers and jawans of Headquarters Delhi

Area. Besides these functionaries, civil work force of the

Printing Press consists of offset machine man, machine

man letter press, compositor, MOI operator/computer

operator and binder. Additional work force is engaged by

the Printing Press purely on temporary and casual basis.

The additional work force does not form part of its

sanctioned strength. One Shri Inder Narain was engaged

as machine mall, offset printing press in April 1987 by the

Printing Press, as additional work force. He worked with

the Printing Press till 16-2-95. On that date he allegedly

misbehaved with the Manager, Printing Press. He threatened

to damage and tamper with the offset machine so that it

would not be functional any longer. On a complaint of the

Manager, a count of enquiry was constituted. On

consideration of report of the court of enquiry, his services

were terminated w.e.f. 6-3-95. Shri Inder Narain assailed

the said action before the Conciliation Officer. The Printing

Press contested his claim, hence conciliation proceedings

ended into a failure consideration of failure report, submitted

¹Hkkx II—[k.M 3(ii)º

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1297

by the Conciliation Officer the appropriate Govt. referred

the dispute to this Tribunal for adjudication, vide order

No. L-14012/12/96- IR(DU) New Delhi, 9th/11th April, 1997

with following terms:

"Whether the action of the management of Hqrs.

Delhi Area Printing Press in terminating the services

of Sh. lnder Narain w.e.f. 6.3.95 is legal and justified?

If not, what relief the workman is entitled to?"

3. Claim statement was filed by Shri Inder Narain

pleading that he was employed with the Printing Press as

machine man since April 1987. He was not given legal

facilities such as appointment letters, identify card,

increment, bonus, E.S.I. and other facilities, as applicable

to employees of the Central Govt. He alongwith his

colleagues formed an association. Under his leadership

demands were raised on the Printing Press for the facilities

referred above. Several correspondences were made with

the Printing Press in that regard, but to no avail. On 6.3.95,

when he went to resume his duties he was not allowed to

enter premises of the Printing Press by the security guard.

Before that day his signatures were obtained on blank

papers projecting that it were required to regularize his

services. Those papers were misused by the Printing Press.

Thus by restraining him from entering the premises of the

Printing Press, his services were terminated.

4. On 19-4-95 he raised a demand before the

Conciliation Officer. The Printing Press submitted its written

statement projecting therein that his services were

dismissed for a misconduct, after holding a domestic

enquiry. The claim made by the Printing Press was false.

His services were terminated without giving any notice or

pay in lieu thereof and retrenchment compensation. The

Printing Press has violated provisions of section 25-F of

the Industrial Disputes Act 1947 (hereinafter referred to as

the Act). He claims reinstatement in service of the Printing

Press with continuity and full-back wages.

5. Claim was demurred by the Printing Press pleading

that it is an institution run on charitable lines. The Printing

Press carries out regal functions hence it is not an industry.

The civil work force cannot be employed on permanent

basis since the Printing Press, being part of the Head

Quarters Delhi Area, can be closed at any point of time

when upon for operational deployment. The Printing Press

caters primarily to printing needs of Army Units, its

personnel and Ex-servicemen in and around Delhi.

Organisation of the Printing Press is in the nature of in

house management.

6. The Printing Press presents that the claimant was

working purely on daily wages, hence not entitled to any

benefit similar to Central Govt. employees The claimant

was involved in anti management activities. During the

course of his engagement, he misbehaved with the

Manager and Officers of the Printing Press on several

occasions. He was repeatedly warned. He tendered written

apologies for his misconducts. On 16.2.95 he committed

misconduct, when he misbehaved with the Manager,

threatened to damage the machines and incited others for

collective disobedience. A court of enquiry was constituted

to enquire into the incidents of his misconduct. On the

basis of recommendations of the court of enquiry, the

claimant was found to be an undesirable workman. His

dismissal was approved on 21.2.95. Thus he was dismissed

for his misconduct. He is not entitled to any relief muchless

relief of reinstatement in service with continuity and full

back wages.

7. Vide order No. H-11026/1/2003-IR(C-II) New Delhi,

dated 5.12.2003, the case was transferred to the Central

Govt. Industrial Tribunal No.2, New Delhi for adjudication

by the appropriate Govt.

8. Vide order No. Z-22019/6/2007-IR(C-II) New Delhi,

dated 30-3-2011,the case was retransferred to this Tribunal

for adjudication by the appropriate Govt.

9. During the course of adjudication claimant expired

on 14-5-2009. His wife, namely, Smt.Pushpa, besides other

legal representatives, were substituted for the deceased

claimant.

10. On perusal of pleadings following issues were

settled :

(i) Whether enquiry conducted by the

management was fair and proper?

(ii) Whether punishment awarded to the deceased

claimant was proportionate to his misconduct?

(iii) As in terms of reference.

(iv) Relief .

11. Issue No.1 was treated as preliminary issue.

12. Nayab Subedar Fuman Singh was examined by

the Printing Press to discharge its onus. Legal

representative of deceased workmen opted not to examine

any witness to project facts on the preliminary issue.

13. On hearing the parties and appreciating

testimony of Nayab Subedar Fuman Singh, besides material

placed on record, preliminary issue was answered against

the Printing Press and in favour of the claimant, vide order

dated 10-10-2011.

14. The Printing Press examined Col. S.S. Sharma,

Sub. G.. Devasahayam, Col. Ravi Patharia and Lt. Col. P.L.

Gupta to prove misconduct of the claimant. Shri Gopal

Singh, Shri Kamal Narain and Smt. Pushpa entered the

witness box to rebut the evidence adduced by the Printing

Press. No other witness was examined by either of the

parties.

15. Arguments were heard at the bar. Shri A.K.

Pandey, authorized representative, advanced arguments

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

on behalf of the claimant. Shri Iqbal Shamshi, authorized

representative, raised submissions on behalf of the Printing

Press. I have given my careful considerations to the

arguments advanced by the parties and cautiously perused

the records. My findings on issues involved in the

controversy are as follows.

Issue No. 2

16. Col. Ravi Pathania unfolds that there were

various complaints against Shri Inder Naryan who was

working in the Printing Press in the year 1995. Court of

enquiry was ordered against Shri Inder Narain. Lt. Col.

P.L. Gupta reaffirms facts in this regard and deposed that

he conducted an enquiry against Shri Inder Narain. He

recorded statements of Shri Babar Ali, Shri Gopal Singh,

Shri Daulat Ram, Shri Kamal Narain and Shri Inder Narain,

which statements are Ex.MW1/5 to Ex.MW1/10

respectively. He recorded his findings which are Ex.MW5/1.

He also made his recommendations which are Ex.MW1/11.

When Ex.MW5/1 is perused, it came to light that these

findings were recorded by Lt. Col. Gupta, on behalf of

court of enquiry. Statement of the witnesses, referred above,

make it apparent that court of enquiry conducted a fact

finding enquiry. Recommendations EX.MW1/11 highlights

that Col. Gupta recommended disciplinary action against

the claimant. Though statement of the claimant was recorded

in order to obtain his explanation in the court of enquiry

but no opportunity was given to him to cross examine the

aforesaid witnesses. These facts make it apparent that the

court of enquiry had not taken any step ahead of a fact

finding body. Ltd. Col. Patharia claims to have tendered

show cause notice EX.MW1/12 to the claimant, who refused

to accept the same. Thereafter services of the claimant

were dispensed with. Show cause notice EX.MW1/12 is

not in the form of a charge sheet. It is crystal clear that

neither a charge sheet was served nor an enquiry was

conducted against the claimant. It was a case of no enquiry

at all.

17. The Apex Court in catena of precedents, in parallel

to reference cases under section 10 of the Act, has ruled

that even under section 33 of the Act, where employer had

held no enquiry or the domestic enquiry held by him is

found to be vitiated by the Tribunal, the right of the

employer to justify action of discharge or dismissal taken

by him against the delinquent workman by adducing

relevant evidence, for the first time before the Authority is

well recognized. Reference can be made to the precedents

in Bharat Sugar Mills Ltd. [1961(11) LLJ 644], Ritz Theatre

(Pvt.) Ltd. [1962 (11) LLJ 498], P.H.Kalyani [1963 (I) LLJ

679], Motipur Sugar Factory (Pvt.) Ltd. [1965 (11) LLJ 162]

Jitendra Chandrakar [1971 (I) LLJ 543], Ganesh Dutt [1972

(I) LLJ 172], Firestone Tyre & Rubber Company of India

(Pvt.) Ltd. [1973 (I) LLJ 278], Bhagubhai Balubhai Patel

(supra), Britania Biscuit Company Ltd. [1977(1) LLJ 197]

and K.M. Dev [1985 Lab.IC. 254]. Likewise right of the

workman to lead evidence contra has been recognized. In

such cases the entire matter is open before the Authority,

which will have jurisdiction not only to go into the limited

question of validity of the enquiry and the bonafides of

the employer but also to satisfy itself, on facts before it,

whether the action was justified. In other words, in such

situation jurisdiction of the Authority is not confined to

prima facie examination of the employer's action and the

Authority can come to his own conclusion on consideration

of evidence adduced before it. Reference can be made to

the precedent in Motipur Sugar Factory Pvt. Ltd. (supra),

Firestone Tyre and Rubber Company of India Ltd. (supra)

and Radio and Electricals Manufacturing Company Ltd.

[1978 (11) LLJ 131]. Thus it is crystal clear that in case of

no enquiry, the Printing Press has a right to establish

misconduct of the claimant before this Tribunal.

18. In order to prove misconduct, the Printing Press

has examined witnesses, referred above. Now their

depositions are to be appreciated. Col. S.S.Sharma deposed

that in Feb. 1995 he was working as General Staff Officer in

Delhi Area. On 21.2.1995 he was called by Col. R.K. Patharia

in his office. Shri Inder Narain was present in, the office of

Col. Patharia. Col. Patharia told him that Shri Inder Narain

refused to accept show cause notice. In his presence also,

Shri Inder Narain refused to accept show cause notice when

Col. Patheria asked him to accept the same. These facts.

were got typed on show cause notice Ex.MW1/12 and he

signed it at point A. Signature of Col. Patharia are there at

point Band C of the said notice. Col. Ravi Patharia also

reaffirms those very facts. He details that since there were

written complaints against Shri Inder Narain a court of

enquiry was ordered against him. He gave his opinion as

chairman court of enquiry, which opinion is Ex.MW1/13.

When he tried to serve show cause notice, Shri Inder

Narain refused to accept it. Out of these facts it is crystal

clear that these two witnesses speak of refusal of Shri Inder

Narain to accept show cause notice. These two witnesses

nowhere depose any fact relating to commission of

misconduct, in respect of which show cause notice was

being served on Shri Inder Narain. Hence their depositions

nowhere espouse cause of the Printing Press. As noted

above Col. Gupta conducted court of enquiry and speaks

facts relating to it only. He doesn't talk of the events relating

to commission of acts of misconduct by the claimant. Hence

his testimony is also of no avail to the Printing Press.

19. With a view to bring guilt home, Sub.

G.. Devasahayam was brought in the witness box. He

unfolds that he was posted as Manager, Printing Press

from 1987/1988 to 1997. Shri Inder Narain was working in

the press during that period. In conversation as well as

duties relating to his work Shri Inder Narain used to create

a little bit problems for him. He unfolds that on 15.2.95 Shri

Inder Narain was on leave. On that day he got printing

work done from his assistant. On 16.2.95 he came on duty

and questioned him as to who had worked on machine in

¹Hkkx II—[k.M 3(ii)º

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1299

his absence. He was told that on account of exigencies,

machine was got operated from his assistant. Shri Inder

Narain questioned him as to why he got machine operated

in his absence. Shri Inder Narain abused him. He ordered

Shri Inder Narain not to go to machine room. Shri Inder

Narain went to binding section and brought Shri Kamal

Narain along with him. Both of them scolded him. Shri Inder

Narain made all employees to leave their job and took them

away of printing press premises. When he went to machine

room he found one of its roller coming out of it. He reported

these facts to the Chairman, vide his report Ex.MW1/3,

which bears his signature at point A. Thereafter Shri Inder

Narain did not report for his duties for 5-6 days. His

signature appears at point D on Ex.MW1/12. Shri Inder

Narain reported for his duties after 10-12 days of issuance

of Ex.MW1/12 and gave an apology letter written in Hindi.

He told him that he was not competent to take him on job.

Shri Inder Narain went to the office of Lt. Col. P.L. Gupta

and thereafter never reported in the Printing Press.

20. To rebut facts unfolded by Sub.G.Devasahayam,

Shri Gopal Singh Swears in affidavit Ex.WW1/A that the

claimant never wasted any stationery nor tried to tamper

with the printing machine in his presence. It was the Printing

Press authorities who tried to instigate workers against

Shri Inder Narain. His signatures as well as signatures of

Shri Inder Narain were taken on blank papers. As emerge

out of his testimony, he tried to speak in defence of the

claimant relating to the incident of refusal of the latter to

accept show cause notice. Refusal to accept show cause

notice was not part of the misconduct for which the claimant

was dismissed. Shri Gopal Singh tried to speak that the

claimant had not argued with Sub. G.Devasahayam in his

presence. As testified by Sub. G.Devasahayam, Gopal Singh

was not present when series of misconduct were committed.

These facts were not dispelled at all, when Sub.

G.Devashayam faced rigors of cross-examination. Above

facts make it clear that testimony of Gopal Singh is not

relevant to that controversy, except that Gopal Singh also

left his work place on the instigation of the claimant.

21. Shri Kamal Narain also speaks those very facts

as unfolded by Shri Gopal Singh. He further details that no

altercation

took

place

between

him

and

Shri G.. Devasahayam. This witness had not came out with

the facts which occurred in his presence till he was bade

farewell by the Printing Press for medical incapacity to

work. Thus it is evident that his long silence to speak the

truth tell volumes about veracity of facts unfolded by him.

After his removal from service he had a motive to speak

against the Printing Press. On the other hand he admits

that when incident occurred he was employed in the press.

Thus it became evident that an incident occurred in which

Shri Inder Narain was involved but Shri Kamal Narain opted

not to unfold facts relating to that incident. When Kamal

Narain opted to conceal facts, his testimony came under

clouds. His conduct of being selective in detailing facts

make him unworthy of credence. It emerges out of the record

that Shri Kamal Narain tried to detail facts to tilt story in

favour of the claimant. He did so with oblique motive. Hence

his testimony is discarded being farther from truth.

22. Smt. Pushpa, the widow of the deceased, tried to

depose facts, which she claims to have gathered from her

deceased husband. When her affidavit Ex.MW3/A is

scanned, it came to light that Smt.Pushpa want to detail a

story with a view to grind her axe. There is no grain of truth

in events which she tried to unfold. Hearsay version,

unfolded by her, does not get support from any

documentary or ocular facts. She tried to tell lies, when

documents, on which signature of her deceased husband

appears, were put to her for confirmation. She denied

signatures of Shri Inder Narain on Ex.MW1/1, Ex.MW1/2,

Ex.MW1/10 and Ex.MW1/14. These documents project

facts against her deceased husband. She also denied

signature of the claimant appearing on the claim statement.

These facts project that Smt.Pushpa wants to speak

convenient facts only. Even otherwise she was not a

witness to the occurrence. She doesn't speak that incident

relating to 16.2.95 was narrated to her by her husband.

These facts make her deposition bereft of relevancy and

veracity.

23. Facts unfolded by Sub. G. .Devasahayam remain

unassailed, when his testimony was purified by an ordeal

of cross examination. No challenge was made to his

testimony to the effect that on 16.2.95 Shri Inder Narain

questioned him as to who operated machine in his absence,

that is, on 15.2.95. No eyebrows were raised to the testimony

to the effect that when Shri Inder Narain was informed that

machine was got operated in his absence from his assistant

then he questioned the witness as to why he got it operated

in his absence. No attempts were made to assail his

testimony to the effect that Shri Inder Narain abused the

witness. The witness was not at all questioned to

improbablize facts to the effect that thereafter Inder Narain

went in binding section, came again along with Shri Kamal

Narain and both of them scolded the witness. No hue and

cry was raised on the proposition that Shri Inder Narain

made all the employees to leave their work place and took

them away from the premises of the Printing Press. All

these facts remained unassailed. An unassailed testimony

is accepted as true, unless it is found contrary to natural

course of events, ordinary human behaviour and tenets of

veracity. These factors make it apparent that facts unfolded

by Sub. G. .Devasahayam remained uncontroverted. When

his testimony was assessed on acid test of behavioral

probabilities and veracity I could not notice any infirmity

or defect in the same. Testimony of Sub. G. Devasahayam

is found worth reliable. His testimony gets corroboration

from complaint Ex.MW1/3, which was promptly made by

him. Thus it came to light that on 16.2.95 the claimant

questioned authority of the Manager, Printing Press when

he got machine operated in absence of the claimant. He not

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[PART II—SEC. 3(ii)]

only abused Sub. G. Devasahayam but scolded him along

with Shri Kamal Narain. He tampered with the machine and

instigated other workers to leave their job and took them

away from their workplace.

24. Whether above acts of the claimant constitute

misconduct, as defined in the standing order of the Printing

Press. For an answer I have to scan terms and conditions

of engagement of casual labour engaged in the Printing

Press The standing orders detailed those conditions as

follows:

"The Printing Press staff will be appointed on the

following terms and conditions :-

(a) H Q Delhi Area when called upon to assume

operational responsibility in the event of active

hostilities, low intensity conflicts or aid to civil

power, would be required to wind up the

Printing Press. As such civilian workmen

cannot be permanently employed. The civilian

workmen will be kept on probation for 89 days"

and on having found suitable by the

management will be engaged on temporary

basis for 2 years. This period of 2 years may be

extended on the request of the workman, for a

period of further 2 years or more. The total

service permissible is upto the age of 60 years.

He is required to fill up a prescribed form as

per Appex 'B'. Antecedents of such persons

will be verified from the police. They will be

required to furnish two sureties and cash

security of Rs.1000.

(b) In normal circumstances only 9 workmen will

be employed on temporary basis on monthly

wages. However, in the interest of the

Organisation, additional workmen may be

employed over and above 9 but such addition

workers wil1 be on roll as a casual labourers

only.

the Printing Press will be made by a Board of

Officers comprising of Chairman as President,

the OIC, Printing Press and the Press Manager.

The work is of a nature, where some semi-

skilled persons with relevant experience may

also be engaged. Preference of selection will

be given to ex-servicemen. If an ex-serviceman

does not meet the QR, civilian candidates

meeting the QR may be considered.

(d) The services is liable to be terminated on

grounds of misconduct. In an offence of a

misconduct as given in the succeeding sub-

sub paras, a civilian workman is liable to be

removed from the service is found guilty in a

Court of Inquiry so ordered by the Chairman.

The domestic Court of Inquiry under an officer

nominated for the purpose by the Chairman of

the Press will give full opportunity to the

worker to explain his stand. The Chairman will

make his judgement and order the punishment

as deemed fit which will be binding on the

worker. The accused may apply for appeal

before the Patron, if he wishes to do so. A

show cause notice may not be served in such

case where individual is found to be resorting

to misconduct repeatedly as an habit. However,

in all other cases, the show cause notice of

minimum 7 days will be necessary."

25. Followinq acts have been coined as misconduct

by the standing orders;

“(i) Willful insubordination or disobedience,

whether or not in combination with another, of

any lawful and reasonable order of a superior.

(ii) Going on an illegal strike or inciting, abetting

or instigating or acting in furtherance thereof.

(iii) Willful slowing down in performance of work,

or abetment, or instigation thereof.

(iv) Threatening the management staff with dire

consequences.

(v) Theft, fraud, misappropriation or dishonesty

in connection .with the Press business or

property.

(vi) Habitual absence without leave, over staying

the sanctioned leave without sufficient

grounds, or proper and satisfactory

explanation or habitual late attendance.

(vii) Commission of any act subversive of discipline

or good behavior on the premisses of Press,

such as, drunkenness, gambling or meeting

without prior permission of the management

or taking or giving bribe or any illegal

gratification whatsoever.

(viii) Habitual neglect of work or gross or habitual

negligence.

(ix) Threatening to damage the property of the

Press including machines.

(x) Willful damage to work in progress or to any

property or the Press.

(xi) Disclosing to any unauthorized person any

information of the printing work which may

come in the possession of the staff in the

course of his duty".

26. Now question for consideration would be as to

whether facts unfolded by Sub. G. Devasahayam could

establish misconduct committed by the claimant enumerated

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1301

in the standing orders applicable to the Printing Press. Shri

Devasahyam deposed that the claimant questioned him as

to who had worked on machine in his absence on 15.2.95.

He details that when he was told that the machine was got

operated from his assistant in exigencies, the claimant

abused him. The claimant also retorted that he ought not

have got the machine operated in his absence. Out of these

facts, referred above, it emerges over the record that the

claimant was insulting and insubordinate to such a degree

as to be incompatible with the continuance of relationship

of master and servant. He not only questions authority of

the Manager, Printing Press, when the latter got operated

machine in absence of the claimant but give abuses and

scolds to him. Thus Sub. G. Devasahayam could project it

that the claimant willfully exhibited feelings of

insubordination towards him. He challenges authority of

the Manager and make him feel little by way of using

abusive language and scolding him along with Shri Kamal

Narain. I have no hesitation to conclude that the claimant

exhibited willful insubordination towards the Manager,

Printing Press and portrayed a conduct that he will not

follow reasonable orders, as and when the latter would get

machine operated, in his absence in exigencies. From above

acts the claimant displayed his insulting behavior towards

his superior. Authority of the superior was undermined by

him, without any reasonable excuse.

27. Sub. G. Devasahyam ordered him not to visit

machine room. At that juncture the claimant went in binding

section and approached Sub. G. Devasahyam again along

with Shri Kamal Narain. They scolded the Manager, Printing

Press, at that time. Thus claimant not only used his lung

power to brow beat his superior but by his gestures also

tried to overawe him. These facts bring it over the record

that the claimant threatened the Manager, Printing Press of

dire consequences. The claimant tried to create a scene

with a view to show his upmanship and humble down the

Manager. This threatening posture, actions and behavior

of the claimant also constitute a serious misconduct.

28. Sub. G. Devashayam further deposes that the

claimant made other workers to leave their job and took

them away from the premises of the Printing Press. It

emerges out that the claimant instigated other employees

to leave their work place and made them to assemble outside

the premises of the Printing Press. This act of the claimant

brings it over the record that he wanted the other employees

to go on illegal strike and with that idea he instigated them

to leave their duties and assemble outside their work place.

29. Sub. G.Devashayam deposes that when he went

inside machine room next day he found roller of the machine

coming out of it. This fact is to be appreciated in the lights

of the circumstances that despite directions of the

Manager, Printing Press, the claimant went in to machine

room and tampered with it to make it non-functional. Thus

it is apparent that the claimant tried to tamper with the

machine to make it unusable. Action of the claimant to

make the machine unusable bring it to the light that he was

so annoyed by the act of getting offset machine operated

in his absence that he wanted to bring it in unworkable

state. These facts crystallises that the claimant tempered

the offset machine, with a view to cause damage to it.

30. Above acts constitute misconduct of willful

insubordination of lawful and reasonable orders of the

Manager, Printing Press, instigating other workers to go

on illegal strike, threatening the Manager, Printing Press

with dire consequences and to cause damage to the

property of the Printing Press, as enumerated in the standing

orders, applicable to the Printing Press. The above

rnisconducts are acts which are subversive of discipline

amongst employees of the Printing Press. The misconducts,

committed by the claimant are of grave nature, which make

the claimant unworthy of employment. These misconducts

entail penal consequences also. Therefore it is concluded

that the misconducts, committed by the claimant are of

grave concern.

31. What should be the appropriate punishment,

which can be awarded to the claimant, is a proposition

which would be addressed to by this Tribunal? Right of an

employer to inflict punishment of discharge or dismissal is

not unfettered. The punishment imposed must

commensurate with gravity of the misconduct, proved

against the delinquent workman. Prior to enactment of

section 11-A of the Industrial Disputes Act, 1947 (in short

the Act), it was not open to the industrial adjudicator to

vary the order of punishment on finding that the order of

dismissal was too severe and was not commiserative with

the act of misconduct. in other words, the industrial

adjudicator could not interfere with the punishment as it

was not required to consider propriety or adequacy of

punishment or whether it was excessive or too severe. Apex

Court, in this connection, had, however, laid down in Bengal

Bhatdee Coal Company [1963 (I) LLJ 291] that where order

of punishment was shockingly disproportionate with the

act of the misconduct which no reasonable employer would

impose in like circumstances, that itself would lead to the

inference of victimization or unfair labour practice which

would vitiate order of dismissal or discharge. But by

enacting the provisions of section 11-A of the Act, the

Legislature has transferred the discretion of the employer,

in imposing punishment, to the industrial adjudicator. It is

now the satisfaction of the industrial adjudicator to finally

decide the quantum of punishment for proved acts of

misconduct, in cases of discharge or dismissal. If the

Tribunal is satisfied that the order of discharge or dismissal

is not justified in any circumstances on the facts of a case,

it has the power not only to set aside order of punishment

and direct reinstatement with back wages, but it has also

the power to impose certain conditions as it may deem fit

and also to give relief to the workman, including award of

lesser punishment in lieu of discharge or dismissal.

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32. It is established law that imposing punishment

for a proved act of misconduct is a matter for the punishing

authority to decide and normally it should not be interfered

with by the Industrial Tribunals. The Tribunal is not required

to consider the propriety or adequacy of punishment. But

where the punishment is shockingly disproportionate,

regard being had to the particular conduct and past record,

or is such as no reasonable employer would ever impose

in like circumstance, the Tribunal may treat the imposition

of such punishment as itself showing victimization or unfair

labour practice. Law to this effect was laid by the Apex

Court in Hind Construction and Engineering Company. Ltd.

[1965 (I) LLJ 462]. Likewise in Management of the Federation

of Indian Chambers of Commerce and Industry [1971 (II)

LLJ 630] the Apex Court ruled that the employer made a

mountain out of a mole hill and had blown a trivial matter

into one involving loss of prestige and reputation and as

such punishment of dismissal was held to be unwarranted.

In Ram Kishan [1996 (I) LLJ 982] the delinquent employee

was dismissed from service for using abusive language

against a superior officer. On the facts and in the

circumstances of the case, the Apex Court held that the

punishment of dismissal was harsh and disproportionate

to the gravity of the charge imputed to the delinquent. It

was ruled therein, “when abusive language is used by

anybody against a superior, it must be understood in the

environment in which that person is situated and the

circumstances surrounding the event that led to the use of

abusive language. No straight-jacket formula could be

evolved in adjudicating whether the abusive language in

the given circumstances would warrant dismissal from

service. Each case has to be considered on its own facts"

33. In B.M.Patil [1996 (II) LLJ 536], Justice Mohan

Kumar of Karnatka High court observed that in exercise of

discretion, the Disciplinary Authority should not act like a

robot and justice should be moulded with humanism and

understanding. It has to assess each case on its own merit

and each set of fact should be decided with reference to

the evidence recording the allegation, which should be

basis of the decision. The past conduct of the worker may

be a ground for assuming that he might have a propensity

to commit the misconduct and to assess the quantum of

punishment to be imposed. In that case a conductor of the

bus was dismissed from service for causing revenue loss

of 50p to the employer by irregular sale of tickets. It was

held that the punishment was too harsh and

disproportionate to the act of misconduct.

34. After insertion of section 11-A of the Act, the

jurisdiction to interfere with the punishment is there with

the Tribunal, who has to see whether punishment imposed

by the employer commensurate with the gravity of the act

of misconduct. If it comes to the conclusion that the

misconduct is proved, it may still hold that the punishment

is not justified because misconduct alleged and proved is

such as it does not warrant punishment of discharge or

dismissal and where necessary, set aside the order of

discharge or dismissal and direct reinstatement with or

without any terms or conditions as it thinks fit or give any

other relief, including the award of lesser punishment, in

lieu of discharge or dismissal, as the circumstance of the

case may warrant. Reference can be made to a precedent in

Sanatak Singh (1984 Lab.I.C.817). The discretion to award

punishment lesser than the punishment of discharge or

dismissal has to be judiciously exercised and the Tribunal

can interfere only when it is satisfied that the, Punishment

imposed by the management is highly disproportionate to

the decree of the guilt of the workman. Reference can be

made to the precedent in Kachraji Motiji Parmar [1994 (II)

LLJ 332]. Thus it is evident that the Tribunal has now

jurisdiction and power of substituting its own measure of

punishment in place of the managerial wisdom, once it is

satisfied that the order of discharge or dismissal is not

justified. On facts and in the circumstances of a case, section

11A of the Act specifically gives two folds powers to the

Industrial Tribunal, first is virtually the power of appeal

against findings of fact made by the Enquiry Officer in his

report with regard to the adequacy of the evidence and the

conclusion on facts and secondly of foremost importance,

is the power of reappraisal of quantum of punishment.

35. In Bharat Heavy Electricals Ltd. [2005 (2) S.C.C.

481] the Apex Court was confronted with the proposition

as to whether power available to the Industrial Tribunal

under section 11-A of the Act are unlimited. The Court

opined that "there is no such thing as unlimited jurisdiction

vested with any judicial or quasi judicial forum and

unfettered discretion is sworn enemy of the constitutional

guarantee against discrimination. An unlimited jurisdiction

leads to unreasonableness. No authority, be it

administrative or judicial, has any power to exercise the

discretion vested in it unless the same is based on justifiable

grounds supported by acceptable materials and reasons

thereof’’. The Apex Court relied its judgement in C.M.C.

Hospital Employees Union [1987 (4) S.C.C. 691] wherein it

was held that "section 11-A cannot be considered as

conferring an arbitrary power on the Industrial Tribunal or

the Labour Court. The power under section 11-A of the Act

has to be exercised judiciously and the Industrial Tribunal

or Labour Court is expected to interfere with the decision

of a management under section 11-A of the Act only when

it is satisfied that the punishment imposed by the

management is highly disproportionate to the degree of

guilt of the workman concerned. The Industrial Tribunal or

Labour Court has to give reasons for its decision". In

Hombe Gowda Educational Trust [2006 (1) S.C.C. 430] the

Apex Court announced that the Tribunal would not normally

interfere with the quantum of punishment imposed by the

employer unless an appropriate case is made out therefore.

36. Power to set aside order of discharge or dismissal

and grant relief of reinstatement or lesser punishment is

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1303

not untrammeled power. This power has to be exercised

only when Tribunal is satisfied that the order of discharge

or dismissal was not justified. This satisfaction of the

Tribunal is objective satisfaction and not subjective one.

It involves application of the mind by the Tribunal to various

circumstances like nature of delinquency committed by

the workman, his past conduct, impact of delinquency on

employer's business, besides length of service rendered

by him. Furthermore, the Tribunal has to consider whether

the decision taken by the employer is just or not. Only after

taking into consideration these aspects, the Tribunal can

upset the punishment imposed by the employer. The

quantum of punishment cannot be interfered with without

recording specific findings on points referred above. No

indulgence is to be granted to a person, who is guilty of

grave misconduct like cheating, fraud, misappropriation of

employers fund, theft of public property etc. A reference

can be made to the precedent in Bhagirath Mal Rainwa

[1995 (I) LLJ 960].

37. Whether punishment awarded to the claimant

was shockingly disproportionate to his misconduct.

justifying interference by this Tribunal? In Firestone Tyre

and Rubber Company of India (Pvt.) Ltd. [1973 (1) S.C.C.

813], the Apex Court ruled that once misconduct is proved,

the Tribunal had to sustain order of punishment unless it

was harsh indicating victimization. It has been further laid

therein that if a proper enquiry is conducted by an employer

and a correct finding arrived at regarding the misconduct,

the Tribunal, even though now empowered to differ from

the conclusion arrived at by the management, will have to

give very cogent reasons for not accepting the view of the

employer. Again in Divisional Controller K.S.R.T.C.

(N.W.K.R.T.C) [2005 (3) S.C.C. 254] it was laid that question

of quantum of punishment would not be weighed on amount

of money misappropriated but it should be based on loss

of confidence, which is a primary factor to be taken into

account. Once a person is found guilty of misappropriating

his employer's fund, there is nothing wrong for the

employer to lose confidence or faith in such a person,

awarding punishment of dismissal.

38. Dismissal of an employee from service is a strong

measure and it can only be in exceptional circumstances

that an employer is acting properly in seminally dismissing

an employee on commission of acts of misconducts. The

test to be applied varies with the nature of business and

the position held by the employee. Here in the case the

claimant was working as a machine man on offset machine.

In his absence the machine was got operated by the

Manager from his assistant. The claimant exhibited his

annoyance and questioned authority of the Manager in

getting the machine operated in his absence. When the

Manager commands him in that regard, he abuses him. He

calls Shri Kamal Narain and both of them scolds the

Manager. When the Manager directs him not to visit the

machine room, he tampers with the machine. He instigates

other workers and made them to leave their work place. He

leads them outside the premises of the Printing Press and

made them to assemble there. All these events happened

in a troop welfare oriented regimental setup. The officer

with whom the claimant misbehaved is a member of

disciplined force, where indiscipline is a gross misconduct.

In case misconducts like those committed by the claimant

are suffered than such behavior may prove contagious to

the other member of the disciplined force. These

circumstances make it apparent that the claimant made

himself unworthy of retention in service. Dismissal from

service is the appropriate penalty for misconducts,

committed by the claimant.

39. Whether penalty of dismissal would relate back

to the date of order of dismissal passed by the Printing

Press? For an answer, it is expedient to consider the

precedents handed down by the Apex Court. In Ranipur

Colliery [(1959) Supp. 2 SCR 719] the employer conducted

a domestic enquiry though defective and passed an order

of dismissal and moved the Tribunal for approval of that

order. It was ruled therein that if the enquiry is not defective,

the Tribunal has only to see whether there was a prima

facie case for dismissal and whether the employer had come

to the bonafide conclusion that the employee was guilty of

misconduct. Thereafter on coming to that conclusion that

the employer had bonafide come to the conclusion that the

employee was guilty, that is, there was no unfair labour

practice and no victimization, the Tribunal would grant the

approval which would relate back to the date from which

the employer had ordered the dismissal. If the enquiry is

defective for any reason, the Tribunal would also have to

consider for itself on the evidence adduced before it

whether the dismissal was justified. However on coming to

the conclusion on its own appraisal of evidence adduced

before it that the dismissal was justified its approval of the

order of dismissal made by the employer on defective

enquiry would still relate back to the date when order was

made.

40. In Phulbari Tea Estate [1960 (I) S.C.R. 32] the

domestic enquiry held by the employer culminating in the

order of dismissal was found to be invalid, being in gross

violation of the rules of natural justice. Even before the

Tribunal, the employer did not lead proper evidence to

justify the order of dismissal and contended itself by merely

producing the statement of certain witnesses recorded

during the domestic enquiry and the workman had no

opportunity to cross-examine the witnesses before the

Tribunal. In the absence of any evidence before it, justifying

the dismissal, the Tribunal set aside the order of dismissal

and granted compensation in lieu of reinstatement, which

order was upheld by the Apex Court. In that case question

of relating back of the order of dismissal did not arise.

41. In P.H. Kalyani [1963 (1) LLJ 673] the employer

dismissed the workman after holding a domestic enquiry

into the charges. Since some dispute was pending before

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[PART II—SEC. 3(ii)]

the Industrial Tribunal, the employer applied for "approval"

of action of dismissal in compliance with the proviso to

section 33(2)(b) of the Act. The workman made an

application under section 33-A of the Act. Apart from relying

on validity of domestic enquiry, the employer adduced all

the evidence before the Tribunal in support of its action.

On basis of evidence before it, the Tribunal came to the

conclusion that the facts of misconduct committed by the

workman were of serious nature involving danger to human

life and therefore dismissed the application under section

33-A and accorded "approval" to the action of dismissal

taken by the employer. In this situation the Apex Court

held that if the enquiry is not defective and the action of

the employer is bonafide, the Tribunal will grant the

‘‘approval" and the dismissal would "relate back to the

date from which the employer had ordered dismissal", If

the enquiry is invalid for any reason, the Tribunal will have

to consider for itself on the evidence adduced before it,

whether the dismissal was justified. If it comes to the

conclusion on its own appraisal of such evidence that the

dismissal was justified, the dismissal would "still relate

back to the date when the order was made", Sasa Musa

Sugar Works case (supra) was distinguished saying that

observations made therein "apply only to a case where the

employer had neither dismissed the employee nor had come

to the conclusion that a case for dismissal had been made.

In that case, the dismissal of the employee takes effect

from the date of the award and so untill then the relation of

employer and employee will continue in law and in fact".

42. D.C.Roy [(1976) Lab. I.C.1142] is the illustration

where domestic enquiry held by the employer was found

to be invalid being violative of principles of natural justice

and the employer had justified the order of dismissal by

leading evidence before the Labour Court, on appraisal of

which the Labour Court found the order of dismissal

justified. In appeal, the Apex Court upheld the award with

the observation that "the ratio of Kalyani's case (supra)

would therefore, govern the case and the judgment of the

Labour Court must relate back to the date on which the

order of dismissal was passed".

43. In Gujrat Steel Tubes Ltd. (1980 (1) LLJ 137)

inverted image of the D.C. Roy's case was presented by a

majority of three judge bench wherein it was held that

"where no enquiry has preceded punitive discharge, and

the Tribunal for the first time upholds the punishment, this

court in D.C. Roy vs. Presiding Officer (supra) has taken

the view that full wages be paid until the date of the award.

There cannot be any relation back of the date of dismissal

when the management passed the void order". Though

the court ruled that law laid in D.C.Roy is correct yet it

followed obiter instead of the decision. Observations of

the Apex Court in above decision, bearing on the relate

back rule, were faulted in R.Thiruvirkolam (1997 (1) SCC 9)

on the ground that they "are not in the line with the decision

in Kalyani which was binding or with D.C. Roy to which

learned Judge Krishna Iyer J. was a party. It also does not

match with the juristic principle discussed in Wade". The

view taken in R.Thiruvirkolam (supra) was affirmed in Punjab

Dairy Development Corporation Ltd. [1997 (2) LLJ 1041].

44. In view of the catena of decisions, detailed above,

it is clear that an employer can justify its action by leading

evidence before the Tribunal. This equally applies to cases

of total absence of enquiry and defective enquiry. A case

of defective enquiry stands on the same footing as of no

enquiry. If no evidence is led or evidence adduced does

not justify the dismissal by the employer, the Tribunal can

order reinstatement or payment of compensation as it may

think fit. But if it finds on the evidence adduced before it

that the dismissal is justified, the doctrine of relate back is

pressed into service to bridge the time gap between the

rupture of the relationship of employer and employee and

the finding of the Tribunal.

45. If the workman is to be paid wages upto the date

of the award of the Tribunal, the Parliament has to enact

so, declares the Delhi High Court in Ranjit Singh Tomar

(ILR 1983 Delhi 802). Obviously the Act does not make any

provision for the situation. Precedents in Ghanshyam Das

Shrivastava (1973 (1) SCC 656), Capt. M.Paul Anthony (1999

(3) SCC 679) and South Bengal State Transport Corporation

(2006 (2) SCC 584) nowhere deal with the controversy,

hence are lot discussed. In view of foregoing reasons it is

concluded that punishment of dismissal, awarded to the

claimant, commensurate to his misconduct and would relate

back to the date of order passed by the Printing Press. The

issue is, therefore, answered in favour of the Printing Press

and against the claimant.

Issue No. 3

46. One may argue that no punishment was awarded

to Shri Kamal Narain for the acts of scolding the Manager,

while the claimant was dismissed from service. Can it be

said that the claimant was discriminated when punishment

of dismissal was awarded to him? As emerge out of the

facts unfolded by Shri Kamal Narain, he served the Printing

Press till 1996, when he was bade farewell on account of

his medical incapacity to work. Out of these facts it reflect

that he was not punished for the act of scolding Sub.

G.Devashayam. A question requires consideration as to

whether Shri Inder Narain was entitled to similar treatment

as meted out to Shri Kamal Narain.

47. Equality before law and equal protection of laws

are fundamental rights of every person, ordains Article 14

of the. Constitution. The guiding principles laid in Article

14 are that persons, who are similarly situated, shall be

treated alike both in privileges conferred and liability

imposed, which means that amongst equals the law should

be equal and should be equally administered and that like

should be treated alike. Article 16 of the Constitution

guarantees equality of opportunities for all citizens in

matters relating to employment or appointment to any office

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under the State. What is guaranteed is the equality of

opportunity. Like all other employers, government is also

entitled to pick and choose from amongst a large number

of candidates offering themselves for employment. But the

selection process must not be arbitrary. The guarantee

given by clause (a) of Article 16 of the Constitution will

cover (a) initial appointments (b) promotions (c) termination

of employment (d) and matters relating to salary, periodical

increments, leaves, gratuity, pension, age of

superannuation etc. Matters relating to employment or

appointments include all mattes in relations to employment

both prior and subsequent to the employment which are

incidental to the employment and form part of the terms

and conditions of such employment.

48. Fundamental rights guaranteed by Article 14

forbids class legislation, but does not forbid classification

or differentiation which rests upon reasonable ground of

discretion. Classification is the recognition of the relations,

and in making it the Government must be allowed a wide

latitude of discretion and judgment. In a way, the

consequences of such classification would undoubtedly

be to differentiate persons belonging to that class from

others. The classification must be founded on an intelligible

differentia which distinguishes persons or things that are

grouped together from others left out of the group and the

differentia must have a rational relation to the object sought

to be achieved. Classification may be made according to

the nature of persons, nature of business, and may be

based with reference to time.

49. Concept of equality guaranteed by Article 16 of

the Constitution is something more than ferrnal equality

and enables the underprivileged groups to a fair share by

having more than equal chance and enables the State to

give favoured treatment to those groups by achieving real

equality with reference to social needs. 'Protection

discrimination’ enabled the State to adopt new strategy to

bring underprivileged at par with the rest of the society, by

providing all possible opportunities and incentives to

them. Therefore a class may be allowed to have preferential

treatment in the matter relating to employment or

appointment. There cannot be rule of equality between

members of separate and independent group of persons.

Persons can be classified in different groups, based on in

terms of nature of persons, nature of business and with

reference to time.

50. Whether the claimant was on same pedestal on

which Shri Kamal Narain was placed, in the matter of

misconduct(s) committed by them. As projected above,

the climant adopted a posture of insulting and

insubordination towards Sub. G. Devashayam. He

questioned authority. of his superior and abused him. He

scolded Sub. G. Devashayam, in which act Shri Kamal

Narain joined hands with the former. The claimant instigated

other employees and made them to leave their work place

and assemble outside the premises of the Printing Press.

He tampered with offset machine and tried to make it

unworkable. These facts being it to light that misconducts

committed by the claimant were numerous and alarming.

He made Shri Kamal Narain to join hands with him when

they scolded Sub. G. Devashayam. In that act the claimant

was mastermind and Shri Kamal Narain acted as his follower.

All these circumstances make it apparent that misconducts

committed by the claimant were distinct and different than

one committed by Shri Kamal Narain. Shri Kamal Narain

was made to scold Sub. G. Devashayam by the claimant.

The claimant was instrumental in making Shri Kamal Narain

to misconduct himself. In view of these facts it is apparent

that the claimant was placed differently than Shri Kamal

Narain, when they misconducted themselves. They were

not at par, in commission of misconduct(s). It is not proper

to say that by not initiating any action against Shri Kamal

Narain, the Printing Press had discriminated the claimant

in the matter of punishment awarded to him.

51. As projected above punishment of dismissal from

service, awarded to the claimant commensurate to his

misconduct. The Printing Press was justified in awarding

extreme penalty to the claimant for serious acts of his

misconduct. No unjustifiability can be attached to that

action of the Printing Press. These reasons persuade me to

conclude that services of the claimant were rightly

dispensed with by the Printing Press w.e.f. 6.3.95. The issue

is, therefore, answered in favour of the Printing Press and

against the claimant.

Relief.

52. First duty of a servant is to obey orders which

the master is justified in giving, that is to any, all orders

concerning the work which the servant is to do and the

time, manner and place of performing it are presumably and

in the absence of special circumstances, within the control

of the master. It is the duty of the servant faithfully and

truly to discharge his duties. Willful disobedience of a lawful

order within the terms of service an obvious justification

for an instant dismissal. When servant is insulting and

insubordinate to lawful orders the master is justified in

dismissing him summarily. When the servant threatens his

master to cause damage to his property, the conduct of the

servant make him unworthy of retention in service. Primary

duties being obedience, fidelity, care, honesty and

punctuality and any conduct opposed to due fulfillment of

these duties will entitle the master to dismiss the servant.

53. As detailed above the claimant conducted himself

in such a manner that his acts were contrary to due fulfilment

of his duties towards the Printing Press. He made his

employer to take strong measure, since his wrongful acts

were inconsistent with his duties towards the Printing Press.

He made his employer to take strong measure, since his

wrongful acts were inconsistent with his duties towards

1306

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

the Printing Press and continuance of confidence between

them. These reasons are sufficient to announce that the

claimant is not entitled to any relief, not to talk of relief of

reinstatement in service with continuity and back wages.

His claim statement deserves dismissal. Accordingly, the

same is brushed aside. An award is passed in favour of the

Printing Press and against the claimant. It be sent to the

appropriate Govt. for Publication.

Dated : 11-12-2013

Dr. R.K. YADAV, Presiding Officer

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New Delhi, the 21st January , 2014

S.O. 466.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 67/2011)

of the Central Government Industrial Tribunal/Labour Court

No. 1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

Management of The Dy. Chief Security Officer,All India

Medical Science, New Delhi and their workman, which was

received by the Central Government on 18-1-2014.

[No. L-42012/03/2014-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL, TRIBUNAL

No. 1, KARKARDOOMA COURTS, DELHI

I.D. No. 67/2011

Shri Mangleshwar Patel,

R/o 1151, Gali No. 17, Block-12,

SangamVihar,

New Delhi-110062

. . . Workman

Versus

1. The Dy. Chief Security Officer,

All India Medical Science,

Ansari Nagar,

New Delhi-110029

2. M/s. Prehari Production Systems

Pvt. Ltd.,

BJA-150, IInd Floor,

Jail Road, Janakpuri,

New Delhi-110058

. . . Managements

AWA RD

All India Institute of Medical Sciences (in short the

AIIMS) is a multi disciplinary super specialty health

sciences institution of the country. It has around 2000

indoor beds and annual intake of around 20 lakh out

patients, besides 7000 vehicles daily. It has multiple

entrance and exit gates. Security services are required in

hospital complex, centres, teaching and faculty blocks,

hostels and residential areas. Therefore, the AIIMS

awarded security services to M/s Prehari Protection

Systems Pvt. Ltd.’ (hereinafter referred to as the contractor)

vide agreement dated 05.01.2009. The contractor engaged

Shri Mangleshwar Patel as a security guard, besides others,

to carry out his contractual obligations. Shri Patel rendered

services from 01.01 2009 to 31.12.2011. When he came to

know that his provident fund contributions were not

deposited with the authorities, he made a complaint in

that regard. Annoyed with that complaint, his services

were dispensed with on by the contractor 01.01.2012. He

raised an industrial dispute before the Conciliation Officer

against the contractor as well as the AIIMS. On expiry of

45 days from the date of moving a application before the

Conciliation Officer, Shri Mangleshwar Patel approached

this Tribunal under the provisions of sub-section (2) of

section 2A of the Industrial Disputes Act, 1947 (in short

the Act) for adjudication of his dispute, without being

referred by the appropriate Government under sub section

(1) of section 10 of the Act. Since the dispute raised was

within the period of limitation provided under sub-section

(3) and fulfilled all requirements of sub-section (2) of

section 2A of the Act, it was registered as an industrial

dispute.

2. Claim statement was filed by Shri Mangleshwar

Patel pleading therein that he was appointed as security

guard on 01.01.2009 to carry Out security duties at the

premises of the AIIMS. Identity card was issued in his

favour by the contractor. He performed his duties for a

period of three years. The contractor used to deduct a

sum of Rs.7000.00 per month out of his salary. Provident

fund subscriptions were deducted but not deposited with’

the authorities. When he came to know about that fact, he

made a complaint to the Central Provident Fund

Commissioner in that regard. Contractor felt annoyed and

his services were illegally dispensed with on 01.01.2012,

after obtaining his signatures on plain papers. He presents

that action of termination of his services is not in

consonance with labour laws. He seeks reinstatement in

service with continuity and full back wages.

3. Notice was sent to the contractor by registered

post on 14.05.2013 calling upon it to file its written statement

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1307

on or before 19.06.2013. Neither the postal article was

received back nor was it observed by the Tribunal that

postal services remained affected from 14.05.2013 till

19.06.2013. Therefore, the Tribunal presumed that notice

sent by registered post was served upon the contractor.

4. None responded on-behalf of the contractor

despite service of the notice. Hence, the contractor was

proceeded ex-parte, vide order dated 19.06.2013.

5. Claim was demurred by the AIIMS pleading that

there does not exist any relationship of employer and

employee between the claimant and the AIIMS. It has been

projected that security services were outsourced, vide

agreement dated 05.01.2009. Claimant was an employee of

the contractor. It has been projected that the AIIMS is not

aware whether services of the claimant were dispensed

with in an illegal manner. It has been claimed that the

dispute may be answered against the claimant and in

favour of the AIIMS.

6. On pleadings of the parties, following issues were

settled:

(1) Whether the claimant had rendered

continuous services of 240 days in a Calendar

year to M/s Prehari Production Systems Pvt.

Ltd. a contractor of A.I.I.M.S.?

(2) Whether services of the claimant were

dispensed with by M/s Prehari Production

Systems Pvt. Ltd. in violation of provisions of

Industrial laws?

(3) Whether the claimant is entitled to relief of

reinstatement in service?

7. Claimant tendered his affidavit Ex.WW1/A, as

evidence. He relied 15 documents, which are Ex.WW1/1

to Ex.WW1/15 in support of his case. Shri Rohit Kumar,

authorized representative for AIIMS was granted

opportunity to cross examine the claimant, on whose

request cross examination of the claimant was deferred.

8. On adjourned date, the claimant appeared for his

cross examination. None came forward on behalf of the

AIIMS, to purify testimony of the claimant by an ordeal of

cross examination. The Tribunal was constrained to

proceed under rule 22 of industrial Disputes (Central) Rules,

1957. Since none was there for the AIIMS, hence no

cpportunity could be granted to them to carry out cross

examination of the claimant. The claimant had closed his

evidence. No witness was adduced on behalf of the AIIMS

to rebut facts proved by the claimant.

9. Arguments were heard at the bar. Shri

B.L.Goswami, authorized representative, advanced

arguments on behalf of the claimant. None came forward

to raise submissions on behalf of the AIIMS as well as the

contractor. I have given my careful consideration to the

arguments advanced at the bar and cautiously perused

the record. My findings on issues involved in the

controversy are as follows:-

Issue No.1

10. In his affidavit Ex.WW1/A, claimant asserts

to produce identity card, signed by M/s Prehari Protection

Systems Pvt. Ltd. and Chief Security Officer of the AIIMS,

in token of the fact that he was an employee of the

contractor. His identity card evidences that he served from

01.01.2009 to 31.12.2009. Besides his identity card, he relied

on last payment receipt made in his favor by the contractor.

When he came to know that his provident fund

contributions were not deposited with the authorities, he

made a complaint in that regard. Irked by that fact, his

services were dispensed with in an illegal manner on

01.01.2012. He claims to have rendered service from

1.1.2009 to 31.12.2011.

11. An employer may discharge a portion of his

labour force as surplusage in a running or continuing

business for variety of reasons, e.g., for economy,

convenience, rationalization in industry, installation of a

new labour saving machinery etc. The Industrial Disputes

Act, 1947 (in short the Act) defines “termination by the

employer of the service of a workman for any reasons

whatsoever”, except the categories exempted in sub-

section 2(oo), to be retrenchment. The definition of the

term “retrenchment”, as enacted by the Act, is extracted

thus :

“(oo) “retrenchment” means the termination by he

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted by

way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb) termination of the services of the workman

as a result of the non-renewal of the

contract of employment between the

employer and the workman concerned on

its expiry or of such contract being

terminated under a stipulation in that

behalf contained therein; or

the ground of continued ill-health”.

12. 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

1308

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 (11) LLJ 363].

13. Section 25-F of the Act lays down conditions

pre-requisite to retrenchment, which are as follows :

(i) There should be one month’s notice in writing

to the workman concerned.

(ii) The notice should specify the reasons for

retrenchment.

(iii) The period of one month’s notice should have

expired before retrenchment is enforced, or the

workman has been paid in lieu of such notice the

wages for the period.

(iv) The workman has been paid retrenchment

compensation which should be equivalent to 15

days’ average pay for every one years’ service or

any part thereof provided it exceeds six months.

(v) The notice is also given to the appropriate

Government.

14. For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave or accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen,

as enacted by provisions of sub-section (1) of section

25B of the Act. Sub-section (2) of the said section

introduces a fiction to the effect that even if a workman is

not in “continuous service” within the meaning of clause

(1) for a period of one year or six months, he shall be

deemed to in continuous service for that period under an

employer if he has actually worked for the days specified

in clauses (a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enqiry has

to be made to find out whether the workman actually worked

for not less than 240 days during the period of 12 calendar

months immediatley preceding the retrenchment.

15. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus :

“Under Section 25-B a workman who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days is to be deemed

to have completed One year’s service in the industry.

Consequently an enquiry has to be made to find out

whether the workman had actually worked for not

less than. 240 days during period of 12 calendar

months immediately preceding the retrenchment.

These provisions of law do not show that a workman

after satisfying the test under Section 25B has further

to show that he has worked during all the period he

has been in the service of the employer for 240 days

in the year”.

16. Interruption of service occurred during the

course of job has to be included in uninterrupted services.

Fiction under section 25-B of the Act will operate if

workmen has actually worked for 240 days in a calendar

year. The explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

Sundays and Saturdays for which full wages are paid. The

Apex Court was confronted with such a proposition in

American Express Banking Corporation [1985 (2) LLJ 539],

wherein it was ruled that the expression ‘actually worked

under the employer’. Cannot mean those days only when

the workman worked with hammer, sickle or pen, but must

necessarily comprehend all those days during which he

was in the employment of the employer and for which he

had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that Sundays and other

holidays, would be comprehended in the words ‘actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1309

had actually worked though he had not so worked and no

other days.

The Court observed that the explanation is only

clarificatory, as all explanations are, and cannot be used

to limit the expanse of the main provision. Precedent in

Lalappa Lingappa [1981 (1) LJ 308] was distinguished by

the Apex Court in the case referred above. The precedent

was followed in Standard Motor Products of India Ltd.

[1986 (1) LLJ 34]. Thus, it is crystal clear from the law laid

above that Sundays and holidays shall be included in

computing continuous service under Section 25-B of the

Act.

17. The Tribunal has been saddled with a

responsibility to scrutinize facts unfolded by the claimant,

besides documents placed over the record, in order to

assess as to whether he had rendered continuous service

of 240, days in a calendar year. To discharge onus on him,

the claimant had deposed that he was engaged in service

on 01.01.2009 by the contractor. Identity card was issued

in his favour, which is Ex.WW1/1. When this identity card

is perused, it came to light that the contractor had issued

the identity card in favour of the claimant, which was vaiid

from 01.01.2009 to 31.12.2009. The claimant had also relied

on wage slip issued in his favour in December 2011. He

projects that these documents are sufficient to substantiate

facts to the effect that he rendered continuous service

with the contractor from 01.01.2009 to 31.12.2011. Ocular

facts unfolded by the claimant get, support from copy of

identity card and wage slip. These facts are not dispelled

by the contractor. When claimant adduced ocular as well

as documentary evidence to substantiate that he served

the contractor from 01.01.2009 to 31.12.2009, those facts

are to be relied in his favour. The claimant has been able to

discharge onus to establish that he rendered continuous

service of 240 days in every calendar year to the contractor.

Resultantly, it is held that the claimant rendered continuous

service from 01.01.2009 till 31.12.2011 with the contractor.

Issue is, therefore, answered, in favour of the claimant

and against contractor.

Issue No. II

18. Claimant deposes that his services were

arbitrarily dispensed with by the contractor when he made

a complaint to the Central Provident Fund Commissioner

relating to non-deposit of his provident fund contributions

with the authorities. He asserts that neither his wages

were paid nor provisions of the Act were complied with.

According to him, his services were dispensed with on

1.1.2012. lt is not the case that the claimant reached the

age of superannuation or sought voluntary retirement. No

evidence was brought to show that he was employed for

a fixed term of contract and his services came to an end on

non-renewal of contract of employment. It was not asserted

that his servies were terminated on the ground of

continued ill-health. Neither services of the claimant were

done away as punishment for a domestic action nor action

of the management falls within the category exempted

under second limb of section 2(00) of the Act. Thus it is

obvious that termination of services of the claimant, for

any other reason, amounts to retrenchment, as defined by

clause (00) of of section 2 of the Act.

19. The claimant had rendered continuous service

for a period of one year, as contemplated by section 25-B

of the Act. According to him, retrenchment compensation

was not paid, which fact was not dispelled by the

contractor. The contractor was under an obligation to pay

him compensation for retrenchment, when his services

were dispensed with. Payment of retrenchment

compensation is a condition precedent to a valid order of

retrenchment. Precedents in Bombay Union of Journalists

[1964 (1) LLJ 351], Adaishwar Laal (1970 Lab.I.C.936) and

B.M.Gupia [1979· (1) LLJ 168] announce that subsequent

payment of compensation can not validate an invalid order

of retrenchment.

20. Claimant deposed that his services were

terminated by the contractor on 31.10.1997 without any

notice. He further declares that his earned wages for a

period of two months were not paid. Out of facts unfolded

by the claimant, it stand crystallized that neither notice

nor pay in lieu thereof nor retrenchment compensation

was paid to him by the contractor. Therefore, his

retrenchment is violative of the provisions of Section 25-

F of the Act. Issue is, therefore, answered in favour of the

claimant and against the contractor.

Issue No. 3

21. Services of the claimant were retrenched without

payment of notice pay, and retrenchment compensation.

It is well settled that in a case of wrongful retrenchment,

dismissal or discharge, the normal rule is to award

reinstatement. But where a case falls in any of the

exception to general rule, the’ industrial adjudicator has

discretion to award reasonable and adequate

compensation, in 1ieu of re-instatement. Section 11A of

the Act vests the industrial adjudicator with discretionary

jurisdiction to give “such other relief to the workman” in

lieu of discharge or dismissal as the circumstances of the

case may require, where for some valid reasons it considers

that reinstatement with or without conditions will not be

fair or proper. Hence in the case, the contractor could not

show it to be a case falling within the exception to refuse

reinstatement in service. Action of the contractor, in

terminating services of the claimant, is illegal. It is ordered

that the claimant be reinstated in service of the contractor

with full back wages. An award is accordingly passed. It

be sent to the appropriate Government for publication.

Date : 2-1-2014

Dr. R.K. YADAV, Presiding Officer

1310

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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New Delhi, the 23rd January , 2014

S.O. 467.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 1123/

2004) of the Central Government Industrial Tribunal/Labour

Court Ahmedabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of Kandla Poart Trust Hospital, Gandhidham

and their workman, which was received by the Central

Government on 20-1-2014.

[No. L-37012/1/99-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT, AT

AHMEDABAD

Present: - Sh. Binay Kumar Sinha,

Presiding Officer CGIT cum Labour Court,

Ahmedabad, Dated the 30th October, 2013

Refernce: (CGITA) No. 1123/2004

Reference (I.T. C) No. 27/1999 (old)

1. The Chairman,

Administrative Office,

Kandla Port Trust,

P.B. No. 50, Gandhidham (Kutch),

Gandhidham-370201

2. The Chief Medical Officer,

Kandla Port Trust Hospital,

Gopalpuri, Gandhidham-370240 ....... First Party

And

Their Workman

Shri Omprakash Sharma

E-140, K.P.T. Colony, Gopalpuri,

Gandhidham-370240 .... Second party

For the First Party : Shri Kishor V. Gadhia, Advocate

Shri Mahinder K. Patel, Advocate

For the Second Party: Shri Premkumar Dagar

Rastriya Adhyaksh

Akhil Bhartia Sfai Mazdoor Sangh,

A-157, Shaktinagar,

Gandhidham, Kutch,

Gujarat-370201

AWARD

The Central Government/Ministry of Labour, New

Delhi vide its order No. L-37012/1/99/IR (M) dated

09.08.1999 in exercise of power under clause (d) of sub

section (1) and sub section (2A) of the Section 10 of the

Industrial Dispute Act,1947, referred the dispute for

adjudication to Industrial Tribunal, Rajkot (Gujarat)

under the terms of reference in the Schedule.

SCHEDULE

“Whether the action of Kandla Port Trust,

Gandhidham/Chief Medical Officer, Kandla Port Trust

Hospital, Gandhidham in terminating/removing the services

of Shri Omprakash Sharma, Physiotherapist vide office

Order No. MH/PS/2301/1525 dated 23.07.1997 is just and

legal? If not, to what benefits the workman is entitled and

what directions are necessary in the matter?’’

2.The case of the workman (2nd party) as per statement

of claim (Ext.4) shortly stated, is that he was appointed as

Physiotherapist in K.P.T Hospital, Gandhidham on

09.01.1987 and his service was confirmed on 23-26/11/90.

His record was clean during the service. His last salary was

Rs.3,000 p.m. on 28.01.1991, Asst. Secretary (P) Shri Shivram

gave him an order for training in Mumbai from 04.02.1991

to 15.03.1991 for occupational therapy in cerebral Palacy.

But he met with an accident on the same day and he took

treatment in K.P.T. Hospital but treatment was not

satisfactory so he went to private Hospital Sanjivni Surgical

& Maternity Hospital and received well treatment there

and Doctor advised him to take rest for 10 days. Then, he

informed to the 1st party C.M.O that he is unable to attend

training at Mumbai, then C.M.O. Mr. Dr. M.R. Mahadik

said that he met with an accident to avoid the training at

Mumbai and he has to go for training otherwise the

management of K.P.T. will throw-him out of services. Even

after his ill health he attended training at Mumbai but there

were no proper accommodation provided in Mumbai by

Director, Spastic Society of India, then he stayed at his

relative at Viille Parle, Mumbai that was 50 k.m. away from

the place of training. He fell ill and so he could not attend

training for 9 days and he submitted medical report for 6

days but could not give medical report for 3 days. He

attended the training for rest of training period. On return

to Gandhidham , he joined the duty in K.P.T. , Hospital.

After lapse of long time he received chargesheet and

statement of imputation without dated and signature of

¹Hkkx II—[k.M 3(ii)º

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1311

any authorised officer of the 1st party. The necessary

documents, names of witness were not given to him and

also other formalities were not made by the 1st party.

Enquiry was conducted for namesake, several enquiry

officers were changed and he was not given proper

opportunity to defend. The E.O. played role of E.O. and

presenting officer, no witness was examined by the

presenting officer, he demanded for summon of witness of

Training centre which was refused by the E.O. and debarred

him from defending the charges. E.O. gave its findings

without any evidence. The P.O. submitted fabricated

documents and E.O. relied upon that and gave findings

against him. During the inquiry, he was put under

suspension and was not paid proper amount of subsistent

allowance. The principle of natural justice was not followed

and vide order date 23.07.1997 he was removed from the

service. His departmental appeal was also rejected without

application of mind. Then on 14.10.1997 he served legal

notice to the 1st party but that went invain. He became

jobless, he searched-for job but could not get. He is

presently hand to mouth. On these scores, prayer is to

declare the order of dismissal dated 23.07.1997 illegal and

unjust and the enquiry conducted against him to be invalid

and he be reinstated with full back wages with continuity

of service and also cost of litigation of Rs. 5000 and also to

any relief for which he is found entitled.

3. As against this the contention of the 1st party

No .1 & 2 as per joint written statement (ext.ll) is that the

workman (2nd party) being a physiotherapist of K.P.T.

Hospital was sponsored for a course on occupation therapy

in cerebral palsy organized by the Spastic Society of India,

Mumbai for 6 weeks commencing from 04.02.1991 to

15.03.1991 and the workman was to attend theory/ practical

examination to be conducted from 13th to -15th March,1991.

But the workman did not attend the course for 9 days -

07.02.1991 to 08.02.1991, 13.03.1991 to 15.02.1991, 05.03.1991

and from 13.03.1991 to 15.03.1991. He did not inform about

his such absence to the programme incharge but sent

medical certificate to them on 22.03.1991 from Gandhidham

for the period from 13.03.1991 to 15.03.1991 issued by one

Dr. K.B. Joshi of Mumbai on 16.03.1991. From such act on

part of workman it was concluded that he did not take

training course seriously but take training in casual manner

that caused waste of duty period and K.P.T. funds. The

workman after return from Mumbai did not report for duty

on 18th and 19th March,1991 and reported for duty on

20.03.1991. He did not submit report of his attending

training course nor informed about his absence of 9 days

from training programme on different dates. He was directed

to submit report about training with true copy of certificate

awarded to him by the institute but he replied that he was

not given certificate and that he will prepare report and will

submit it. As regards the workman's accident and physical

unfitness, there was no fresh fracture in X-ray so he was

treated as outpatient at K.P.T. Hospital. He did not apply

for leave on the basis of certificate of private surgeon nor

produced it. The workman filled in 29.01.1991 and he had

no hesitation to go for the training course even after his

accident. It has been denied that workman was not offered

male hostel accommodation but he himself stayed at relative

residence. The workman presented wilful distorted facts

and he wilfully absented himself from training course and

not appeared in theory/practical examination which shows

lack of integrity and devotion to duty. The workman

contravened Regulation 3 (1) of the K.P.E. (Conduct)

Regulations, 1964. So he was charge sheeted under

Regulation 12 of K.P.E. (classification control and Appeal)

Regulation, 1946 vide memorandum No. MH/PS/2301 dated

25.04.1991. He was placed under suspension pending

disciplinary proceeding by order dated 31.07.1992. A proper

departmental enquiry was conducted following principle

of natural justice opportunity was given to delinquent

workman to defend himself. The penalty of removal imposed

on him by Disciplinary Authority is proper and just his

appeal was also rejected. On these scores, Prayer is to

dismiss the reference since the delinquent workman is not

entitled to any relief.

4. In view of the rival contentions in the pleadings of

the parties, the following issues are taken up for

consideration and adjudication:

ISSUES

(i)

Whether the reference is maintainable?

(ii)

Whether the delinquent workman (2nd party) has

valid cause of action in this case?

(iii)

Whether the principle of natural justice fair play

was observed and adopted by the management

(1st party) in conducting domesting enquiry

against the delinquent?

(iv)

Whether the findings in the report of enquiry

officer dated 18.09.1993 (Ext. ) is perversed?

(v)

Whether the order of punishment of termination

removal dated 23.07.1997 of the 2nd party

Shri Omprakash Sharma is shockingly

disproportionate to the gravity of misconduct

under the charge levelled?

(vi)

Whether the punishment awarded to the

delinquent workman is legal, proper and justified?

(vii)

Whether the 2nd party (workman) is entitled to

the relief as claimed?

FINDINGS

ISSUE No. iii, iv, v, and vi:— The parties have not

filed any pursis to decide the validity or otherwise of

domestic enquiry held against the workman as preliminary

issue. The workman in his statement of claim has raised the

issue that domestic enquiry held against him was not

1312

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

conducted by the management (1st party) following the

principles of natural justice, all documents were not

provided, the management did not examine any witness

enquiry and the E.O. conducted double role of E.O. as well

as of, P. O. and the delinquent was not allowed to examine

witness of Training programme, Mumbai and sufficient

opportunity was not given to defend against the charge.

On the other hand, the 1st party as per w.s. para 14 has

taken the stand that all laid down principle of natural justice

was followed.

6. The 2nd party (workman) deposed in oral evidence

(Ext.15) in support of his case that illegal chargesheet was

given to him for not attending training programme properly,

not appearing in exam and remained absent for 9 days and

departmental enquiry held was with preoccupied intention

of removing him from service on the basis of perverse

finding of Enquiry officer without examining of management

witness and preventing opportunity to the workman of

cross examining witness of management. The 1st party

(K.P.T.) did not also examine any witness in this case in

support of validity of domestic enquiry rather only copy of

enquiry papers through a list Ext.13. The 2nd party has

also produced some documents with list Ext.14 and its copy

furnished to the 1st party's lawyer. On behalf of the 1st

party 9 documents were produced as per list dated

25.06.1999 and its copy received by representative of 2nd

party. The 2nd party also submitted three documents (1.)

Copy of judgement of Hon'ble Supreme Court in Civil

Appellate No. 1906/99 dated 30.03.1999 (2.) Copy of Kandla

Port Employee Classification Contract and Appeal Rules,

1964 and (3.) Judgement dated 19.08.2002 of Hon'ble

Supreme Court in Civil Appeal No. 5106/2000 and its

production allowed by the lawyer of the 1st party. The 2nd

party also submitted 30 documents as per list Ext. 34

including appointment order dated 29.01.1987 confirmation

order dated 26.11.1990 , office order dated 13.05.1991,

21.10.1991 and 11.08.1992 and inquiry proceedings (Ext.34/

6 to 34/27) application for production of documents Ext.34/

28, catalogue of S.S.1. (Ext.34/29) and letter of S.S.1. dated

17.06.1991 (Ext.34/30) to support his case .

7. It may not be out of place to mention that the

1st party had filed proposed amendment application with

as to factum of past service record of the w.s. vide Ex 26 for

adding para 15A in w.s as to factum of past service clean as

to giving of memos, warning etc. to the 2nd party workman.

The 2nd party filed rejoinder to such amendment and vide

Ext.31 this Tribunal had rejected the prayer of the 1st party

for proposed amendment by order dated 23.12.2010.

8. I have gone through the copy of entire enquiry file

submitted by the 1st party vide list Ext.13. I have also gone

through the papers submitted by the 2nd party through a

list Ext.34. The allegation against the workman is that he

while functioning as physiotherapist in port Hospital during

February-March 1999. Committed gross misconduct—He

was sponsored by Kandla Port Trust for a course on

occupational therapy in cerebral palsy organised by Spastic

Society of India, Mumbai for 6 week from 04.02.1991 to

15.03.1991 but the workman Omprakash did not attend the

course on 9 days- 07.02.1991 to 08.02.1991, 13.02.1991 to

15.02.1991, 05.03.1991 and 13.03.1991 to 15.03.1991. He did

not inform to programme incharge, but sent medical

certificate to them on 22.03.1991 from Gandhidham for the

period 13.02.1991 to 15.02.1991 and 13.03.1991 to 15.03.1991

issued by Dr. K.B. Joshi of Mumbai . He did not take the

training course seriously, resulting in waste of duty period

and Kandla Port Trust Fund. For this charge the defence

statement was put before the enquiry officer that he met

with an accident on 28.01.1991 while coming to meet CM.O.

that without his consent why he has been sponsored for

the training. He was brought by people to K.P.T. Hospital

where he was not treated well then he went to private

Hospital (Sanjivani Surgical) where he was treated well

and doctor advised him to take rest for 10 days. But C.M.O.

compelled to join training course at Mumbai otherwise he

will be thrown out from his service. The workman

Omprakash in his oral evidence before this court (vide Ext

17) supported this. But 1st party (management) did not

adduce oral evidence in the court to refute the version of

workman that he was not seriously injured in accident and

for avoiding to go training course managed his accident to

give his colour. But even in adverse circumstances that

Doctor advised him to take bed rest for 10 days he was

compelled to attend the training course at Mumbai and he

attended the training course started from 04.02.1991. This

also shows, his bonafide in abiding with the order of C.M.O.

who is also disciplinary authority who imposed punishment

of termination. Well explained reason was given by the

delinquent in domestic enquiry that he suffered from Malaria

and was treated by Dr. Joshi of Mumbai and so could not

attend the training course on 07.02.1991, 08.02.1991,

13.02.1991 to 15.02.1991, 05.03.1991 and 13.03.1991 to

15.03.1991. For the three days of absence from training

course on 07.02.1991, 08.02.1991 and 05.03.1991 explanation

was given that while coming to training place by local train

from Ville Parle due to crowd his injured leg was again

injured causing bleeding and prevented him attending

training on those dates. So for absence of 9 days in training

course, the workman had given plausible explanation

through statement of defence and was to produce 11

documents to defend his case and he had also given the

names of three witness Mrs. Mumtaz, Dy. Director S.S.I.,

Mumbai, Miss Pamela, Director S.S.I., Mumbai and Mrs.

Mitto Alour, Director Technical Service and administration

S.S.I. , Mumbai before the enquiry officer in the inquiry

sitting on 02.07.1992 . But calling those person from S.S.I.,

Mumbai as defence witness was turned down by the E.O.

so principles of natural justice was breached by the E.O.

and opportunity was not granted to summon any of those

witness to obtain the relevant document which was to be

produced by procuring from S.S.I., Mumbai. More so, in

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1313

support of charge as to 9 days absence from training course

no witness was produced by the presenting officer and

instead of correspondence letter of programme incharge of

S.S.I., Mumbai was taken as evidence in enquiry on behalf

of the management. Now coming to the relevancy of that

letter of programme incharge Mrs. Mumtaz Virani , Dy.

Director, Post Graduate studies addressed to CM.O. ,

Kandla Port Trust Hospital dated 10.04.1991. This letter go

to show that the workman Mr. Sharma did not sent leave

application of 9 days absence from training course but had

sent medical certificate vide letter dated 22.03.1991. Such

letter addressed to CM.O. (Disciplinary Authority) do not

go to show that due to absence on those 9 days from

training course the trainee Mr. Sharma had any serious

misconduct, The Dy. Director in her letter has not suggested

for taking disciplinary action against Mr. Sharma Likewise

Dy. Director such correspondence in para 2 of letter that

accommodation in male hostelwas arranged but Mr. Sharma

was not interested in taking up accommodation as he had

friend/relative in Mumbai and he preferred to stay with

them. In this connection the statement of defence of the

delinquent Mr. Sharma submitted before the E.O. has also

to be taken in account where he stated that there were 29

female trainees and two male trainees -Mrs. Mumtaz

Virani, Dy. Director of Spastic Society of India, Mumbai

herself had advised him to make his own arrangement for

lodging and boarding. There is also explanation of Mr.

Sharma in his statement of defence about not

accommodating in separate Hostel away from 29 female

trainees staying in the Hostel Mr. Sharma might have felt

uncomfortable to stay even in separate room but amongst

29 female trainees. The management side could not be able

to refute that almost all trainees were female except two

male. More so, no materials has been produced by

management that another male trainee beside Mr. Sharma

had stayed in the Hostel. Now coming to peruse the letter

of Mrs. Mumtaz Virani addressed to Mr. Sharma in

connection with his series of letters sent to her (Ext.34/30)

This is reply of Mrs. Mumtaz Virani, Dy. Director to the

queries raised by workman (Mr. Omprakash Sharma)in his

letter 1/91,2/91,3/91, 4/91 dated 10.05.1991 (3 letters) and

17.05.1991. Para 2 of letter states rule for hostel facilities

will change from this year but generally the practices is

and will be that we need to know at the time of application

whether a candidate needs hostel facilities or not. Par-a-3.

is regarding Mr. Sharma's attendance certificate sent to Mr.

Mahajan , K.P.T., Mumbai and that he (Mr. Sharma) is not

eligible for an M.C.P. passed certificate as do not appear

for the practical and theory exam. Para 4 of the letter states—

We do not have a set of rules and regulations but we do

expect regular attendance .... Desire to learn and participate

in theory and practical sessions. In the light of letter written

to C.M.O., K.P.T. and to Mr. Sharma by Mrs. Mumtaz Virani,

the management of the 1st party could not produce oral or

documentary evidence in enquiry proceeding that the

workman physiotherapist had ever applied for hostel

facilities. More so, there was no strict adherence to that

each and every trainee has to stay in the hostel. More so,

there was no set of rules and regulations in the Institute

(Spastic Society of India). In that view of the matter the

personnel injuries caused to the delinquent Mr. Sharma on

28.01.1991. He was brought to K.P.T. Hospital in injured

condition where X-ray left shoulder, X-ray Right Front, X-

ray Right Knee joint were taken but management did not

produce those X-ray during enquiry even demanded by

the delinquent. Whereas certificate of Dr. Yogesh Joshi of

Sanjivani Surgical Maternity Hospital dated 28.01.1991

given to delinquent clearly shows that he is suffering from

Sprain=Civie ... Right. Ankle, Right knee, forehead,

contusion other parts of body and was advised complete

bed rest for 10 days from 28.01.1991. That means he was

advised to take bed rest up to 06.02.1991. But even than

the delinquent went to Mumbai and joined the training

course from 04.02.1991. He fell ill of Malaria and was under

treatment of Dr. K.B. Joshi, M.B.B.S. of Ville Parle (E)

Mumbai during the period 13.02.1991 to 15.02.1991 and

13.03.1991 to 15.03.1991. As per doctor's certificate he was

fit to resume duty from 16.03.1991. The delinquent has given

the reason of his absence for six days. As per his oral

evidence (Ext.15) he was attending the training course by

journey of 50k.m. by local train from Ville Parle and during

daily journey by local train he sustained injury in his leg

due to crowd of passenger and so he could not attend

training course on 07.02.1991, 08.02.1991 and 05.03.1991,

he was suffering from fever so could not attend the training

course. There is no any contrary evidence of management

side before E.O. that he was healthy and hearty on those

three days in attending training course.

9. The adverse circumstances appearing to the

delinquent was not considered in imputing the charge of

gross misconduct against him by the C. M.O. Disciplinary

Authority. Likewise the E.O. in stereo type fashion without

granting reasonable opportunity to the delinquent rejecting

the prayer to call as witness to Mr-,. Mumtaz Virani and

other from Spastic Society of India, Mumbai and without

having any oral evidence of management and only forming

basis of letter of Mrs. Mumtaz Virani , Dy. Director S.S.I,

Mumbai has given conclusion that the delinquent

Omprakash Sharrna is guilty of gross negligence as all the

charges regarding bsenting from training course for 9 days

and giving false statement that Hospital facility was not

provided and he was asked to arrange boarding and lodging

1314

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

was proved from documents i.e. letter of Mrs. Mumtaz Virani.

The question arise how a letter of Dy. Director can be used

as evidence for proving the charge of giving false statement

by Mr. Sharrna. Mrs Mumtaz Virani ought to have been

called as management witness but she was not called as

witness and in turn when delinquent prayed to call her as

defence witness such prayer was turned down by E.O. that

clearly reflects that E.O. has not followed the principles of

natural justice in conducting departmental enquiry. In such

view of the matter the management representative P.O. ought

to have produced both oral and documentary evidence so

that the delinquent and his D.A. might have got opportunity

to cross examination for testing the witness veracity.

10. It appears from enquiry papers produced by the

1st party and also on going through the enquiry report,

that 22 sittings of domestic enquiry was held during the

period of 4 enquiry officer which were changed on after

another and the 1st enquiry sitting commenced on

01.07.1991 and last 22nd enquiry sitting was on 08.09.1993.

But even during such long span of enquiry no witness was

produced by the management side and the charge sheeted

employee Omprakash Sharrna was not allowed to put oral

evidence of defence witness. The E.O. has not adopted

partiality. The last E.O. Mr. V. Shivraman, Asst. Secretary

K.P.T. had signed the order as to sending the workman on

training programme. The argument on behalf of the 2nd

party appears to be tenable that the 4th E.O. Mr. V.

Shivrarnan who submitted inquiry report (Ext.18) was not

impartial and so only on the letter from S.S.I. , Mumbai

produced by the presenting officer, the E.O. having with

biased view mentioned in the inquiry report at Page

11. The contention of Shri Sharma appears to have

misconceived him by promoting from the back of his mind

to embolden him to remain absent from the training course

without support of medical certificate. The E.O. appears to

have concluded by proving charge of 3 days absence from

training class on circumstantial evidence. I failed to

undersigned how E.O. without evidence of witness of S.S.I.,

Mumbai can conclude intentional and deliberate

absenteeism of Mr. Sharma from training class. The E.O.

failed to examine the statement of defence of the charge

sheeted employee in right representative. The findings to

the enquiry report as to 2nd charge of false statement by

Mr. Sharma about non availability of male hostel facility at

S.S.I, Mumbai also appears to be based on conjectures

without examining the aspect that majority of trainee were

female 29 in number and only two male that how it was

practical to stay of Mr. Sharma in the Hostel among 29

female trainees. The delinquent was prevented to test the

veracity of Mrs. Mumtaz Virani, Dy. Director, S.S.I. in her

cross examination. In the letter of Mr. Virani to C.M.O.

(Disciplinary authority) there is only mention that Hostel

provided but no copy of allotment order with Room number

of hostel sent along with letter.

11. So, I find and hold that principles of natural

justice was not followed in conducting domestic enquiry

against the delinquent workman Mr. Omprakash Sharma. I

also find and hold that the findings of enquiry officer in his

enquiry report dated 18.09.1993 is perversed. I also find

and hold that the C.M.O. (Disciplinary Authority) has failed

to consider the circumstances adverse to the delinquent

and has based its punishment order as to removal/

termination from the service making its basis on perversed

findings of the E.O. The delinquent was not an offender of

serious crime like murder, dacoity and embezzlement. There

was no allegation insubordination or scolding ,

manhandling to his superior officer, or was indulged in anti

social activities, rather the delinquent had not attended

the training class on three days without giving medical

certificate and that he did not stay in Hostel rather preferred

to stay at resident of relative /friend do not go to attract for

such major punishment of termination of a confirmed

employee doing duty as physiotherapist in K.P.T. Hospital.

The past minor misconduct and order of warning caution

etc. are not to be looked into in the allegation as per charge.

Rather this go to show biased attitude of the C.M.O. who

firstly issued memorandum of charge of gross misconduct

but as a matter fact there was no serious misconduct on his

part to impose major penalty. If workman Mr. Sharma

(Physiotherapist) out of six week training had not attended

on some days saying it for 9 days he could not get certificate

from S.S.I. , this was itself a stigma on his part. The

management of K.P.T. was at liberty to recover the fee of

Rs. 500 paid to the spastic society of India. The

management may have taken steps not to pass T.A. D.A.

of Mr Sharma. The controlling officer C.M.O. might have

entered adverse remark in the ACR of Mr. Omprakash

Sharma and in this way Mr. Sharma Physiotherapist might

have faced consequence of scope of not getting a

promotion etc. But on this cause issue of article of charges

imputing allegation of gross misconduct and without

observing principles of natural justice, proving the charges

on conjecture and taking into account of meagre

circumstantial evidence, giving of perversed findings in

inquiry report and then imposing the maximum punishment

of termination/ removal from the service, totally shocks the

judicial conscience of this Tribunal that the management

of the 1st party has made a mountain of the mole to any

how eliminate the delinquent workman Mr. Sharma by

termination/removal that has caused his economic death.

So, I further find and hold that the punishment of

termination /removal by order dated 23.07.1997 awarded to

¹Hkkx II—[k.M 3(ii)º

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1315

the 2nd party workman Shri Omprakash Sharma is

shockingly disproportionate to the gravity of misconduct.

I further find and hold that the punishment awarded to the

delinquent (the 2nd party) is not at all legal, proper and

justified.

The issue No. iii, iv, v and vi are therefore decided

against. the 1st party.

12. ISSUE NO.vii:- As per findings to issue No. iii,

iv, v and vi in the foregoings this tribunal invoking the

powers u/s.11A of the I.D. Act, hereby set aside the order

of punishment dated 23.07.1997 imposed by the C.M.O.

cum Disciplinary Authority and also set aside the order of

Appellate Authority confirming the punishment of removal

of the 2nd party Shri Omprakash Sharma from the services.

It has come in the evidence of the 2nd party (Ext.15) that

he remained unemployed after termination. There is no

contrary evidence on behalf of the 1st party that the 2nds

party even after termination remained in gainful

employment. In such view of the matter the relief to the

2nd party will be for his reinstatement, continuity in service,

consequential benefits and back wages. But it has come

during argument by Shri K.V. Gadhia, Learned Advocate

for the 1st party that the workman (2nd party) Shri

Omprakash Sharma reached the age of the superannuation

on 1st September, 2011. So question of reinstatement does

not arise rather he can claim monetary benefits. The

representative of the 2nd party has not refuted such

arguments that the delinquent workman has already

reached the age of superannuation.

13. So considering the facts that the 2nd party since

crossed the age of the superannuation. So he is entitled

for full back wages from the date of his termination with

continuity of his service and consequential benefits till

reaching the age of the retirement. The 2nd party is also

awarded cost of Rs. 5000 by way of litigation cost from the

1st party.

14. ISSUE NO. i and ii : As per findings above, I

further find and hold that the reference is maintainable and

the 2nd party has valid cause of action to raise dispute.

This reference is allowed accordingly with cost.

The 1st party are directed to implement the award as

to payment of full back wages, with consequential benefits

and continuity of service to the 2nd party Shri Omprakash

Sharma till his reaching superannuation within two month

from the receipt of copy of award failing which amount of

back wages will carry interest @ 9% P.A.

This is my award.

B. K. SINHA, Presiding Officer

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New Delhi, the 23rd January , 2014

S.O. 468.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 111/

2006) of the Central Government Industrial Tribunal/Labour

Court, Ahmedabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of ONGC, Ahmedabad and their workman,

which was received by the Central Government on

20-1-2014.

[No. L-30012/77/2005-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT cum Labour Court,

Ahmedabad, Dated 14th October, 2013

Reference: (CGITA) No. 111/2006

1. The Director,

M/s Industrial Security Services,

1st floor, Upal Tower,

Opp. Umiya Dham, Vaishali Cenema,

Surat Gujarat-395006

2. The Chief Manager (Security & Fire)

ONGC Ltd., Avani Bhavan, Chandkheda,

Ahmedabad (Gujarat)

3. Executive Director,

ONGC Ltd. Avani Bhavan, Chandkheda,

Ahmedabad (Gujarat)

..... First Party

And

Their Workman

Mrs. Cicily Paul,

G-l, Hiramanek Society,

Near Sharda Petrol Pump, Chandkheda,

Ahmedabad (Gujarat)

.... Second Party

1316

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

For the First Party :

Shri Kishor V. Gadhia, Advocate

For the Second Party :

None

AWARD

The Central Government/Ministry of Labour, New

Delhi, vide its order N0. L-30012/77/2005-IR(M) dated

17.04.2006 under clause (d) sub-section (1) and sub-section

(2A) of section 10 of the Industrial Dispute Act,1947 referred

the dispute to this Tribunal for adjudication on the terms

of reference in the Schedule :

SCHEDULE

‘‘Whether the action of the management of ONGC

by terminating the services of Mrs. Cicily Paul,

Stenographer cum-PA with effect from 3-7-2004

without following the procedure as laid down under

section 25F of the I. D. Act,1947 is legal and justified?

If not, what relief the workman is entitled to and to

what extent?’’

2. In spite of notice the 2nd party failed to submit

statement of claim whereas the 1st party (ONGC LTD)

appeared through Lawyer by executing power in favor of

Shri K.V. Gadhia, Advocate. The 1st party appearing on

dates but the 2nd party Mrs. Cicily Paul filed two application

first on 07.10.2010 praying for time that she has not yet

retained any lawyer and the second application after long

interval on 03.05.2012 has not yet filed statement of claim

Ample opportunity was given to put her claim in this case

by submitting statement of demand but she failed to do so.

During pendency of the case since 03.05.2006, 39

adjournment were granted in this case during the span of

more than seven years, that go to reflect total slackness on

part of the workman Mrs. Cicily Paul and also showing her

disinterestedness. Whereas the principal employer (ONGC

Ltd) remains in attendance on the dates.

3. In the circumstances this Tribunal has reason to

believe that the dispute raised by the 2nd party has no leg

to stand. So, the terms of reference is answered in the

affirmative in favour of the 1st party.

This reference is, therefore, dismissed. No order as

to cost.

B. K. SINHA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 469-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vks ,u th lh]

vadys'oj ds izca/r=k ds lac¼ fu;kstdks vkSj muds deZdkjksa ds

chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky;] vgenkckn ds iapkV (lanHkZ la[;k

1457@04) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20&1&2014

dks izkIr gqvk Fkk A

¹la- ,y&30012@12@2004&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 469.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 1457/

04) of the Central Government Industrial Tribunal/Labour

Court, Ahmedabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of ONGC, Ankleshwar and their workman,

which was received by the Central Government on

20-1-2014.

[No. L-30012/12/2004-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT cum Labour Court,

Ahmedabad, Date: 14th October, 2013

Reference (CGIT A) No. 1457/04

1. The Group Manager (P)

ONGC Ltd., Ankleshwar Project

Ankleshwar (Gujarat)

2. Industrial Security Services,

103/113, Omkar Chambers,

1st floor, Opp. Rly. Station

Surat (Gujarat)

And

Their Workman

Sh. Shashikant Maganlal Rana

Ramkund Road, Ankleshwar

For the First Party : Shri K. V. Gadhia, Advocate

Shri M. K. Patel, Advocate

For the Second Party : None

AWARD

The Central Government/ Ministry of Labour, New

Delhi vide its order No. L-30012/12/2004-IR(M) dated

14.06.2004 under clause (d) of sub-section (1) and sub-

section (2A) of section 10 of the Industrial Dispute Act,

1947, referred the dispute to this tribunal for adjudication

on the terms of the reference in the Schedule :

SCHEDULE

‘‘Whether the action of the management of Oil &

Natural Gas Corporation Ltd, Ankleshwar project in

terminating the services of Shri Shashikant Maganlal

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1317

Rana 'Peon' w.e.f 10.12.1998 through its contractor

M/s Industrial Security Services, is legal , proper

and justified? If not, to what relief the concerned

workman is entitled and what other directions are

necessary in the matter?’’

2. Notice issued to the parties for appearing in the

case to file respective pleading with documents. The 1st

party No. 1 (ONGC Ltd.) appeared and executed Vakilpatra

in favour of Gadhia Associates on 15.02.2005. Thereafter

case record transferred to Industrial Court, Ahmedabad

and again notice was issued Ref. I.T.C. 1222/2008. But the

2nd party did not appear. Again case record transferred to

Industrial Court, Vadodara and fresh notice to the parties

was issued under new Ref. I.T.C. No. 267/09 on 26.10.2009.

Thereafter on 27.01.2010 an authority letter was filed by

the 2nd party workman in favour of Union representative

P.V. Baria. But thereafter 2nd party neither filed statement

of claim nor appear in the case. Subsequently, the case

record returned back to this Tribunal under order of transfer

of M.O.L., New Delhi and again fresh notice was issued to

the parties. The 1st party No. 1 appeared on dates but 2nd

party workman either himself or through Union

representative failed to appear. Lastly, the case of the 2nd

party in filing statement of claim was closed.

3. The 2nd party who raised the industrial dispute in

this case has failed to submit his statement of claim.

Whereas the 1 st party (ONGC Ltd.) is appearing in the

case on dates awaiting for receipt of copy of statement of

claim so that written statement may be filed. It was upon

the 2nd party to prove the claim, in this case through

pleading (statement of claim) and evidence oral and

documentary, but hopelessly failed in this regard. So, this

Tribunal has reason to believe that the demand raised by

the 2nd party workman has no leg to stand and so, the

terms of reference is answered in affirmative in favour of

the 1st party. And this reference is, therefore, dismissed.

No. order as to cost.

Let a copy of the award be sent to the appropriate

Government for the needful.

B. K. SINHA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 470-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vks ,u th lh]

vgenkckn ds izca/r=k ds lac¼ fu;kstdks vkSj muds deZdkjksa ds

chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky;] vgenkckn ds iapkV (lanHkZ la[;k

581@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&30011@37@2003&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 470.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 581/

2004) of the Central Government Industrial Tribunal/Labour

Court Ahmedabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of ONGC, Ahmedabad and their workman,

which was received by the Central Government on

20-1-2014.

[No. L-30011/37/2003-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Dated 14th October, 2013

Reference: (CGITA) No. 581/04

Reference: (I.T.C.) No. 55/03 (old)

1. M/s. Industrial Security Services,

Parichay Shopping Centre,

Near 'D' Cabin,

IOC Road, Post New Rly. Colony,

Ahmedabad (Gujarat) 380001

2. The General Manager

ONGC Ltd., Ahmedabad Project,

Chandkheda, Sabarmati,

Ahmedabad (Gujarat)

... First Party

And

Their Workman

Shri Babubhai G. Prajapati

(Through the Union)

The President, Gujarat Labour Union,

24/3 Ellora Home Centre,

Behind Relief Cinema, Saraspur Road,

Ahmedabad (Gujarat)-380001

... Second Party

For the First Party : Shri M.K. Patel, Advocate

For the Second Party : None

AWARD

The Central Government/Ministry of Labour, New Delhi

vide its order No. L- 30011/37/2003-IR (M) dated 14.11.2003

1318

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

under clause (d) of sub section 10 of the Industrial Dispute

Act, 1947 referred the dispute to the Tribunal for

adjudication on the terms of reference in the Schedule:

SCHEDULE

‘‘Whether the demands of General Secretary, Gujarat

Labour Union for treating Shri Babubhai G. Prajapati,

contract Labour, as Class IV employee of ONGC, for

payment of wages as are being paid to the ONGC

class IV employees from the date of appointment

and for regularisation of his service are legal and

justified ? If so, to what relief the workman concerned

is entitled?’’

2. On notice to the parties to appear and to file

pleadings the Union (S.P.) and the management (1st party

No. 2 ONGC) appeared and filed respective pleadings

statement of claim and written statement.

3. The Union executing power (Vakilpatra) in favour

of Shri Hemal Kamendhubhai Acharya, Advocate filed

statement of Claim (Ext. 4) pleadings therein that the

workman involved in this case is doing works of perennial

nature under the cover of contractual worker and is doing

same work as that of regular class IV worker of the principal

employer (ONGC) but is not being paid similar wages and

all the facilities as that of regular staff. The workman is

virtually working under the control of principal employer

(ONGC) and not under the contractor and the ONGC is

depriving him of his legal right. Relief has been sought for

treating the workman concerned to be direct employee of

the ONGC from the date of initial appointment and to

provide all wages and other benefits as availed by the

regular workman of ONGC.

4. As against this the contention of the 1st party

(ONGC Ltd.) as per written statement (Ext. 5) is that the

reference is not maintainable, no master and servant

relationship between ONGC Ltd. and the concerned

workman. The 1st party is not working under prohibited

categories. The corporation has awarded the job contract

to the contractor through a valid and legal tendering

process prevailing in all Government organisations. In no

case the concerned workman is entitled for absorption/

regularisation in the establishment of ONGC as a back

door entry since the workman doing contractor works has

not been appointed following the procedure laid down

under Article 14,16 and 309 of the Constitution of India. So

the reference is liable to be dismissed with cost.

5. But the 2nd party (Union) left to attend on the

dates since pretty long time. Fresh notice was issued but

all efforts went invain and the S.P. (Union) upon which

onus is to prove its case failed to lead either oral or

documentary evidence. So this tribunal has reason to

believe that the demand raised by the Union for the cause

of contractual workman has no leg to stand and so the

terms of reference is answered in negative against the Union.

And this reference is dismissed. However, no order as to

costs.

Let a copy of Award be sent to the appropriate

Government for publication and for needful.

B. K. SINHA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 471-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vks ,u th lh]

vadys'oj ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky;] vgenkckn ds iapkV (lanHkZ la[;k

1438@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&30011@1@2004&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 471.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 1438/

2004) of the Central Government Industrial Tribunal/Labour

Court, Ahmedabad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of ONGC, Ankleshwar and their workman,

which was received by the Central Government on

20-1-2014.

[No. L-30011/1/2004-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL -CUM -LABOUR

COURT, AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Date: 17th October, 2013

Reference (CGIT A) No. 1438/2004

1. The Asset Manager,

ONGC Ltd.,

Ankleshwar

2. M/s. Central Investigation & Security Service Pvt.

DG-15, Sardar Patel Complex, GIDC, Ankleshwar

3. M/s. Janpriya Engineering Co.

Co. House Keeping ONGC Colony,

Ankleshwar

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1319

4. M/s. Industrial Security Services,

Room No. 2, Niharika Apartments,

Opp. ONGC Office,

Ankleshwar-2

5. M/s. Nikki & Co.

C/o Gardening ONGC Colony,

Ankleshwar

6. M/s. P.B. Patel & Co.

C/o ONGC Ltd.,

Ankleshwar

7. M/s. Moosaji Agency

C/o ONGC Ltd.

Ankleshwar

And

Their Workman Shei Maksood Hussain

Vallibhai & 53 Other Contractual workman

(as per List Annexure-A)

Shri Kesharbhai Bansilal & 13 Others

(List as Annexure-B)

Through the Union (The Branch Chairman),

ONGC Employees Association,

Manav Vikas Bhavan,

Ankleshwar-393010

For the First party :

Shri K.V. Gadhia, Advocate

For the First party No. 2 to 7: None

For the Second party (Union) : None

AWARD

The Central Government/ Ministry of Labour, New

Delhi vide Order No. L- 30011/1/2004-IR (M) dated

28.05.2004 under clause (d) of sub section (1) and sub-

section (1) and sub-section (2A) of Section 10 of the

Industrial Dispute Act, 1947, referred the dispute to this

Tribunal for adjudication on the terms of reference in the

Schedule:

SCHEDULE

‘‘Whether the demand of the Union in respect of S/

Shri Maksood Hussain Vallibhai & 53 Other

contractual workman (list as Annexure-A) engaged

through various contractors in the establishment of

ONGC Ltd, Ankleshwar for treating them as direct

and regular employee of ONGC Ltd., along with

consequential benefits is legal, proper and justified?

If so, to what relief these workman are entitled and

from which date and what directions are necessary

in the matter?’’

2. Whether the action of the management of ONGC

Ltd., Ankleshwar in termination the services of

S/Shri Kesharbhai Bansilal & 13 Others (List as Annexure-

B) through their contractor w.e.f. 11.02.2003 is legal, proper

and justified? If not, to what relief these 14 workmen are

entitled and from what other directions are necessary in

the matter?

3. Even after repeated notices, the Union (2nd party)

failed to appear in this case and did not file statement of

claim in order to show eagerness to contest this reference

against the management of ONGC Ltd., Ankleshwar .and

other contractors. However, the 1st party No. 1 ONGC

Ltd., Ankleshwar appeared on notice and executed

Vakilpatra in favour of Gadhia Associates. The contractors

F.P. No. 2 to 7 did not also appear.

4. Since the Union 2nd party raised this industrial

dispute for the cause of workman involved in this case but

has lost interest and did not care to file statement of claim

even giving adjournment for about nine years.

In the event the terms of reference are answered in

favour of the 1st party No. l.

The reference is, therefore, dismissed. No order as

to cost.

Let a copy of Award be sent to the appropriate

Government for publication u/s 17 (1) of the I. D. Act, 1947.

B. K. SINHA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 472-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vks ,u th lh

vgenkckn ds izca/ra=k ds lac¼ fu;kstdkas vkSj muds deZdkjksa ds

chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky;] vgenkckn ds iapkV (lanHkZ la[;k

1458@2004) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&30012@13@2004&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 472.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 1458/

2004) of the Central Government Industrial Tribunal/

Labour Court, Ahmedabad now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of ONGC, Ahmedabad and their

workman, which was received by the Central Government

on 20-1-2014.

[No. L-30012/13/2004-IR (M)]

JOHAN TOPNO, Under Secy.

1320

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL- CUM -LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Date: 13th August, 2013

Reference (CGIT A) No. 1458 of 2004

1. M/s. Yashdeep & Co.

Vardhman Chambers, Kalyan Street,

Dhabandar,

Mumbai-9

2. The Group General Manager (P)

ONGC Ltd., Ankleshwar Projects

Ankleshwar.

3. M/s. P.B. Patel & Co.

C/o. ONGC Office, Ankleshwar Projects

Ankleshwar.

...... First Party

And their Workman

Sh. Alpeshkumar Vasantlal Patel

Muktidham Society, B-37, Behind GEB,

Ankleshwar.

...... Second Party

For the First Party: - Shri K. V. Gadhia

For the Second Party: - None

AWARD

The Government of India/ Ministry of Labour, New

Delhi, by its order No. L- 30012/13 /2004-IR(M) dated

14/06/04. Considering on Industrial Dispute exists between

the employers in relation to the management of

M/s. Yashodeep & Co. and their workman referred the

dispute to this Tribunal under cl. (d) of sub-section 1 and 2

(A) of section 10 of the Industrial Dispute Act, 1947 for

adjudication under the terms of reference as per schedule.

SCHEDULE

‘‘Whether the action of the management of ONGC,

Ankleshwar projects in terminating the services of

Shri Alpeshkumar Patel, Peon w.e.f. 01.08.2003

through its contractor M/s. P.B. Patel & Co. , is legal,

proper and justified? If not, to what relief the

concerned workman is entitled and what other

directions are necessary in the matter?’’

2. Inspite of notices issued, 2nd party workman did

not appear in this case whereas the principal employer

ONGC (1st party No. 2) appears, executing Vakalatnama in

favour of Shri K.V. Gadhia, Advocate. It may be also noted

that the 1st party No.1 M/s. Yashodeep & Co. on its letter

head addressing to Under Secretary, Ministry of Labour

informed that after end of our contract on 06.03.2001 this

contractor has had no concerned with this case and that

the concerned workman Alpeshkumar was absent from

August, 2000 without any information and subsequently

the workman Alpeshkumar approaching to our company

to PF amount and he received PF amount and has also

resigned. But the concern workman failed to appear in this

case. He did not file any S/c on the other hand, principal

employer the ONGC, Ankleshwar Projects is appearing on

the dates. But in spite of several adjournment, the 2nd

party workman failed to appear and to S/c. So, it is not

desirable to keep this case pending for further awaiting the

filing of S/c by the workman Alpeshkumar.

In such circumstances this reference case is

dismissed. Having no merit and the reference is answered

in favour of the 1st party that the action of the management

of ONGC Ltd., Ankleshwar Projects in termination the

service of Shri Alpeshkumar Patel w.e.f. 1.08.2003 through

its contractor M/s. P.B. Patel & Co. is legal and proper and

justified. The workman concern is not entitled to any relief.

This is my Award.

Let a copy of Award be sent to the appropriate

Government for the needful and publication.

B. K. SINHA, Presiding Officer

ubZ fnYyh] 21 tuojh] 2014

dk-vk- 473-—deZpkjh jkT; chek vf/fu;e] 1948 (1948

dk 34) dh /kjk 1 dh mi&/kjk (3) }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq,] dsUæh; ljdkj ,rn~}kjk 01 iQjojh] 2014 dks ml

rkjh[k ds :i esa fu;r djrh gS] ftldks mDr vf/fu;e ds

vè;k; 4 (44 o 45 /kjk ds flok; tks igys ls izo`Rr gks pqdh gS)

vè;k; 5 vkSj 6 [/kjk&76 dh mi&/kjk (1) vkSj /kjk 77] 78]

79 vkSj 81 ds flok; tks igys gh izo`Rr dh tk pqdh gS] ds

mica/ mM+hlk jkT; ds fuEufyf[kr {ks=kksa esa izo`Rr gksaxs]

vFkkZr~ %

^^ftyk Hknzd dh Hknzd rglhy esa dqvk¡l] lejk,iqj] cad]

eBlkgh rFkk xsyiqj ds jktLo xkao**A

¹la- ,l&38013@03@2014&,l,l&1º

tktZdqVh Vh- ,y-] voj lfpo

New Delhi, the 21st January, 2014

S.O. 473.—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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1321

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 Odisha namely: -

"The AREAS COMPRISING OF THE REVENUE

VILLAGES OF KUANSH, SAMARAIPUR, BANK,

MATHASAHI AND GELPUR, in the Tehsil Bhadrak, in the

District of Bhadrak.

[No. S-38013/03/2014-SS.1]

GEORGE KUTTY T. L., Under Secy.

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 474-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vks ,u th lh

vgenkckn ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky;] vgenkckn ds iapkV (lanHkZ la[;k

68@2005 ,oa 70@2005) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj

dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&15025@2@2014&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 474.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 68/2005

& 70/2005) of the Central Government Industrial Tribunal/

Labour Court, Ahmedabad now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of M/s. ONGC, Ahmedabad and their

workman, which was received by the Central Government

on 20-1-2014.

[No. L-15025/2/2014-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad, Date: 1st May, 2013

Complaint (CGIT A) No. 68/2005

And

Complaint (CGITA) No.70/2005

Reference (CGITA) No.182/2004

Under section 33(A) of the Industrial Dispute Act, 1947

Parmar Amrutlal K.:- ..... Complaint case No. 68/2005

And

Prajapati Kirtibhai Govindbhai ...... Complaint case No.

70/2005

Through A.S. Kapoor, then

Secretary, ONGC,

Labour Union,

8- Samrpan Shopping Complex,

Highway Road, Mehsana

V/s

1. Executive Director,

ONGC Ltd., Western Region Business Centre,

Makarpura Road, Baroda-9

2. The Secretary,

Swastik Majdoor Sahkari,

Kamdar Mandli,

Sardar Shopping Centre,

Near Congress Bhavan, Mehsana

3. M/s. Multipurpose Manpower

Management Services Pvt. Ltd.

I-Tapsvi Chamber (now at white hall)

Opp. Dudhsagar Dairy,

Highway Road,

Mehsana.

4. M/s. Public Power Mazdoor,

Kamdar Sahkari Mandli,

Opp. Dudhsagar Dairy,

Highway Road,

Mehsana.

5. M/s. Adarsh Majdoor Kamdar,

Sahkari Mandli,

Near Gayatri Mandir,

Highway Road,

Mehsana.

6. M/s. Chanasma Taluka Sarvodaya,

Majdoor Kamdar Sahkari Mandli Ltd.

C/o Ganfhi Printers, Opp. B.K. Cinema,

S.T Workshop Road, Mehsana.

7. Group General Manager (Projects)/Asset Manager,

ONGC Ltd.,

Mehsana Project, Mehsana

8. M/s. Maha Laxmi Industrial Corporation,

Plot No. 112/Phase -1,

GIDC, Mehsana

........... Opponents

(common is both complaint cases)

1322

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

For the Camplainants :-

None

For the OpponentsNo. 1 & 7 :-

Shri K.V. Gadhia,

Advocate.

Shri M.K.Patel,

Advocate.

ORDER

These two (CGITA) complaint No.68/200s and 70/

2005 arising out of reference (CGITA) No. 182/04 have been

filed by the complainants in the matter of their illegal

termination of the services on 20.12.2004 by the opposite

parties, who are also along with other workman involved in

the reference case 182/04 pending for adjudication in which

interim order is in operation not to change the status-quo

of the 2nd party workman. The allegations made in the

complaints are common against the opponents, so, both

complaint cases are taken up together for disposal by this

common order, pending since pretty long time.

2. The grievances of the complainants are that the

O.P. No-2 and 7 are guilty of contravention of provision of

section 33 of the I.D Act,1947 as their service have been

terminated illegally by them on 20.12.2004 without any

notice, notice pay, retrenchment compensation and even

gratuity and that O.P. No. 8 is intermediary i.e. labour

contractor and inducted by O.P. No.-1 w.e.f. 01.12.2004 and

in main reference, an application for joining him party was

filed on 02.02.2005. Thus have alleged that service

condition of these workman (complainants) have been

changed by the opponents irrespective of continuing of

interim order in reference (CGITA 182/2004) and thus O.P's

have violated the of provision of section 33 of the I.D. Act,

1947. On these grounds prayer is made to decide the

complaints and to reinstate them to the post on which they

were working till 19.12.2004 prior to their termination on

20.12.2004 with back wages.

3. The opponent (ONGC-Principal employer) case as

per written statement is that the complaints are not

maintainable under section 33(A) of the I.D.Act, in view of

the claim in reference case as per term of reference for

demand for regularisation of contractor workers with ONGC.

Ltd. which has to be examined in reference whether the

demand is justified or not and also whether it can be said

that the ONGC has contravened any provision of section

33 of I.D. Act. It has been denied that O.P. No.7 has

terminated the services of these two workmen on 20.12.2004

rather they were contactor worker and there was no

sanction of posts of contractor worker so they were

terminated by the contractor O.P. No. 8 (M/s. Mahalaxmi

Industrial Corporation). These workman were never

appointed by the corporation nor they have been

terminated by the corporation, rather as per admission by

these workman they were appointed by the contractor and

the corporation is not responsible whatsoever regarding

their employment / non-employment. Further contention is

that main reference for demand of absorption is pending

which has yet to be decided and so, relief prayed by these

two workmen (complainants) could mean allowing main

reference without adjudication on merit.

4. The contractors (O.P. No. 2, 3, 4, 5, 6 & 8) have not

appeared in these complaint cases in spite of notice.

However, the complainants (workman) of these two cases

have adduced their oral evidence and document in support

of their grievances. On the other hand NGC Ltd. (O.P. No.-

1& 7) have contested this case by adducing evidence of

witness that the ONGC Ltd. being principal employer is not

at all responsible for the alleged termination of the services

of these complainants by O.P. No. 8 (M/s. MahaLaxmi).

5. Points for determination is whether irrespective of

pendency of the reference case (182/04) which is yet to be

adjudicated, the service condition of the complainant

workman Parmar Amrutlal K. (Complaint case No- 68/2005)

and of Prajapati Kirtibhai Govindbhai (complainant) case

No. 70/05 were changed or not, also taking in view that an

interim order has been passed in main reference directing

the 1st parties principal employer and the contractors to

maintain the statusquo.

FINDINGS

6. Taking into the consideration of the alleged date

of termination of these two complainants of case No.

68/05 and 70/05 on 20.12.2004, who are also involved with

other workman in reference No. CGITA 182/2004. It can be

safely said that these complainants along with other

workman- through ONGC. Labour union have raised

dispute demanding for their regularisation as an employee

of the ONGC Ltd. And this reference case is still pending.

Certainely these complainants workman were working in

the premises of the ONGC. It is immaterial at this stage

whether these complainants of case No. 68/05 and 70/05

were contractor workman who had deputed them alongwith

other workman to do the job in the premises of the principal

employer (ONGC Ltd.) Mehsana project. More so, interim

order had also been passed to maintain statusquo till

disposal of the reference case, that means to maintain the

working statusquo of the workman involved in the reference

case 182/2004 including complainants of the case 68/05

and 70/05 and thus for not disturbing the condition service

of any of the workman as the main reference is still pending.

But I find that the condition of service of the complainants

of these two case 68/05 and 70/05 have been certainly

changed which amount to violation of the provision of

section 33 of the I.D. Act, 1947. Due to such violation of

the provisions under section 33 of the Act for change of

condition of service due to termination on 20.12.2004, has

enabled the complainant to file complaint u/s 33(A) of the

Act for redressal of their grievences against the opponents.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1323

There is no substance in the contention made on behlf of

the O.P. No. 1 & 7(ONGC Ltd) that the ONGC (principal

employer) has not terminated the services of these two

complainants of case No. 68/05 and 70/05 rather they were

terminated by the contractor M/s. Mahalxmi Industrial

Corporation. But duty was also caste upon the principal

employer (ONGC, Mehsana Project) to keep watch upon

the condition of service of these workmen (complainants)

involved in the reference case CGITA 182/2004, not to be

changed in anyway, but certainly service condition of the

workman (complainant of case 68/05 and 70/05) have been

changed in the knowledge of the principal employer ONGC

(Mehsana projects). It has also to be borne in mind that the

contractors are changed at certain intervals, where one

contractor goes and another contr actor comes to

provide service to the principal employer as per job

agreement. But when the reference case was pending, the

principal employer (ONGC O.P. No. 1 &7) cannot save

their skin that they are not bound as to change in any

service condition of workmen due to alleged act of

termination by the contractor (O.P. No-8) who must have

knowledge about pendency of the reference CGITA No.

182/04 through the principal employer ONGC Ltd. (Mehsana

project) and also as to statusquo order by way of interim

relief granted in the reference case.

7. As per discussion and findings made above that

the condition of service of the complainants of case 68/05

and 70/05 have been changed violating the provision under

section 33 of the I.D. Act during pendency of reference

CGITA. No 182/2004. I find that the complaint case 68/05

and 70/05 are maintainable and the complainants of these

case have valid cause of action. So, Shri Parmar Amrutlal

K. of complaint case 68/05 and 5hri Prajapti Kirtibhai

Govindbhai of complaint case 70/05 are directed to be

reinstated to the works which they were doing prior to

their termination on 20.12.2004. It is not desirable to pass

any order as to payment of wages from 20.12.2004, rather it

is directed that after reinstatement to that job as they were

doing during the pendency of the reference case, they will

be paid wages through the contractor M/s. Mahalaxmi

Industrial Corporation or if the said contractor has been

removed from the work by the principal employer (ONGC

Ltd. Mehsana project) O.P. No. -7, then the incoming

contractor will pay the monthly wages to the complainants

from the date of their reinstatement. O.P. No.1 & 7 being

principal employer are directed to look into the matter for

the compliance as to reinstatement of these two workman

(complainants) of case No. 68/05 and case No. 70/05 and

also as to payment of wages to them from the date of their

reinstatement.

B. K. SINHA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 475-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ iznhi ,oa

daLVªD'ku izkbosV fyfeVsM ds izca/r=k ds lac¼ fu;kstdksa vkSj

muds deZdkjksa ds chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUæh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;] Hkqous'oj

ds iapkV (lanHkZ la[;k 12@2013) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&29012@45@2012&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 475.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No.12/2013)

of the Central Government Industrial Tribunal/Labour Court

Bhubaneswar now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of M/s. Pradeep Mining &Construction

(P) Ltd., Odisha and their workman, which was received by

the Central Government on 20-1-2014.

[No. L-29012/45/2012-IR (M)]

JOHAN TOPNO, Under Secy.

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. 12/2013

No. L-29012/45/2012 - IR (M), dated 06.02.2013

Date of Passing Order - 9th December, 2013

Between:

M/s. Pradeep Mining & Construction (P)

Ltd., Chorda, Jajpur Road, Jajpur, Odisha.

.....1st Party-Management

And

Shri Parama Mohanta,

Vill. Rogada, Po. Chungudipal,

Thana - Kaliapani, Dist, Jajpur,

Odisha.

.....2nd Party-Workman.

Appearances:

None

......

For the 1 st Party-

Management

1324

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

None

......

For the 2nd Party-

Workman.

ORDER

Case taken up. Both the parties are absent. On behalf

of the 2nd Party-workman a petition was moved for fifteen

days time to file statement of claim on 21.3.2013, which was

allowed on the very same date, but no statement of claim

was filed despite lapse of three 'months' time. The 2nd

party-workman appeared in the court on 25.6.2013. On that

date also no statement of claim was filed. Thereafter four

dates have been fixed. Neither the 2nd Party-workman

appeared nor filed any statement of claim till date. Hence it

appears that he is not interested in prosecuting his case. It

will be a futile attempt to keep the case pending indefinitely.

He might have either settled the dispute with the 1st Party-

Management out of the court or left the matter as it stands.

2. Under these circumstances, the only option left

is to pass a no dispute award in the case. Accordingly a

no dispute award is passed.

3. Reference is answered accordingly.

Dictated & Corrected by me.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 476-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj th ,l vVoky

,aM daiuh (bathfu;fjax) izkbosV fyfeVsM ds izca/ra=k ds lac¼

fu;kstdkas vkSj muds deZdkjksa ds chp vuqca/ esa fu£n"V vkS|ksfxd

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

Hkqous'oj ds iapkV (lanHkZ la[;k 21@2012) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&29012@31@2010&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 476.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No.21/2012)

of the Central Government Industrial Tribunal/Labour Court

Bhubaneswar now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of M/s.G. S. Atwal & Co. (Engineer) (P)

Ltd., and their workman, which was received by the Central

Government on 20-1-2014.

[No. L-29012/31/2010-IR (M)]

JOHAN TOPNO, Under Secy.

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. 21/2012

Date of Passing Order -23rd July, 2013

Between:

1. M/s. G.S. Atwal & Co. (Engineer) (P) Ltd.,

C/o. TATA Steel Ltd., Jajpur,

Sukinda Chromite Mines At./Po. Kalarangiatta,

Jajpur, Odisha.

2. The Manager, TATA Steel Ltd.,

Sukinda Chromite Mines,

At./PO. Kalarangiatta, Jajpur, Odisha.

3. M/s. Shiva Engineer, Sub-Contractor,

Sukinda Chromite Mines,

At./PO. Kalarangiatta, Jajpur, Odisha.

...1st Party-Managements.

And

Their workman Shri Sangram Mahakud,

At. Ostia, PO. Chingudipal, PS - Kaliapani,

Dt. Jajpur, Odisha.

...2nd Party-Workman.

Appearances:

None

......

For the 1 st Party-

Management.

None

......

For the 2nd Party-

Workman.

ORDER

Case taken up. None is present for the lst Party-

Management No. 1 and 2 and the 2nd Party-Workman.

Only the proprietor of the 1st Party-Management No. 3

Shri Shyam Prasad Moharana is present.

2. This reference was received in the office of this

Tribunal/Labour Court on 30.1.2012. Since then the 2nd

Party workman has been taking time for filing of statement

of claim by moving time petitions. He later took a plea that

he has moved the Ministry for amendment of schedule of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1325

the reference. A corrigendum regarding amendment of the

schedule of the reference was received in the office of this

Tribunal/Labour Court on 8.4.2013. Even after amendment

of the schedule, the 2nd Party-workman despite giving

sufficient opportunity has not filed any statement of claim

till this date. Hence it may be presumed that the 2nd Party-

workman is either not interested in prosecuting his case or

might have settled the dispute amicably with the

Management out of the court.

3. Therefore a no-dispute award has to be passed in

the case since the matter cannot be allowed to linger on

indefinitely.

4. Accordingly a no-dispute award is passed and

the reference is answered in the above terms.

Dictated & Corrected by me.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 477-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj esllZ fVªfuVh

def'kZ;y izkbosV fyfeVsM ds izca/ra=k ds lac¼ fu;kstdkas vkSj

muds deZdkjksa ds chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUæh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;] Hkqous'oj

ds iapkV (lanHkZ la[;k 32@2014) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&29012@7@2013&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 477.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 32/2013)

of the Central Government Industrial Tribunal/Labour Court

Bhubaneswar now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the management of M/s. Trinity Commercial Pvt. Ltd., and

their workman, which was received by the Central

Government on 20-1-2014.

[No. L-29012/7/2013-IR (M)]

JOHAN TOPNO, Under Secy.

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. 32/2013

No. L-29012/7/2013 - IR(M), dated 25.04.2013

Date of Passing Order 13th November, 2013

Between:

M/s. Trinity Commercial Pvt. Ltd.,

Contractor of M/s. Serajuddin & Co.

Balda Block Iron Mines,

At./PO. Baneikela, Via. Joda,

Dist. Keonjhar, Odisha.

...1st Party-Management

And

Shri Pawan Kumar Gope,

S/o. Dambarudhar Gope,

At/PO. Basira, Via.Joda,

Dist. Keonjhar, Odisha.

....2nd Party-Workman

Appearances:

None

......

For the 1st Party-

Management

None

......

For the 2nd Party-

Workman

ORDER

Case taken up. None of the parties has responded.

No statement of claim has been filed by the 2nd Party-

workman despite sending notices through ordinary as well

as registered post, which although have been received

back un-served, but. the disputant-workman himself has

to take proper steps for further prosecution of his case. He

seems to have taken no care of his case despite four dates

having been fixed in the case. In expectation of filing of

statement of claim for further prosecuting the case no further

time can be allowed as there is no way left to search out the

2nd Party-workman and persuade him to appear and file

his statement of claim.

2. Under these circumstances it will be a futile

attempt to keep the case pending for long. Therefore the

reference is liable to be returned to the Government of

India in the concerned Ministry for necessary action at its

end.

3. The reference is returned to the Government for

necessary action at its end.

Dictated & Corrected by me.

J. SRIVASTAVA, Presiding Officer

1326

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 478-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ fVªfuVh

de£'k;y izkbosV fyfeVsM ds izca/ra=k ds lac¼ fu;kstdksa vkSj

muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;] Hkqous'oj

ds iapkV (lanHkZ la[;k 33@2013) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&29012@6@2013&vkbZvkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 478.— In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 33/2013)

of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure, in

the industrial dispute between the employers in relation to

the management of M/s. Trinity Commercial Pvt. Ltd. and

their workman, which was received by the Central

Government on 20-01-2014

[No. L-29012/6/2013-IR (M)]

JOHAN TOPNO, Under Secy.

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. 33/2013

No. L-29012/6/2013-IR (M), Dated 13-05-2013

Date of Passing Order 9th November, 2013

Between:

M/s. Trinity Commercial (Pvt.) Ltd.,

Contractor of M/s. Serajuddin & Co.

Balda Block Iron Mines,

At./Po. Baneikela, Via. Joda,

Dist. Keonjhar, Odisha.

...1st Party- Management

And

Shri Bikram Bodra,

S/o. Ganesh Bodra,

At./Po. Basira, Via. Joda,

Dist. Keonjhar, Odisha.

...2nd Party-Workman

Appearances:

None

...

For the 1st Party-Management

None

...

For the 2nd Party-Workman

ORDER

Case taken up. None of the parties has responded.

No Statement of claim has been filed by the 2nd Party-

workman despite sending notices through ordinary as well

as registered post, which although have been received back

un-served, but the disputant-workman himself has to take

proper steps for further prosecution of his case. He seems

to have taken no care of his case despite four dates having

been fixed in the case. In expectation of filing of statement

of claim for further prosecuting the case no further time can

be allowed as there is no way left to search out the 2nd

Party-workman and persuade him to appear and file his

statement of claim.

Under these circumstances it will be a futile attempt

to keep the case pending for long. Therefore the reference

is liable to be returned to the Government of India in the

concerned Ministry for necessary action at its end.

The reference is returned to the Government for

necessary action at its end.

Dictated & Corrected by me.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 479-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ iznhi

,oa daLVªD'ku izkbosV fyfeVsM ds izca/ra=k ds lac¼ fu;kstdksa vkSj

muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;] Hkqous'oj

ds iapkV (lanHkZ la[;k 94@2012) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&29012@46@2012&vkbZvkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 479.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 94/2012)

of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of M/s. Pradeep Mining & Construction (P)

Ltd. and their workman, which was received by the Central

Government on 20-01-2014.

[No. L-29012/46/2012-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

BHUBANESWAR

Present:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1327

INDUSTRIAL DISPUTE CASE No. 94/2012

Date of Passing Order - 28th November, 2013

Between:

M/s. Pradeep Mining & Construction (P) Ltd.,

Chorda, Jajpur Road, Jajpur, Odisha.

...1st Party-Management

And

Their workman Shri Kailash Maharana,

Hanuman Bazar, Kaliapani, Sukinda,

Dist. Jajpur, Orissa.

... 2nd Party-Workman

Appearances:

None

...

For the 1st Party-Management

None

...

For the 2nd Party-Workman

ORDER

A reference under clause (d) of sub-section (1) and

sub-section (2A) of Section 10 of the Industrial Disputes

Act, 1947 has been made to this Tribunal/Labour Court

vide Ministry of Labour, Government of India’s letter No.

L-29012/46/2012-IR(M), dated 13-12-2012 for adjudication

of an industrial dispute existing between M/s. Pradeep

Mining & Construction (P) Ltd., and their workman in

respect of the following matter :-

"Whether it is justified on the part of the workman

Shri Kailash Maharana not to receive the terminal

benefits offered by the contractor M/s. Pradeep

Mining & Construction (P) Limited, Jajpur Road,

Odisha on the ground that he should be paid wages

for the period from 7-4-2012 to 4-9-2012 actually not

worked? If not, what releif the workman is entitled

to ?"

2. In pursuance of the letter of reference the 2nd

Party-workman was required to file his statement of claim

within fifteen days of receipt of the order of reference, but

he did not file his statement of claim within the stipulated

period. Two notices on 13-6-2013 and1-8-2013 under

registered cover of post were issued to him to file his

statement of claim, but he did not file any statement of

claim nor bothered to appear in the court. A notice was

also sent to him through speed post for appearing on

24-11-2013 along with the 1st Party-Management to settle

the dispute amicably with the management at National

Lok Adalat. But he did not respond. He has even not filed

any statement of claim. Therefore, it is presumed that he

has either settled his dispute amicably with the 1st Party-

Management out of court or did not wish to further proceed

with the case. Hence in such a situation there is no option

but to pass a no-dispute award in the case as the case

cannot be kept pending indefinitely.

3. Consequently a no-dispute award is passed in the

case.

4. Reference is answered accodrdingly.

Dictated & Corrected by me.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 480-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ljxSiYyh

ekbu izkstsDV vkWiQ ¯gnqLrku ¯td fyfeVsM ds izca/ra=k ds lac¼

fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd

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

Hkqous'oj ds iapkV (lanHkZ la[;k 80@2001) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y- 43012@14@2000&vkbZ vkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O.480.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 80/2001)

of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of M/s. Sargipali Mine Project of Hindustan

Zinc Ltd. and their workman, which was received by the

Central Government on 20-01-2014.

[No. L-43012/14/2000-IR (M)]

JOHAN TOPNO, Under Secy.

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. 80/2001

Date of Passing Award - 3rd December, 2013

Between:

The Superintendent (Mines),

Sargipali Mine Project of Hindustan Zinc Ltd.,

At./Po. Zinc Nagar, Dist. Sundargarh,

Orissa - 770022.

...1st Party-Management

And

Their workman Shri Mahendra Kumar Choudhary,

At./Po. Bhana, Dist. Sundargarh, Orissa - 770002.

...2nd Party-Workman

Appearances:

None

: For the 1st Party-Management

M/s. A. Mishra,

: For the 2nd Party-Workman

Advocate

1328

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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 Sargipali Mine

Project of Hindustan Zinc Limited and their workman in

exercise of the powers conferred by clause (d) of sub-

section (l) and sub-section 2(A) of Section 10 of the

Industrial Disputes Act, 1947 vide their letter No. L-43012/

14/2000-IR(M) dated 20.09.2000 in respect of the following

matter :—

“Whether the action of the management of Sargipali

Mine Project of Hindustan Zinc Ltd., in discharging

Sh. Mehendra Kumar Choudhary w.e.f. 31st October,

1994 is justified? If not, to what relief the workman is

entitled?"

2. The 2nd Party-workman has filed his statement of

claim alleging that he joined the 1st Party-Management on

7.8.1983 in Category-II as Miner-B and continued to

discharge his efficient services to the satisfaction of all

concerned till 3l.10.1994. He also got promotion twice to

Category-III and Category- IV in the meantime. In the

month of August, 1993 he was cheated by one of his friends

for which he had lost substantial amount of money and

became mentally depressed and lost his mental balance.

He took rest till 30.7.l994 and then approached the

Management to join duty on 3l.7.1994, getting fitness from

his consulting doctor. The Management first pressed to

receive the charge-sheet dated 10.6.1994 and then allowed

him to join the duty. Accordingly he received the charge-

sheet on 3l.7.1994 and continued to work till 3l.10.1994. On

the very same date he was discharged from service.

Pursuant to the said charge-sheet he submitted his

explanation on l.8.1994 with the request to exonerate him

from the alleged charges. The Management, without

considering his humble request and explanation, conducted

enquiry in a most perfunctory manner and finally held him

guilty and discharged him from service with effect from

3l.10.l994. The enquiry was held without following the

principles of natural justice and proper procedure. He was

also not afforded with any opportunity to defend the alleged

charges. No list of documents and witnesses was either

submitted or supplied to him nor any witness was examined

to substantiate the charges. He was not allowed to cross

examine the statements so recorded in the proceedings. As

such the enquiry suffers from latches and gross

irregularities. He was not even afforded with minimum

opportunity to produce the medical certificate to

substantiate his assertions about taking medical treatment

at Burla Hospital. Therefore the enquiry held is unfair,

improper and perverse and the punishment awarded to him

is bad, illegal and not sustainable in the eye of law. The

punishment inflicted upon is shockingly disproportionate.

Therefore the 1st Party-Management be directed to

reinstate him in service with full back wages and all

consequential attendant benefits.

3. The lst Party-Management in its written

statement has alleged that the 2nd Party-workman was

habitual unauthorized absentee. He remained

unauthorizedly absent from duty for 283 days in 1991, 159

days in 1992, 213 days in 1993 and 225 days in 1994 till the

month of September. The 2nd Party-workman never brought

the fact of his mental depression to the knowledge of the

Management. He was never treated in the Company's

Hospital for mental depression. His treatment at Burla

Hospital is not acceptable as he never produced a single

paper to substantiate his claim. He was allowed to join his

duties on 31.7.1994 after necessary medical examination.

For his long unauthorized absence from duty the

Management had issued charge sheet to him on 10.6.1994,

on his given address. When he joined his duties on

31.7.1994, he was again served with a charge-sheet dated

10,6.1994. Since the 2nd Party-workman had not submitted

any medical report/certificate from any authorized doctor

about his fitness to join duty, he was allowed to join duty

only after medical check up. There was no occasion for the

Management to compel the workman to receive the charge-

sheet dated 10.6.1994 as a pre-condition to allow him to

join duty. Remaining absent unauthorizedly for a period of

265 days from September, 1993 to 9.6.1994 is a misconduct

under clause 17 (26) of the Certified Standing Order of the

Company. Enquiry was conducted in a proper manner

giving adequate opportunity of hearing to the workman.

During the enquiry the workman admitted the charges and

explained that it happened due to his mental imbalance and

his treatment at Burla Hospital. He also admitted that he

has not submitted any document to that effect. The workman

was also given opportunity to examine witnesses in support

of his case, but he did not examine any witness on his

behalf. Thereafter the enquiry report was submitted by the

Enquiry Officer on 11.7.1994 to the Management holding

the charges as proved. Show cause notice was issued to

him on 10.10.1994 to which the workman submitted his

explanation/show cause on 16.10.1994. The workman never

objected to the action of the Enquiry Officer being unfair,

improper or perverse. So the enquiry proceedings are fair,

proper and in accordance with law satisfying the ingredients

of natural justice. After considering the explanation

submitted by the workman, the Management imposed the

punishment of simple discharge from service of the

Company with effect from 31.10.1994. The workman

preferred an appeal against the order of punishment, which

was rejected by the appellate authority. Thus the entire

series of action taken by the Management resulting in

discharge of the workman from service for his habitual

unauthorized absence from duty is justified, proper and

legal and in accordance with the provisions of the Certified

Standing Order of the Sargipali Mines. The Management

has craved leave to adduce further evidence to substantiate

the charges framed against the workman in-case the

Tribunal comes to a conclusion that the enquiry conducted

by the employer was not fair, proper, reasonable and

sustainable in the eye of law.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1329

4. In view of the pleadings of the parties following

issues are framed.

ISSUES

1. Whether the Domestic Enquiry held against

the 2nd Party M.K. Choudhury is fare and

proper?

2. Whether the punishment of discharge imposed

upon the 2nd Party is shockingly

disproportionate?

3. To what relief the 2nd Party-workman is

entitled?

5. On the petition of the lst Party-Management Issue

No. 1 was taken up as preliminary issue and the 1st Party-

Management was directed to lead evidence first by order

dated 11.4.2003. The case continued to be fixed for evidence

on Issue No. 1, but no evidence was led by the lst Party-

Management. Meanwhile the proceedings of the case were

stayed by the Hon'ble High Court and an order for staying

further proceeding of the case was passed by my learned

predecessor on 28.4.2006. Stay order was vacated by the

Hon'ble High Court of Orissa vide its order dated 3.3.2012.

Thereafter notice was issued to the parties for appearance.

Despite-notice the 1st Party-Management did not appear

while the 2nd Party-workman Shri M.K. Choudhury filed

his sworn affidavit in evidence on Issue No. 1, copy of

which was sent to the 1st Party-Management through speed

post as endorsed by the 2nd Party-workman in his affidavit.

As no one appeared on behalf of the lst Party-Management

to cross examine the witness, cross examination was closed.

6. The 1 st Party-Management has thus not adduced

any evidence on Issue no. 1.

FINDINGS

ISSUE No. 1

7. Although the burden to prove that the domestic

enquiry conducted against the 2nd Party-workman was

fair and proper lies on the 1st Party- Management, yet on

having no evidence led by the Management the decision

on this issue rests on documentary evidence filed by both

the parties plus affidavit evidence of the 2nd Party-

workman. The fact of habitual unauthorized absence from

duty of the 2nd Party-workman cannot be denied on the

face of the respective pleadings of the parties and it can

also not be denied that for habitual unauthorized absence

of the 2nd party-workman from duty extending from the

month of September, 1993 to 9.6.1994 a charge-sheet was

issued to him on 10.6.1994, but according to the 2nd Party-

workman it was served on him on 31.7.199 when he reported

for duty. There is no documentary evidence on record to

show that the charge-sheet was earlier sent to or served on

the 2nd Party-workman by the Enquiry Officer or the

Management before 31.7.1994. The Enquiry Officer

completed the enquiry only in one sitting held on 2.9.1994

and noted down in the minutes of the proceeding dated

2.9.1994 that Shri M.K. Choudhury on reading out the

charge-sheet by the Enquiry Officer accepted the charges

and also admitted that he had not submitted any medical

certificate for getting treatment at Burla Hospital. After that

the Enquiry Officer asked the management representative

to produce evidence in support of the charge-sheet. The

management representative only produced the original

muster roll to prove the attendance of Shri M.K. Choudhury.

Thereafter it was noted down in the minutes of the

proceeding that Shri M.K. Choudhury apologised for the

fault and promised not to repeat the same in future. With

this the enquiry was declared closed. On the basis of the

above minutes of the enquiry proceeding held on 2.9.1994

enquiry report was submitted to the Disciplinary Authority

on 11.9.1994 finding the charges proved on the basis of

admission of the charge-sheeted employee. On this enquiry

report the 2nd Party-workman was inflicted with penalty of

simple discharge from service of the company by the Senior

Manager (Mines) as disciplinary authority on 28.10.1994

after considering his explanation dated 1.8.1994.

8. It is worth mentioning here that no confessional

statement of the charge-sheeted employee was recorded

by the Enquiry Officer. During enquiry proceeding from

the side of the Management even no formal statement of

any witness or the management representative was

recorded by the Enquiring Officer about the charges and

the factual allegations constituting the said charges. No

documents except the muster roll was produced and

proved by the management representative before the

Enquiry Officer. There is nothing about the explanation

submitted by the charge- heeted employee with regard to

his unauthorized absence from duty. The charge-sheeted

employee i.e. the 2nd Party-workman was not given any

opportunity to adduce any evidence either of himself or

any of his witnesses by the Enquiry Officer to explain the

circumstances under which he remained absent. The

2nd Party-workman has stated in his affidavit that he had

submitted the fitness certificate from the company's Doctor.

Xerox copy of the medical certificate of Prof. G.C. Das of

V.S.S. Medical College, Burla is on record. However that

does not make any difference in view of the fact that the

domestic enquiry conducted by the lst Party-Management

against the 2nd Party-workman was not conducted in a fair

and proper manner. The principles of natural justice have

been violated and no opportunity was given to the 2nd

Party-workman to defend his case. The 2nd Party-workman

has been held guilty of the charges without recording any

statement of the witnesses on either side and the whole

enquiry was conducted only in one sitting. The enquiry

was based on the alleged admission of the charges by the

2nd Party-workman, but his admission was not recorded

separately under his signature. What the Enquiry Officer

has recorded about the admission of charges by the 2nd

Party-workman in his minutes of proceeding cannot be

legally read and treated as admission of the charges by the

2nd Party-workman. The disciplinary authority has also

1330

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

not considered this aspect of the matter and passed the

order of punishment mechanically discharging the 2nd

Party-workman from service, which cannot be held to be

legal and justified.

9. In view of the above the domestic enquiry

conducted against the 2nd Party-workman Shri M. K.

Choudhury cannot be held to be fair, proper and legal. This

issue is decided in the negative and against the 1st Party-

Management.

ISSUE No. 2

10. Since the domestic enquiry held against the 2nd

party-workman is not found to be fair and proper the

punishment of discharge inflicted upon the 2nd Party-

workman cannot be supported. The question of

disproportionate punishment does not arise in the facts

and circumstances of the case. As such no verdict is

required on this issue.

ISSUE No. 3

11. As the domestic enquiry held against the 2nd

party-workman has not been found to be fair and proper

and in accordance with the principles of natural justice, the

2nd party-workman is entitled to get the relief of

reinstatement in service, provided he has not attained the

age of superannuation, with continuity of service and

consequential service benefits. Since the matter is pretty

old and the service of the 2nd Party-workman was dispensed

with, with effect from 3l.10.l994 and a period of 19 years has

since elapsed, the relief of back wages cannot be awarded.

However, it will be proper and expedient in the interest of

justice to award him compensation to the tune of Rs. 5.0

lacs for the period he remained out of service. The award is

passed accordingly and the 1st party-Management is

directed to reinstate the 2nd Party-workman in service with

continuity of service and all consequential service benefits

and pay him a sum of Rs. 5.0 lacs within a period of three

months from the date of publication of the award.

12. The reference is answered accordingly.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 481-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj fnYyh

baVjus'kuy ,vjiksVZ fyfeVsM] ubZ fnYyh ds izca/ra=k ds lac¼

fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky; 1]

fnYyh ds iapkV (lanHkZ la[;k 140@2013) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&11012@6@2013&vkbZvkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 481.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 140/

2013) of the Central Government Industrial Tribunal/Labour

Court No.1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of M/s. Delhi International Airport Ltd., New

Delhi and their workman, which was received by the Central

Government on 20-1-2014.

[No.-L-11012/6/2013-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, KARKARDOOMA COURTS COMPLEX, DELHI

I.D. No.140/2013

Shri Abhishek Wilson,

House No. 20, Gali No 4, Block B,

Kamal Vihar, Kamallpur, Burari,

New Delhi 110084

...Workman

Versus

M/s. Delhi International Airport Ltd.,

New Udan Bhawan, Terminal-III,

IGI Airport, New Delhi - 110037

M/s. ICS System Pvt. Ltd.,

B-371, Third Floor, Meera Bagh,

New Delhi - 110063

...Management

AWARD

In the year 2008, Airport Authority of India entered

into an agreement for operation, management and

development of Indira Gandhi International Airport, New

Delhi with M/s. Delhi International Airport Ltd. (in short

the management). On the strength of the agreement,

referred above, job of operation of passenger boarding

bridges (in short PBB) at Indira Gandhi International Airport

and domestic airport came within the purview of the

management. The management engaged M/s. ICS System

Ltd. (in short the contractor) for operation and maintenance

of PBB at IGI Airport as well as domestic airport at New

Delhi. The contractor employed 230 workers consisting of

clerks, executives and workmen of various categories.

Persons employed by the contractor formed their union

with the name of IGIA Aerobridge Workers Union (in short

the union). When the contractor came to know about

formation of the said union, it withheld photo identity cards

of Shri James Massey and Shri Praveen Sharma, President

and Vice President respectively of the union, with a view to

coerce and restrain the workers not to organize for the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1331

purpose of collective bargaining. A complaint was made to

the Conciliation Officer on 02.12.2011 against the said unfair

labour practice, who entered into conciliation proceedings.

2. On 12.02.2012, an official of the management

misbehaved with the Vice President and two other active

workers of the union. It resulted into an altercation. The

management initiated action and did not allow the workers

to enter the premises of the Airport. The union served

strike notice on 14.03.2012. Again conciliation proceedings

were initiated, which failed on 30.03.2012. Workers

participated in the strike on 12.04.2012 and as such the

contractor dismissed 36 workmen from service. The union

raised an industrial dispute in that regard. On failure of

conciliation proceedings, the appropriate Government

referred the dispute to this Tribunal for adjudication, vide

order No. L-11011/7/2012-IR(M), New Delhi dated

30.01.2013, with following terms :

"Whether the action of the management of M/s ICS

Systems Pvt. Ltd.; New Delhi in dismissing 36

workmen (list enclosed) from service with effect from

10.05.2012 without holding any disciplinary

proceedings and further in violation of section

33(1)(b) of the Industrial Disputes Act, 1947 is legal

and justified? If not, what relief the said workmen are

entitled to?"

Industrial dispute, referred above, has been registered

as ID No. 23/2013 and claimant union filed its claim

statement on 13.03.2013. The management as well as the

contractor filed their written statement, which were followed

by rejoinder. Thereafter, the matter is listed for 03.10.2013

for evidence of the parties.

4. During pendancy of the aforesaid dispute for

adjudication, the appropriate Government referred the

present dispute, vide order No. L-11 012/6/2013-IR(M),

New Delhi dated 09.10.2013 with following terms:

"Whether the action of the management of M/s. ICS

System Pvt. Ltd. in terminating the service of Shri

Abhishek Wilson, ex-Supervisor with effect from

10.05.2012 is legal and justified? What relief the

workman is entitled to and from which date?"

5. It would not be out of place to mention that the

name of Shri Abhishek Wilson finds place at serial No. 2 of

the list annexed by the appropriate Government alongwith

industrial dispute, registered as ID No. 23/2013. Thus, it

emerges that during pendancy of ID No. 23/2013, present

dispute has been referred for adjudication on the same

proposition, which would be adjudicated in ID No. 23/2013.

6. I have heard Shri Raju Gupta, authorised

representative of M/s. ICS Systems Pvt. Ltd., besides

perusal of record of the aforesaid Industrial dispute. I have

given my careful considerations to the arguments advanced

at the bar and cautiously perused the record. My findings

on issues involved in the controversy are as follows:-

7. Powers of the appropriate Government, to make

reference of an industrial dispute, were considered by the

Apex Court in Secretary, India Tea Association [2000 (2)

LLN 25] and summarized as follows:

“1. The appropriate Government would not be

justified in making a reference under Section 10 of

the Act without satisfying itself on the facts and

circumstances brought, to its notice that an industrial

dispute exists or apprehended and if such a reference

is made it is desirable wherever possible, for the

government to indicate the nature of dispute in the

order or reference;

2. The order of the appropriate Government making a

reference under Section 10 of the Act is an administrative

order and not a judicial or quash-judicial one and the Court,

therefore, cannot canvass the order of the reference closely

to see if there was any material before the Government to

support its conclusion, as if it was a judicial or quail-judicial

order;

3. An order made by the appropriate government

under Section 10 of the Act being an administrative order

no lis is involved, as such an order is made on the subjective

satisfaction of the Government;

4. If it appears from the reasons given that the

appropriate Government took into account any

consideration irrelevant or foreign material, the Court may

in a given case consider the case for a writ of mandamus

and;

5. It would, however, be open to party to show that

what was referred by the Government was not an industrial

dispute within the meaning of the Act."

8. Appropriate Government has no power, either

express or implied, to cancel or withdraw a reference after it

has made order of reference. Order cancelling or

withdrawing or superseding the reference would therefore

be incompetent and invalid and would be liable to be struck

down being ultra vires the powers of the appropriate

Government under Industrial Disputes Act, 1947, (in short

the Act) ruled the Apex Court in D.N. Ganguly [1958 (2)

LLJ 634]. However, the appropriate Government under

section 10 of the Act, has powers to add to or amplify the

matter already referred for adjudication. It has no power to

supersede the old reference in such a way as to effect

withdrawal of the reference validly made. Any amendment,

addition or modification which the Government can make

subsequent to the order of reference cannot go to the

length of superseding or withdrawing the original reference.

Though Government has power to rectify or correct

previous order of reference, under the guise of amending

or correcting the previous order of reference, order of

amendment or corrigendum tantamounting to suppression

of the previous order of reference, cannot be allowed to be

1332

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

made because such order would be ultra vires the powers

of the Government.

9. The appropriate Government can amend the

reference by way of addition or modification so long as

amendment does not have the effect of withdrawing or

superseding the reference already made. Cardinal principle

in determination of the question as to whether amendment

amounts to correction of clerical error or entertaining of

fresh material, is whether the relief claimed by the aggrieved

party in the original notification can be granted in the

proceedings which are to take place in pursuance of the

amended notification. Though the Government has

inherent powers to correct apparent errors in its reference

order, yet that does not mean that the Government has

power to review or articulate its earlier order of reference.

Reference can be made to the precedent in Modern Foundry

and Machine Systems Ltd. (1999 LLJ 1137).

10.In the light of legal principles, referred above, it

would be taken note of as to whether the present reference

order amounts to withdrawal of the reference order relating

to the dispute concerning the present claim. As pointed

out above, reference order, which has been registered as

I.D.No.23/2013, requires this Tribunal to adjudicate as to

whether action of the management of ICS Systems Pvt.

Ltd. New Delhi, in dismissing the claimant (whose name is

there at serial No. 2 of the list of 36 workmen sent alongwith

the reference order) from service with effect from 10.05.2012

without holding any disciplinary proceedings and further

in violation of Section 33(1)(b) of the Act is legal and

justified. Thus, it is evident that in the earlier reference

order, this Tribunal is supposed to adjudicate as to whether

dismissal of the claimant by the Contractor without holding

an enquiry and in violation of provisions of section 33(1)(b)

of the Act is legal and justified. Question, so raised,

encompasses the legality and justifiability of the dismissal

order, alongwith question as to whether such action is

violative of the provisions of section 33(1 )(b) of the Act.

11. In the reference order, under consideration, same

question has been projected by the appropriate

Government. Thus, it emerges that as far as present claim

is concerned, the appropriate Government attempts to

withdraw the earlier reference order and to substitute it

with the present reference order. It is not an act of amending

any clerical omission or adding some other question, which

was not earlier referred for adjudication. During pendancy

of the dispute, the appropriate Government has no power

to withdraw it from adjudication and to issue fresh reference

order on the very terms which were under. consideration

with the Tribunal. Thus, it is evident that the subsequent

reference is ultra vires of the powers of the appropriate

Government.

12. In view of the above discussion, it is concluded

that appropriate Government was not competent to make

this reference order during pendancy of the industrial

dispute registered as I.D. No. 23/2013. The reference order

is, therefore, discarded, since it cannot grant jurisdiction

to this Tribunal to adjudicate it. The Tribunal is seized of

I.D. No. 23/2013, which would be adjudicated in due course.

An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

Dated : December 12, 2013

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

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fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky; 1]

fnYyh ds iapkV (lanHkZ la[;k 142@2014) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&11012@9@2013&vkbZvkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O.

482.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No.142/2013)

of the Central Government Industrial Tribunal/Labour Court

No.1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of M/s. Delhi International Airport Ltd, New

Delhi and their workman, which was received by the Central

Government on 20/1/2014.

[No. L-11012/9/2013-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.I, KARKARDOOMA COURTS COMPLEX, DELHI

I.D. No. 142/2013

Shri Manish Sharma,

S/o Shri Ved Prakash Sharma,

H-329, Raj Nagar, Palam Colony,

Gali No. 6,

New Delhi-110045

...Workman

Versus

M/s. Delhi International Airport Ltd.,

New Udan Bhawan, Terminal-III,

IGI Airport, New Delhi - 110037

M/s. ICS System Pvt. Ltd.,

B-371, Third Floor, Meera Bagh,

New Delhi - 110063

...Management

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1333

AWARD

In the year 2008, Airport Authority of India entered

into an agreement for operation, management and

development of Indira Gandhi International Airport, New

Delhi with M/s Delhi International Airport Ltd.(in short

the management). On the strength of the agreement,

referred above, job of operation of passenger boarding

bridges( in short PBB) at Indira Gandhi International

Airport and domestic airport came within the purview of

the management. The management engaged M/s ICS

System Ltd. (in short the contractor) for operation and

maintenance of PBB at IGI Airport as well as domestic

airport at New Delhi. The contractor employed 230

workers consisting of clerks, executives and workmen

of various categories. Persons employed by the

contractor formed their union with the name of IGIA

Aerobridge Workers Union (in short the union). When

the contractor came to know about formation of the said

union, it withheld photo identity cards of Shri James

Massey and Shri Praveen Sharma, President and Vice

President respectively of the union, with a view to

coerce and restrain the workers not to organize for the

purpose of collective bargaining. A complaint was made

to the Conciliation Officer on 02.12.2011 against the said

unfair labour practice, who entered into conciliation

proceedings.

2. On 12.02.2012, an official of the management

misbehaved with the Vice President and two other active

workers of the union. It resulted into an altercation. The

management initiated action and did not allow the

workers to enter the premises of the Airport. The union

served strike notice on 14.03.2012. Again conciliation

proceedings were initiated, which failed on 30.03.2012.

Workers participated in the strike on 12.04.2012 and as

such the contractor dismissed 36 workmen from service.

The union raised an industrial dispute in that regard. On

failure of conciliation proceedings, the appropriate

Government referred the dispute to this Tribunal for

adjudication, vide order No. L-11 011/7/2012-IR(M), New

Delhi dated 30.01.2013, with following terms :

"Whether the action of the management of M/s ICS

Systems Pvt. Ltd.; New Delhi in dismissing 36 workmen

(list enclosed) from service with effect from 10.05.2012

without holding any disciplinary proceedings and

further in violation of section 33(1)(b) of the Industrial

Disputes Act, 1947 is legal and justified? If not, what

relief the said workmen are entitled to?"

3. Industrial dispute, referred above, has been

registered as ID No.23/2013 and claimant union filed its

claim statement on 13.03.2013. The management as well

as the contractor filed their written statement, which

were followed by rejoinder. Thereafter, the matter is listed

for 03.10.2013 for evidence of the parties.

4. During pendancy of the aforesaid dispute for

adjudication, the appropriate Government referred the

present dispute, vide order No. L-11 012/9/2013-IR(M),

New Delhi dated 09.10.2013 with following terms:

"Whether the action of the management of M/s

ICS System Pvt. Ltd. in terminating the service of

Shri Manish Sharma, ex-Supervisor with effect from

10.05.2012 is legal and justified? What relief the

workman is entitled to and from which date?"

5. It would not be out of place to mention that the

name of Shri Manish Sharma finds place at serial No. 6 of

the list annexed by the appropriate Government

alongwith industrial dispute, registered as ID No. 23/

2013. Thus, it emerges that during pendancy of ID No.

23/2013, present dispute has been referred for

adjudication on the same proposition, which would be

adjudicated in ID No. 23/2013.

6. I have heard Shri Raju Gupta, authorised

representative of M/s ICS Systems Pvt. Ltd., besides

perusal of record of the aforesaid Industrial dispute. I

have given my careful considerations to the arguments

advanced at the bar and cautiously perused the record.

My findings on issues involved in the controversy are

as follows:-

7. Powers of the appropriate Government, to make

reference of an industrial dispute, were considered by

the Apex Court in Secretary, India Tea Association [2000

(2) LLN 25] and summarized as follows:

“1. The appropriate Government would not be

justified in making a reference under Section

10 of the Act without satisfying itself on the

facts and circumstances brought, to its

notice that an industrial dispute exists or

apprehended and if such a reference is made

it is desirable wherever possible, for the

government to indicate the nature of dispute

in the order or reference;

2. The order of the appropriate Government

making a reference under Section 10 of the

Act is an administrative order and not a

judicial or quash-judicial one and the Court,

therefore, cannot canvass the order of the

reference closely to see if there was any

material before the Government to support

its conclusion, as if it was a judicial or quail-

judicial order;

3. An order made by the appropriate

government under Section 10 of the Act being

an administrative order no lis is involved, as

such an order is made on the subjective

satisfaction of the Government;

1334

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

4. If it appears from the reasons given that the

appropriate Government took into account any

consideration irrelevant or foreign material, the

Court may in a given case consider the case

for a writ of mandamus and;

5. It would, however, be open to party to show

that what was referred by the Government was

not an industrial dispute within the meaning

of the Act."

8. Appropriate Government has no power, either

express or implied, to cancel or withdraw a reference after it

has made order of reference. Order cancelling or

withdrawing or superseding the reference would therefore

be incompetent and invalid and would be liable to be struck

down being ultra vires the powers of the appropriate

Government under Industrial Disputes Act, 1947, (in short

the Act) ruled the Apex Court in D.N. Ganguly [1958 (2)

LLJ 634]. However, the appropriate Government under

section 10 of the Act, has powers to add to or amplify the

matter already referred for adjudication. It has no power to

supersede the old reference in such a way as to effect

withdrawal of the reference validly made. Any amendment,

addition or modification which the Government can make

subsequent to the order of reference cannot go to the

length of superseding or withdrawing the original reference.

Though Government has power to rectify or correct

previous order of reference, under the guise of amending

or correcting the previous order of reference, order of

amendment or corrigendum tantamounting to suppression

of the previous order of reference, cannot be allowed to be

made because such order would be ultravires the powers

of the Government.

9. The appropriate Government can amend the

reference by way of addition or modification so long as

amendment does not have the effect of withdrawing or

superseding the reference already made. Cardinal principle

in determination of the question as to whether amendment

amounts to correction of clerical error or entertaining of

fresh material, is whether the relief claimed by the aggrieved

party in the original notification can be granted in the

proceedings which are to take place in pursuance of the

amended notification. Though the Government has

inherent powers to correct apparent errors in its reference

order, yet that does not mean that the Government has

power to review or articulate its earlier order of reference.

Reference can be made to the precedent in Modern Foundry

and Machine Systems Ltd. (1999 LLJ 1137).

10.In the light of legal principles, referred above, it

would be taken note of as to whether the present reference

order amounts to withdrawal of the reference order relating

to the dispute concerning the present claim. As pointed

out above, reference order, which has been registered as

I.D. No. 23/2013, requires this Tribunal to adjudicate as to

whether action of the management of ICS Systems Pvt.

Ltd. New Delhi, in dismissing the claimant (whose name is

there at serial No. 6 of the list of 36 workmen sent alongwith

the reference order) from service with effect from 10.05.2012

without holding any disciplinary proceedings and further

in violation of Section 33(1 )(b) of the Act is legal and

justified. Thus, it is evident that in the earlier reference

order, this Tribunal is supposed to adjudicate as to whether

dismissal of the claimant by the Contractor without holding

an enquiry and in violation of provisions of section 33(1)(b)

of the Act is legal and justified. Question, so raised,

encompasses the legality and justifiability of the dismissal

order, alongwith question as to whether such action is

violative of the provisions of section 33(1)(b) of the Act.

11. In the reference order, under consideration, same

question has been projected by the appropriate

Government. Thus, it emerges that as far as present claim

is concerned, the appropriate Government attempts to

withdraw the earlier reference order and to substitute it

with the present reference order. It is not an act of amending

any clerical omission or adding some other question, which

was not earlier referred for adjudication. During pendancy

of the dispute, the appropriate Government has no power

to withdraw it from adjudication and to issue fresh reference

order on the very terms which were under. consideration

with the Tribunal. Thus, it is evident that the subsequent

reference is ultravires of the powers of the appropriate

Government.

12. In view of the above discussion, it is concluded

that appropriate Government was not competent to make

this reference order during pendancy of the industrial

dispute registered as I.D. No. 23/2013. The reference order

is, therefore, discarded, since it cannot grant jurisdiction

to this Tribunal to adjudicate it. The Tribunal is seized of

I.D. No. 23/2013, which would be adjudicated in due course.

An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

Dated : December 12, 2013

Dr. R.K. YADAV, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 483-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj fnYyh

baVjus'kuy ,vjiksVZ fyfeVsM] ubZ fnYyh ds izca/ra=k ds lac¼

fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd

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

ua- 1] fnYyh ds iapkV (lanHkZ la[;k 141@2014) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&11012@7@2013&vkbZvkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O.

483.—In pursuance of Section 17 of the

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

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1335

Government hereby publishes the award (Ref. No.141/2013)

of the Central Government Industrial Tribunal/Labour Court

No.1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of M/s. Delhi International Airport Ltd., New

Delhi and their workman, which was received by the Central

Government on 20-1-2014.

[No.-L-11012/7/2013-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, KARKARDOOMA COURTS COMPLEX, DELHI

I.D. No.141/2013

Shri James Massey,

C-12/89, Yamuna Vihar,

New Delhi-110053

...Workman

Versus

M/s. Delhi International Airport Ltd.,

New Udan Bhawan, Terminal-III,

IGI Airport, New Delhi - 110037

M/s. ICS System Pvt. Ltd.,

B-371, Third Floor, Meera Bagh,

New Delhi-110063

...Management

AWARD

In the year 2008, Airport Authority of India entered

into an agreement for operation, management and

development of Indira Gandhi International Airport, New

Delhi with M/s. Delhi International Airport Ltd. (in short

the management). On the strength of the agreement,

referred above, job of operation of passenger boarding

bridges( in short PBB) at Indira Gandhi International Airport

and domestic airport came within the purview of the

management. The management engaged M/s ICS System

Ltd. (in short the contractor) for operation and maintenance

of PBB at IGI Airport as well as domestic airport at New

Delhi. The contractor employed 230 workers consisting of

clerks, executives and workmen of various categories.

Persons employed by the contractor formed their union

with the name of IGIA Aerobridge Workers Union (in short

the union). When the contractor came to know about

formation of the said union, it withheld photo identity cards

of Shri James Massey and Shri Praveen Sharma, President

and Vice President respectively of the union, with a view to

coerce and restrain the workers not to organize for the

purpose of collective bargaining. A complaint was made to

the Conciliation Officer on 02.12.2011 against the said unfair

labour practice, who entered into conciliation proceedings.

2. On 12.02.2012, an official of the management

misbehaved with the Vice President and two other active

workers of the union. It resulted into an altercation. The

management initiated action and did not allow the workers

to enter the premises of the Airport. The union served

strike notice on 14.03.2012. Again conciliation proceedings

were initiated, which failed on 30.03.2012. Workers

participated in the strike on 12.04.2012 and as such the

contractor dismissed 36 workmen from service. The union

raised an industrial dispute in that regard. On failure of

conciliation proceedings, the appropriate Government

referred the dispute to this Tribunal for adjudication, vide

order No. L-11011/7/2012-IR(M), New Delhi dated

30.01.2013, with following terms :

"Whether the action of the management of M/s ICS

Systems Pvt. Ltd., New Delhi in dismissing 36

workmen (list enclosed) from service with effect from

10.05.2012 without holding any disciplinary

proceedings and further in violation of section

33(1)(b) of the Industrial Disputes Act, 1947 is legal

and justified? If not, what relief the said workmen are

entitled to?"

3. Industrial dispute, referred above, has been

registered as ID No. 23/2013 and claimant union filed its

claim statement on 13.03.2013. The management as well as

the contractor filed their written statement, which were

followed by rejoinder. Thereafter, the matter is listed for

03.10.2013 for evidence of the parties.

4. During pendancy of the aforesaid dispute for

adjudication, the appropriate Government referred the

present dispute, vide order No. L-11 012/7/2013-IR(M), New

Delhi dated 09.10.2013 with following terms:

"Whether the action of the management of M/s ICS

System Pvt. Ltd. in terminating the service of Shri

James Massey S/o Shri Umar Massey, ex-Operator

with effect from 10.05.2012 or transferring him to

Mumbai is just, fair and legal? If not, what relief will

be given to the workman and from which date?"

5. It would not be out of place to mention that the

name of Shri James Massey finds place at serial No. 1 of

the list annexed by the appropriate Government alongwith

industrial dispute, registered as ID No. 23/2013. Thus, it

emerges that during pendancy of ID No. 23/2013, present

dispute has been referred for adjudication on the same

proposition, which would be adjudicated in ID No.

23/2013.

6. I have heard Shri Raju Gupta, authorised

representative of M/s ICS Systems Pvt. Ltd., besides perusal

of record of the aforesaid Industrial Dispute. I have given

my careful considerations to the arguments advanced at

the bar and cautiously perused the record. My findings on

issues involved in the controversy are as follows:-

7. Powers of the appropriate Government, to make

reference of an industrial dispute, were considered by the

Apex Court in Secretary, India Tea Association [2000 (2)

LLN 25] and summarized as follows:

1336

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

“1. The appropriate Government would not be

justified in making a reference under Section

10 of the Act without satisfying itself on the

facts and circumstances brought, to its notice

that an industrial dispute exists or apprehended

and if such a reference is made it is desirable

wherever possible, for the government to

indicate the nature of dispute in the order or

reference;

2. The order of the appropriate Government

making a reference under Section 10 of the Act

is an administrative order and not a judicial or

quash-judicial one and the Court, therefore,

cannot canvass the order of the reference

closely to see if there was any material before

the Government to support its conclusion, as

if it was a judicial or quail-judicial order;

3. An order made by the appropriate government

under Section 10 of the Act being an

administrative order no list is involved, as such

an order is made on the subjective satisfaction

of the Government;

4. If it appears from the reasons given that the

appropriate Government took into account any

consideration irrelevant or foreign material, the

Court may in a given case consider the case

for a writ of rnandamus and;

5. It would, however, be open to party to show

that what was referred by the Government was

not an industrial dispute within the meaning

of the Act."

8. Appropriate Government has no power, either

express or implied, to cancel or withdraw a reference after it

has made order of reference. Order cancelling or

withdrawing or superseding the reference would therefore

be incompetent and invalid and would be liable to be struck

down being ultra vires the powers of the appropriate

Government under Industrial Disputes Act, 1947, (in short

the Act) ruled the Apex Court in D.N. Ganguly [1958 (2)

LLJ 634]. However, the appropriate Government under

Section 10 of the Act, has powers to add to or amplify the

matter already referred for adjudication. It has no power to

supersede the old reference in such a way as to effect

withdrawal of the reference validly made. Any amendment,

addition or modification which the Government can make

subsequent to the order of reference cannot go to the

length of superseding or withdrawing the original reference.

Though Government has power to rectify or correct

previous order of reference, under the guise of amending

or correcting the previous order of reference, order of

amendment or corrigendum tantamounting to suppression

of the previous order of reference, cannot be allowed to be

made because such order would be ultra vires the powers

of the Government.

9. The appropriate Government can amend the

reference by way of addition or modification so long as

amendment does not have the effect of withdrawing or

superseding the reference already made. Cardinal principle

in determination of the question as to whether amendment

amounts to correction of clerical error or entertaining of

fresh material, is whether the relief claimed by the aggrieved

party in the original notification can be granted in the

proceedings which are to take place in pursuance of the

amended notification. Though the Government has

inherent powers to correct apparent errors in its reference

order, yet that does not mean that the Government has

power to review or articulate its earlier order of reference.

Reference can be made to the precedent in Modern Foundry

and Machine Systems Ltd. (1999 LLJ 1137).

10. In the light of legal principles, referred above, it

would be taken note of as to whether the present reference

order amounts to withdrawal of the reference order relating

to the dispute concerning the present claim. As pointed

out above, reference order, which has been registered as

I.D. No. 23/2013, requires this Tribunal to adjudicate as to

whether action of the management of ICS Systems Pvt.

Ltd., New Delhi, in dismissing the claimant (whose name is

there at serial No. 1 of the list of 36 workmen sent alongwith

the reference order) from service with effect from 10.05.2012

without holding any disciplinary proceedings and further

in violation of Section 33(1)(b) of the Act is legal and

justified. Thus, it is evident that in the earlier reference

order, this Tribunal is supposed to adjudicate as to whether

dismissal of the claimant by the Contractor without holding

an enquiry and in violation of provisions of Section 33(1)(b)

of the Act is legal and justified. Question, so raised,

encompasses the legality and justifiability of the dismissal

order, alongwith question as to whether such action is

violative of the provisions of Section 33(1)(b) of the Act.

11. In the reference order, under consideration, same

question has been projected by the appropriate

Government. Thus, it emerges that as far as present claim

is concerned, the appropriate Government attempts to

withdraw the earlier reference order and to substitute it

with the present reference order. It is not an act of amending

any clerical omission or adding some other question, which

was not earlier referred for adjudication. During pendancy

of the dispute, the appropriate Government has no power

to withdraw it from adjudication and to issue fresh reference

order on the very terms which were under. consideration

with the Tribunal. Thus, it is evident that the subsequent

reference is ultra vires of the powers of the appropriate

Government.

12. In view of the above discussion, it is concluded

that appropriate Government was not competent to make

this reference order during pendancy of the industrial

dispute registered as I.D. No. 23/2013. The reference order

is, therefore, discarded, since it cannot grant jurisdiction

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1337

to this Tribunal to adjudicate it. The Tribunal is seized of

I.D. No. 23/2013, which would be adjudicated in due course.

An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

Dated : December 12, 2013

Dr. R.K. YADAV, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 484-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj vksfj,.Vy

bU'kqjsUl daiuh fyfeVsM] ubZ fnYyh ds izca/ra=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky; 1] fnYyh ds

iapkV (lanHkZ la[;k 30@2012) dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y&17012@1@2011&vkbZ vkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 484.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 30/2012)

of the Central Government Industrial Tribunal/Labour Court

No.1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of Oriental Insurance Co. Ltd., New Delhi and

their workman, which was received by the Central

Government on 20/1/2014.

[No. L-17012/1/2011-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE DR. R K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 30/2012

Shri Ajay Kumar Meena

S/o Sh.Raj Kumar Meena

R/o L-1/221B, DDA Flats,

Kalkaji, New Delhi-19.

...Workman

Versus

The Senior Divisional Manager,

Oriental Insurance Co. Ltd.,

IXth Floor, Jeevan Bharti Building,

Cannaught Place,

New Delhi-01.

...Management

AWARD

Two vacancies in the cadre of Assistant (Typist),

reserved for S.T. Category, were notified by the Oriental

Insurance Company Ltd. (in short the Insurance Co.) to

clear backlog as on 31.03.1995. A requisition along with a

notification in that regard was sent by Insurance Co. to the

employment officer and S.C./S.T. Association, Punchquyan

Road, New Delhi, requesting them to sponsor names of

eligible candidates for the posts. The General Secretary of

Delhi S.C. Welfare Association had sent a list of fifty eight

eligible candidates, which included name of the claimant.

Call letters dated 21.8.1995 were issued by the Insurance

Co. to eligible candidates to take written test for the

aforesaid post. The claimant appeared for written test and

filled up and submitted an application form, claiming himself

to be a member of S.T. category. When he qualified the

written test, he was called for type test. Lastly he was

called for interview and an appointment letter dated 4.1.1996

was issued by the Insurance Co. in his favour.

2. One Chandeshwar Prasad filed writ petition CWP

No. 5976/2003 before High Court of Delhi, seeking

directions to CBI to examine cases of persons who had

secured employment against S.T. category in the period

from 1996 to 2000. The High Court issued direction 12.1.2005

and in pursuance of the said order verification was

conducted by the CBI in respect of case of the claimant. It

came to light that the claimant, in criminal conspiracy with

other unknown person, has secured his employment on

the basis of a forged/fake S.T. certificate dated 24.7.89,

purported to have been issued from the office of the

Tehsildar, Jaipur, Rajasthan. It also came to light that the

claimant was born in Delhi and never lived outside Delhi.

He was not a member of Meena community, a tribe covered

under S.T. in the State of Rajasthan.

3. The Insurance Co. served charge sheet dated

13.6.2006 on the claimant. An enquiry was conducted. The

Enquiry Officer submitted his report to the Disciplinary

Authority. In consideration of report of the Enquiry Officer,

the Disciplinary Authority awarded penalty of dismissal

from service to the claimant, vide his order dated 12.6.2008.

Appeal preferred also came to be dismissed on 12.11.2008.

The claimant raised a dispute before the Conciliation

Officer. Since his claim was contested by the Insurance

Co., conciliation proceedings ended into a failure. On

consideration of failure report, submitted by Conciliation

Officer, the appropriate Govt. referred the dispute to this

Tribunal for adjudication, vide order No. L-17012/1/2011-

IR(M) New Delhi dated 16.1.12 with following terms:

“Whether the action of the management of Oriental

Insurance Company Limited, New Delhi, in

terminating the services of Shri Ajay Kumar Meena,

Ex-Assistant Typist w.e.f. 12.6.2008, is legal and

justified? What relief the workman is entitled to?”

4. Claim statement was filed by the claimant pleading

that he applied for the post of Assistant (Typist) vide his

application dated 2.9.95 against vacancies reserved for S.T.

candidates. He belongs to Meena community by birth,

1338

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

which community is covered under S.T. category. His

forefathers also belong to Meena community. He was

appointed on the aforesaid post by the Insurance Co. A

caste certificate was issued in his favour by Tehsildar, Jaipur,

Rajasthan. lnadvatently facts relating to issuance of that

certificate were not entered into the records of Tehsildar

Jaipur, by the officials working in the said office. He cannot

be held accountable for their lapses.

5. The claimant pleads that in his school record his

caste is written as Meena. Rashtriya Soshit Parishad,

Connaught Place, New Delhi, also issued a certificate in

that regard which projects that he is Meena by community.

Adarsh Adibasi Meena Samaj, Shastri Nagar, Delhi, had

also issued a caste certificate projecting his caste as Meena.

On 30.8.2008 Tehsildar, Gangapur City, Rajasthan, had also

issued a social status certificate projecting his caste as

Meena. All these documents bring it over the record that

he belongs to Meena community, which is covered under

S.T. in the State of Rajasthan.

6. He claims that since he belongs to Meena

community, charge sheet served upon him was not proper

and legal. The enquiry was not conducted in consonance

with the principles of natural justice. He was not given an

opportunity to defend himself. The report of the Enquiry

Officer is perverse. Punishment of dismissal, awarded to

him, is not maintainable at all. Order of the Appellate

Authority is also not justified. He had been victimized. He

claims that order of the Disciplinary Authority, passed on

12.6.2008, and the Appellate Authority, passed on

12.11.2008, may be set aside and he may be reinstated in

service with continuity and full back wages.

7. Claim was demurred by the Insurance Co. pleading

that the claimant had secured appointment to a post of

Assistant (Typist) on the basis of a forged social status

certificate. He used a certificate purported to have been

issued on 24.7.1989 by Tehsildar, Jaipur, Rajasthan, wherein

his caste has been shown as Meena. He had been shown

as resident of 108, Sodala, Ajmer Road, Jaipur, in the said

certificate. On the other hand caste certificate dated

30.8.2008, issued by Tehsildar, Ganganagar City, District

Savai Madhopur, Rajasthan, projects him to be resident of

Ganganagar City, District Savai Madhopur, Rajasthan.

These addresses bring it over the record that he had

obtained these certificates in malafide manner. For the

offence committed by the claimant, CBI had registered a

case. During the course of investigation CBI had seized

the original documents pertaining to this case.

8. Charge sheet dated 13.6.08, served on the claimant,

is legal and proper. The enquiry conducted was in

consonance with the principles of natural justice. Caste

certificate dated 24.07.1989, on the basis of which he

obtained job with the Insurance Co., was found to be fake.

The Enquiry Officer submitted his report to the Disciplinary

Authority. Punishment of dismissal from service was

awarded to him, which commensurate to his misconduct.

His appeal also came to be dismissed. Caste certificate

dated 30.08.2008 was not produced by the claimant before

the Insurance Co. till the date of his dismissal. The action

of the Insurance Co. is legal and justified. Claim preferred

merits dismissal, pleads the Insurance Co.

9. On perusal of pleadings following issues were

settled:

(i) Whether the enquiry conducted by the

management is just, fair and proper?

(ii) Whether punishment of dismissal awarded

to the claimant commensurate to his

misconduct?

(iii) As in terms of reference.

10. Issue No.1 was treated as preliminary issue.

11. Claimant examined himself to discharge onus

resting on him. The Insurance Co. opted not to examine

any witness to discharge its onus of on the preliminary

issue.

12. On hearing the parties, preliminary issue was

answered in favour of the claimant and against the

Insurance Co., vide order dated 3.9.2012.

13. To prove misconduct of the claimant, the

Insurance Co. examined Shri Satyanarayan Meena and

Shri N.K.Sahani. In rebuttal to the above evidence the

claimant again entered the witness box. No other witness

was examined by either of the parties.

14. Arguments were heard at bar. Shri H. K.

Chaturvedi, authorized representative, advanced arguments

on behalf of the claimant. Shri Rahul Ranjan Verma,

authorized representative, raised submissions on behalf of

the Insurance Co. I have given my careful considerations

to the arguments advanced at the bar and cautiously

perused the record. My findings on issues involved in the

controversy are as follows:

Issue No. 2

15. In order to assess quantum of punishment

awarded to the claimant, it is expedient to ascertain as to

whether the Insurance Co. has been able to prove

misconduct of the claimant. For an answer to the proposition

facts unfolded by Shri Satyanarayan Meena, Shri

N.K.Sahani and the claimant are to be scanned. Shri

Satyanarayan Meena unfolds that on 20.9.2005 Regional

Office Jaipur, Oriental Insurance Co. Ltd., directed him to

conduct an enquiry in respect of social status certificate,

submitted by the claimant to obtain appointment on the

post of Assistant. He proves copy of that communication

as Ex. MW1/1. He declares that he wrote letter to Tehsildar,

Jaipur, on 28.9.2005, copy of which letter is Ex. MW1/2. He

had annexed photocopy of social status certificate dated

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1339

24.7.89 along with the said letter, which is Ex. MW1/3. He

personally visited Tehsildar, Jaipur, and on examination of

records Tehsildar gave a report which is Ex. MW1/4. He

prepared his report on the basis of above documents, which

is Ex. MW1/5.

16. Shri N.K.Sahani tendered certified copy of the

charge sheet submitted by the CBI against the claimant,

besides list of witnesses and documents and proved the

same as Ex. MW2/1 to Ex. MW2/3. Copy of charge sheet

Ex. MW2/1 highlights that on investigation CBI found

social status certificate dated 24.7.89 to be forged. CBI also

noted that residential address as of 108, Sodala, Ajmer Road,

Jaipur, which has been mentioned in social status certificate

dated 24.7.89, was non-existent. CBI also reached a

conclusion that father of the claimant was never a resident

of Village Nandoti, Near Gangapur City, District Savai

Madhopur, Rajasthan. His father never resided at Adarsh

Nagar, near FCI Godown, Ward No.33, Gangapur City,

Rajasthan. Social status certificate was issued by Tehsildar

Gangapur City on the report of area patwari and Nagar

Palika Ward Councilor, Gangapur City, which report was

submitted without physical verification of facts. The

claimant and his father do not belong to Meena community.

17. In his affidavit Ex. WW1/B claimant reiterates

those very facts, which were pleaded by him in his claim

statement. He asserts that he is Meena by caste. According

to him various documents testify his claim in that regard.

However during course of his cross examination he admits

that he moved an application for job with the Insurance

Co. reserved for S.T. candidates, which application was

supported by certificate Ex. MW1/3. He projects that

certificate Ex. MW1/4 was annexed by him with his appeal.

However he concede that it was not annexed by him

alongwith the application moved for the job. He concedes

that a criminal case pends trial against him before Special

Judge CBI.

18. When facts unfolded by Shri Satyanaryan Meena

are appreciated it emerge over the record that Shri Meena

approached Tehsildar, Jaipur, to verify as to whether

certificate Ex. MW1/3 was issued by his office. lt was

reported that the said certificate was not issued by the

office of Tehsildar, Jaipur, Rajasthan. Communication Ex.

MW1/4 was issued by the office of Tehsildar, Jaipur,

Rajasthan declaring therein that Ex. MW1/3 was not issued

by that office. Shri Satanaryan Meena makes it clear that

he met Tehsildar, Jaipur, 2-3 times in connection with

verification of facts. Therefore out of facts projected by

Shri Meena it came to light that social status certificate,

purported to have been issued on 24.7.89, was fake. In his

testimony dated 3.9.12 the claimant concedes that as per

Tehsildar, Jaipur, Rajasthan, social status certificate

submitted by him to the Insurance Co. was fake.

19. There is no denial from the side of the claimant

that CBI submitted a charge sheet against him before the

CMM, Tis Hazari Courts, Delhi, copy of which charge sheet

is Ex. MW2/1. When contents of this charge sheet are

perused it came to light that on investigation CBI concluded

that social status certificate dated 24.7.89, purported to

have been issued by Tehsildar, Jaipur, Rajasthan, was fake.

Admittedly Ex. MW1/3 was submitted by the claimant in

support of his application for the post of Assistant (Typist)

reserved for S.T. category, notified by the Insurance Co.

The facts detailed above bring it to the light that the claimant

claimed his eligibility for appointment to the post of

Assistant (Typist) reserved for S.T. community, on the

strength of social status certificate dated 24.7.89. At the

post of repetition it is said that the said certificate was fake.

Resultantly it is clear that the claimant secured appointment

to the post on the basis of a fake certificate.

20. A hue and cry has been made by the claimant to

the effect that factum of issuance of certificate Ex. MW1/3

was not recorded by office of Tehsildar, Jaipur, in its record,

due to inadvertence. He claims that he belongs to Meena

community and certificates Ex. MW1/10 to Ex. MW1/12,

besides Ex. MW1/4 establish that fact. In order to ascertain

veracity of his claim record has been scanned. Application

dated 13.11.95 was moved by the claimant to secure job

with the Insurance Co., copy of which application highlights

that the claimant details his postal address as F-57-A,

Khanpur Colony, New Delhi. It was his permanent address

also. He declares his place of birth as of Delhi, in the said

application. Therefore in his application dated 13.11.95 the

claimant projected himself to be resident of Delhi, where he

was residing since birth. In his application he has not

suffixed his caste either after his name or name of his father.

In coloum No.A-9 of the said application he puts a tick

mark on S.T. community. To highlight state of domicile he

writes Rajasthan. Against home town he also writes

Rajasthan. Therefore in his application claimant projects

to be resident of Delhi and without disclosing name of his

home town he claims to be domicile of state of Rajasthan.

21.Certificate Ex. MW1/3 projects his address as of

108, Sodala, Ajmer Road, Jaipur. This address doesn't find

place in his application dated 13.11.95. On the other hand

CBI found this address to be non existant, which fact

emerges out of charge sheet Ex. MW2/1. These facts gives

an inference that with a view to support his claim of being

a member of S.T. community he projected Rajasthan as his

state of domicile in his application dated 13.11.95. To

support that claim fake certificate Ex. MW1/3 was annexed.

22. The claimant presents that certificate Ex. MW1/4

supports his case to the effect that he belongs to Meena

community. This certificate purports to have been issued

on 30.8.08. It highlights that one Shri Ajay Kumar Meena

resident of Gangapur City, District Savai Madhopur,

Rajasthan, belongs to Meena community, which is covered

under S.T. of Rajasthan state. In Ex. MW1/4 house number.

where Shri Ajay Kumar was residing, has not been

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

mentioned. As charge sheet Ex. MW2/1 highlights this

certificate was obtained on the basis of report of area patwari

and Nagar Palika Ward Councilor, Gangapur City, which

report was submitted without physical verification of facts

by them. Thus this document was also obtained by deceitful

means. Certificates Ex. MW1/10 to Ex. MW1/12 nowhere

project the facts, on the strength of which it were issued.

Further more as per his own admission, in application dated

23.11.95, the claimant was born and bought up in Delhi,

besides the fact that he got his education herein Delhi all

though out. The said application nowhere discloses that

the claimant ever intends to settle in Rajasthan. Thus no

material is available on record to show that the claimant

was domicile of Rajasthan. In such a situation certificates

Ex. MW1/4, Ex. MW1/10 to Ex. MW1/12 nowhere

probablize facts to the effect that the claimant was domicile

of state of Rajasthan.

23. Meena community is not in S.T. category declared

as such by Government of NCT Delhi. A domicile of Delhi,

though he may belong to Meena community, is not S.T.,

covered under that category as notified by state of

Rajasthan. There is other facet of the coin. Charge sheet

Ex. MW2/1 deciares that Rajkumar, father of the claimant,

never resided in village Nandoti, near Gangapur City,

District Savai Madhopur, Rajasthan. He also never resided

at Adarsh Nagar, near FCI Godown, Ward No.33, Gangapur,

Rajasthan, highlights the charge sheet. In school record of

his children, the claimant had not mentioned that his wards

belong to SC/ST category. Admission forms of his children

were filled in by the claimant himself. His wife belongs to

chawla caste. Thus it is crystal clear that the claimant does

not belong to Meena community and above certificates

were procured by him with a view to support his claim.

24. The claimant entered into service of Insurance

Co. on the basis of a fake caste certificate. He obtained

appointment to the post of Assistant reserved for ST

candidates and thus deprived a genuine candidate, falling

in the said category. The claimant obtained benefits of

reservation and played fraud not only on the Insurance

Co., the society but on the constitution of lndia too. His

act constituted a misconduct in terms of Rule 4(4) of the

General Insurance (Conduct, Discipline and Appeals) Rules,

1975. The Insurance Co. has been able to establish that the

claimant committed a serious misconduct when he obtained

job of Assistant (Typist) on the basis of a fake certificate.

25. Punishment of dismissal from service was awarded

to the claimant vide order dated 12.6.2008. Whether this

punishment commensurate to his misconduct? Shri

Chaturvedi presents that the punishment awarded to the

claimant is shockingly disproportionate to his misconduct.

Contra to this, Shri Verma argued that misconduct

committed by the claimant is serious and punishment

commensurate to his misconduct. Therefore out of the facts

submitted by the rival parties it would be ascertained as to

what should be the appropriate punishment, which could

be awarded to the claimant.

26. Right of an employer to inflict punishment of

discharge or dismissal is not unfattered. The punishment

imposed must commensurate with gravity of the

misconduct, proved against the delinquent workman. Prior

to enactment of section 11-A of the Act, it was not open to

the industrial adjudicator to vary the order of punishment

on finding that the order of dismissal was too severe and

not commensurative with the act of misconduct. In other

words, the industrial adjudicator could not interfere with

the punishment as it was not required to consider propriety

or adequacy of punishment or whether it was excessive or

too severe. Apex Court, in this connection, had, however,

laid down in Bengal Bhatdee Coal Company [1963 (I) LLJ

291] that where order of punishment was shockingly

disproportionate with the act of the misconduct which no

reasonable employer would impose in like circumstances,

that itself would lead to the inference of victimization or

unfair labour practice which would vitiate order of dismissal

or discharge. But by enacting the provisions of section

11-A of the Act, the Legislature has transferred the

discretion of the employer, in imposing punishment, to the

industrial adjudicator. It is now the satisfaction of the

industrial adjudicator to finally decide the quantum of

punishment for proved acts of misconduct, in cases of

discharge or dismissal. If the Tribunal is satisfied that the

order of discharge or dismissal is not justified in any

circumstances on the facts of a case, it has the power not

only to set aside order of punishment and direct

reinstatement with back wages, but it has also the power to

impose certain conditions as it may deem fit and also to

give relief to the workman, including award of lesser

punishment in lieu of discharge or dismissal.

27. It is established law that imposing punishment

for a proved act of misconduct is a matter for the punishing

authority to decide and normally it should not be interfered

with by the Industrial Tribunals. The Tribunal is not required

to consider the propriety or adequacy of punishment. But

where the punishment is shockingly disproportionate,

regard being had to the particular conduct and past record,

or is such as no reasonable employer would ever impose in

like circumstance, the Tribunal may treat the imposition of

such punishment as itself showing victimization or unfair

labour practice. Law to this effect was laid by the Apex

Court in Hind Construction and Engineering Company Ltd.

[1965 (I) LLJ 462]. Likewise, in Management of the

Federation of Indian Chambers of Commerce and Industry

[1971 (11) LLJ 630] the Apex Court ruled that the employer

made a mountain out of a mole hill and had blown a trivial

matter into one involving loss of prestige and reputation

and as such punishment of dismissal was held to be

unwarranted. In Ram Kishan [1996 (I) LLJ 982] the

delinquent employee was dismissed from service for using

abusive language against a superior officer. On the facts

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1341

and in the circumstances of the case, the Apex Court held

that the punishment of dismissal was harsh and

disproportionate to the gravity of the charge imputed to

the delinquent. It was ruled therein, "when abusive

language is used by anybody against a superior, it must be

understood in the environment in which that person is

situated and the circumstances surrounding the event that

led to the use of abusive language. No straight-jacket

formula could be evolved in adjudicating whether the

abusive language in the given circumstances would

warrant dismissal from service. Each case has to be

considered on its own facts".

28. In B.M. Patil [1996 (11) LLJ 536], Justice Mohan

Kumar of Karnataka High Court observed that in exercise

of discretion, the Disciplinary Authority should not act

like a robot and justice should be moulded with humanism

and understanding. It has to assess each case on its own

merit and each set of fact should be decided with reference

to the evidence regarding the allegation, which should be

basis of the decision. The past conduct of the worker may

be a ground for assuming that he might have a propensity

to commit the misconduct and to assess the quantum of

punishment to be imposed. In that case a conductor of the

bus was dismissed from service for causing revenue loss

of 50p to the employer by irregular sale of tickets. It was

held that the punishment was too harsh and

disproportionate to the act of misconduct.

29. After insertion of section 11-A of the Act, the

jurisdiction to interfere with the punishment is there with

the Tribunal, who has to see whether punishment imposed

by the employer commensurate with the gravity of the act

of misconduct. If it comes to the conclusion that the

misconduct is proved, it may still hold that the punishment

is not justified because misconduct alleged and proved is

such as it does not warrant punishment of discharge or

dismissal and where necessary, set aside the order of

discharge or dismissal and direct reinstatement with or

without any terms or conditions as it thinks fit or give any

other relief, including the award of lesser punishment, in

lieu of discharge or dismissal, as the circumstance of the

case may warrant. Reference can be made to a precedent in

Sanatak Singh [1984 Lab.I.C.817]. The discretion to award

punishment lesser than the punishment of discharge or

dismissal has to be judiciously exercised and the Tribunal

can interfere only when it is satisfied that the punishment

imposed by the management is highly disproportionate to

the decree of the guilt of the workman. Reference can be

made to the precedent in Kachraji Motiji Parmar [1994 (11)

LLJ 332]. Thus it is evident that the Tribunal has now

jurisdiction and power of substituting its own measure of

punishment in place of the managerial wisdom, once it is

satisfied that the order of discharge or dismissal is not

justified. On facts and in the circumstances of a case, section

11-A of the Act specifically gives two folds powers to the

Industrial Tribunal, first is virtually the power of appeal

against findings of fact made by the Enquiry Officer in his

report with regard to the adequacy of the evidence and the

conclusion on facts and secondly of foremost importance,

is the power of reappraisal of quantum of punishment.

30. In Bharat Heavy Electricals Ltd. [2005 (2) S.C.C.

481] the Apex Court was confronted with the proposition

as to whether power available to the Industrial Tribunal

under section 11-A of the Act are unlimited. The Court

opined that "there is no such thing as unlimited jurisdiction

vested with any judicial or quasi judicial forum and

unfettered discretion is sworn enemy of the constitutional

guarantee against discrimination. An unlimited jurisdiction

leads to unreasonableness. No authority, be it

administrative or judicial, has any power to exercise the

discretion vested in it unless the same is based on justifiable

grounds supported by acceptable materials and reasons

thereof". The Apex Court relied its judgment in C.M.C.

Hospital Employees Union [1987 (4) S.C.C. 691] wherein it

was held that "section 11-A cannot be considered as

conferring an arbitrary power on the Industrial Tribunal or

the Labour Court. The power under section 11-A of the Act

has to be exercised judiciously and the Industrial Tribunal

or Labour Court is expected to interfere with the decision

of a management under section 11-A of the Act only when

it is satisfied that the punishment imposed by the

management is highly disproportionate to the degree of

guilt of the workmen concerned. The Industrial Tribunal or

Labour Court has to give reasons for its decision". In

Hombe Gowda Educational Trust [2006 (1) S.C.C. 430] the

Apex Court announced that the Tribunal would not normally

interfere with the quantum of punishment imposed by the

employer unless an appropriate case is made out therefore.

31. Power to set aside order of discharge or dismissal

and grant relief of reinstatement or lesser punishment is

not untramaled power. This power has to be exercised only

when Tribunal is satisfied that the order of discharge or

dismissal was not justified. This satisfaction of the Tribunal

is objective satisfaction and not subjective one. It involves

application of the mind by the Tribunal to various

circumstances like nature of delinquency committed by

the workman, his past conduct, impact of delinquency on

employer's business, besides length of service rendered

by him. Furthermore, the Tribunal has to consider whether

the decision taken by the employer is just or not. Only after

taking into ccnsideratlon these aspects, the Tribunal can

upset the punishment imposed by the employer. The

quantum of punishment cannot be interfered with without

recording specific findings on points referred above. No

indulgence is to be granted to a person, who is guilty of

grave misconduct like cheating, fraud, misappropriation of

employer's fund, theft of public property etc. A reference

can be made to the precedent in Bhagirath Mal Rainwa

[1995 (I) LLJ 960].

1342

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

32. As noted above the claimant used a fake social

states certificate and obtained appointment to a post

reserved for ST candidate. He did not belong to ST

community. His appointment to the post was no

appointment in the eyes of law. He usurped the post which

should have gone to a member of ST community. His

appointment to the post was vitiated by fraud and illegality.

Such an appointment is void and nonest in the eyes of law.

A person who enters service by producing a fake caste

certificate and obtains appointment to the post reserved

for ST candidate does not deserve any sympathy or

indulgcace of this Tribunal. Fraud is anathema to all

equitable principles and any affair tainted with fraud cannot

be perpetrated or saved by application of any equitable

doctrine. Such proposition of law was laid by the Apex

Court in Madhulika Guruprashad Daikin [2008 (13) SCC

170] and R. Vishwanatha Pillai [2004 (2) SCC 105]. Relying

above legal propositions, I say that the claimant had played

fraud on the Insurance Co. , the society and the constitution.

He did not have any right to the post. In such a situation

punishment of dismissal from service cannot be said be

harsh by any stretch of imagination. Punishment awarded

to him commensurate to his misconduct. Issue is, therefore,

answered in favour of the Insurance Co. and against the

claimant.

Issue No. 3

33. The claimant obtained appointment to the post

of Assistant (Typist) with the Insurance Co. by fraudulent

means, by producing a fake caste certificate. He entered

into service by deceitful means. Parameters for grant of

indulgence for such an employee are different than an

employee whose services are found to have been illegally

terminated. The claimant is not entitled to any relief, much

less the relief of reinstatement in service with continuity.

His claim cannot be entertained at all. Hence the same is

dismissed. An award is, accordingly, passed in favour of

the Insurance Co. and against the claimant. It be sent to

the appropriate Govt. for publication.

Dated : 02-12-2013

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 23rd January , 2014

S.O. 485.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 146/

2002) of the Central Government Industrial Tribunal/Labour

Court, Lucknow now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of ONGC Ltd. and their workmen, which was

received by the Central Goverment on 20-01-2014.

[No. L-30012/18/2002-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT : Dr. MANJU NIGAM, Presiding Officer

I.D. No. 146/2002

Ref. No. L-30012/18/2002-IR (M) dated: 05.08.2002

BETWEEN :

Shri Rajesh Kumar S/o Late Srichand

Village Nathanpur, Post Nehru Gram,

Dehradun

AND

1. The Director (P)

Tel Bhavan,

Dehradun – 248 001

2. The Dy. General Manager (Adm),

ONGC, Tel Bhawan, Dehradun

AWARD

1. By order No. L-30012/18/2002-IR (M) dated:

05.08.2002 and its subsequent corrigendum dated

21.01.2002 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 industrial dispute between Shri Rajesh Kumar S/o Late

Srichand, Village Nathanpur, Post Nehru Gram, Dehradun

and the Director (P), Tel Bhavan, Dehradun & the Dy.

General Manager (Adm), ONGC, Tel Bhawan, Dehradun

for adjudication.

2. The reference under adjudication is:

“Whether the action of ONGC Ltd., management

in terminating the services of Shri Rajesh kumar

Attdt. Gr. III w.e.f. 26.11.2001 is just fair and legal?

If not, for what relief he is entitled to?”

3. It is admitted case of the parties that the workman,

Rajesh Kumar was working as Attendant Grade – III w.e.f.

22.05.1990 and when he remained absent from 01.08.2000

to 05.02.2000 the disciplinary action was taken against

him since he remained absent unauthorizedly on many

occasions previously. The workman was charge sheeted

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1343

vide memorandum dated 22.02.2001 and after considering

his explanation being unsatisfactory the management

decided to hold inquiry into the charges leveled against

the workman. The Inquiry Officer after conducting the

inquiry found the charges to be proved and accordingly

submitted his report to the Disciplinary Authority. The

workman was supplied with the copy of findings of the

Inquiry Officer and was afforded an opportunity to

represent. When no reply was received from the workman,

the Disciplinary Authority imposed the penalty of removal

from service on the workman.

4. It has been alleged by the workman that there

was flagrant denial of natural justice to the workman in

course of the enquiry, in as much as the same was not

impartial and the punishment imposed upon him was

disproportionate to the misconduct committed by him;

therefore, the domestic enquiry is liable to be vitiated and

the action of ONGC in removing the workman from the

service be declared unjust, unfair and illegal and the

workman be reinstated with full back wages and other

consequential benefits.

5. The management of the Bank in its written

statement has denied the allegations of the workman and

has defended its domestic proceedings with submission

that the workman had been afforded all opportunity given

under rules the principles of natural justice were fully

complied with; hence, there is no anomaly with it. Further,

it has also submitted that the workman during inquiry

admitted the charges leveled against him before the Inquiry

Officer, therefore, it cannot be said that the inquiry was

conducted unfairly or the punishment was

disproportionate with respect to the misconduct as the

charge sheet was issued for habitual absence.

Accordingly, the management has prayed that domestic

enquiry proceedings conducted by it may be upheld and

the action of the ONGC, removing the working from

services, be declared just, fair and legal without any benefit

to the workman concerned.

6. After completion of the pleadings of the parties,

following preliminary issues were framed in the presence

of the parties vide order dated 10.02.2009:

(i)

Whether the findings of enquiry officer

is perverse?

(ii)

Whether the enquiry proceedings were

just & fair?

The parties were called upon to adduce their

evidence on preliminary issues. The parties filed

documents in support of their respective case and

adduced oral evidence. The workman examined himself;

whereas the management examined Mrs. Usha Malhotra,

Manager (P&A) in support of their case. The parties

availed opportunity to cross-examine each other’s

witnesses. Both the parties forwarded oral arguments on

preliminary issues.

7. After hearing the parties’ authorized

representatives of the parties and going through entire

material available on record, following orders were passed

on preliminary issues vide order dated 09.10.2007:

“During the course of argument the

representative of worker did not press both the

issues. On the other hand I find that there is no

violation of principle of natural justice in the

departmental enquiry nor there perversity in the

findings of the enquiry officer. Both the issues

are therefore decided against the workman.”

8. The workman was given an opportunity to lead

evidence over his pleading which he denied to avail;

accordingly the case was fixed for oral argument on the

point of quantum of punishment under Section 11 A of the

Industrial Disputes Act, 1947.

9. Heard, parties and perused entire material

available on record.

10. It has been contended by the authorized

representative of the workman that the Labuor Court has

ample power under section 11-A of the I.D. Act to substitute

a lesser punishment, taking into consideration the facts

and circumstances of the case. It was submitted that

principle of proportionality calls for interference of this

Court into the punishment imposed by the management

i.e. of dismissal/removal. It has relied on Joseph Solomon

vs. Presiding Officer, Labour Court, U.P., Dehradun &

another 2012 (134) FLR 424.

11. Per contra, the management has argued that the

Court cannot sit in appeal or it cannot re-appreciate the

evidence relied before Inquiry Officer; in as much as it

cannot alter the order or punishment. It was submitted

that the scope of invoking the powers given under Section

11 A of the Act, by the Labour Court is confined to the

condition that the Court should interfere with the order of

punishment when it is disproportionate with respect to

the misconduct committed or it is so harsh as to shocks

the conscience of the Court . It has further been argued

that in the instant case the workman was given charge

sheet for habitual absence and the workman during the

course of departmental inquiry has admitted this fact

before the Inquiry Officer, therefore, there is no scope for

this Tribunal to interfere with the punishment imposed

upon the workman. It has relied on:

Devendra Swamy vs. Karnataka State Road

Transport Corporation 2002 Supreme Court

Cases (L&S) 1093.

C.E.S.C. Ltd. Vs. Judge, 3^rd Industrial Tribunal

& others and Bank of India vs Vishwa Mohan

(1998) Lab IC 2514.

M. Vijaya Ram vs. P.O., Labour Court &

others1989 (58) F.L.R. 313.

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

The management has further submitted that the

workman being habitual absentee, was given various

warnings earlier but he did not mend his ways accordingly

the domestic inquiry was instituted and was punished for

his misconduct on his admission for the same before

Inquiry Officer. It has also been submitted that

continuation of such an employee may lead to indiscipline

in overall administration.

12. I have given my thoughtful consideration to

the rival contentions of the authorized representatives of

the parties and perused the record and the case laws relied

on by the parties.

13. In the instant case the workman was charge

sheeted with the allegation of habitual unauthorized

absence. The inquiry and its findings were upheld by this

Tribunal vide order dated 09.10.2007, holding that the

disciplinary enquiry was conducted in accordance with

the principles of natural justice that the findings of the

Enquiry Officer were not perverse’. Hence, after decision

of the preliminary issues in the favour of the management,

the workman has pleaded that the punishment imposed

upon him is disproportionate and this Tribunal should

interfere into it within the provisions providing under

Section 11 A of the Industrial Disputes Act, 1947.

14. Hon’ble Apex Court in B.C. Chayurvedi v. Union

of India, (1995) 6 SCC 749 while discussing about the

scope of judicial review, in disciplinary matters, has

observed as under:

“The High Court/Tribunal, while exercising the

power of judicial review, cannot normally

substitute its won conclusion on penalty and

impose some other penalty. If the punishment

imposed by the disciplinary authority or the

appellate authority shocks the conscience of the

High Court/Tribunal, it would appropriately

mould the relief, either directing the disciplinary/

appellate authority to reconsider the penalty

imposed, or to shorten the litigation, it may itself,

in exceptional and rare cases, imposed appropriate

punishment with cogent reasons in support

thereof.”

In DG, RPF vs. Sai Babu (2003) 4 SCC 331, Hon’ble

Apex Court has observed that:

“6…………. Normally, the punishment imposed

by a disciplinary authority should not be

disturbed by the High Court or a tribunal except

in appropriate cases that too only after reaching

a conclusion that the punishment imposed is

grossly or shockingly disproportionate, after

examining all the relevant factors including the

nature of charges proved against, the past

conduct, penalty imposed earlier, the nature of

duties assigned having due regard to their

sensitiveness, exactness expected of an discipline

required to be maintained, and the department/

establishment which the delinquent person

concerned works.”

In United Commercial Bank vs. P.C. Kakkar (2003) 4

SCC 364 Hon’ble Apex Court on review of a long line of

cases and the principles of judicial review of administrative

action under English law summarized the legal position in

the following words:

“11. The common thread running through in all

these decisions is that the court should not

interfere with the administrators’ decision unless

it was illogical or suffers from procedural

impropriety or was shocking to the conscience

of the court, in the sense that it was in defiance

of logic or moral standards. In view of what has

been stated in Wednesbury case the court would

not go into the correctness of the choice made

by the administrator open to him and the court

should not substitute its decision to that of the

administrator. The scope of judicial review is

judicial review is limited to the deficiency in

decision-making process and not the decision.

12. To put it differently, unless the punishment

imposed by the disciplinary authority or the

appellate authority shocks the conscience of the

court/tribunal, there is no scope for interference.

Further, to shorten litigation it may, in exceptional

and rare cases, impose appropriate punishment

by recording cogent reasons in support thereof.”

In Union of India vs. S.S. Ahluwalia (2007) 7 SCC

257 Hon’ble Supreme Court reiterated the legal position

as follows:

“8. ……… The scope of judicial review in the

matter of imposition of penalty as a result of

disciplinary proceedings is very limited. The court

can interfere with the punishment only if it finds

the same to be shockingly disproportionate to

the charges found to be proved.”

In State of Meghalaya v. Mecken Singh N. Marak

(2008) 7 SCC 580 Hon’ble Supreme Court stated that:

“The punishment imposed by the disciplinary

authority or the appellate authority unless

shocking to the conscience of the court, cannot

be subjected to judicial review.

15. Hon’ble Apex Court in Administrator, Union

Territory of Dadra and Nagar Haveli vs. Gulbhia M. Lad

(2010) 2 SCC (L&S) 101 has observed that :

“The legal position is fairly well settled that while

exercising the power of judicial review, the High

Court or a Tribunal cannot interfere with the

discretion exercised by the disciplinary authority,

and/or on appeal the appellate authority with

regard to the imposition of punishment unless

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1345

such discretion suffers from illegality or material

procedural irregularity or that would shock the

conscience of the court/tribunal. The exercise of

discretion in imposition of punishment by the

disciplinary authority or appellate authority is

dependent on host of factors such as gravity of

misconduct, past conduct, the nature of duties

assigned to the delinquent, responsibility of the

position that the delinquent holds, previous

penalty, if any, and the discipline required to be

maintained in the department or establishment

he works. Ordinarily the court or the tribunal

would not substitute its opinion on reappraisal

of facts.

16. In the instant case the workman, was charge

sheeted with the allegations that he was regular habitual

absentee from the duty. There is a series of memorandum

dated 13.12.94, 03.07.96, 14.08.96, 13.11.96, 28.11.96,

18.02.98, 04.08.98, 18.09.98, 01.12.98, 04.08.99, 18.05.99,

08.10.99, 01.12.99, 23.12.99, 14.08.2000, 04.09.2000,

03.10.2000, 25.10.2000, 20.11.2000, which goes to show that

the workman remained absent from duty or station without

leave and prior permission or sanction of his controlling

officer or Competent Authority, for which he had been

warned and explanation had been called from him. During

domestic Inquiry the workman admitted the allegations

before the Inquiry Officer. There as specific remark with

this respect from the Inquiry Officer in his inquiry report;

wherein he has mentioned that “Charge Employee pleaded

guilty and admitted both the charges during preliminary

hearing”. Even after admission of the workman the Inquiry

Officer provided him an opportunity to lead evidence in

defence and thereafter, forwarded his findings to the

Disciplinary Authority as charges to be proved. Hon’ble

Andhra Pradesh High Court in H.K Reddy vs. Central Bank

of India, Hyederabad & another 2002 (93) FLR 245 has

observed as under:

“A delinquent employee should not ordinarily

be, having regard to the scope and ambit of a

domestic enquiry permitted to resile from his

earlier stand. An admission by a party to the

proceedings is binding on him proprio vigore.

He at a subsequent stage should not be permitted

to resile, therefrom or explain away the same.

Accordingly, on receipt of the inquiry report, the

Disciplinary Authority passed the order of removal from

the services. Hon’ble Andhra Pradesh High Court in M.

Vijaya Ram vs. P.O., Labour Court and others 1989 (58)

FLR 313 upheld the order of termination for habitual

absence from duty even after several warning being given

for absence but with no result.

Here too there is ample evidence on record to show

that the workman had been in a habit to remain absent

without any proper application or prior permission of the

Competent Authority, which is highly objectionable, from

administration point of view. The management has

adduced number of documentary evidence, as detailed

hereinabove, to show that the workman had been issued

too many warnings regarding his unauthorized absence;

and on many occasions the workman assured the

mangemnt to mend his ways and not repeat such

indiscipline in future; but in spite of all those the workman

did not change himself and continued to remain absent

from duties without proper sanctioned leve from the

competent authority. The admission of the workman before

Inquiry Officer also indicates that the workman was really

guilty of unauthorized absence, which led to his removal

after compliance of natural justice in his part. The workman

repeated his admission before this Tribunal during his

evidence in support of preliminary issues. In his cross-

examination he stated that:

“main jaanch karyavaahi main upasthit tha. Yah

kahna sani hai ki jaanch main upasthit ho kar

maine abhiyog patra ke dwara mere upar lagaae

abhiyogon ko maine sweekaar kar liya tha.”

17. Hon’ble Apex Court in (2011) 1 Supreme Court

Cases (L&S) 721 has observed that:

“7. It is now well settled that the courts will not

act as an appellate court and reassess the

evidence led in the domestic enquiry, nor interfere

on the ground that another view is possible on

the material on record. If the inquiry has been

fairly and properly held and the findings are based

on evidence, the question of adequacy of the

evidence or the reliable nature of the evidence

will not be grounds for interfering with the

findings in departmental enquiries. Therefore the

courts will not interfere with findings of fact

recorded in departmental inquiries, except where

such findings are based on no evidence or where

they are clearly perverse. The test to find out

perversity is to see whether a tribunal acting

reasonably could have arrived at such conclusion

or findings, on the material on record. The courts

will however interfere with the findings in

disciplinary matters, if principles of natural justice

or statutory regulations have been violated or if

the order is found to be arbitrary, capricious, mala

fide or based on extraneous considerations.”

18. In the instant case apart from admission of the

workman, the charge of habitual unauthorized absence

was found to be proved and principles of natural justice

were properly observed while conducting the departmental

inquiry; and also the findings of the Inquiry Officer were

not found to be perverse. Therefore, under the facts and

the circumstances and considering the laws, there is no

justification in interfering with the punishment imposed

upon the workman by the Disciplinary Authority for proved

1346

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

gross misconduct of ‘habitual unauthorized absence’.

Accordingly, the workman is not entitled for any relief.

19. Award as above.

Lucknow.

23rd August, 2013.

Dr. MANJU NIGAM, Presiding Officer

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New Delhi, the 23rd January , 2014

S.O. 486.—In pursuance of Section 17 of the

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

Government hereby publishes the award (Ref. No. 13/2000)

of the Central Government Industrial Tribunal/Labour Court

No. 2, Mumbai now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of Mormugao Handling Agents Association,

Goa and their workman, which was received by the Central

Government on 20-01-2014.

[No. L-36011/10/99-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : K.B. KATAKE, B.A. LL.M., Presiding Officer

REFERENCE No. CGIT-2/13 of 2000

Employers in relation to the management of Mormugao

Handling Agents Association

The President,

Mormugao Handling Agents Association,

Pereira Chambers,

Vasco-da-Gama

Goa-403 802.

AND

Their Workmen

1. The General Secretary

Mormugao Waterfront Workers Union

2^nd floor, Mukund Building PO Box No.90

Vasco-da-Gama

Goa-403 802.

2. The General Secretary

Gomantak Mazdoor Sangh

Kamakshi Niwas, Gr. Floor

Khandapa Band

Ponda, Goa.

APPEARANCES :

For the employer

Mr. D. B. Ambekar, Advocate

For the Union No. 1

No appearance.

For the Union No. 2

Mr. P. Gaonkar, Advocate

Camp: Goa, dated the 21^st August, 2013.

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-36011/10/99-IR (M), dated

02.02.2000 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 Handling Agents Association, Goa

in closing their establishment w.e.f. 31/7/1999

without issuing notice and paying retrenchment

compensation to the concerned workmen is legal

and justified? If not, to what relief the concerned

workmen are entitled?”

2. In response to the notice, second party union

no.1 filed their statement of claim at Ex-4 & Ex-19.

According to them the first party Mormugao Handling

Agents Association was the only registered and

recognised Agency entitled to employ and deploy the

workmen for the handling cargo work within the port. The

workmen under reference are affected on account of illegal

closure. The first party MHAA being an Industry, before

closing its establishment ought to have adhered to the

provision of Industrial Disputes Act and on account of

non compliance entire closure of the MHAA becomes

illegal, void ab-initio and as such the workmen are entitled

for the wages till disposal of this reference besides notice

pay and compensation as provided under the rules. The

union therefore prays that the closure of MHAA without

adhering to the provisions of industrial law be held illegal.

According to them the MHAA was formed by various

Stevedores functioning in the Port of Mormugao in order

to serve as a common body for and on their behalf to

provide and regulate the employment of various manual

labourers for doing the work of shore handling of

difference types of cargoes at the Port of Mormugao. On

31/07/1999 the first party MHAA suddenly and arbitrarily

declared closure of their establishment. There were 500

workmen on its roll at that time who were the members of

the union no. 2 and worked continuously for a period of

more than 14 years. As per provisions of Chapter V B of

the I. D. Act, prior permission of the appropriate Govt was

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1347

required to be taken. No notice was served on the union

nor retrenchment compensation was offered to any

workman. The union therefore prayed that since MHAA

never filed any application under Sec 25 O of the I.D.Act,

the closure of the establishment w.e.f 31/7/1999 be held

illegal and further prayed to give all the benefits from 31/

07/99 till all the workmen are reinstated in employment at

the Port of Mormugao.

3. As per orders passed on Ex-10, Gomantak

Mazdoor Sangh is added as party to this reference. They

filed their statement of claim at Ex-62. According to them,

majority of the workmen under this reference joined the

Gomantak Mazdoor Sangh in the month of July 1999. After

merger of the Dock Labour Board into the Mormugao Port

Trust a separate department namely Cargo Handling

Department was formed and all the workers in the Dock

Labour Board were absorbed in the said department. It is

submitted that Mini Pool was formed by the Mormugao

Port Trust and the stevedores operating at the MPT. On

the date of dissolution of the society there were more than

450 gang workers on the roll and they were not allowed to

resume the duty. They were not paid the notice pay or

retrenchment compensation. According to union no.2,

any closure or retrenchment without complying with the

provisions of Chapter V B of the ID Act is illegal, unjustified

and bad in law. Therefore they prayed to declare the

closure illegal, unjustified and bad in law. They also prayed

to award full wages with continuity of services from the

date of closure and to direct MPT to implement the minutes

of conciliation proceedings and absorb them in the Port

Trust.

4. The first party MHAA resisted the statement of

claim of both the unions by filing their written statement

at Ex-70. They denied there is any closure as stated in the

reference. They also denied that the second party are the

workmen and that they are the employees of MHAA.

According to them seven businessmen at the instance of

Mormugao Dock Labour Board registered the charitable

society MHAA registered under Societies Registration

Act 1860 to open a list of unregulated large number of

unemployed persons as an employment exchange available

for being hired without jumping the queue in case a fill in

gap situation arose on Sundays and holidays or bunching

of the ships. MHAA is not an industry. It is charitable

entity in the nature of employment exchange. The said

society was dissolved w.e.f. 31/07/99. The last President,

Mrs. Madeline Pereira was nominated in dissolution

resolution to adjust the affairs of the society’s assets in

the Principal District Court, Margao. In case of dissolved

society MHAA, Employees Insurance Court at Margao in

EIC no. 4 of 1999 in the judgement dated 13/12/2002 it is

held that the MHAA was in the nature of an employment

exchange of the Mini Pool workers, i.e second party herein

and MHAA was not the employer nor an industry and the

said workers were not workmen. According to the first

party MHAA, the concept of closure and applicability of

Chapter V B of the I. D. Act is not available and the question

of illegality, unjustifiability and being bad in law does not

apply to the case. MHAA’s limit of the asset is the money

in the adjustment of affairs, reference before the District

Court. As such nothing survives for trial before this

Tribunal. First party denied all the contentions taken in

the statement of claim and prayed to dismiss the reference

as not surviving for any trial.

5. The first party management also filed application

Ex-112 for producing copies of proceedings and payment

particulars from the District Court South Goa District,

Margao in respect of money disbursement to the workers

and to dismiss the reference in view of the directions and

observations in the judgements of Hon’ble High Court.

In the judgement in writ petition no.278 / 2007, Hon’ble

High Court has directed District Court, South Goa to

disburse the casual earnings deposited with the District

Court with prorate interest accrued to the persons listed

in Appendix I, II & III as they being appendices to the

suit/Ref no. 1/1999 before the District Court. The District

Court accordingly has taken proceedings and made orders.

In the judgement, liberty was granted to the first party to

produce certified copies of receipts and payments

particulars and produce the same before the appropriate

Tribunal. Accordingly the applicant is producing copies

of proceedings, orders of payment, of particulars till date.

They are orders of District Court dated 23/07/2010 directing

the LIC of India to deposit money of dissolved Society by

two bank drafts with the Court. Accordingly the first party

has filed various applications and orders at Ex-A to H.

6. It is further contended that in the judgment dt.08/

10/2009 in Appeal under ESI No.9/2003 the Hon’ble High

Court in para 7 (1) held that the Stevedores Association

has no activity of its own and the work which the workers

are allotted by it undertake as a work of Stevedores and

these workers do the same work which other Dock

Labourers do. It is held that these workers are not the

workers of the Respondent Association. According to

the dissolved Society MHAA is not an employer of the

Minipool Workers. As such reference does not survive.

Therefore they prayed that the reference be dismissed.

7. The second party resisted the application vide it

say at Ex-121. According to the second party the Industrial

Tribunal has no power to dismiss the reference and the

application is untenable in law. The application is given

merely to protract the matter. The issue before this Tribunal

and before Hon’ble Court were different and the question

of employer-employee relationship before this Court still

stands and needs to be decided expeditiously. The

principles of ESI Act cannot be applied to the questions

that have to be answered under I.D.Act. The judgment

dated 08/10/2009 in Appeal under ESI no.9 of 2003 was

restricted to the principles governing ESI Act. Employer-

employee relationship cannot be made solely on the basis

1348

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

of principles under ESI Act. They denied that nothing

survives in reference in the light of aforesaid decision

under the principle of ESI Act. The application is not

maintainable. Even on merit it deserves to be dismissed.

The application is filed merely to delay the proceeding.

Therefore the second party prays that the same be rejected.

8. Following are the points for my determination. I

record my findings thereon for the reasons to follow:

Sr.

Points

Findings

no.

Whether the Mormugao

Handling Agents Association

Goa is the employer under

the I.D.Act 1947 of the

workers under reference?

If not, whether the reference

is tenable?

What order?

As per order

below.

REASONS

Point no.1 :

9. It is the case of the first party that, the first party

Mormugao Handling Agents Association is not the

employer of the workmen under reference. Therefore

according to them the reference is not tenable. They have

also contended that, as per the order of Hon’ble High

Court in writ petition no. 278 of 2007 whatever amount

was due and payable to each workman was disbursed to

the respective workers. Therefore according to the first

party applicant, nothing remains to be determined in this

reference. The ld. Adv. for the first party resorted to the

judgment of Hon’ble High Court in Appeal under ESI No.9

of 2003 between the same parties, wherein the Hon’ble

High Court in clear words and in the light of ruling of Apex

Court in Vizagapatanam Dock Labour Board V/s.

Stevedores Association Vishakapatnam & Ors. 1972 2 SCR

303 (SC) observed that,

“The Respondent Association has no activity of

its own and the work, which the workers are

allotted by it undertake as the work of stevedores

and these workers do the same work which other

dock labourers do, by no stretch it can be held

that these workers are employed by the

Respondent Association.”

10. This judgement is of Hon’ble Bombay High

Court, in Appeal under ESI No.9 of 2003. It was the appeal

filed by the Regional Director, Employees State Insurance

Corporation against The Mormugao Handling Agents

Association, wherein the Hon’ble High Court has held

that the Mormugao Handling Agents Association is not

the employer. In this respect the Ld. Adv. for the second

party has submitted that the said judgement of Hon’ble

High Court is under ESI Act. Therefore ratio laid down

therein is not applicable to this case under Industrial

Disputes Act. However while deciding the point the

Hon’ble Bombay High Court has taken into account the

definition of ‘Industry’ under Industrial Dispute Act.

Therefore it cannot be said that the observation of Hon’ble

High Court in respect of first party in the aforesaid Appeal

ESI 9/2003 is not binding on the parties in this reference.

It is finding of Hon’ble High Court in respect of the first

party and its employees. Therefore the said finding of

Hon’ble Court has binding effect as contemplated under

Article 141 of the Constitution of India. In the light of

findings of the Hon’ble High Court in ESI Appeal no. 9 of

2003, this tribunal had no option but to hold that, the first

party herein the Mormugao Handling Agents Association

is not employer of the workmen under reference. Therefore

the reference is not tenable. Accordingly I decide this

point no.1 in the negative.

Point No. 2 :

11. In the light of discussion and findings in the

above point no.1, it is clear that the first party is held not

employer of the workmen under reference. As there is no

employer-employee relationship between the parties the

reference is not tenable. Furthermore the Ld. Adv. for the

first party also pointed out that the first party was a Society

registered under Societies Act. The said Society came to

be dissolved and the amount lying therewith was

deposited in the District Court. The said amount was

distributed amongst the workmen as per the directions of

Hon’ble High Court given in Writ Petition 278 of 2007.

The Ld. Adv. for the first party further submitted that as

the Society is dissolved the individual members thereof

cannot be held liable to the activities of the Society. In

support of his argument the Ld. Adv. resorted to Apex

Court ruling in Dharam Dutt & Ors. V/s. Union of India &

Ors.AIR 2004 SC 1295. In para 30 of the judgement the

Hon’ble Court observed that;

“ Once a company or corporation is formed, the

business which is carried on by the said company

or corporation is the business of the company or

corporation and is not the business of the citizens

who get the company or corporation formed or

incorporated and the rights of the incorporated

body must be judged on that footing alone and

cannot be judged on the assumption that they

are the rights attributable to the business of

individual citizens. In our opinion, the same

principle as has been applied to the Company

and Corporation would apply to the society

registered under Societies Registration Act 1960.”

12. Furthermore as the amount lying with the society

was deposited in the District Court and the same was

disbursed as per the order of Hon’ble High Court, question

of any further payment by the society or the individual

¹Hkkx II—[k.M 3(ii)º

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1349

members thereof does not arise. In this respect further I

would like to point out that, as the first party herein is held

not employer of the workmen under reference, the reference

is not tenable.

13. The point raised by the first party by Application

Ex-112 in respect of maintainability of reference is decided

on merit and it is held that the first party is not employer. It

is also held that, the first party had deposited the amount

of the workmen in the District Court and Hon’ble High

Court in Writ Petition no.278 of 2007 directed the District

Court to disburse the amount to the respective workers. It

is also discussed in the aforesaid order that the individual

members of the dissolved society are not responsible for

the liability of the society. As Tribunal has decided Ex-112

in favour of the first party and held that first party is not

the employer. Therefore the industrial dispute and

reference is not maintainable. In this back drop the issues

herein which are based on law point and the maintainability

of the reference goes to the root of the reference. Therefore

I think it proper to pass the award in the light of order

passed below Ex-112. Accordingly I decide this issue no.2

in the negative and proceed to pass the following order:

ORDER

The reference stands rejected as the same is not

maintainable, with no order as to cost.

Date: 21/08/2013

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 487-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eksjeqxkao

gSaM¯yx ,tsaV~l ,lksfl,'ku xksvk ds izca/ra=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;&2] eqEcbZ

ds iapkV (lanHkZ la[;k 192@1999) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 20&01&2014 dks izkIr gqvk Fkk A

¹la- ,y- 36011@5@99&vkbZvkj (,e)º

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 487.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 192/

1999) of the Central Government Industrial Tribunal/Labour

Court No. 2, Mumbai now as shown in the Annexure, in the

industrial dispute between the employers in relation to the

management of Mormurgao Handling Agents Association,

Goa and their workman, which was received by the Central

Goverment on 20-01-2014.

[No. L-36011/5/99-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : K.B. KATAKE, Presiding Officer

REFERENCE NO. CGIT-2/192 of 1999

Employers in relation to the management of Mormugao

Handling Agents Association

The President,

Mormugao Handling Agents Association,

Pereira Chambers,

Vasco-da-Gama

Goa 403 802.

AND

Their Workmen

1. The General Secretary

Mormugao Waterfront Workers Union

2^nd floor, Mukund Building PO Box No.90

Vasco-da-Gama

Goa 403 802.

2. The General Secretary

Gomantak Mazdoor Sangh

Kamakshi Niwas, Gr. Floor

Khandapa Band

Ponda, Goa.

APPEARANCES :

For the employer

Mr. D. B. Ambekar, Advocate

For the Union No. 1

No appearance.

For the Union No. 2

Mr. P. Gaonkar, Advocate

Camp: Goa, dated the 21^st August, 2013.

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-36011/5/99-IR (M), dated

09.09.1999 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 Handling Agents Association, Goa

in closing their establishment w.e.f. 31/7/1999

without issuing notice and paying retrenchment

compensation to the concerned workmen is legal

and justified? If not, to what relief the concerned

workmen are entitled?”

2. In response to the notice, second party union

no.1 filed their statement of claim at Ex-26. According to

them Mormugao Handling Agents Association was a

Society registered under the Cooperative Societies Act

1860. About 861 casual labourers were in the employment

of Mormugao Handling Agents Association. The

Mormugao Handling Agents Association became the de

facto and de-jure employer of these workmen. On 31/7/

1999 about 500 workers i.e. members of union no.1 were

1350

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

employed under the MHAA. Wages were not paid to

them from December 1997 onwards. Therefore they

approached the Assistant Labour Commissioner (C), Goa.

On the report of the ALC (C), Ministry of Labour sent the

reference to this Tribunal. The unions herein prays that,

the MHAA be declared as the true and rightful employer

of the workers and also prays to direct the first party to

pay the wages of the workers from 1/12/1997.

3. As per orders passed on Ex-18, Gomantak

Mazdoor Sangh is added as party to this reference. They

filed their statement of claim at Ex-99. According to them

the workers under the reference were employed by the

Mormugao Port Trust. However their wages were paid

through Mormugao Handling Agent Association. The

wages of the workers were not paid from December 1997

till 30/7/1999. The union no. 2 therefore prays to declare

the action of MHAA in not paying the wages to the

workmen from December 1997 as illegal and unjustified.

They also pray to direct MPT & MHAA to pay the wages

for the period December 1997 till 31/7/99 with interest.

4. The first party Mormugao Handling Agents

Association (MHAA) resisted the statement of claim of

both the unions by filing their written statement at Ex-123.

According to them the substantial question of law as to

whether the dissolved Society MHAA was the employer

in respect of the workers under reference has been decided

in negative by Hon’ble Bombay High Court, in the

judgement dated 8/10/2009 in Appeal under ESI No. 9 of

2003 of The MHAA is held not employer of the workers

under reference, thus question of payment of wages to

these workmen by the first party does not arise. As such

nothing survives for adjudication before this Tribunal.

First party denied all the contentions taken in the statement

of claim and prayed that the reference be dismissed as

dose not survive.

5. The first party management also filed application

Ex-124 for producing copies of proceedings and payment

particulars from the District Court South Goa District,

Margao in respect of money disbursement to the workers

and seeking dismissal of the present reference in view of

the directions and observations in the judgements of

Hon’ble High Court. According to the first party in the

judgement in writ petition no. 278/2007, the Hon’ble High

Court has directed District Court, South Goa to disburse

the casual earnings deposited with the District Court with

prorate interest accrued to the persons listed in Appendix

I, II & III as they being appendices to the suit/Ref no. 1/

1999 before the District Court. The District Court

accordingly has taken proceedings and made orders. In

the judgement, liberty was granted to the first party to

produce certified copies of the receipts and payments

particulars and to produce the same before the appropriate

Tribunal. Accordingly the applicant is producing copies

of proceedings, orders of payment till date and particulars

thereof. They are orders of District Court dated 23/07/2010

directing the LIC of India to deposit money of dissolved

Society by two bank drafts with the Court. Accordingly

the first party has filed various applications and orders at

Ex-A to H.

6. It is further contended that in the judgment dt.

08/10/2009 in Appeal under ESI No.9/2003 the Hon’ble

Bom. High Court in para 7 (1) held that the Stevedores

Association has no activity of its own and the work which

the workers are allotted by it undertake as a work of

Stevedores and these workers do the same work which

other Dock Labourers do. Honb’le Court held that these

workers are not the workers of the Respondent Association

and the Association is not their employer. As such this

reference does not survive. Therefore they pray that the

reference be dismissed.

7. The second party resisted the application vide it

say at Ex-135. According to the second party, the Industrial

Tribunal has no power to dismiss the reference and

contended that the application is untenable in law. The

application is given merely to protract the matter. The

issue before this Tribunal and before Hon’ble Court were

different and the question of employer-employee

relationship before this Court still stands and needs to be

decided expeditiously. The principles of ESI Act cannot

be applied to the questions that have to be answered under

I.D.Act. The judgment dated 08/10/2009 in Appeal under

ESI no.9 of 2003 was restricted to the principles governing

under ESI Act. Employer-employee relationship cannot

be made solely on the basis of principles under ESI Act.

They denied that nothing survives in reference in the light

of aforesaid decision. According to them the application

is not maintainable. Even on merit it deserves to be

dismissed. The application is filed merely to protract the

proceeding. Therefore the second party prays that the

same be rejected.

8. Following are the points for my determination. I

record my findings thereon for the reasons to follow:

Sr.

Points

Findings

no.

Whether the Mormugao Handling

Agents Association Goa is the

employer under the I.D.Act 1947

and whether there exist employee

employer relations between the

workers under reference and the

first party?

If not, whether the reference is

tenable?

What order?

As per final

order

REASONS

Point no.1 :

9. It is the case of the first party, Mormugao

Handling Agents Association that, it is not the employer

of the workmen under reference. Therefore according to

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1351

them the Reference is not tenable. They have also

contended that, as per the order of Hon’ble High Court in

writ petition no. 278 of 2007 whatever amount was due

and payable to each workman was disbursed by the District

Court to the respective workers. Therefore according to

the first party applicant, nothing remains to be determined

in this reference. The Ld. Adv. for the first party resorted

to the verdict of Hon’ble High Court in Appeal under ESI

No. 9 of 2003 between the same parties, wherein the

Hon’ble High Court in clear words and in the light of ruling

of Apex Court in Vizagapatanam Dock Labour Board V/s.

Stevedores Association Vishakapatnam & Ors. 1972 2 SCR

303 (SC) observed that,

“The Respondent Association has no activity of

its own and the works which the workers are

allotted by it undertake as the work of stevedores

and these workers do the same work which other

dock labourers do, by no stretch it can be held

that these workers are employed by the

Respondent Association.”

10. The said appeal ESI No. 9 of 2003, was filed

before Hon’ble Bombay High Court by the Regional

Director, Employees State Insurance Corporation against

the present first party i.e. Mormugao Handling Agents

Association, wherein the Hon’ble High Court has held

that the Mormugao Handling Agents Association is not

employer. In this respect the Ld. Adv. for the second

party has submitted that the said judgement of Hon’ble

High Court is under ESI Act. Therefore ratio laid down

therein is not applicable to this case under Industrial

Disputes Act. However while deciding the point the

Hon’ble Bombay High Court has taken into account the

definition of ‘industry’ under Industrial Dispute Act. The

Hon. Court has also relied on the Apex Court ruling in the

case of Vizagapatanam Dock Labour Board (supra).

Therefore the argument on behalf of the second party is

devoid of merit that, the findings of Hon’ble High Court in

the aforesaid Appeal ESI 9/2003 is not binding on the

parties, in this reference under I. D. Act 1947. It is finding

of Hon’ble High Court in respect of the relations of the

first party with the workmen under reference. Therefore

the said finding of Hon’ble Court has a binding effect as

contemplated under Article 141 of the Constitution of India.

In the light of findings given by Hon’ble High Court in ESI

Appeal no. 9 of 2003, I hold that, the first party herein i. e.

the Mormugao Handling Agents Association is not

employer of the workmen under reference. Therefore this

reference under I. D. Act is not tenable. Accordingly I

decide this point no.1 in the negative.

Point No. 2 :

11. In the light of discussions and findings in the

above point no.1, it is clear that the first party is not

employer of the workmen under reference. As there is no

employer-employee relationship between the parties the

reference is not tenable. Furthermore the Ld. Adv. for the

first party also pointed out that first party was a Society

registered under Societies Act. The said Society came to

be dissolved and the amount lying therewith was

deposited in the District Court. The said amount was

distributed amongst the workmen as per the directions of

Hon’ble High Court given in Writ Petition 278 of 2007. Ld.

Adv. for the first party applicant further submitted that, as

the Society is dissolved, the individual members thereof

cannot be held liable to the activities of the Society. In

support of his argument the Ld. Adv. resorted to Apex

Court ruling in Dharam Dutt & Ors. V/s. Union of India &

Ors. AIR 2004 SC 1295. In para 30 of the judgement the

Hon’ble Court observed that :

“ Once a company or corporation is formed, the

business which is carried on by the said company

or corporation is the business of the company or

corporation and is not the business of the citizens

who get the company or corporation formed or

incorporated and the rights of the incorporated

body must be judged on that footing alone and

cannot be judged on the assumption that they

are the rights attributable to the business of

individual citizens. In our opinion, the same

principle as has been applied to the Company

and Corporation would apply to the society

registered under Societies registration Act 1960.”

Furthermore as the amount lying with the society

was deposited in the District Court and the same was

disbursed as per the order of Hon’ble High Court,

question of any further payment by the society or the

individual members thereof does not arise. In this respect

further I would like to point out that as the first party

herein is held not employer of the workmen under reference,

the reference therefore is not tenable.

12. The points raised by the first party, in the

Application Ex-124, in respect of maintainability of

reference is decided on merit and it is held that the first

party is not the employer. It is also held that the first party

had deposited the amount of the workmen in the District

Court and Hon’ble High Court in Writ Petition no. 278 of

2007 directed the District Court to disburse the amount to

the respective workers. As Tribunal has decided Ex-124 in

favour of the first party and held that first party is not

employer. Therefore the industrial dispute and reference

against it is not maintainable. In this back drop the issues

herein which are based on the same points can be

answered as they are issues on law point and the

maintainability of the reference goes to the root of the

reference. Therefore I think it proper to pass the award in

light of order passed below Ex-124. Accordingly I decide

this issue no. 2 in the negative i.e. the reference is not

tenable. Thus I proceed to pass the following order:

ORDER

The reference stands rejected as the same is not

maintainable, with no order as to cost.

Date: 21/08/2013

K. B. KATAKE, Presiding Officer

1352

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 23 tuojh] 2014

dk-vk- 488-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkbZ ch ih

daiuh fyfeVsM] ikuhir fjiQkbujh ds izca/ra=k ds lac¼ fu;kstdksa

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dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky; ua- 2] fnYyh

ds iapkV (lanHkZ la[;k 11@2005) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&30012@49@2004&vkbZ vkj (,e)]

tksgu rksiuks] voj lfpo

New Delhi, the 23rd January , 2014

S.O. 488.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 11/2005)

of the Central Government Industrial Tribunal/Labour Court

No. 2, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

Management of M/s. IBP Co. Limited, Panipat Refinery

and their workman, which was received by the Central

Government on 20-1-2014.

[No. L-30012/49/2004-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

ROOM NO. 33, BLOCK-A, GROUND FLOOR,

KARKARDOOMA COURT COMPLEX,

KARKARDOOMA, DELHI 110 032

Present : Shri Harbansh Kumar Saxena

ID No. 11/05

Sh. Tejbir Singh

Versus

IBP Co., Panipat Refinery, Beholi, Panipat.

AWARD

The Central Government in the Ministry of Labour

vide notification No L-30012/49/2004-lR(M) dated 20.01.05

referred the following industrial Dispute to this tribunal

for the adjudication :—

“Whether the action of the Management IBP Co.

Ltd. in terminating the services of Shri Tejbir Singh

S/o Shri Hoshiar Singh, Shilling Operator w.e.f

30.03.2000 is just and legal? If not, to what relief the

workman concerned is entitled?”

On 23.02.2005 reference was received in this tribunal.

Which was register as I.D No. 1/05 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 20.6.2005. Wherein he stated as follows:-

1. That the Ministry of Labour/Shram Mantralaya,

Govt. of India, New Delhi, through its under secretary,

vide order No. L-30012/49/2004-IR (M) dt. 20.01.2005 has

referred the Industrial Dispute of above said workman to

this Hon’ble court for adjudication with the following terms

of reference :—

SCHEDULE

“Whether the action of the Management IBP Co.

Ltd. in terminating the services of Shri Tejbir Singh

S/o Shri Hoshiar Singh, Shilling Operator w.e.f.

30.03.2000 is just and legal? If not, to what relief the

workman concerned is entitled?”

2. That the workman has been working as shilling

Operator under the kind vigilance, watch & ward of the

Management with a salary of Rs. 3300 p.m. since 20.8.1998

to 30.3.2000 constantly; and as such without any break

even for a day during this long tenure of over 589 days i.e.

one year & about 8 months with due diligent and in a very

efficacious manner.

3. That the work and conduct of workman has been

quite satisfactory, sincere and honest and he never got

any chance from his superior officers and Management to

displease them at any point of time during this long tenure

of rendering services with the Management and always

got excellency while due discharging of his official duties

entrusted to him as Shilling Operator (RWF), IBP Co. Ltd.,

Refinery Panipat (Haryana).

4. That the management , despite the loyalty and

on devotion to work entrusted, dispensed with the services

of workman since 1.04.2000 without assigning any reason;

and even without complying with the essential requisites

of law. Also a month’s notice and a month’s pay required

under law also could not be paid to the workman. Hence,

deliberately and intentionally violated all provisions

enshrined under the I.D. Act :

Hence this claim petition for redressal of his

grievances by the mercy of this Hon’ble Court.

5. That not only this, but even at the time of

terminating the services of workman on 30.3.2000, the

principles of natural justice have also not been followed,

such as that no show cause notice ever issued to, nor an

opportunity provided to hear workman in person or

though his legal representative at all which has been

caused to him as per provisions of law; hence violated the

due process of law; which is crystal clear that the rules of

natural justice have not been followed by the Management

intentionally and deliberately for no fault of the workman.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1353

6. That apart from this, no cogent reasoning has

been given while dispensing with the services of workman

and only orally ordered the workman not to attend to his

duties since 1st April, 2000. However, it is astonished to

see that no allegations of any kind were ever framed against

the workman prior to termination of services of diligent

workman; hence to do so by management against the

workman is nothing more than to do a thing without

adhering to the due process of law; and such deeds of

management are deemed to be abuse of mis-using of power,

keeping aside all rules & regulations establishment under

the Law of Land.

7. That besides this, the persons junior to the

workman are still working in the said concern of

management, but because they have approaches upto the

high-ups; hence just to adjust/appoint one of their

(management) own person named—Sh. Rajesh S/o (Not

known) Rio Not known, but management

The workman has been made escape got for no fault

of his own and discrimination made between employee

employed of the same concern; hence this claim petition

for re-instatement of workman with payment of back wages

retrospectively.

8. That since the workman has been posted with

the Management since 20.8.1999 in the post of Shilling

Operator in a salary of Rs. 3300 P.M. and was also absorbed

by management; and as such has been working on their

behalf in and outside the refinery, having permanent I.Card

attendance register and fully under the kind control &

Supervision of management and hence was an employees

of it since 20.8.99 to 30.3.2000.

9. That the workman had been collecting his

monthly salary directly on 7th day of calendar month from

management like other employees concern, hence to allege

the workman as a contractor or a man of contractor Sh.

Gupta is nothing more than to misguide this Hon’ble Court,

as workman never got salary from Sh. Gupta or on his

behalf from management; hence to allege the workman. as

a contractor is totally false & fabricated just to deprive

him off from his lawful claim of reinstatement. Also contract

of Sh. Gupta was finished after six months of appointment

of workman in 1999, whereas workman continued to work

with the management till his services were dispensed with.

10. That apart from this, no charge-sheet was also

served upon the workman vis-a-vis no seniority list was

issued during this tenure intentionally and deliberately

and a person inwhom they (management) were interested

and who was junior to the workman, was appointed; which

is again in contravention of the provisions of I.D. Act,

1947 for which the workman supposed to be considered

sympathetically; hence this petition for claim. Also the

management issued experience certificate twice declaring

him an employee and not a contractor.

11. That also no permission, as required under the

law, was ever obtained from Govt. while terminating the

services of workman u/s 25(o) of I.D Act; hence again

irregularities in adhering to the law of land; which requires

rectification by the mercy of this Hon’ble Court/Tribunal

in favour of workman and hence this Petition.

12. That then a legal notice was also served upon

Management on 5.10.2002 requesting them to re-instate

the workman, but to no avail (copy enclosed).

l3. That then a demand notice was also served upon

management on 27.10.2002, but that too got no response.

Also many representations sent to management by

workman too get no fruit (copy enclosed).

14. That the workman also raised an Industrial

Dispute before Conciliation Officer Faridabad but that too

got no fruit because of hostile and rigid attitude of

Management as result of which said conciliation

proceedings failed.

15. That the workman, in this way, despite best

efforts made, could not set any alternative employment

elsewhere and as such is still wandering jobless and is

totally un-employed.

16. That the said deeds of management is

unjustifiable, illegal and also against the provisions of

law. The management as such I liable to re-instate the

workman retrospectively with full back wages and

continuity in service till date of his dispensing with his

services.

It is, therefore, most humble and respectfully prayed

that this Hon’ble Court may kindly be pleased to :-

(i)

Quash the oral orders passed by the

management dt. 30.3.2000 against the

workman;

(ii)

Re-instate the workman with full back wages/

salaries and all consequential benefits

accrued to workman;

(iii)

Issue any other orders/directions which this

hon’ble Court /Tribunal may deem fit &

proper in favour of workman and against

the management to meet the ends of justice.

Against claim statement management filed following

written statement on 4.03.2006:-

(i) That there has never been any employee-

employer relationship between the claimant and the

Management. The services of the claimant were engaged

by an independent contract namely M/s Mohinder Pal

Gupta who was providing services to the management at

the Panipat Terminal. The said contractor had then

engaged the services of the claimant for, the activity of

rake loading.This job has conducted in the premises of

M/s. Indian Oil Corporation situated at Beholi, District

1354

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Panipat. Hence, even the premises whereat the claimant

rendered services was not that of the Management but

that of another independent Company viz M/s. Iridian Oil

Corporation.

(ii) That during the period August, 1998 to

September, 1999, M/s. Mohinder Pal Gupta was engaged

as Contractor at the Panipat Terminal. The claimant was

the workman employed by the said Contractor. The

payment for the services rendered by the Contractor were

released by the Management to him by cheque directly of

the basis of the bills raised by the Contractor.

(iii) That the claimant was the employee. of the said

contractor, subsequently, he set-up firm in the name and

style of M/ Tejvir Singh Beniwal. He got the said firm duly

registered with the Management as a contractor. Hence,

the Claimant in October, 1999 was awarded of rake loading

pending finalization of Registration of Contractors and

placement of the Work Order. Hence, the Claimant

continued as a Contractor under the name and style of

M/s. Tejvir Singh Beniwal for the period October, 1999 to

March 31, 2000. Thereafter, the Contract stood concluded

by efflux of time. I was not renewed by the management at

eh Panipat Terminal. In the circumstances, the Earnest

Money Deposit (EMD) of Rs. 2,500 was duly refunded to

the claimant vide Management’s voucher dated March 17,

2000. During this period the claimant in his capacity as a

Contractor had been raising Bills for services rendered

which was based on the number of tank wagons handled

by him during the relevant period i.e. October 1999 to

March, 2000.

(iv) That at no stage there has ever been any

employer-employee relationship by and between the

Management and the Claimant. On the contrary, the

Claimant had been providing the services as an

independent contractor for which he had been raising Bills

towards the rake loading charges on a month to month

basis. The Bills so raised, were duly settled and cleared

after deduction of tax deducted at source (TDS) as per the

provisions of the Income Tax Act under Section 194-C as

applicable for contractors and not for employees.

Further , as on date there is no dispute or difference

in respect of this business arrangement. The Claimant has

never been paid wages or salary by the Company. He was

an independent Contractor. He was not the employee of

the Management Company; had that been a fact, the

Claimant would have been required to contribute to

statutory Schemes such as Provident Fund,

Superannuation Benefit Funds and the like, since no

employee of the Management is exempted from the said

Schemes.

(v) Notwithstanding the above, the procedure

followed by the Management with regard to recruitment

of an employee is that a formal written request is submitted

to the concerned employment Exchange to forward a list

of suitable candidate for employment based on the profile

of the employee required. Thereafter, the Management

follows an elaborate recruitment procedure. The policy

and rules in this regard are strictly adhered to by the

Company, most particularly, as they have been a

Government of India’ owned company and are therefore

required to statutorily comply with such norms and

procedures with regard to recruitment of an employee viz.

mandatory code for Scheduled Tribes and Scheduled

Castes, other Backward Classes and the like.

(vi) Further, when a person is employed in the

services of the Company, he is mandatorily issued an

appointment letter. The employee is required to undergo

compulsory medical tests, medical check-up, verification

of character, antecedents and the like. However, in the

instant case the claimant was never issued any

Appointment Letter; as his service were not engaged as

an employee. Hence, the demand of the Claimant is without

any basis or foundation. In fact, the Claimant, as Contractor

provided services on mutual agreed terms and conditions,

for which he raised regular Bills that were duly honored.

(vii) That the Hon’ble Supreme Court of India in

the case of Jawahar Lal Nehru technological University

versus Smt. T Sumalatha & other, reported as AIR 92003)

SC page 3877.

The court held that the regularization of the

Respondents who were so appointed as Investigators in

the Nodal Center set up by the University does not justify

their regularization in service. They cannot be regarded as

employees of the University. The court further observed

that Employees not appointed by following due process

of selection and inducted to perform jobs which were

expected from Post Graduate students on part time. basis

cannot sustain the plea for Regularization.

(viii) That the procedure followed by the

Management is that after a person is employed through

the process recruitment; that employee is mandatorily

required to sign the Attendance Muster Register

maintained in the Establishment for the purpose of

recording the presence of the Employee in the

Establishment. Whereas, the name of the Claimant does

not appear on such Register, which is a legal requirement.

Hence, there is no doubt that the Claimant was never an

employee with the Mnagement. He was never recruited in

their services, consequently he cannot allege that his

services were wrongly or illegally terminated.

In the light of aforesaid, the Claimant’s plea that he

worked for more than 240 days does not hold any legal

ground. The Claimant merely provided services as a

contractor only and not as an Employee. The madras High

Court in the case of Cholan Roadways Corporation Smt

Kumbakonam vs Presiding Officer, Labour Court,

¹Hkkx II—[k.M 3(ii)º

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1355

Cuddalore & others, reported as 2004 LLR page 13, has

held that where Bus Cleaner were being paid Rs. One per

bus for cleaning of bus; they will not be the deemed

“Workman” under Section 2( s) of the Industrial Disputes

Act, 1947 when they were not attending the work

compulsorily and were coming at their sweet-will. Further,

they will not be entitled to any relief even though they

have worked for more than 240 days in the preceding 12

months. The Court held that the test to determine whether

the Petitioners were “workmen” of the Employer in the

strict sensu it was imperative to determine whether there

was any compulsion to attend duties and whether they

were duly appointed for an existing or a sanctioned post

or were they appointment through a process of selection.

Merely having rendered 240 days service in the preceding

12 months would not determine the issue.

(ix) From the foregoing facts, it is amply clear that

M/s. Tejvir Singh Beniwal was never an Employee of IBP

Company Limited at Panipat. On the Contrary, he was

aggrieved by the non-renewal of his business contract

and hence has raised the present industrial dispute.

Without prejudice to the aforesaid Preliminary

Submissions parawise reply to the Statement Claim is as

under :—

Parawise reply to the statement of Claim;

l. Contents of paragraph one of the statement of

claim are a matter of record and hence needs no reply;

particularly as the same is a reproduction of the Terms of

Reference submitted to this Hon’ble Tribunal for

adjudication under the provisions of the law.

2. Contents of paragraph two of statement of claim

are false and hence specifically repudiated. It is submitted

that. the Claimant was never employed by the management

and that there was an Employee-Employer relationship by

and between the parties. It is further specifically denied

that the claimant was employed as a Shilling operator under

the alleged vigilance, watch and ward of the Management

or that was no post of Shilling Operator with the

Management and he was never paid wages. He is therefore

required to tender cogent evidence in support of his claims

and contentions as set out in his Statement of Claim.

Furthermore, it is specifically denied that the

claimant was in continuous and regular employment

without any break for a day during the alleged period from

August 20, 1998 to March 30, 2000. I, therefore, put to

very strict proof of his such false and baseless contentions.

3. Contents of paragraph three of the Statement of

Claim are false and hence denied. It is specifically

repudiated that the claimant was employed as a workman

with the Management much less as Shilling Operator, IBP

company Limited; Refinery Panipat, Haryana as alleged.

Hence, he is put to strict proof of his ascertains with regard

to his employment with. the Management.

4. Contents of paragraph four of the statement of

claim are false and hence denied. It is specifically denied

that the Management terminated the services of the

workman effective from April 01, 2000 without assigning

any reason or without complying with the essential

requisites of the law. As the Claimant was not an employee

of the Company, no requirement for payment of notice

pay or any compliance under the provisions of Industrial

Disputes Act, 1947 as alleged is tenable.

5. Contents of paragraph five of the statement of

Claim are false and hence denied. It is reiterated that the

claimant was never an employee of the Management. In

the circumstances, the principles of natural justice as are

available and applicable to an employee viz., issuance of a

Show Cause Notice and the like including conducting of a

Domestic Enquiry are wholly misconceived and untenable.

Hence , the claimant is put to strict proof of the averments,

ascertains, allegations and contentions as set out in his

claim.

6. Contents of paragraph six of the statement of

claim are false and hence denied. It is specifically

repudiated that the management terminated the services

of the Workman and/or only orally ordered the Claimant

not to attend his duties effective from April 01,2000. As

stated herein above the claimant was never a Workman

employed by the Management. In the circumstances, the

contentions of the claimant that he was not served with a

chargesheet and/or that the Management terminated his

service without adhering to the due process of law

including violated the rules and regulations established

under the law of the land are wholly misconceived and

hence repudiated.

7. Contents of paragraph seven of the Statement

claim are false and hence denied. It is specifically denied

that any person junior to the claimant was employed by

the Management. It is further denied for want of

knowledge that Mr. Rajesh son of not known, resident of

not known was junior employee to the Claimant and/or

that said Mr. Rajesh had approached the high ups; hence

was appointed by the management in their service; thereby

causing discrimination between the employee and

employer. These are very serious allegations made by the

Claimant; hence he is put to strict proof of his such

baseless and motivated allegations.

8. Contents of paragraph eight of the statement of

claim are false and hence denied. It is repudiated that the

claimant was employed with the management as a workman

effective August 20, 1999 on the post of Shilling Operation

on a monthly salary of Rs. 3,300 . On the contrary it is

submitted that there is no post of shilling operation in the

company. Hence, the claimant is put to strict proof of his

ascertain that while he was working with the Management,

outside the Refinery he was issued a permanent Identity

Card or that his name is reflected in the Attendance Register

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

and/or that he continued to work under the control and

supervision of the management during the period August

20, 1999 to March 30, 2000. These are baseless averments

and the claimant is put to strict proof of the same.

9. Contents of paragraph nine of the statement of

claim are incorrect and hence denied. The claimant is put

to strict proof that he had been collecting his monthly

salary directly on the seventh days of the calendar month

from the Management like other employees of the concern.

On the contrary, on a perusal of the payments made to the

claimant it would be abundantly clearly that the payments

varied from month to month based on the services

provided. To illustrate he was paid an amount of Rs. 9.100

in respect of his bill dated January 02,2000. In respect of

his bill dated March 04.2000 he was paid an amount of Rs.

9,436/- for the work carried out as Contractor. Hence, the

payment in respect of tank, wagons loading contract varied

based on the jobs performed and the quantum of such

services.

It is, however , noteworthy that the Claimant admits

having been employed by Mr. Gupta for a period of six

months during 1999. In fact, after Mr. Gupta left the contract

was awarded to the claimant’s firm namely M/s. Tejvir

Singh Beniwal.

10. Contents of paragraph ten of the statement of

claim are false and hence denied. It is reiterated that the

claimant was not a workman or employee of the

Management; in the circumstances, there was no

requirement for issuance of a chargesheet and for drawing

of seniority list and for with regard to compliance under

the provisions of Industrial Disputes Act, 1947. On the

contrary, the claimant is put to strict proof of his averments

and assertions as set out in the corresponding paragraph

of the statement of claim.

Admittedly, the claimant was favoured with an

Experience Certificcate as he had requested for the same

to facilitate him to obtain gainful employment elsewhere.

The certificate stated that he had done good work in

supervision of tank, wagon, rake loading activities, in his

capacity as contractor. During this period the claimant

was engaged as a contractor by the company. He was

then seeking employment of a permanent nature elsewhere.

The Certificate was issued to him on his request so as to

enable him to strengthen his credentials in seeking

employment elsewhere. The fact that the claimant was a

contractor is also evident from the letter dated Septembr

04,1999 requesting the company to avail of his services as

a contractor. The second is the bill dated 02, January, 2000

for Rs. 9,100 towards work carried out as a Contractor. The

third is his bill dated March 04, 2000 for Rs. 9,436/- towards

work carried out as a contractor. The truth of the matter is

that the claimant dishonestly wanted to collect evidence

in support of his claim for employment with the

management and in the circumstances has through

misrepresentation obtained from individual employees,

who are not authorized to issue certificates letters in his

favour. In any event the letters relied upon by the claimant

are tampered with and hence cannot be relied upon.

11. Contents of paragraph eleven of the Statement

of claim are misconceived and hence denied. It is reiterated

that the claimant was no a “Workman” under the provisions

of the Industrial Disputes Act, 1947. Further, there was no

employee-employer relationship by and between the

parties. In the circumstances, the applicability of the said

Act, is specifically untenable. Hence the contention of

the claimant that the management did not seek prior

permission under Section 25(o) of the Industrial Dispute

Act is wholly untenable. In any event, the applicability of

the said provision of law is wholly untenable to the facts

of the present case.

12-15 Contents of paragraph twelve to fifteen of the

Statement of claim are incorrect and hence denied. The

Management received the letters dated October 05.2000

and October 27,2000 the same were duly replied to.

Subsequently, an alleged industrial dispute was raised

before the Learned Conciliation Officer whereas the

management participated and duly explained their version

of the matter. As there was no possibility of reinstatement

of the Claimant in the services of the Management the

proceedings stood concluded.

16. Contents of paragraph sixteen of the Statement

of claim are misconceived and hence denied. It is

specifically repudiated that the claim action of the

management is either unjustified or illegal or against the

provisions of the law. On the contrary, as stated

hereinabove there was never any employee-employer

relationship by and between the parties. In the

circumstances , the provisions of the Industrial Disputes

Act are wholly inapplicable to the facts and circumstances

of the case. The claimant initially was employed by M/s.

Mohinder Pal Gupta, Contractor as his employee.

Subsequently, he was a Contractor in his own right. In the

circumstances, the contentions urged by the claimant in

these proceedings are wholly misconceived and untenable.

The claimant is not eligible and/or entitled to any relief

whatsoever.

It is, therefore most humbly and respectfully prayed

that this Hon’ble Court be pleased to pass an Award in

Favour of the management; be further pleased to hold

that the alleged industrial dispute raised by the claimant is

misconceived and untenable, amongst others for the

reason that there was no employer and employee

relationship whatsoever by and between the parties. In

the circumstances the claimant is not eligible or entitled to

any relief whatsoever including the claim for reinstatement

in service with or without back wages and for consequential

benefits as alleged.

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1357

Rejoinder on behalf of claimant to the written statement

of the management :—

1. That para No.1 of Preliminary objection of written

statement is totally wrong and hence vehementally denied.

The fact is that there are/were complete relations of

employer -employee between the parties as per provisions

of Section 2(s), I.D. Act as the answering claimant was

totally under the Watch Award including governance of

management and never got contractorship at all; hence to

allege that there no relations of both is totally incorrect

and hence denied.

2. That para No. 2 of Preliminary objections of

Written Statement is also incorrect and hence denied. That

fact is that the claimant being an employee, always got

salaries through the management, but not through alleged

contractor—M/s. M.P. Gupta at all nor the answering

claimant was a contractor as alleged in para No.1 of

Preliminary objections. As such being an employee of

management, the answering claimant always got salaries

through the management directly. Hence, to allege that he

was employee of Contractor M/s. Gupta or as alleged in

para 1 of the Preliminary objections above that he was an

independent contractor is totally wrong and hence

denied.

3. That para No.3 of the Preliminary objection is

again wrong and hence denied and those of para No.2 of

the Preliminary objection I retreated. As far as the question

of contractorship is concerned, even after seeking the

services of previous contractor Sh. M.P Gupta, no such

orders of replacing the claimant as contractor was never

issued from management side as per law at all. Hence, to

allege him on oral presumptions can’t be deemed to be so;

hence the workman ipso fact can not be called or deemed

to be a contractor, nor it was ever published in newspaper

etc. Besides this, the workman/claimant on the other hand,

was issued I/Card, sheeliag chit, tally sheets, Rly. Challans,

Rly. Freight challan etc. which care not handed over to an

ordinary person at any cost, but to a faithful and trust-

worthy employee of the management. Not only that even

once a tally sheet was faxed to partappur (meerut) duly

signed by Terminal Manager, IBP panipat wherein wagons

were filled in by the claimant and sent to partapur; hence

all such happenings shows that the claimant was an

employee of management and not a contractor as alleged

by management.

A far as the deposit of Rs. 2500 as earnest money

(FMD) is concerned, it was returned to claimant when

contractorship was not provided to him by management

while he was in service as an employee, but it was returned

on the same analogy that he was an employee and an

employee can’t get contractorship while in service of

management. Remaining allegations are totally false and

fabricated just to save skin of management from the

responsibility of providing claimant a permanent job.

4. That para No. 4 of Preliminary objections is also

incorrect and hence denied, being repetition of previous

paras. However, it is better-known to a management as to

why such alleged deductions could not be made from

salaries of employee and it appears to be intentional and

deliberate to deprive the claimant of his fundamental right.

5. That para No.5 of Preliminary Objection is again

wrong and hence denied. However, it is not known as to

how the services of one Rajesh who was junior to claimant

and never sponsored by any employment exchange, but

earn than absorbed in service permanently as he was man

of means, having approach upto the high-ups; hence dis-

crimination has been caused between employee and

employee by management and, to conceal that gross

mistake, the management has stated making all sorts of

allegation, which are totally wrong and baseless and hence

denied.

6. That para no. 6 of the Preliminary Objection is

again wrong and hence denied, being the repetition of

earlier paras, hence retreated reply para 5 of Preliminary

objection again.

7. That para No.7 of the Preliminary Objection is

again incorrect and hence denied. However, the referred

citation must be observed in the light of the observations

made by Hon’ble supreme court in “D.K. Yadav Vs. M/s.

I.M.A Industrial Ltd 1993(67) FLR 111(SC) , supra 1976(32)

FLR 197(SC) , 1977(35) FLR 353(SC); (1982)1 SCC 645 and

1985 (51) FLR 494.”

As such the alleged allegations are totally false and

fabricated just to divert the attention from reality to an

irrelevant point.

8. That para No.8 of the Preliminary Objection is

again wrong and hence denied. The claim of answering

workman is very much well within the ambit of Section

2(s) of I.D. Act, 1947 being an employee of management

and completed the requisite period satisfactorily, hence

allegations made are baseless having no weightage at this

juncture and hence denied.

On Merits :

l. That para No. l of the W.S needs no comments

being admitted.

2. That para No. 2 of W.S is incorrect and hence

denied and those of correspondence para of claim petition

are hereby retreated.

3-7. That paras Nos. 3 to 7 are wrong and denied

and those of contents of paras in the claim petition are

hereby re-instated.

8-16. That para Nos. 8 to 16 of W.S. are wrong and

hence denied and those of contents of corresponding

paras in the Claim Petition are hereby re-asserted.

That Prayer para is also wrong in the W.S. and hence

denied, and those of Prayer paras in the Claim Petition are

hereby re-affirmed.

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[PART II—SEC. 3(ii)]

My Ld. predecessors has not framed any issue but proceed

to adjudicate the present reference on the basis of schedule

wherein questions of determination were as follows:-

Whether the action of the management IBP Co. Ltd.

in terminating the services of Shri Tejbir Singh S/o Shri

Hoshiar Singh, Shilling Operator w.e.f. 30.3.2000 is just

and legal? If not, to what relief the workman concerned is

entitled?

Workman filed Amended Affidavit in his evidence on

5.3.2007. Wherein he stated as follows:-

1. That the workman has been working as Shilling

Operator under the vigilance, watch and ward of the

management with the salary of Rs. 3300 per month, since

20.08.1998 to 30.3.2000, constantly without any break

during this long tenure of rendering services over

589 days i.e. one year and about 8 months efficiently.

2. That the Management despite the loyalty and

devotion to the work, dispensed with the services of

workman since 1st April, 2000 without assigning any

reasons; and even without complying with essential

requester of law.

3. That even at the time of terminating the services

of the workman/deponent on 30.3.2000, Principles of

natural justice could not be followed and as such no show

cause Notice was ever issued nor an opportunity provided

to the deponent in person or through his legal

representative at all and as such violated the due process

of law.

4. That apart from this no cogent reasoning has

been given while dispensing with the services of the

workman/deponent and only orally ordered by the

Management that the workman need not to attend his

duties since 1st April, 2000 and hence the services were

dispensed with.

5. That besides this, the persons junior to the

workman/deponent are still working in the said

Management as they have approaches upto the high-up

and as such one of them named Rajesh has been

appointed whereas he was junior to the workman/deponent

and as such discrimination has been caused between

employee and employees of the same concern; hence the

claim of the workman/deponent to reinstate with full back-

wages falls within the ambit of law.

6. That since the workman/deponent has been

posted with the management since 20.8.1998 in the post of

Shilling Operator in the pay salary of Rs. 3,300 per month

was also likely to be absorbed by the Management, as he

was having issued permanent I.Card, Attendance Register

and other related documents mentioned in the Rejoinder

were fully under the control and supervision of the

Management and hence all these documents show that

the workman/deponent was an employee of the

management since 20.8.1998 till 30.3.2000.

7. That the workman/deponent had been collecting

his salary directly on 7th day of every calendar month

from Management like other employees of the company

and as such the workman was never under the guidance a

Contractor of the man of contractor Shri Gupta.

8. That apart from this no charge-sheet vis-a vis no

seniority list was ever issued during this tenure by the

Management intentionally and deliberately and as such it

was all in contravention of the provisions of I.D. Act, 1947

for which the management was supposed to follow, on the

basis of seniority of the workman/deponent.

9. That no permission as required under the law

was ever obtained from Government while terminating the

services of the Workman uls 25(o) of I.D. Act; hence

irregularities in adhering to the rules have been followed

by the management.

10. That then the workman/deponent also served a

Legal notice upon the Management on 5.10.2002 when

having found no other way out, requesting them to

reinstate the workman , but that too got no fruit, hence the

petition filed. (Ex. WW-1/8 which is already place on record

in the claim petition) is exhibited.

11. That thereafter a demand notice was also served

upon the Management by the workman/deponent on

27.10.2002, but that too got no response, apart from other

representations as well as in person were sent to the

Management by the workman/deponent. (Copies of the

same are already on record in the petition and as such

marked as Ex. WW-1/1).

12. That all other documents have already been

placed on record by the workman/Deponent with the

petition from page 8 to 43 of the list of documents filed

with the petition and as such is therefore marked as

Ex. W-1/2 to Ex. WW-1/14.

13. That the workman/deponent also raised

Industrial Dispute before the Conciliation Officer,

Faridabad but that too got no fruit because of hostile

attitude of the management, as a result of which the

Conciliation proceedings failed.

14. That the workman/deponent in this way could

not settle any alternate employment elsewhere and as such

still wandering jobless and as such is totally unemployed.

15. That the said deeds of management are

unjustified, illegal and also against the provisions of law

for which the management is liable to reinstate the workman

retrospectively with full back wages and continuity in

services; hence this claim petition.

He tender his affidavit and annexed document to affidavit.

He was cross-examined by Ld AIR for the Management.

His Cross-examination is as follows:-

I have passed my matric examination and can

produce the copy of the same before this Court. I have

¹Hkkx II—[k.M 3(ii)º

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1359

also subsequently qualified the ITI exam and can produce

Certificate in support.

I was working for IOC at Panipat depot.

The rake loading was done under my supervision.

I have got this training from IOC.

The work done by me was in respect of IBP . I did

not do the work for HPC, BPC or IOC.

It is correct that I have claimed that I was working

schilling operator with M/s. IBP Co. Ltd.

In this regard I have filed photocopies B12 to B48. I

have original of these papers.

It is wrong to suggest that I am making a false

statement that I was an employee of IBP and that the

documents referred to by me and filed before this Court

are true and correct.

It is correct that letter dt. 17.04.2003 was given to me

by the management. It is correct that lr. Dt. 4.9.99 is the

letter submitted by me to the management bears by

signature and is Ex. WW1/M1.

I had got letter dt. 5/10/2002 sent by my advocate. It

is correct that the documents filed by me in Court. I do not

have the original.

It is correct that the premises where I was working at

Baholi in panipat, Haryana was the premise of IOC.

It is correct that I have requested the terminal

Manager for an experience Certificate. It is wrong to

suggest that the certificate was asked for by me to obtain

service elsewhere. This Certificate Ex.WW1/M2 was

requested for by me from the terminal manager for purpose

of my employment with IBP Co. Ltd.

Ex. WW1/M3 was the letter given by IBP to IOCL to

permit me to work at the premises.

It is correct that every person entering the IOC

terminal premises is required to obtain an identity card.

The forwarding note animals or general merchandise

etc. is the document I used to give top the railway official

sitting at the IOC site after the rake was dispatched.

The entries in the tally sheet were made by me. It

was completely made by me. It was given along with the

forwarding note to the Railway. The original was given to

the terminal manager and a copy to the Railways.

It is correct that at point Mark A on tally sheet

prepared by me Ex. WW1/M4 reflect the fact that the work

done by me was in respect of IOC, HPC, BPC and IBP.

It is correct that on forwarding note Ex. WWl/M5

I have signed on the top of the document. I have signed

on top of the document at the instance of the terminal

manager. It is wrong to suggest that the terminal manager

had never asked me to so sign. It is further wrong to

suggest that I myself signed on he said documents to

create evidence in my favour in respect of my employment

with IBP.

I have filed photocopies of packing slip as proof of

my employment with IBP Co.

I Joined IBP Co. on 20.8.98 and worked till 30.3.2000.

I do not have any document to show to the Court that I

was in continuous regular service of IBP Co. Ltd. during

that period. I used to get Rs. 3300/- by cash and then on

some occasions by cheque. I had a bank account which

was opened for me by the Co. I cannot bring any document

in support but was having the account in Canara Bank,

Panipat branch.

Similarly I do not have any evidence in support of

what I have stated in para 5 of my affidavit.

It is correct M/s. IBP Co is a wholely Govt./owned

Co.

It is correct that at the time of entry to the petroleum

refinery every person in physically checked and given get

pass/ID card.

It is wrong to suggest that I was not a direct or

regular employee of IBP Co. Ltd .

It is wrong to suggest that I was an employee of Mr.

Mohindar Pal Gupta, contractor who was providing

services at the panipat terminal for doing rake loading at

the refinery.

It is wrong to suggest that I worked with Mr. M.P.

Gupta contractor during the period August 98 to Sep. 99.

I do not know as to whether or not during the period

June 99 to Sep. 99 Mr. M.P. Gupta did not pay the workman

at the terminal properly and regularly.

It is wrong to suggest that I had initially worked as

a worker of Mr. M.P. Gupta contractor and that

subsequently I myself undertook this activity as a

contractor with IBP Co.

It I correct that I had given the Management a letter

to do the work as an independent contractor at the IOC

refinery. Volunteered but I was not given any such contract.

It is wrong to suggest that I had worked for a period

of 6 months during 99 with Mr. M.P. Gupta, contractor. It I

further to wrong to suggest that after the M.P. Gupta left,

I had taken the contract in my name i.e Tejvir Singh

Beeniwal.

It is correct that I had approached the Co. to be

registered as a tank wagon loading contractor.

I had applied to work as a self employed tank loading

contractor on a rate of Rs. 25/- per wagon loaded but I was

not given this contract.

It is correct that there is a Trade Union in the

company. But I was not made a member of the same.

1360

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[PART II—SEC. 3(ii)]

Sh. Indersingh the pradhan of the union refused to make

me a member of the Union.

I was not made a member of the said Union because

I was told that I should wait for some more time before I

could be taken as a member of their union. I am a member

of the Bhartiya Mazdoor Sangh.

I cannot produce Mr. Rajesh in Court in my support.

It is wrong to suggest that I am deposing falsely

with regard to the said Mr. Rajesh.

It is correct that the ID Card filed by me dt. 1.1.2001

does not bear any photograph. Again said it is not an ID

Card but an entry gate pass.

It is correct that my case before this court is that I

used to supervise the rake loading at the premises of the

IOC Baholi.

It is wrong to suggest that I was given the contract

at the IOC premises between Oct. 1999 and March 31.2000

and on its conclusion the Management with me to provide

such service came to an end, as the arrangement was

renewed with. It is correct that on 17.3.2000 I was refunded

an amount Rs. 2500/- Vol. this amount was returned to me

in respect, of my application to work as contractor with

M/s. IBP as I was not given the contract.

I am presently residing at my village -Kavvi in Dt.

Panipat.

I am living with my parents and other family members.

My family are engaged in agriculture activities as we have

agricultural land of our own. I am pursuing work in the

village as an agriculturist. Although I am an ITI pass and

can do mechanical and other jobs but I am doing so as no

work is available.

Thereafter he-closed his evidence.

Management in support of its case filed affidavit of

management witness Shri Jagdish Prasad. Wherein he

stated as follows:-

I state that I am working with M/s. IBP Company

Ltd., now known as Indian Oil Corporation, since

May 15, 1987, and I am currently designated as

Senior Depot Manager situated at Rajkot,

Gujarat.

I state that at the relevant time i.e. July 1998 to

April 2004, I was posted as Terminal Manager at

IBP Company Ltd., Panipat , Haryana . During

my tenure, I state on basis of records that Mr.

Tejbir Singh, son of Mr. Hoshiryar Singh resident

of Village and Post Office, Kawi, Tehsil ,

Madlauda, District Panipat, Haryana ( hereinafter

referred to as the Claimant), was engaged by an

independent Contractor namely M/s. Mohinder

Pal Gupta who was providing our Company,

services at the Panipat Terminal. The said

Contractor had then engaged the services of

the Claimant for the activity of Rake Loading.

This job was conducted in the premises of M/s.

Indian Oil Corporation situated at Baholi , District

Panipat. Hence, even the premises whereat the

Claimant rendered services was not that of M/s

IBP Company Ltd. But that of another

independent Company viz. M/s Indian Oil

Corporation.

I state that during August 1998 to September

1999, M/s Mohinder Pal Gupta was engaged as

a Contractor at the Panipat Terminal. The

Claimant was the workman employed by the said

Contractor. The payment for the services

rendered by the Contractor were released to him

by cheque directly on the basis of bills raised by

the Contractor from time to time.

I state that the Claimant was the employee of the

said Contractor. However, subsequently, he set

up a Firm in the name and style of M/s. Tejbir

Singh Beniwal (Exhibit WWl/M1). He got the

said firm duly registered with our Company, as

an independent Contractor. Hence, the Claimant

in October 1999 was awarded the contract of

Rake Loading, pending finalization of

Registration of Contractors and placement of

the Work Order. Accordingly, the Claimant

continued as a Contractor under the name and

style of Mls Tejbir Singh Beniwal for the period

October 1999 to March 31, 2000.

I state that thereafter the contract stood

concluded by effux of time. It was renewed by

the Management at the Panipat Terminal. In the

circumstances, the Earnest Money Deposit

(EMD) of Rs. 2,500 was duly refunded to the

Claimant vide Management’s voucher dated

March 17, 2000 (Exhibit MW 1/1. During this

period, the Claimant in his capacity as a

Contractor had been raising bills for services

rendered, which was based on the number of

tank wagons handled by him during the relevant

period i.e. October 1999 to March 2000.

I categorically state that at no stage, there has

ever been any employer-employee relationship

by and between the Management and the

Claimant the contrary, the Claimant had been

providing the services as an independent

Contractor for which he had been raising bills

towards the Rake Loading Charges on a month

to month basis. The work was performed and

executed by him either alone or with the

assistance of. a few hands independently

employed him. However, he never employed 20

or more workers to execute the Contract.

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Consequently, the provisions of the Contract

Labour (Regulations & Abolition) Act, 1970, did

not apply.

I state that the nature of duties performed by the

claimant were intermittent, erratic and purely

casual in nature. It was in this perspective that

the Claimant was required to submit bills from

time to time for services rendered by him based

specifically on the quantum of services provided.

He was not paid a fixed monthly waged. Further,

as the Claimant had been providing services as

an independent Contractor for which he had

been raising bills towards Rake Loading Charges

on a month to month basis; the bills so raised

were duly settled and cleared after deduction of

tax at source i.e TDS as per the provisions of the

Income Tax under Section 194-C as applicable to

Contractors and not for employees.

I state that the Claimant was never paid wages

or salary by the Company. He was an

independent self-employed Contractor. He was

never the employee of the Management

Company, had that been fact, the Claimant would

have, at the beginning of his employment , been

issued an Appointment Letter. His employment

would have been through the concerned

Employment Exchange as the procedure followed

by the Management with regard to recruitment

of an employee is that a formal written request is

submitted to the concerned Employment

Exchange to forward a list of suitable candidates

for employment based on profile of the employee

required.

That our Company follows a labour recruitment

procedure; as we are a wholly government

owned Company and are required under the law

to strictly adhere and comply with all Regulations

in this regard. We are under the administrative

control of the Ministry of Petroleum & Natural

Gas, Government of India. In this regard, it is

imperative to state that the norms and

procedures’ with regard to recruitment of an

employee are mandatory in nature and include

due consideration for Scheduled Tribes and

Scheduled Castes and Other Backward Classes

besides mandatory Police verification of

antecedents, verification of character, meeting

medical norms based on medical examination

conducted by duly authorized and nominated

hospital/medical practitioner and the like.

Further, all employees in the Company are

required to contribute to statutory schemes

amongst others Provident Fund, Superannuation

Benefit funds and the like; since no employee of

the Company is exempted from the said Schemes.

10.

I state that the Claimant was never issued an

Appointment Letter as his services were not

engaged as an employee. Hence, the assertion

of the Claimant that he was an employee of our

Company is without any basis or foundation.

On the contrary, he provided services as a

Contractor on mutually agreed terms and

conditions, for which he raised regular bills that

were duly honored.

11.

I state that the procedure followed in the

Company in respect of its employees is that the

Employee is mandatorily required to sign the

Attendance-cum-Muster Register maintained in

the Establishment for the purposes of recording

the presence of the employee in the

Establishment. Whereas, in the case at hand,

the name of the Claimant does not appear on

any such Register which is a legal requirement.

Hence, there is no doubt that the Claimant was

never an employee of the Company. He was never

employed or recruited in our services;

consequently, he cannot allege that his services

were wrongly or illegally terminated by the

Management.

12.

I state that in the light of aforesaid facts, the

Claimant’s plea that he worked for more than 240

days does not hold any legal ground. The

Claimant merely provided services as a

Contractor and not as an employee. In this regard,

I rely upon the decision of the Madras High

Court in the case of Cholan Roadways

Corporation Ltd. Kumbakonam Vs. President

Officer, Labour Court, Cuddalore & others,

reported as 2004 , LLR, Page 13, has held that

where Bus Cleaners were being paid Rs. l per

bus for cleaning of bus; they will not be the

deemed “Workman” under Section 2(s) of the

Industrial Disputes Act, 1947, when they were

not attending the work compulsorily and were

coming at their sweet-will. Further, they will not

be entitled to any relief even though they have

worked for more than 240 days in the preceding

12 months. The Court held that he test to

determine whether the Petitioners were

“Workmen” of the Employer in the Stricto sensu,

it was imperative to determine whether there was

any compulsion to attend duties and whether

they were duly appointed for an existing or a

sanctioned post or were they appointed through

a process of selection. Merely having rendered

240 days’ service in the preceding 12 months

would not determine the issue.

13.

I state that the case of the Claimant in these

proceedings is that he was employed as a Shilling

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[PART II—SEC. 3(ii)]

Operator with effect from March 30, 2000; which

fact is borne out first in the Terms of Reference

issued by the Ministry of Labour , Government

of India, to this Hon’ble Court for adjudication.

Further, the Claimant himself in paragraph two

of his Statement of Claim has stated “That the

workman has been working as Shilling Operator

under the kind vigilance, watch and ward of the

Management with a Salary of Rs. 3,300

(Rupees Three Thousand Three Hundred only)

per month since August 20, 1998 to March

30,2000 , constantly”. Whereas, there is no post,

title or designation of a Shilling Operator in our

Company. Hence, on the basis of this assertion

of the Claimant, the alleged industrial dispute

raised by him is nonest and void abinitio since I

categorically state on oath that we have no post

of Shilling Operation and have had any such

post in our Company. In the absence of any such

a post , the very basis and foundation of the

claim and the dispute raised by the Claimant is

untenable and needs to be prima facie dismissed.

14.

I state that the assertion and contention in these

adjudication proceedings that he was in

continuous and regular employment without any

break for a day during the alleged period from

August 20, 1998 to March 30, 2000., is a blatant

falsehood. Whereas, during the relevant time i.e

August 1998 to September 1999 , he was an

employee of M/s. Mohinder Pal Gupta,

Contractor, and that effective October 1999 till

March 30, 2000, he was a self-employed

Contractor providing our Company services and

that at he relevant time was the Terminal Manager

at the said site.

15.

I state that at the relevant time at the Refinery,

no person by the name of Mr. Rajest was

employed in our Company as a person junior to

the Claimant and/or that he was appointed by

the Manageemnt in the services of the Company

and/or that there has been any discrimination in

this regard. Further, as the claimant was never

an employee of our Company, the requirement

of complying with disciplinary procedures such

as issuance of Show-cause Notice conducting

Domestic Enquiry and the like are wholly

misconceived and untenable. However, as the

refinery area is a high security area,

consequently no person can enter the premises

without the issuance of an Identity Card. The

said Identity Card issued to an employee of our

Company is entirely distinct and different to that

issued to a Contractor and/or workman of the

Contractor to perform certain specified duties

and assignments within the premises of the

Refinery.

16.

I state that the claimant never ever worked under

the direct supervision and control of any

employee of our Company including myself,

although I was then the Terminal Manager at

the said Refinery and that the ultimate authority

in respect of work to be performed or executed

on the said premises was in my hands. The job

assigned to the Claimant as Contractor was to

ensure that the Petroleum products filled in the

railway tank wagons was as per the concerned

Depot Chart available along with the respective

wagon. Hence, the Applicant was merely required

to ascertain whether the product was in

conformity with the Depot Chart available. This

activity is not a routine or daily activity, on the

contrary, it is performed only and is performed

based on exigencies of the work intermittently;

for which payment was also made specifically

based on the number of tank wagons filled.

Consequently, there was question of payment

of any fixed monthly wage or salary to the

Claimant. In this regard, I· submit. that on a

perusal of payments made to the Claimant, it

would be abundantly clear that the payments

varied from month to month based on the

services provide. To illustrate, he was paid an

amount of Rs. 9,100 (Rupees Nine Thousand One

Hundred only) in respect of his bill dated January

2, 2000. In respect of his bill dated March 4, 2000

he was said an amount of Rs. 9,436 (Rupees Nine

Thousand Four Hundred Thirty Six Only) for

the work carried out as a Contractor. Hence, the

payment in respect of tank wagons loading

Contract varied based on the job performed and

the quantum of his such services.

17.

I state that the claimant was favoured with an

Experience Certificate as he had requested for

the same to facilitate him to obtain gainful

employment elsewhere. The Certificate stated

that he had done good work in supervision of

tank wagon rake loading activities in his capacity

as a Contractor. During this period, the Claimant

was engaged as a Contractor by the company.

He was then seeking employment of a permanent

nature elsewhere. The Certificate was issued to

him on his request purely on humanitarian

grounds, so as to enable him to strengthen his

credentials in seeking employment elsewhere.

18.

I state the fact that the Claimant was Contractor

is also evident from the letter dated September

4, 1999, Exhibit MWl/Ml, requesting the

Company to avail of his services as a contractor.

Similarly, the bill dated January 2,2000, for an

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1363

amount of Rs. 9,100 (Rupees Nine Thousand

One Hundred Only), towards the work carried

out as a Contractor is Exhibit MW 1/2. Further,

the claimant’s bill dated March 4,2000, for Rs.

9,436 (Rupees Nine thousand four Hundred

Thirty Six only) towards the work carried out as

a Contractor is Exhibit MW1/3.

19.

I state that the truth of the matter is that the

claimant dishonestly wanted to collect evidence

in support of his Claim for employment with our

Company, in the circumstances, had through

misrepresentation obtained the Experience

Certificate. Further the letters relief upon by the

Claimant are tampered with and, therefore,

cannot be relied upon as I myself am the author

of the said communication.

20.

I state that the Management received letters

dated October 5 and 27, 2000; the same were

duly replied to. Subsequently, an industrial

dispute was raised before the Conciliation

Officer whereat the Management participated

and duly explained their version of the matter.

As there was no question of reinstatement of

the claimant in the services of the Management,

the proceedings stood concluded.

21.

Finally, I state that the Claimant, Mr. Tejbir Singh

Beniwal, was never an employee of Ms/IBP

Company Ltd at Panipat. He was initially

employed by M/s. Mohinder Pal Gupta,

Contractor, as his employee. Subsequently, the

Claimant himself was the Contractor in his own

right. I confirm that the Claimant had on

September 4, 1999, submitted a letter to me

requesting that he be registered as a Contractor

for tank wagon loading more particularly as he

had prior 18 months’ experience on a similar

assignment for M/s. Hindustan Petroleum

Corporation and M/s. Bharat Petroleum

Corporation. This letter of the claimant was

submitted to me, which I duly processed, and

then he operated as a Contractor. He was

aggrieved by the non-renewal of his business

contract. In the Circumstances, he has raised

the present industrial dispute falsely stating that

he was a Shilling Operation with effect from

August 1998. Hence, the Claimant is not eligible

and/or entitled to any relief of any nature

whatsoever from this Hon’ble Court as there was

absolutely no employer-employee relationship

by and between the parties as mandated under

the law of the land.

22.

I state that Exhibit WWl/10 is the document

issued by me to the Claimant to facilitate him to

seek alternative gainful employment elsewhere.

However, this letter has been deliberately and

mischievously tampered as is evident from the

fact that he has mentioned his date of joining as

August 20, 1998. Further I have clearly stated in

the said Certificate that I was issued to him on

his request for exploring job possibilities.

23.

I state that Exhibit WWl/12 was issued by me to

facilitate the Claimant to obtain a Gate Pass so

that he could attend to loading of tank wagons.

I also confirm that I had issued the Certificate

dated March 1, 2000, Exhibit WWl/12. It clearly

states that the Claimant was engaged for the

same job that the Contractor, Mr. Mohinder Pal

Gupta was performing. This Certificate again was

issued by me at his request to help him to obtain

alternative gainful employment. I further admit

that I had issued the letter in my own handwriting

date January 9, 2001, Exhibit WWl/12 wherein I

had conveyed to the authorities to permit Mr.

Tejbir Singh, our Contractor’s employee, who

work in the railway gantry as our representative

at the said premises up to January 20, 2001.

24.

I admit that the Claimant was issued the Entry

Gate Pass dated January 2001 valid up to

February 29, 2001, it bears my signature and is

Exhibit MW1/4. It was issued as a standard

security requirement for work in the Panipat

Petroleum Terminal and not as an Employee of

our company.

25.

I state that the forwarding Note- Animals or

General Merchandise other than Dangerous,

Goods, Exhibit WW1/13, is a false and fabricated

documents. It has been filed before this Hon’ble

Court with the sole purpose of creating evidence

in his favour. The said documents bears the

signatures of the Claimant at the top right of the

document only to create evidence in his favour

whereas there is absolutely no requirement either

under our procedure or under our regulations

that the person who checks the tank wagons is

so required to sign on such document. Hence,

the said document need to be ignored.

He has tendered his affidavit & he was cross-examined by

Ld A/R for the Workman.

His statement and cross-examination is as follows:-

It is incorrect to suggest that Tejbir Singh was the

employee of the management and he was not an

independent contractor. As far as I recollect, M/s Mahinder

Pal Gupta started his contract with the management w.e.f.

August 1997 and his contract lasted for about one year. I

saw the claimant Tejbir Singh working with Mahinder Pal

Gupta, Contractor, as his worker in July 1998 when I joined

the management at Panipat. After Mahinder Pal Gupta,

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Contractor, left us, the claimant Tejbir Singh, who by then

had obtained sufficient training, offered us a contract

which we accepted and the said contract was renewed

from month to month for the period October 1999 to March

2000. It is correct that no notice or pay in lieu of notice or

any retrenchment compensation was paid by the

management to the claimant as, according to the

management , such things did not apply to the case of the

claimant. It is incorrect to suggest that we have not done

such things and the workman was required to be dealt

with accordingly, and, as such, we have violated Section

25-F of the I.D. Act. I have been shown paragraph 24 of my

affidavit and after seeing the same I say that document

Exb. MW1/4 was not issued to the claimant and his

photograph does not appear on the back of this document

which is a gate pass. It of course has been signed by me

as Incharge of the Panipat Depot. It is incorrect to suggest

that I am not deliberately retracting from the admission

made by me in Para 24 of my affidavit wherein I have

admitted that this gate pass was issued to the claimant

Tejbir Singh. It is incorrect to suggest that documents

Exb. MWl/l to MW1/3 are not genuine documents which

have mentioned by me Para 18 of my affidavit. It is incorrect

to suggest that at the time of employing the employees we

used to get signature of such employees on blank papers

and we used such papers for any purpose required by us.

It is wrong to suggest that I have sworn a wrong and false

affidavit or that I have deposed falsely. It is wrong to

suggest that some person by the name of Rajesh, was

appointed subsequent to Tejbir Singh or that he was

regularized and we violated the principle of last come first

go. It is wrong to suggest that the claimant has a legitimate

claim for the management.

On 9.11.2013 My Ld Predecessors impleaded Indian Oil

Corporation Ltd. as respondent No. 2 in the Instant ID. An

opportunity was giving to it for filing Written Statement

on its behalf on 9.7.2013 . Respondent No. 2 moved an

application through which he expressed its willingness to

adopt Written Statement filed on 4/3/2006 by previous

respondent. Which was allowed by this Tribunal on 12/9/

2013 and 1/10/2013 was fixed with the consent of A/R’s of

parties for arguments as Ld A/R for respondent No. 2

express desire not to adduce any evidence.

Management filed written submission on 16/12/2013 in

which it mentioned as follows :-

l. That the present industrial dispute is pending

adjudication before this Hon’ble Industrial Tribunal and

is fixed for passing of final Award.

2. That the said industrial dispute was referred to

this Hon’ble Industrial Tribunal vide Reference Order dated

January 20, 2005, with the following Terms of Reference :

Whether the action of the management IBP Co. Ltd.

in terminating the services of Shri Tejbir Singh S/o Shir

Hoshiar Singh, Shilling Operator w.e.f. 30.3.2000 is just

and legal? If not, to what relief the workman concerned is

entitled?

3. That in accordance with the said Reference Order,

the parties to the industrial dispute filed their respective

pleadings. The Claimant filed his Statement of Claim dated

June 20,2005. The Management M/s IBP Company Ltd.,

the original contesting Management, filed its Written

Statement dated March 4, 2006.

4. That the parties to the dispute filed their

respective evidence by way of Affidavits. The claimant

deposed himself as the sole witness on his behalf in order

to prove his contentions and assertions. On the other

hand, the then contesting Management, M/s. IBP

Company Ltd., produced Mr. Amit Thapliyal, the then

Senior Depot Manager, situated at Rajkot, Gujarat.

5. That the cross-examination of the Claimant was

recorded on November 5, 2007, and the cross-examination

of the witness of the Management was recorded on July

28, 2010. Subsequently, the claimant moved an Application

dated September 20, 2011, praying before this Hon’ble

Industrial Tribunal to array M/s. Indian Oil Corporation

Ltd. as one of the parties to the present industrial dispute

in view of the fact that the earlier contesting Management

viz. M/s. IBP Company Ltd. had merged operations with

M/s. Indian Oil Corporation Ltd. The management filed its

Reply to the said Application and the Hon’ble Industrial

Tribunal was please to array M/s. Indian Oil Corporation

Ltd. as the contesting Management in the present

industrial dispute.

6. That the Claimant, vide his Statement of Claim,

has alleged that he was an employee of M/s. IBP Company

Ltd. and was employed as a Shilling Operator. He has further

alleged that he was being paid his salary by the

Management of M/s. IBP Company Ltd. and that he also

received an Experience Certificate from the said

Management, he was also issued an Identity Card of the

Management. Hence, based upon the above contentions

and assertions and alleged documents, the claimant, vide

his Statement of Claim, has sought to contend that he was

an employee of the management of M/s. IBP Company

Ltd. who terminated his services with effect from March

30, 2000 and thus, prayed before this Hon’ble Industrial

Tribunal for reinstatement with full back wages.

It is noteworthy to mention that the said contentions

are frivolous, baseless and without any foundation and

the same were repudiated and denied by the answering

Management vide its Written Statement while clarifying

the proper factual position.

7. That the Management , vide its Written Statement,

clarified the exact factual position that the Claimant was

never an employee of the Management, of M/s. IBP

Company Ltd. and there existed no employer-employee

relationship by and between the Claimant and the

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1365

answering Management. In fact, it is pertinent to state

that the Claimant was employed by one of the Contractors

namely M/s. Mohinder Pal Gupta engaged by the

Management at its Panipat Terminal. The claimant worked

under the supervision, direction and control of the said

Contractor during the period August 1998 to September

1999. It is noteworthy to mention that the Contract of

M/s. Mohinder Pal Gupta coming to an end in September

1999 by efflux of time, the said Contract was extinguished

and then not renewed. It is imperative to mention that by

the said time, the Claimant had established his own Firm

and had become a Contractor in his own right and

requested the Management to avail of his services vide

letter dated September 4, 1999, Exhibit WW1/M1. Thus,

his services were availed of as an independent Contractor.

8. That the Claimant was never employed with the

Management which is evident from the fact that the

Claimant alleged that he was appointed as a Shilling

Operator with the Management; the said fact being

absolutely false as no such post ever existed with the

Management and the same has also been clarified by the

witness of the Management through his evidence by way

of Affidavit , as also during his cross-examination recorded

before this Hon’ble Tribunal. Further, it is noteworthy to

mention that the Claimant was given a Contract as a

Contractor commencing from October 1999 which ended

on March 31, 2000.Subsequent to the same, as the Contract

had come to an end, he was refunded his earnest money

deposited amounting to Rs. 2,500/- vide correspondence

dated March 17, 2000, Exhibit MW1/1. It is also essential

to mention that during the period that the Claimant was

engaged as an independent Contractor, he raised bills/

invoices on the Management for the amount of work

executed by him which were duly paid. The said bill/invoice

dated January 2, 2000 for an amount of Rs. 9,100/- is Exhibit

MW1/2 and the bill/invoice dated March 4, 2000 for an

amount of Rs. 9,436 is Exhibit MW1/3 are documentary

evidence in support of the Management’s case in these

proceedings that establish the claimant was not an

employee of the Management but was an independent

Service Provider.

9. That it is imperative to mention that the

Management of M/s. IBP Company Ltd., being a

Government entity (Public Sector Undertaking), was and

is still required to follow a defined procedure for recruitment

of employees on its roll. The mandatory protocol to be

adhered to that the Management has to place a request

with the Employment Exchange for an employee with the

desired skills through which it is offered details of

candidates who are eligible for such an appointment.

Hence, the assertion of the Claimant that he was an

employee of the Management of M/s. IBP Company Ltd.

also falls flat, based on the fact that the management could

not have employed him directly without the above

mentioned due procedure, and in support thereof, is

statutorily required to produce his letter of Appointment

duly issued by the Company/Management.

10. That it is essential to mention that the Claimant

was never issued an Appointment Letter nor does his

name reflect in any of the record of the Company, as an

employee of the Management viz. Attendance Registers

maintained by the Management of M/s IBP Company Ltd.

for its own employees. Further, the Identity Card issued to

the Claimant was merely done to facilitate him to execute

the work of rake loading assigned to him as an

Independent Contractor. It is also noteworthy to mention

that the Experience Certificates relied upon by the Claimant,

were issued to him by the Management on his own request

whereby he stated that he was searching for employment

and thus required a reference from the Management in

order to ascertain the veracity of his experience. However,

on the institution of the present industrial dispute, the

answering Management has realized that the same were

obtained by the Claimant through deceit and under

misrepresentation to the Management and solely for the

purpose to stake claim for employment with the

Management/Company.

11. That the documents filed by the Claimant in these

proceedings, in fact, support the case of the Management.

To illustrate, the letter dated September 4, 1999, Exhibit

WWl/Ml, in the hands of the Claimant, Mr. Tejbir Singh,

addressed to the management, state as under :

“It has come to my knowledge that the Railway

Department of IBP requires a Contractor for loading

purposes. I have been doing the same work for the past

year and a half at HPC and BPC pertaining to T/W 1oading.

I have also worked for sometime with IBP Company Ltd.

whereat I had satisfactorily executed the work of T/W

I wish to register myself as a Contractor with your

Company for T/W loading. My annual turnover is

Rs. 3,00,000. You are requested to allow me to register as a

Contractor with your Company.”

Hence , there is a clear admission on the part of the

claimant that he had been providing services of loading

and unloading at the Panipat Plant for M/s. HPC and BPC

and even for the answering Management-IBP Company

Ltd. Further, a perusal of the Complaint filed by the Claimant

through his Advocate dated February 18, 2003, Exhibit

WW1/3, clearing states that—“The Applicant was

engaged by the Respondent Management (management

of IBP Company Ltd.-Panipat) through the Contractor

(who was a labour supplier).” This admission, on the part

of the claimant, in his Complaint with statutory authority,

establishes the fact that his engagement was never as

workman/employee of the Company. Furthermore, there is

absolutely no post of Operator Shilling, nor does there

exist any word in the English language dictionary -Shilling.

It is clear that it is pure conjecture on the part of the Claimant

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[PART II—SEC. 3(ii)]

to self-style himself as a workman of the Company, and

that too, on the post of Operator Shilling.

On a perusal of the cross-examination of the Claimant

recorded before this Hon’ble Court on November 5, 2007,

the Claimant, on oath, has stated as under:

“I was working for IOC at Panipat Depot”. (Hence, it

is an admission that he was not working for IBP Company

Ltd. He has further stated that- “The rake loading was

done under my supervision. I have got this training from

IOC. The work done by me was in respect of IBP. I did not

do the work for HPC, BPC or IOC.”

There is a clear contradiction in the statement of the

Claimant in as much as he is referring to employment with

IOC. Further, he is denying that he had worked for HPC,

BPC or IOC. Whereas, as per Exhibit WW1/7, also Exhibit

WW1/M1, which is in the hands of the Claimant himself,

he had provided services to HPC, BPC. Hence, his

testimony is unreliable and contradictory.

It is interesting to note that in his cross-examination,

the Claimant has admitted that the documents filed by him

before the Court, he does not have the originals.

Consequently, the same per se cannot be considered, much

less relied upon by this Hon’ble Tribunal, as per provisions

of the Evidence Act.

Further, in the cross-examination, the Claimant has

stated -“It is correct that I had given the Management

letters dated September 4, 1999, Exhibits WW1/7 and

WW1/7 and WW1/M 1, to do the work as an independent

Contractor at the IOC refinery.” This testimony strengthens

the case of the Management for the reason that had the

Claimant’s statement been true that he was in continuous

employment with the Management of ICP Company Ltd.

as stated by him-“I joined IBP Company on August 20,

1998, and worked till March 30, 2000”. The question of his

applying for work as an independent Contractor at the

IOC Refinery vide letter dated September 4, 1999, would

not and could not have arisen.

The claimant has filed documents addressed to the

Terminal Manager, IBP Company Ltd., as being request

for issuance of permanent Gate Pass. A perusal of the

same clearly reflects that the status of the Claimant is that

of Contractor Workman for rake loading and not that as an

employee of the Management Company, Exhibit WWl/12.

12. That the Claimant, even during his cross-

examination, has failed to produce any cogent evidence

with regard to his alleged employment with the

Management. In fact, the Claimant has only relied upon

an Identity Card issued to him bearing signatures of a

representative of the Management. It is pertinent to state

that merely issuance of an Identity Card is not the basis

and foundation for proving employment as has been held

by the Hon’ble High Court of Punjab & Haryana in the

case of Rampat Vs. Presiding Officer, Industrial Tribunal-

Cum-Labour Court, Panipat & Another reported as 2013

LLR 323. The Hon’ble High Court has held that only

Identity Card is not sufficient evidence in the absence

proof of salary or wags having been paid to the workman

to prove employer-employee relationship.

Further, the Hon’ble Delhi High Court in the case of

Anand Prakash Vs. Godrej Sara Lee Ltd. reported as 2009

LLR 564 has held that the Labour Court is right in rejecting

a dispute of a Petitioner alleging wrongful termination in

case he has miserably failed to support his claim by

producing any documentary evidence including the

Appointment letter whereas the Management has

categorically rebutted contention of the workman

pertaining to his employment with the Management and

also producing the record showing that the workman was

never employed by the Management.

13. That the Claimant has failed to substantiate the

assertions and contentions as raised by him vide his

Statement of Claim. In fact, it is a well settled principle of

law that the burden of proof to prove a fact lies upon the

person alleging the said fact. The Hon’ble Allahabad High

Court, in the case of Vinod Kumar II V. Presiding Officer,

Labour Court, Agra & Another reported as 2005 LLR 1229

has held that while challenging termination of service, it is

for the workman to prove employment and then wrongful

termination, and on his failure to do so, he will not be

entitled to any relief in a dispute before Labour Court. The

Hon’ble Court has further held that the burden of proof

lies heavily on the workman who has sought a reference

of his dispute for adjudication by the Labour Court as the

burden of proof lies initially on the party who raises an

industrial dispute, and at the instance of whom, the dispute

has been referred for adjudication.

14. That even in the present matter the Claimant

has failed to produce any documentary evidence in the

form of an Appointment Letter and/or salary slips or any

other positive cogent evidence to establish an Employer-

Employee relationship, in support of his alleged claim of

employment with the Management.

15. That the Hon’ble Supreme Court of India in the

case of Steel Authority of India Ltd. & Others Vs. National

Union Water Front Workers & Other reported as 2001 Lab

I.C.3656 has held that it cannot be said that by virtue of

engagement of Contract Labour by the Contractor in any

work of or in connection with the work of an Establishment,

the relationship of master and servant is created between

the Principal Employer and the Contract Labour. The

Hon’ble Supreme Court has further held that even a

combined reading of the definition of the term ‘Contract

Labour’, ‘ Establishment’ and ‘Workman’ does not show

that a legal relationship between a person employed in an

industry and the owner of the industry is created

irrespective of the fact as to who has brought about such

relationship. He word ‘Workman’ is defined is wide terms

¹Hkkx II—[k.M 3(ii)º

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1367

and is a generic term of which Contract Labour is a species.

The Hon’ble Supreme Court has further opined that it is

true that a combined reading of the terms ‘Establishment’

and ‘Workman’ shows that a Principal Employer as a

servant or master, but what is true of a workman could not

be correct of a Contract Labour. When the provisions of

the Act neither contemplate creation of direct relationship

of master and servant between the Principal Employer and

the Contract Labour nor can such relationship be implied

from the provisions of the CLRA Act.

16. That in view of the specific pleadings of the

Management as well as the failure on part of the Claimant

to prove his alleged claims, as also based upon the legal

precedents cited hereinabove; the Claimant is neither

entitled nor eligible to any relief as sought by him in his

Statement of Claim. In the end it is also pertinent to mention

that the conduct of the Claimant in contesting the present

dispute has been extremely casual and lackadaisical to

say the least thereby reflecting the frivolous nature of his

Claim. The record of the proceedings held before this

Hon’ble Tribunal clearly indicate that the Claimant has

not been attending the proceedings to even address his

side of the final arguments which is a clear manifestation

that even the claimant believes that there is no merit in his

Claim.

It is, therefore, prayed before this Hon’ble Tribunal

that an Award may be passed in favour of the Management

and against the Claimant holding that the claim as stated

vide the Statement of Claim is not maintainable as there

exists no employer-employee relationship between the

Claimant and the Management.

In the light of oral contentions and written arguments

of Ld. A/R for management as none turn up to argue on

behalf of Workman in this old I.D. I perused the pleadings

of parties contained in statement of claim written statement

and rejoinder as well as evidence of parties on record

including principles laid down in cited rulings and settled

law on the points plus relevant provisions of law.

Perusal of statement of workman makes it crystal

clear that he specifically stated in this Tribunal that “he

joined IBP company on August 20, 1998, and worked till

March 30, 2000.”

Thus the question of his applying for work an

independent contractor at the IOC Refinery vide letter

dated 4, 1999, would not and could not have arisen because

he is in service of IBP company as per his pleadings and

evidence.

Perusal of letter dated 4-9-1999 Exhibit WW1/M1 of

claimant Tejbir Singh addressed to the management shows

that he mentioned in it as follows:-

“.. I wish to register myself as a contractor with your

company for T/W loading. My annual turnover is

Rs. 3,00,000. You are requested to allow me to register as a

contractor with your company”.

Through aforesaid averments he has shown his

annual income Rs. 3,00,000 as a contractor.

In these circumstances it is improbable and

impossible to workman to join with management on the

alleged post of shilling operator in a salary of Rs. 3,300 per

month.

Moreover there is solitary statement of workman

without any oral or documentary corroborative evidence.

Which too is self contradictory.

Although burden of proof lies on workman to prove

its case mentioned in statement of claim and rejoinder.

In addition to its management in its evidence

examined MW1 Jagdish Prasad Senior Depot Manager

situated at Rajkot Gujrat. Who alongwith other facts proved

that workman Tejvir Singh was employed as an

independent contractor in act 1999. His contract renewed

from month to month upto March 2000. For which

contractor had been rasing bills towards the Rake loading

charges on a month to month basis.

Management filed and proved following two bills

submitted by workman for his payment. Out of which 1 st

bill dated January 2, 2000, for an amount of Rs. 9,100 towards

the work carried out as a contractor is Exhibit MW1/2.

Claimant’s 2^nd bill dated March 4,2000, for Rs. 9436

towards the work carried out as a contractor is Exhibit

MW1/3.

On aforesaid points workman could not dare to cross-

examine the management witness hence case of

management is proved.

It is admitted fact that present case is of civil nature.

Hence it is proved on the basis of preponderance of

evidence.

In the circumstances of present case Claim statement

is liable to be dismissed and reference is liable to be

decided in favour of management and against claimant.

Which is accordingly decided.

Award is accordingly passed.

Dated : 31-12-2013

HARBANSH KUMAR SAXENA, Presiding Officer

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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New Delhi, the 23rd January , 2014

S.O. 489.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 29/2009)

of the Central Government Industrial Tribunal-cum-Labour

Court, Bangalore as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

Management of Syndicate Bank and their workman,

received by the Central Government on 23-1-2014.

[No. L-12012/22/2009-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIUBNAL-CUM-LABOUR COURT

“SHRAM SADAN”, G G PALYA, TUMKUR ROAD,

YESWANTHPUR, BANGALORE-560 022

Dated : 26th December, 2013

PRESENT : Shri S. N. NAVALGUND, Presiding Officer

C. R. No. 29/2009

I Party

II Party

Sh. M B Chebbi,

The Assistant General

C/o Shri Basavantappa,

Manager, Syndicate

H No. 54D, Kulkarni Galli,

Bank, Regional Office,

Bailahongal – 591 102

1560, Maruthigalli,

Dist : Belgaum.

Belgaum – 590 002.

Appearances :

I Party

Shri P H Virupakshaiah, Advocate

II Party :

Shri Ramesh Upadhayay, Advocate

AWARD

1. The Central Government vide order No. L-12012/

22/2009-IR(B-II) dated 02.06.2009 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 termination fo Sri madiwalappa B

Chebbi by the management of Syndicate Bank is

legal and justified ? What relief the workman is

entitled to?”

2. On receipt of the reference while registering it in

C R 29/2009 when the notices were issued to both the

sides they entered their appearance through their

respective advocate and the I party filed his claim

statement on 20.05.2010 whereas the II party its counter

statement on 21.07.2010.

3. The I Party in his claim statement asserts that he

who was appointed by the II Party for the clerical post

under Handicapped and Disability reservation provided

by the Government of India after his successful training at

Syndicate Bank Staff Training/College at Bangalore was

posted to its Bailahongal Branch where he joined the duty

on 10.12.2007 inspite of his honest service to the

satisfaction of the customers and the bank and due to the

popularity earned by him some Officers of the II Party

who developed animosity against him and at their instance

his services have been terminated without following the

mandatory service rules and labour rules and that his

termination is tainted with malafide, arbitrary against the

principles of natural justice. It is further alleged the

Assistant General Manager, Syndicate Bank, Regional

office, Belgaum had diplomatically extended his

probationary period for three months and that he having

joined his duty on 10.12.2007 and was served with

termination order dated 28.08.2008 on 29.08.2008 he having

attended the work for 242 days in a calendar year, he has

been terminated in violation of Section 25(f) of the ID Act.

Thus, he prays to set aside the termination order dated

28.08.2008 and to direct the II party to reinstate him into

service with all consequential benefits. Interalia, in the

counter statement filed for the II Party it is contended the

I Party who was appointed as Probationary Clerk vide

order dated 17.11.2007 on completion of one week training

at Bank’s Staff Training College, Bangalore he was posted

to its Bailahongal Branch where he joined on 10.12.2007

and during the period of probation he was found keeping

the work pending, delaying despatch of post resulting

inconvenience to customer service, indulging in quarrelling

with customers, refusing work allotted to him by the

superiors and inspite of letters from time to time pointing

out his deficiency further advising him to improve his

conduct as he did not show any improvement Regional

Office, Belgaum vide letter dated 14.05.2008 bringing to

his notice various deficiencies in his work gave him further

opportunity to improve his performance, behave well with

staff and customers by extending the probationary period

for further three months but as he did not show any

improvement in the performance of his duties and behaviour

with staff and customers and showed disrespect to the

Branch Manager abusing him brining outsiders threatening

with dire consequences he was found unsuitable for

confirmation and continuation in bank’s service as such

he was issued with discharge order dated 28.08.2008. Thus

it is contended since I Party did not discharge his duties

satisfactorily and did not behave properly with the

customers and superiors during the probationary period

and extended probationary period having found him

unsuitable for confirmation and continuation in Bank’s

Service he has been issued with discharge order dated

¹Hkkx II—[k.M 3(ii)º

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1369

28.08.2008 in terms of the letter of appointment sending

him a month’s salary in lieu of notice.

4. After completion of the pleadings when the

matter was posted for Evidence of the II party the learned

advocate appearing for the II party while examining Sh. K

Surya Prakash, Chief Manager, Regional Office as MW 1

got exhibited Office copy of the appointment letter date

17.11.2007 along with the original acknowledgement of

the I party dated 23.11.2007; Original duty joining report

dated 10.12.2007 of the I Party; Office copy of the letter

Ref No. 47 dated 19.02.2008 of the Senior Branch Manager,

Bailahongal Branch of the II Party Bank issued to the

I Party duly acknowledged by him; Office copy of the

letter dated 04.03.2008 by the Senior Branch manager,

Bailahongala of the I Party duly acknowledged by him;

Office copy of the letter dated 13.03.2008 by the Senior

Branch Manager, Bailahongala addressed to the I Party

along with complaint dated 12.03.2008 from Head Master,

HPS Mukibhavi about the delay in payment of Teachers

Salary; Office copy of the letter dated 20.04.2008 by the

Senior Branch Manager, Bailahongala to the I Party;

Original letter of the I Party dated 05.05.2008 addressed to

the Senior Manager by name along with postal cove; Office

copy of the letter dated 05/06.05.2008 by the Senior Branch

Manager to the I party duly acknowledged by him with

date as 14.05.2008; Office copy of the letter dated 14.05.2008

of the Chief Manager, Syndicate Bank, Regional Office

advising the I Party to improve his performance with the

endorsement of the senior Branch manager dated

17.05.2008 stating ‘Refused to accept in person. Sent copy

by Regd AD and copy displayed in the notice board’;

Xerox copy of the letter dated 14.05.2008 of the Chief

Manager, Syndicate Bank, Regional Office advising the

I Party to improve his performance; Office copy of the

Senior Branch Manager addressed to the Assistant General

Manager, Regional Office, Belgaum intimating the refusal

of the I Party to receive the official letter dated 17.05.2008;

copy of the extract of the local delivery book dated

17.05.2008 endorsing the refusal of the I party to take

personal delivery of the letter dated 14.05.2008 of the Chief

Manager, Syndicate Bank, Regional Office advising the I

party to improve his performance; Undelivered post

returned with the postal endorsement ‘Refused. Returned

to sender’; Office copy of the letter dated 30.05.2008 issued

by the Assistant General Manager extending the period of

probation of the I Party for a further period of 3 months

effective from 03.06.2008; Original letter 05.06.2008 of the

senior Branch Manager, Bailahongal Addressed to the

Assistant General Manager, Syndicate Bank, Regional

Office, Belgaum along with attested copy of the local

delivery book dated 02.06.2008; copy of letter dated

07.06.2008 of the Branch Manager, state Bank of India to

the Regional Manager, Syndicate Bank, Regional Office,

Belgaum; Office copy of the letter dated 17.07.2008

addressed to the I Party by the Senior Branch Manager

advising the I party to regularize the loans that are

outstanding in the State Bank of India with an endorsement

that ‘Refused to take delivery. Affixed in notice board on

7/7/2008’; copy of the Police Complaint dated 04.09.2008

as Ex. M-1 to Ex. M-19. Interalia, the learned advocate

appearing for the I party while filing the affidavit of I party

examining him on oath as WW 1 got exhibited Original

Disability Certificate issued by Orthopeadic Surgeon,

district Hospital, Dharwad dated 15.11.1995; his degree

certificate dated April-May 2005; MBA fourth semester

marks card dated 17.08.2007; letter of appointment issued

to him dated 17.11.2007; Office Joining Report (office copy)

dated 03.12.2007; copy of Memorandum in respect of

attending training dated 08.12.2007; office copy of his letter

addressed to ALC(C), Hubli dated 24.11.2008; Original

recommendation letter of Sh. B S Wali and Sons, S D Billur,

Karadiguddi and sons, Mehaboob and Sons, Mallikarjun

General and Medical Stores; Recommendation letter of

customer of Mahantesh A Wali and others; statement of

attendance given by Syndicate Bank, Bailahongal branch

for 2007-2008; copy of letter issued by II Party to ALC(C),

Hubli dated 01.01.2009; certificate issued by Senior Branch

Manager, Bailahongal dated 12.04.2007 as Ex W-1 to Ex

W-21 respectively and later recalling him to give further

evidence got exhibited Attested copy of the declaration

given by him before his appointment regarding his

liabilities dated 03.12.2007; true copies of his performance

report dated 10.01.2008, 11.02.2008, 08.03.2008; Attested

copy of the application given by him to the Manager,

Syndicate Bank, Bailahongal Branch dated 05.04.2008;

True copy of his performance report dated 12.04.2008; the

letter received by him from Chief Manager, Regional Office,

Belgaum dated 14.05.2008; office copy of his letter

addressed to II party dated 29.05.2008; the receipt and

acknowledgement regarding forwarding the representation

dated 29.05.2008 and its receipt; the copy of his letter

dated 29.05.2008 addressed to General Manager copy of

which was marked to President, Akila Karantaka Physical

Action Committee, Bangalore; True copies of Five

performance report dated 30.05.2008, 29.06.2008, 15.07.2008,

20.08.2008, 04.08.2008; true copy of the letter addressed

by Branch Manager, Bailahongal to the Personal Cell,

Regional Office, Belgaum dated 21.08.2008; copy of the

letter by the Senior Branch Manager to him terminating

his services dated 28.08.2008; copy of the letter addressed

by the Assistant General Manager of the II party to the

ALC(C), Hubli dated 21.01.2009; Letter received by him

from Assistant General Manager as a reply to his RTI

Application dated 19.04.2010; Letter received from

Assistant General Manager dated 08.12.2010; copy of the

affidavit of Sh. A. S. Chandrashekar, Assistant General

manager stating that no report is available in respect of

the investigation as no separate investigation was

conducted on complaint against him; copy of his letter to

Syndicate Bank, Bailahongal Branch; the postal receipt

and acknowledgement having posted the same and

received by the Branch Manager; copy of a letter

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

addressed by him to the General Manager dated

06.02.2008; the courier receipt and acknowledgement

regarding service of his letter 06.02.2008; office copy of

the letter addressed by him to the Chairman and Managing

Director, Syndicate Bank, Head Office, dated 10.04.2008;

the courier receipt and acknowledgement regarding

service of his letter dated 10.04.2008 as Ex W-22 to Ex

W-47 respectively. He also while filing the affidavits of

Virupakshaiah Hiremath and Dheeraj Thudevakar claims

to be the customers of Bailahongal Branch of the II Party

wherein they have stated that the I party was working

sincerely and humbly examined them on oath as WW-2

and WW-3 respectively. After close of the evidence of

both the sides, I heard the arguments addressed by learned

advocate appearing for both the sides and also gone

through the citations referred to by them. The learned

advocate appearing for the I Party in support of his

arguments cited the following decisions :

1. 1998 (4) Kar. L J 51 – KSRTC, Sirsi Division,

Sirsi vs. Hanna Baig and another

2. (1990) 3 SCC 682 – Punjab Land Development

and reclamation corporation Ltd., Chandigarh

vs. Presiding Officer, Labour Court, Chandigarh

and others

3. AIR 1995 SC 1352 – Syed Hussaini vs. Andhra

Bank Ltd.,

4. 1984 I LLJ Page 110 – KSRTC, Bangalore vs.

Sheikh Abdul Khader & ors.

5. 2010 (5) SCC 497 – Anoop Sharma vs. Executive

Engineer, Public Health Division No. 1, Panipat

(Haryana)

6. 1994 II LLJ 462 – Suresh Chandra Mathe vs.

Jiwaji University, Gwalior & ors.

7. 1996 Lab IC 1161 – Madhya Pradesh Bank

Karmachari Sangh vs. Syndicate Bank and

another

8. 1988 Law Suit (Bom) 339 – Virender Singh vs.

Haryana Tourism Corporation Ltd.,

9. 2005 II LLJ 856 – Mary Kutty vs. The Hindustan

Times, Bangalore and another

10. 2007 (3) KLI 294 – Assaram Raibhah Dhage vs.

Executive Engineer, Sub-divisional, Mula

11. AIR 1999 Supreme Court 983 – Dipti Prakash

Banerjee vs. Satvendra Nath Bose National

Centre for Basic Sciences, Calcutta and others

12. AIR 2000 SC 1980 – V P Ahuja vs. State of

Punjab and others

13. 2013 AIR SCW 76 – State Bank of India and

Ors. Vs. Palak Modi and Another

5. Whereas the learned advocate appearing for the

II party cited the following decisions :

1. AIR 1996 Supreme Court 2444 – K. V.

Krishnamani vs. Lalit Kala Academy

2. AIR 1998 Supreme Court 327 – LIC of India and

another vs. R S Rao Kulkarni

3. (1992) 4 Supreme Court Cases 719 – Govt.

Council of Kidwai Memorial Institute of

Oncology vs. Defence Representative.

Pandurang Godwalkar and another

4. 2003 AIR SCW 478 - The Commissioner of

Police, Hubli vs. R S More

5. AIR 2005 Supreme Court 792 – Municipal

Committee, Sirsa vs. Munshi Ram

6. AIR 2002 Supreme Court 23 – Pavendra

Narayan Verma vs. Sanjay Gandhi P G I Of

Medical Sciences and another

7. ILR 2004 KAR 54 (DB) – The Management of

M/s. Continental Construction Ltd., and

another vs. the Workmen of M/s. Continental

Construction Ltd.

8. (1994) 2 Supreme Court Cases 323 – M

Venugopal vs. Divisional Manager, LIC of India,

Machalipatnam, A P and Another.

9. AIR 1996 Supreme Court 660 – Jai Krishan vs.

Commissioner of Police and another

10. AIR 2003 Supreme Court 1789 – Mathew P

Thomas vs. Kerala State Civil Supply

Corporation Ltd., and another

6. On appreciation of the pleadings, oral and

documentary evidence, in the light of the arguments

addressed by the learned advocates appearing for both

sides, I have arrived at conclusion the termination of Sh.

Madiwalappa B Chebbi being legal and justified and he is

not entitled for any relief.

REASONS

7. There being no dispute the I Party was being

appointed as a probationary clerk in the II Party Bank in

the Physically Handicapped Quota as per Order dated

17.11.2007, the copy of which is produced at Ex M-1 and

being terminated from service for unsatisfactory

performance during the probationary period and extended

probationary period giving him DD for Rs. 7160.75 paise

in lieu of one month’s notice as per Ex W-38 i.e., being

discharged from service during the extended probationary

period for unsatisfactory performance. As per clause 2 of

the letter of appointment he was to be on probation for a

period of six months from the date of joining which may be

extended by a further period not exceeding three months

depending on his performance and his services will be

confirmed if in the opinion of the competent authority he

satisfactorily completed the probationary period in relation

to work, conduct, acquiring required level of computer

literacy and pass a test which may include viva-voca in a

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1371

language other than his mother tongue and at the sole

discretion of the bank without any reason with one month’s

notice and on payment of one month’s pay and allowances

in lieu of such notice his service being liable to be

dispensed with. Thus as per the terms of appointment

where in the opinion of the competent authority his work

and conduct was found not satisfactory he was liable to

be dispensed with from service with one month’s notice

or with payment of one month’s pay and allowance in lieu

of notice. The number of documentary evidence produced

not only by the II Party but even the documentary evidence

produced by the I Party himself do suggest that on the

performance reports of his immediate superiors i.e., the

Branch Manager initially his probationary was extended

by three months and even during that extended three

months probation period his immediate superior did not

certify his work and conduct with staff and customers

being satisfactory the management dispensed with his

service as per the terms of the employment by sending

him a Demand Draft of one month’s salary as evidenced

by the documentary evidence produced by the I Party

himself at Ex W-38. The I party himself has produced the

monthly performance report submitted by the Branch

Manager for the month of December 2007, January 2008,

February 2008 and March 2008 at Ex W-23, 24, 25 and 27.

In the monthly performance report for December 2007

against the column No. 4 Deficiency if any he has

mentioned “slow in learning, argues and quarrels with

customers inspite of counselling not to do the same”. He

has also mentioned in the remarks column of this report

that “he has quarrelled with SB Account holders of Raita

Samparka Kendra – Agri Dept., Government of Karnataka”.

In the monthly performance report for the month of January

2008 marked as Ex W-25 the branch manager against the

column no. 4 deficiencies has mentioned “slow in learning,

does not evince interest in acquiring knowledge of MOI,

circulars, rules etc and in acquiring computer literacy”.

Again in the monthly performance report for the month of

February 2008 in the column No. 4 he has mentioned

“without informing the branch and not getting the leave

sanctioned he remained absent on 05.02.2008”. In the

monthly performance report for March 2008 against

column No. 4 he has mentioned “he has not made any

efforts to learn ALPM pertaining to PB/PS, LD, JL, does

not attend to customer at this ALPM, Unauthorisedly

absent from duties on 05.02.2008 letter issued on

04.03.2008, letter dated 13.03.2008, issued for keeping the

work pendency. Copies already submitted to RO”. When

such are the performance report by the superiors during

the probationary period two customers on behalf of the I

Party who have been examined as WW 2 and WW 3 saying

that he was working sincerely and honestly is of no

assistance to the I Party to show that he worked and

behaved satisfactorily during the probationary period.

Under the circumstances, there being lot of material on

record regarding non-satisfactory work, conduct and

behaviour of the I Party during the probationary and

extended probationary period in my opinion the

management has rightly as per the terms of the letter of

appointment dispensed/terminated with his services

sending him one month’s salary in lieu of notice which is

also in compliance with the mandate of section 25(f) of the

ID Act. Therefore, I find no reason to say that the

termination of Sh. Madiwallappa B Chebbi being not legal

and justified. Accordingly, I pass the following

ORDER

The reference is rejected holding that the termination

of Madiwalappa B Chebbi by the management of Syndicate

Bank is legal and justified and that he is not entitle for any

relief.

(Dictated to U D C, transcribed by him, corrected and

signed by me on 26^th December 2013)

S. N. NAVALGUND, Presiding Officer

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New Delhi, the 23rd January , 2014

S.O. 490.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 63/2011)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, New Delhi as shown in the Annexure in the

Industrial Dispute between the Management of Punjab

National Bank and their workman, received by the Central

Government on 23-1-2014.

[No. L-12012/5/2007-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. I,

KARKARDOOMA COURTS COMPLEX: DELHI

I. D. No. 63/2011

Shri Sunil Prasad Kashyap

S/o Ram Lakhan Prasad,

C/o Jai Bhawani Medical Agencies,

Racki Mohalla,

PO. Thana. & Distt. Garva,

Jharkhand -822114.

…Workman

1372

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Versus

The Senior Regional Manager,

P.N.B., Regional Office at

MDA Complex,

Ram Ganga Vihar,

Moradabad (U.P.)

…Management

AWARD

On 10.04.2007, Shri Krishan Kumar deposited

Rs.40,080.00 and Rs.40,080.00 at Kiratpur branch of Punjab

National Bank (in short the bank) for issuance of drafts for

a sum of Rs.40,000.00 each, both favouring Shri Piyush

Kumar, payable at BO: Kashipur of the bank. The Head

Cashier, after receiving cash, released vouchers and sent

the same to the concerned clerk/cashier for preparation of

drafts. The Clerk/Cashier, after entering both vouchers in

cash book, entered station of draft in one case as Kashipur

and for other as Allahabad, with malafide intention. Two

drafts for Rs. 40000.00 each were issued favouring

Shri Piyush Kumar, payable at Kashipur branch, which were

later on paid at the said branch of the bank. On the same

day, one draft voucher was destroyed and replaced with

another voucher of similar amount for issuance of a draft,

favouring Shri Ashish Kumar payable at BO: Allahabad

Chowk of the bank. The draft was prepared on the basis of

fictitious cash voucher mentioning name of the applicant

as Sanjay Kumar. On 21.04.2007, a cash payment voucher

for cancellation of the draft favouring Ashish Kumar

payable at BO: Allahabad Chowk was prepared, showing

cash payment to Shri Sanjay Kumar a non-existing person

and it was entered in Suspense Register.

2. In the manner as detailed above, on 02.02.2009

one Shri Vijay Kumar deposited cash of Rs. 25,075.00 for

issuance of a draft favouring Shri Vipin Sharma payable at

GT Road, Ghaziabad branch of the bank. A draft was

prepared, which was later on paid. On the same day, the

draft voucher was destroyed and replaced with another

voucher for issuance of draft in favour of Shri Anil Kumar

payable at Allahabad Chowk branch of the bank. A draft

was prepared on that fictitious cash voucher. On

03.05.1999, voucher for cancellation of the said draft was

prepared on the strength of a letter purportedly of

Shri Sanjay Kumar. Another draft for Rs. 25,000.00 was

prepared favouring Shri Ashish Kumar payable at BO:

Allahabad Chowk. Day book, credit extract and security

document In and Out register in both the cases were written

by the clerk/cashier. Thus, the bank was defrauded to the

tune of Rs. 65,000.00.

3. The clerk/cashier, namely, Shri Sunil Prasad

Kashyap was placed under suspension on 18.09.2001 and

a charge sheet was served on him on 31.07.2003. No reply

to the charge sheet was submitted by him, hence a

domestic enquiry was constituted to look into the truth of

the charges. Shri Anil Kumar Sharma was appointed as

Enquiry Officer. Shri Kashyap participated in the enquiry

and on conclusion of the proceedings, the Enquiry Officer

submitted his report to the Disciplinary Authority. The

Disciplinary Authority concurred with the findings of the

Enquiry Officer and awarded punishment of ’dismissal

without notice’ vide order dated 29.11.2004.

4. Appeal preferred by Shri Kashyap came to be

dismissed. Shri Kashyap approached the Punjab National

Bank Staff Association (in short the Association) for

redressal of his grievance. The Association took up his

cause and raised a demand on the bank for reinstatement

of Shri Kashyap, which demand was not conceded to.

Ultimately, the Association approached the Conciliation

Officer. Since the bank contested the claim preferred by

the Association, conciliation proceedings ended into a

failure. On consideration of failure report submitted by

the Conciliation Officer, the appropriate Government

referred the dispute to Central Government Industrial

Tribunal No. II, New Delhi, for adjudication, vide order

No. L-12012/5/2007-IP(B-II), New Delhi, dated 06.07.2007

with following terms:

“Whether the action of the management of Punjab

National Bank in dismissing the service of Shri Sushil

Kumar Kashyap, Clerk/Cashier, Kiratpur branch of

the bank with effect from 29.11.2004 on the basis of

alleged charges of misconduct levelled against him

vide charge sheet No.DAC:CASH:SP dated

31.07.2003 is legal, fair and justified? If not, to what

relief the concerned workman is entitled?”

5. Vide Corrigendum No.L-12012/5/2007-IR(B-II),

New Delhi, dated 21.02.2008, the appropriate Government

made amendment in the name of the disputant from Sushil

Prasad Kashyap to Shri Sunil Prasad Kashyap.

6. Claim statement was filed by Shri Sunil Prasad

Kashyap, stating that he joined service of the bank on

04.03.1991. He was placed under suspension on 18.09.2001,

in connection with a fraud of Rs. 25,000.00. However, before

suspending him, neither show cause notice was given nor

his explanation sought. The drafts were prepared by the

claimant as per vouchers given to him through proper

channel after depositing cash on that date. The Branch

Manager, in order to save skin of his own men, placed him

under suspension. He was served with a charge sheet on

31.07.2003, without supplying any documents. The Branch

Manager withdrew Rs. 37,000.00 from his Savings Bank

account and parked the same in Sundries account without

informing him. Since Rs. 37,000.00 were recovered from

him, there was no monetary loss to the bank. He was illegally

harassed by the bank. Shri Anil Kumar Sharma was

appointed as Enquiry Officer, who in violation of principles

of natural justice and under pressure and influence of the

bank, submitted his enquiry report on 30.07.2004,

concluding therein that charges stood established against

him. Report of the Enquiry Officer was not provided to

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1373

him. His services were terminated vide order dated

29.11.2004. His appeal against order of dismissal also came

to be dismissed by the Appellate Authority on 28.03.2005,

without application of mind. The claimant pleads that he

may be reinstated in service with continuity and full back

wages.

7. Demurral was made by the bank pleading that

the departmental action taken against the claimant was in

accordance with provisions of the Bipartite Settlement.

He was placed under suspension on 18.09.2001 and

subsequently served with charge sheet dated 31.07.2003,

relating to commission of fraud of Rs.65,000.00 in the books

of the bank. He failed to submit written statement of

defence to the charge sheet, in spite of grant of reasonable

opportunity. Enquiry Officer was appointed vide order

dated 17.10.2003. The claimant attended the enquiry

alongwith his defence representative. He cross examined

the witnesses examined by the bank, during the course of

enquiry proceedings. Defence documents and witnesses

were produced during the enquiry. Copy of the report of

the Enquiry Officer was sent to the claimant, who

submitted his reply to his findings. On consideration of

findings of the Enquiry Officer and submissions of the

claimant, show cause notice was issued on 25.10.2004,

giving him an opportunity of a personal hearing before

the Disciplinary Authority on 06.11.2004, which was

postponed to 17.11.2004 on the request of the claimant.

After taking into account entire facts of the case, including

submissions made by the claimant during personal

hearing, punishment of dismissal without notice was

confirmed. Appeal preferred by the claimant came to be

dismissed. The punishment awarded to the claimant is

just and legal. He is not entitled to any relief, muchless the

relief of reinstatement with back wages, pleads the bank.

8. Vide order No. Z-22019/6/2007-IR(C-II), New Delhi

dated 30.03.2011, the case was transferred to this Tribunal

for adjudication by the appropriate Government.

9. On pleadings of the parties, following issues were

settled:

(1)

Whether the enquiry conducted by the

bank is fair, just and legal?

(2)

Whether punishment awarded to the

claimant commensurate to his misconduct?

(3)

As in terms of reference.

(4)

Relief.

10. On appreciation of facts testified by the claimant

and those detailed by Shri Anil Kumar, besides

submissions made by the parties, issue No.1 was

answered in favour of the claimant and against the bank,

vide order dated 30.04.2012.

11. To prove misconduct of the claimant, Shri H.S.

Kohli, Senior Manager and Shri G.S. Gupta, Chief Manager

were brought in the witness box by the bank. Claimant

examined himself and Shri Inderpal Singh in rebuttal. No

other witness was examined by either of the parties.

12. Arguments were advanced at the bar. Shri D.N.

Mishra, authorised representative, advanced arguments

on behalf of the claimant. Shri Rajat Arora, authorised

representative, presented facts on behalf of the bank.

Written submissions were also filed on behalf of the

claimant. I have given my careful consideration to the

arguments advanced at the bar and cautiously perused

the record. My findings on issues involved in the

controversy are as follows:-

Issue No. 2

13. In order to judge as to whether misconduct of

the claimant stood established or not, it is expedient to

note charges served upon him, besides evidence adduced

by the parties. Charge sheet proved as Ex. MW1/117

highlights misconduct committed by the claimant, while

working as Clerk/Cashier at Kiratpur branch of the bank

from 05.03.1991, in the following terms:

“On 10.04.1997, one Shri Krishan Kumar

deposited in the branch Rs.40,080.00 and

Rs.40080.00 on two draft vouchers for issuance of

two drafts for Rs.40,000.00 and Rs.40,000.00, both

favouring Shri Piyush Kumar payable at BO :

Kashipur.

The Head Cashier received the case and released

both the vouchers under his signatures and duly

entered in cashier’s long book at Serial No.8 & 9.

You entered both the vouchers in draft cash book

at Serial No.8 and 9, but instead of entering station

of both the drafts as Kashipur, you with malafide

intention entered station of draft at Sl. No.8 as

Allahabad.

You prepared two drafts on printed draft

Nos.RFA 046961 and RFA 046962 for Rs.40,000.00

and Rs.40,000.00 each favouring Shri Piyush Kumar

payable at BO : Kashipur (Branch Serial No. 65/97

and 66/97). Both the drafts were later on paid by

BO:Kashipur to the payee on 21.04.1997.

On the same day, i.e. 10.04.1997, you destroyed

one of the above draft vouchers on which draft

bearing branch Sl. No.65/97 was issued by replacing

with another voucher of same amount, i.e.

Rs.40,000.00 for issuance of draft for Rs.40,000.00

on BO:Chowk, Allahabad favouring Shri Ashish

Kumar, your brother in law.

You prepared draft for Rs.40,000.00 favouring

Shri Ashish Kumar payable at BO:Chowk Allahabad

bearing printed No.RFA 046974 (BO Sl.No.24/97) on

the above fictitious cash voucher for Rs.40000.00

1374

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

prepared by you wherein name of the applicant was

mentioned as Sanjay Kumar, without any address.

The Day book, credit extract and security

document In & Out register of 10.04.2007 were also

written by you.

On 21.04.1997, you prepared a cash payment

voucher for cancellation of the above said draft

No. RFA 046974 (Branch Sl. No. 24/97) favourng Shri

Ashish Kumar payable at Allahabad Chowk,

showing cash payment to Shri Sanjay Kumar, a non-

existing person and entered the same in Suspense

On 02.02.1999, one Shri Vijay Kumar deposited

cash of Rs. 25,075.00 in the branch on one draft

voucher for issuance of draft of Rs. 25,000.00

favouring Shri Vipin Sharma payable at BO:G.T. Road,

Ghaziabad.

You prepared draft on printed draft No. RRW

166894 (BO Sl.No. 18/99) for Rs. 25,000.00 favouring

Shri Vipin Sharma payable at BO:GT Road, Ghaziabad.

The captioned draft was later paid by BO:GT Road,

Ghaziabad to the payee.

On the same day, i.e. 02.02.1999, you destroyed

the above draft voucher and replaced it with another

voucher for same amount, i.e. Rs. 25,075.00 for

issuance of draft on Allahabad favouring Shri Anil

Kumar.

The Day book and security document In & Out

You prepared draft for Rs. 25,000.00 favouring

Shri Anil Kumar payable at BO:Chowk Allahabad

bearing printed No. RRW 166888 (BO Sl.No. 8/99)

on the above fictitious cash voucher for Rs. 25000.00

showing Sanjay Kumar as applicant without any

address.

On 03.05.1999, you prepared a cash payment

vouchers for cancellation of the said draft bearing

No. RRW 166888 (Branch Sl. No. 8/99) for

Rs. 25,000.00 on the strength of letter dated

03.05.1999 purporting to be from Sanjay Kumar but

written in your own handwriting without ensuring

address of the applicant on the application and

misrepresenting the above fact, you prepared

another draft for Rs. 25,000.00 bearing Printed Draft

No. RRW 167824 (BO Sl.No.10/99) favouring Shri

Ashish Kumar payable at BO:Chowk, Allahabad.

The respective vouchers for the transaction, i.e.

transfer debit voucher to suspense account and

transfer credit voucher for issuance of draft were

also prepared by you besides posting the debit

voucher in suspense register. The draft favouring

Shri Ashish Kumar was paid in clearing by

BO:Chowk, Allahabad on 17.06.1999 for credit of

account of Shri Ashish Kumar, your brother in law

with Canara Bank, Mirzapur.

Thus you have allegedly committed fraud of

Rs. 65,000.00 in the books of the bank by way of

above irregularities which are prejudicial to the

interest of the bank and amounts to gross

misconduct in terms of Para 19.5(j) of the Bipartite

Settlement dated 19.10.1966.”

14. To substantiate charges, referred above,

Shri G.S. Gupta unfolds in his affidavit Ex. MW2/A,

tendered as evidence, that on 10.04.1997 one Shri Krishan

Kumar had depsited an amount of Rs. 40,080.00 each on

two draft vouchers for issuance of two drafts of

Rs. 40,000.00 each, both favouring Shri Piyush Kumar,

payable at Kashipur branch of the bank. The Head Cashier

of the bank received cash and released the vouchers under

his signatures, after entering the same in cash long book

at serial Nos. 8 and 9 of that date. Copy of cash receipt

long book dated 10.04.1997 is Ex. MW2/1. Claimant entered

those vouchers in draft cash book at serial Nos. 8 and 9.

At the time of entering station of those two vouchers, he

with malafide intention entered the station of draft voucher

at serial No.8 as Allahabad. Copy of draft cash book is

Ex. MW2/2. Thereafter, claimant prepared two drafts RFA

046961 and RFA 046962 for Rs.40,000.00 each favouring

Shri Piyush Kumar payable at Kashipur. The above drafts

were later on paid by Kashipur branch of the bank to Shri

Piyush Kumar on 24.07.1997. Copies of drafts issued in

favour of Shri Piyush Kumar are Ex.MW2/4 and Ex.MW2/

5 (inadvertently the office has marked these two drafts as

Ex.MW2/5 and Ex.MW2/6).

15. Copy of draft issue register is Ex. MW2/6

(inadvertently this document has been marked as Ex. MW2/

7). Copy of cash receipt voucher of Rs.40,080.00 on the

basis of which draft serial No. RFA 046962 was issued is

Ex. MW2/8 (inadvertently this document has been marked

as Ex. MW2/9). Witness unfolds that on the same date,

claimant had destroyed one of the draft voucher on which

draft bearing serial No.65/97 was issued and replaced it

with another voucher for a sum of Rs. 40,080.00 for issuance

of draft of Rs. 40,000.00 on BO : Chowk Allahabad

favouring Shri Ashish Kumar, his brother-in-law.

16. Claimant prepared draft of Rs.40,000.00 bearing

serial No. RFA 046974 favouring Shri Ashish Kumar

payable at BO:Chowk Allahabad. Copy of fictitious

voucher, on which draft serial No. RFA 046974 was issued,

is Ex. MW2/9 (inadvertently this document has been marked

as Ex. MW2/10). On Ex. MW2/10 name of the applicant

was mentioned as Sanjay Kumar without any address.

Copy of draft RFA 046974 for a sum of Rs. 40,000.00 payable

at BO:Chowk Allahabad is Ex. MW2/10 (inadvertently this

document has been marked as Ex. MW2/11). Copy of

draft issue register is Ex. MW2/11 (inadvertently this

document has been marked as Ex. MW2/12.)

¹Hkkx II—[k.M 3(ii)º

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1375

17. Day Book, Credit Extract and Security

Documents in and Out Register of 10.04.1997 were written

by the claimant. Credit extract for Zonal Office is Ex. MW2/

14, wherein one draft for a sum of Rs. 40,000.00 has been

shown as issued payable at Kashipur whereas other draft

has been issued for a sum of Rs. 40,000.00 payable at

BO:Chowk Allahabad. On 21.04.1997, cash payment

voucher for cancellation of draft No. RFA 046974 favouring

Ashish Kumar payable at BO:Chowk Allahabad was

prepared showing cash payment to one Shri Sanjay Kumar,

a non-existent person. Claimant entered the said payment

of Rs. 40,000.00 in favour of Shri Sanjay Kumar in suspense

debited to suspense head to the tune of Rs.40,000.00 is Ex.

MW2/15 (inadvertently this document has been marked

as Ex. MW2/18). Copy of suspense register, having entry

of Rs. 40,000.00 is Ex. MW2/16 (inadvertently this

document has been marked as Ex. MW2/19). Copy of draft

No. RFA 046974 favouring Shri Ashish Kumar, cancelled

on 21.04.1997 is Ex. MW2/17 (inadvertently this document

has been marked as Ex. MW2/ 20). By above acts, claimant

had committed fraud of Rs. 40,000.00 in books of the bank,

caused loss to the bank and committed misconduct. Shri

Ashish Kumar, his brother in law, was also a party to the

fraud, committed by the claimant.

18. Shri H.S. Kohli unfolds in his affidavit Ex. MW3/

A, tendered as evidence, that on 02.02.1999, one Shri Vijay

Kumar deposited cash of Rs. 25,075.00 in the branch for

issuance of draft for a sum of Rs. 25,000.00 favouring Shri

Vipin Sharma, payable at BO:GT Road, Ghaziabad. Copy

of cashier long book is Ex. MW3/1. Copy of draft cash

book is Ex. MW3/2. Claimant prepared draft No. RRW

166894 for a sum of Rs.25,000.00 favouring Shri Vipin

Sharma payable at GT Road, Ghaziabad, copy of which is

Ex. MW3/3 (inadvertently this document has been marked

as Ex. MW3/9). Copy of draft issue register, payable at

Ghaziabad has been annexed as Ex. MW3/5. The said draft

was paid at BO:GT Road, Ghaziabad to the payee. Witness

declares that on 02.02.1999, claimant destroyed above draft

voucher and replaced it with another draft voucher for an

amount of Rs. 25,075.00 for issuance of draft favouring

Shri Anil Kumar payable at Allahabad. Copy of the said

draft voucher is Ex. MW3/6. Copy of draft issue register

payable at BO:Chowk Allahabad is Ex. MW3/7. Copy of

draft voucher is Ex. MW3/8. Copy of draft No. RRW 166888

issued for a sum Rs. 25,000.00 favouring Shri Anil Kumar

is Ex. MW3/10. Copy of credit extract is Ex. MW3/11. Day

Book and Security Documents In and Out Register of

02.02.1999 were written by the claimant. Claimant prepared

draft No. RRW 166888 on above fictitious cash voucher

for Rs. 25,075.00, showing one Shri Sanjay Kumar as

applicant. On 03.05.1999, claimant prepared another

voucher for cancellation of draft No. RRW 166888 for a

sum of Rs. 25,000.00 on a letter purported to have been

written by Shri Sanjay Kumar. Copy of debit transfer

voucher for Rs. 25,000.00 dated 03.05.1999 in suspense

account is proved as Ex. MW3/15. Copy of the said letter

is Ex. MW3/17, which was written by the claimant in his

own hand. Copy of cancelled draft No. RRW 166888 is Ex.

MW3/16. Copy of suspense register is Ex. MW3/18. Copy

of credit extract is Ex.MW3/19. Misrepresenting above

facts, he prepared another draft for Rs.25,000.00 bearing

No.RRW 167824 favouring Shri Ashish Kumar payable at

BO : Chowk Allahabad. Draft favouring Shri Ashish Kumar

was paid in clearing by BO:Chowk Allahabad on

17.06.1999, for credit in account of Shri Ashish Kumar at

Canara Bank, Mirzapur. Copy of voucher dated 03.05.1999

for payment of commission of Rs. 75.00 is Ex. MW3/12.

Copy of transfer credit voucher dated 03.05.1999 for

Rs. 25,000.00 is Ex. MW3/14. Thus, by above facts, the

claimant had committed fraud of Rs. 25,000.00 in the books

of the bank, caused loss to the bank and committed

misconduct. His brother in law, Shri Ashish Kumar was

also a party to the fraud, committed by the claimant.

19. In his affidavit Ex.WW1/B, the claimant admits

that on 10.04.1997, 21.04.1997, 02.02.1999 and 03.05.1999,

he was assigned duties relating to draft issue department,

besides allied duties at Kiratpur branch of the bank. In

discharge of duties in normal course of business, he

performed clerical job in bonafide manner. On 02.02.1999,

he prepared draft No. RRW 166894 for a sum of

Rs. 25,000.00 favouring Shri Vipin Sharma, payable at GT

Road, Ghaziabad branch of the bank. He prepared that

draft on blank draft leaf supplied by the Officer Incharge

on the strength of voucher cum draft application received,

duly passed, stamped and authenticated for cash received

in the cash department, by cash receipt clerk. On that date,

he also prepared draft No. RRW 166888 for a sum of

Rs. 25,000.00 favouring Shri Anil Kumar payable at Chowk,

Allahabad on blank draft leaf given by the Officer Incharge

on the strength of another voucher-cum-draft application

form, duly passed and released from cash department

bearing stamp and authentication of cash received by cash

receipt clerk. These drafts were checked by the bank’s

Officer Incharge alongwith respective vouchers and duly

signed as authorized signatory. He kept the draft with him

and handed over the same to the purchaser. On 03.05.1999,

he performed duties as clerk for cancellation of draft No.

RRW 166888 for Rs. 25000.00 on the strength of letter

dated 03.05.1999 presented by the purchaser and prepared

another draft for Rs. 25,000.00 bearing No. RRW 167824

under supervision and authentication by respective Officer

Incharge, in good faith in normal discharge of his duties.

20. The claimant details that on 10.4.1997, he

prepared two drafts of Rs. 40,000.00 each bearing

No.046961 and 046962 payable at Kashipur and another

draft for a sum of Rs. 40,000.00 bearing No. 046924 payable

at BO:Chowk, Allahabad on the strength of respective

voucher-cum-application forms, received duly passed and

1376

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

released from cash department bearing stamp and

authentication of cash receipt by cash receipt clerk. All

these drafts were prepared on draft leaves supplied by the

Officer Incharge, which were duly checked and signed by

the authorized officers. On 21.04.1997, he performed clerical

duty for cancellation of draft No. 046974 on the strength

of application form submitted for cancellation of that draft.

The entire clerical duties were checked and supervised by

the authorized officials and cash payment was made

through cash department on the strength of vouchers

passed by the bank officials. He committed no act of

omission and commission of delinquency or negligence.

He had not committed any fraud.

21. The claimant denied destruction of voucher

dated 02.02.1999 and its replacement by another voucher

for issuance of draft in favour of Shri Anil Kumar. He further

denied that draft payable at BO:Chowk Allahabad was

prepared by him on fictitious cash voucher. On 03.05.1999,

he cancelled draft on genuine application for cancellation

submitted by Shri Sanjay Kumar, purchaser of the draft.

He disputed that Shri Ashish Kumar, having account with

Canara Bank at Mirzapur is his brother in law. He also

denied that he destroyed drat voucher bearing serial No.

65/97 or replaced it with any other voucher.

22. Out of facts unfolded by Shri G.S. Gupta it came

to light that the claimant prepared draft bearing serial No.

RFA 046974, proved as Ex. MW2/10 on the basis of

fictitious voucher Ex. MW2/9. Draft Ex. MW2/10 was

cancelled and cash payment voucher for cancellation was

prepared on 21.4.97 favouring one Sanjay Kumar, a non-

existant person. Cash payment voucher Ex. MW2/15 was

debited to suspense head. Copy of suspense register,

having an entry of Rs. 40,000.00, was proved by Shri Gupta

as Ex. MW2/16. On this count the claimant presents that

he prepared draft No. RFA 046974 on the strength of

voucher cum application form duly passed and released

from cash department bearing stamp and authentication

of cash receipt by cash receipt clerk. He further claims that

he processed cancellation of above draft on the strength

of application for its cancellation, which act was duly

checked and supervised by authorized official and cash

payment was made through cash department on the

voucher passed by concerned bank official. Thus it is

obvious that rival claims are made about genuineness and

authenticity of the above documents.

23. In order to assess as to whether voucher Ex.

MW2/9 is fictitious or not assistance is taken out of

proceedings Ex. MW1/20, recorded by the Enquiry Officer

on 27.5.04. In these proceedings Shri G.S.Gupta was

examined as a witness by the bank before the Enquiry

Officer. Shri Gupta explains that Ex. MW2/9 (produced as

MEX 20 before the Enquiry Officer) was filled in by the

claimant. He further details that on the strength of this

voucher a draft for a sum of Rs. 40,000 was issued in favour

of Shri Ashish Kumar. A commission of Rs. 80 was charged

for preparation of that draft. He further explains that in

head cashier long book two entries of drafts payable at

Kashipur were recorded on 10.4.97. No entry in respect of

draft payable at Allahabad was recorded in head cashier

long book on 10.4.97. Voucher Ex. MW2/9 was not entered

in head cashier long book. He concludes that this fact is

sufficient to announce that the amount mentioned in

voucher Ex. MW2/9 was not received by the cash clerk.

He went on to detail that this voucher was prepared

wrongly and draft issued against this voucher was an act

of fraud. In an answer to a question put to him by the

Enquiry Officer Shri Gupta explains that in head cashier

long book two vouchers for issuance of drafts payable at

Kashipur were entered while the claimant entered those

vouchers in draft cash book at serial No. 8 & 9 and in

doing so he entered station of draft voucher at serial No.

8 as Allahabad. He went on to unfold that the claimant

prepared two drafts payable at Kashipur. Against fictitious

voucher Ex. MW2/9, the claimant prepared a draft payable

at Allahabad. Thus the claimant had prepared an additional

draft, besides two drafts payable at Kashipur. During the

course of cross examination of Shri Gupta before this

Tribunal as well as before the Enquiry Officer, the claimant

could not dispel these facts.

24. One may venture as to whether someone else,

other than the claimant, was responsible for these

fraudulent acts. For an answer to this proposition

assistance is taken out of the proceedings Ex. MW1/13,

recorded by the Enquiry Officer on 31.7.03. When these

proceedings are scanned, it came to light that Shri V.P.S.

Rawat was examined by the bank before the Enquiry Officer

on that date. In a question put to Shri Rawat he explains

that Ex. MW2/9 (produced as MEX 20 before the Enquiry

Officer) bears his initial, initial of Shri Sanjeev Gautam and

Shri G.S. Gupta. Shri Rawat was working as incharge of

draft issue section on 10.4.97. He initialed this document

in the capacity of incharge draft issue section, while

Shri Gupta initialed it in the capacity of Branch Manager.

When Shri Rawat was questioned about the ambiguity

occurring in head cashier long book and draft cash book

(wherein entry was recorded by the claimant showing

stations as Allahabad and Kashipur for payment of the

two drafts) he explained that in that regard the claimant

had breached his confidence. Out of the facts projected

by Shri Rawat it came to light that the witness explains

that on account of confidence shown by him in the claimant

he had not verified stations of the drafts in draft cash

book and without examination of voucher Ex. MW2/9 he

initiated it in confidence. It is obvious, out of these facts,

that fictitious voucher Ex. MW2/9 was prepared by the

claimant. It was initialed by Shri Rawat in confidence.

When Ex. MW2/9 was initialed by Shri Rawat, incharge

draft issue section, it was also initialed by Shri Gupta, the

Branch Manager.

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25. In his testimony, the claimant admits issuance

of three drafts on 10.4.97, all for a sum of Rs. 40,000 each.

Two drafts bearing No. RFA 046961 and RFA 046962

payable at Kashipur were prepared on the strength of

voucher entered by the cash receipt clerk in head cashier

long book at serial No.8 & 9, proved as Ex. MW2/1. Those

drafts were sent to Kashipur for payment and copies of

those drafts have been proved as Ex. MW2/4 and Ex.

MW2/5. Later on these drafts were paid to Shri Pyuesh

Kumar. These two drafts were issued against cash

vouchers in respect of which cash was issued by the cash

clerk.

26. Issuance of draft No.RFA 049174 on 10.4.97,

favouring Shri Ashish Kumar payable at Chawk Allahabad

branch of the bank, is also an admitted act of the claimant.

The claimant presents that it was prepared on the strength

of voucher-cum-application form duly passed and released

from cash department bearing stamp and authentication

of cash receipt by cash receipt clerk. This assertion of the

claimant was proved to be wrong, when facts were

unfolded in that regard by Shri J.S. Gupta. Shri Gupta could

bring it to light that this draft was issued on the strength

of fictitious vouchers Ex. MW2/9, which was filled in by

the claimant in his own hand. To cover his misdeeds the

claimant recorded stations of draft vouchers at serial no. 8

& 9 as that of Allahabad and Kashipur respectively. Shri

Gupta brought it on record that no payment was made in

respect of voucher Ex. MW2/9. This fictitious voucher

was created by the claimant to replace the genuine voucher,

which was entered at serial no.8 of head cashier long book.

On 21.4.97 draft RFA 046974, copy of which is proved as

Ex.MW2/10 was cancelled by the claimant after preparing

cash payment voucher for cancellation. He entered the

said payment in suspease register favouring one Sanjay

Kumar, a non existant person. Copy of suspension register,

proved as Ex. MW2/16, highlight that a sum of Rs. 40,000

was debited to suspense head. Thus he paved way for

payment of Rs. 40,000 in favour of Sanjay Kumar, which

amount was paid to a non-existant person. The bank had

been able to establish that the claimant committed a found

and put the bank to loss of Rs. 40,000.

27. Whether negligence shown by Shri Rawat

amounts to a misconduct? For an answer to this proposition

it would be in the fitness of things to construe the word

“misconduct”. The dictionary meaning of the word

‘misconduct’ is: “improper behaviour, intentional wrong

doing or deliberate violation of a rule of standard of

behaviour. “Misconduct is a transgression of some

established and definite rule of action, where no discretion

is left except what necessity may demand: it is violation of

definite law, a forbidden act and differs from carelessness.

It comprises of positive acts and not mere neglect or

failure”.

28. Under Indian Penal Code and other special and

local laws some acts or omissions are offences for which a

person can be punished by the sovereign power of the

State. These offences or acts are considered to be

prejudicial to the interest of the society in general and,

therefore, they are prohibited by law. There are, however,

various other organizations such as professional bodies,

educational institutions, clubs, corporations etc. and any

one who wants to be admitted to such bodies, by being

member or otherwise, is also required to act under certain

rules and remain subject to certain discipline. If he does

anything in violation of rules, regulations, or any law

inconsistent with his position as a member of that society,

then he is liable to lose advantage and facilities of the

association with that society or organization. Any such

act is, therefore, generally called misconduct. Primary

meaning of the word ‘misconduct’ is bad management,

mis-management and malfeasance or culpable neglect of

an official in regard to his office. Both in law and in ordinary

parlance, the term misconduct usually implies an act done

willfully with a wrong intention and as applied to

professional acts, even though such acts are not inherently

wrongful, it means also dereliction of or deviation from

duty. Even assuming that a particular act is negligence

and not misconduct, such a negligence which amounts to

dereliction of or deviation from duty cannot be excused.

See In re:-Mehboob Alikhan (AIR 1958 AP 116).

29. In N.M. Roshan Umar Karim and Co. (AIR 1936

Mad.508) following three different meaning of the word

‘misconduct’ were given:

“(a) Misconduct is not established by proving even

culpable negligence. It is something opposed

to accident or negligence and is doing of

something which the doer knows to be wrong

or which he does recklessly not careing what

the result would be.

(b) Misconduct is distinguished from accident and

is not far from negligence - not only gross and

culpable negligence and involves that a person

misconducts himself when it is wrong conduct

on his part, in the existing circumstances to do

or to fail or omit to do a particular thing or to

persist in the act, failure or omission or acting

with carelessness. It is incorrect that a

misconduct only refers to acts of gross or

culpable negligence and nor mere negligence.

negligence. The test of misconduct is not what

a reasonable man would have done in the

circumstances. It means that servant is guilty

of something which was inconsistent with the

conduct expected of him by the rules of the

company”.

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Above three meanings were quoted by the Apex

Court with approval in Shiv Nath (AIR 1965 SC

1666).

30. Whether mere negligence is a misconduct or

not will depend upon the nature of negligence and the

requirement of care which the employee was obliged to

use on the nature of services he was expected to perform.

Misconduct could be of three kinds:

(i) technical misconduct which leaves no trail of

indiscipline,

(ii) misconduct resulting in damage to the

employer’s property which might be

compensated by forfeiture of gratuity or part

thereof, and

(iii) serious misconduct such as acts of violence

against the management or other employee or

riotous of disorderly behaviour in or near the

place of employment, which though not directly

causing damage, is conductive to grave

indiscipline.

31. In Ram Singh (1992 Lab. IC 2391) the Apex Court

observed that though the expression “misconduct” is “not

capable of precise definition, its dereliction receives its

connotation from the context, the delinquency in its

performance and its effect on the discipline and the nature

of duty. It may involve moral turpitude, it must be improper

or wrong behaviour, unlawful behaviour, willful in character,

forbidden act, a transgression of established and definite

rule of action or code of conduct but not mere error of

judgement, carelessness or negligence in performance of

duty, the act complained of bears forbidden quality or

character. Its ambit has to be construed with reference to

the subject matter and the context wherein the term occurs,

regard being had to the scope of the statue and the public

purpose it seeks to serve.”

32. In industrial law, the word ‘misconduct’ has

acquired a specific connotation. In Shalimar Rope Works

Ltd. (1953 L.A.C. 584) the Labour Appellate Tribunal laid

down the criteria for determination as to whether an act

would be misconduct, viz. the act (i) is inconsistent with

the fulfillment of the express or implied conditions of

service, or (ii) is directly linked with the general relationship

of employer and employee or (iii) has a direct connection

with the contentment or comfort of the men at work, or (iv)

has a material bearing, on the smooth and efficient working

of the concern. If the answer to any of these criteria is in

affirmative, the action in question would amount to an act

of misconduct. In industrial law, there two kinds of

misconduct, namely; (I) gross or major misconduct which

justify punishment of dismissal or discharge, and (II) minor

misconduct which do not justify punishment of dismissal

or discharge but may call for lesser punishment. See also

Caltex India Ltd. (1966 (2) LLJ 137).

33. As testified by Shri Rawat he relied the claimed

and initialed Ex.MW2/9. As an incharge draft issue section,

Shri Rawat was under an obligation to ascertain whether

Ex.MW2/9 bears signature of cash receipt clerk in taken of

the fact that a sum of Rs. 40,000, besides commission of

Rs.80 was paid. This duty was not performed by Shri Rawat

and he initialed Ex.MW2/9 in blind faith. He was supposed

to glance at the docment and ascertain factum of receipt

of cash by cash clerk. Negligence of Shri Rawat in that

regard is culpable and amounts to a misconduct. However

for this negligence Shri Rawat was not proceeded against

departmentally, since he had obtained voluntary retirement

before incident of fraud came to light. On the date when

domestic action was being initiated against the claimant,

Shri Rawat was not in the service of the bank by then.

Under these circumstances, the bank would not initiate

any action against Shri Rawat for his lapses. Since the

claimant and Shri Rawat were differently placed on the

date when domestic action was being initiated against the

former, it cannot be said to be a case of discrimination.

34. Shri G. S. Gupta initialed Ex.MW2/9 in the

capacity of Branch Manager. By that time Ex.MW2/9 was

initialed by Shri Rawat, incharge draft issue section. When

this document reached hands of the Branch Manager, he

found it already initialed by incharge draft issue section,

as a taken of fact that he had examined and verified all

contents of that document. Shri Gupta was justified in

relying on Shri Rawat, who was second layer of officer

supposed to have examined the document. Therefore

negligence on the part of the Gupta, in personally not

examining contents of Ex.MW2/9, does not amount to a

misconduct. He was right in placing reliance on his

subordinate and his omission does not partake character

of culpability or misconduct.

35. As unfolded by Shri H.S.Kohli a sum of

Rs. 25,075 was deposited by one Vijay Kumar on 02.02.99

for issuance of a draft for a sum of Rs. 25,000 favouring

Shri Vipin Sharma payable at branch office G.T. Road,

Ghaziabad. The claimant prepared that draft bearing No.

RRW166894, copy of which has been proved as Ex. MW3/

3. Issuance of this draft is admitted by the claimant, in his

testimony, Shri Kohli further unfolds that draft voucher

was destroyed and replaced by the claimant with draft

voucher proved as Ex. MW3/6. It was recorded in draft

issue register for a draft of Rs. 25000 payable at branch

office Chawk Allahabad, copy of which has been proved

as Ex. MW3/7. He prepared a draft bearing No. RRW166888

for a sum of Rs.25000 favouring Shri Anil Kumar, copy of

which has been proved as Ex. MW3/10. Issuance of this

draft is also not disputed by the claimant. However in

head cashier long book draft voucher for this draft does

not find any entry, which fact establishes that no payment

was received by the bank in respect of that draft. The said

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draft was prepared on fictitious cash voucher for Rs.25075

showing one Sanjay Kumar as applicant.

36. On 3.5.99 the claimant prepared voucher for

conciliation of draft No.166888. Draft cancellation voucher

was prepared by the claimant on the strength of letter

Ex.MW3/7. Shri Kohli claims that this letter was written by

the claimant in his own hands. The claimant could not

dispel the fact that letter Ex.MW3/17 was in his hand.

Thus it is evident that the claimant wrote Ex.MW3/17,

purported it to have been written by one Sanjay Kumar.

Misrepresenting these facts he prepared another draft for

a sum of Rs.25000 bearing No.RRW 166894 favouring one

Ashish Kumar. Later on the said draft was paid in clearing

by branch office Chawk Allahabad on 17.6.99 for credit in

the account of Shri Ashish Kumar at Canara Bank,

Mirzapur. Shri Ashish Kumar is brother in law of the

claimant. The bank had been able to establish that by this

modus oprendi the claimant committed a fraud and caused

loss to the bank to the tune of Rs.25000. The bank could

establish that the claimant committed fraud and caused

loss of a total sum of Rs. 65000.

37. What should be the appropriate punishment,

which can be awarded to the claimant, is a proposition

which would be addressed to by this Tribunal? Right of

an employer to inflict punishment of discharge or dismissal

is not unfettered. The punishment imposed must

commensurate with gravity of the misconduct, proved

against the delinquent workman. Prior to enactment of

section 11-A of the Industrial Disputes Act, 1947 (in short

the Act), it was not open to the industrial adjudicator to

vary the order of punishment on finding that the order of

dismissal was too severe and was not commiserative with

the act of misconduct. In other words, the industrial

adjudicator could not interfere with the punishment as it

was not required to consider propriety or adequacy of

punishment or whether it was excessive or too severe.

Apex Court, in this connection, had, however, laid down

in Bengal Bhatdee Coal Company (1963 (I) LLJ 291) that

where order of punishment was shockingly

disproportionate with the act of the misconduct which no

reasonable employer would impose in like circumstances,

that itself would lead to the inference of victimization or

unfair labour practice which would vitiate order of dismissal

or discharge. But by enacting the provisions of section

11-A of the Act, the Legislature has transferred the

discretion of the employer, in imposing punishment, to

the industrial adjudicator. It is now the satisfaction of the

industrial adjudicator to finally decide the quantum of

punishment for proved acts of misconduct, in cases of

discharge or dismissal. If the Tribunal is satisfied that the

order of discharge or dismissal is not justified in any

circumstances on the facts of a case, it has the power not

only to set aside order of punishment and direct

reinstatement with back wages, but it has also the power

to impose certain conditions as it may deem fit and also to

give relief to the workman, including award of lesser

punishment in lieu of discharge or dismissal.

38. It is established law that imposing punishment

for a proved act of misconduct is a matter for the punishing

authority to decide and normally it should not be interfered

with by the Industrial Tribunals. The Tribunal is not

required to consider the propriety or adequacy of

punishment. But where the punishment is shockingly

disproportionate, regard being had to the particular conduct

and past record, or is such as no reasonable employer

would ever impose in like circumstance, the Tribunal may

treat the imposition of such punishment as itself showing

victimization or unfair labour practice. Law to this effect

was laid by the Apex Court in Hind Construction and

Engineering Company Ltd. (1965 (I) LLJ 462). Likewise in

Management of the Federation of Indian Chambers of

Commerce and Industry (1971 (II) LLJ 630) the Apex Court

ruled that the employer made a mountain out of a mole hill

and had blown a trivial matter into one involving loss of

prestige and reputation and as such punishment of

dismissal was held to be unwarranted. In Ram Kishan (1996

(I) LLJ 982) the delinquent employee was dismissed from

service for using abusive language against a superior

officer. On the facts and in the circumstances of the case,

the Apex Court held that the punishment of dismissal was

harsh and disproportionate to the gravity of the charge

imputed to the delinquent. It was ruled therein, “when

abusive language is used by anybody against a superior,

it must be understood in the environment in which that

person is situated and the circumstances surrounding the

event that led to the use of abusive language. No straight-

jacket formula could be evolved in adjudicating whether

the abusive language in the given circumstances would

warrant dismissal from service. Each case has to be

considered on its own facts”.

39. In B.M.Patil (1996 (II) LLJ 536), Justice Mohan

Kumar of Karnatka High Court observed that in exercise

of discretion, the Disciplinary Authority should not act

like a robot and justice should be moulded with humanism

and understanding. It has to assess each case on its own

merit and each set of fact should be decided with reference

to the evidence recording the allegation, which should be

basis of the decision. The past conduct of the worker may

be a ground for assuming that he might have a propensity

to commit the misconduct and to assess the quantum of

punishment to be imposed. In that case a conductor of the

bus was dismissed from service for causing revenue loss

of 50p to the employer by irregular sale of tickets. It was

held that the punishment was too harsh and

disproportionate to the act of misconduct.

40. After insertion of section 11-A of the Act, the

jurisdiction to interfere with the punishment is there with

the Tribunal, who has to see whether punishment imposed

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[PART II—SEC. 3(ii)]

by the employer commensurate with the gravity of the act

of misconduct. If it comes to the conclusion that the

misconduct is proved, it may still hold that the punishment

is not justified because misconduct alleged and proved is

such as it does not warrant punishment of discharge or

dismissal and where necessary, set aside the order of

discharge or dismissal and direct reinstatement with or

without any terms or conditions as it thinks fit or give any

other relief, including the award of lesser punishment, in

lieu of discharge or dismissal, as the circumstance of the

case may warrant. Reference can be made to a precedent

in Sanatak Singh (1984 Lab.I.C.817). The discretion to

award punishment lesser than the punishment of

discharge or dismissal has to be judiciously exercised and

the Tribunal can interfere only when it is satisfied that the

punishment imposed by the management is highly

disproportionate to the decree of the guilt of the workman.

Reference can be made to the precedent in Kachraji Motiji

Parmar [1994 (II) LLJ 332]. Thus it is evident that the

Tribunal has now jurisdiction and power of substituting

its own measure of punishment in place of the managerial

wisdom, once it is satisfied that the order of discharge or

dismissal is not justified. On facts and in the circumstances

of a case, section 11A of the Act specifically gives two

folds powers to the Industrial Tribunal, first is virtually

the power of appeal against findings of fact made by the

Enquiry Officer in his report with regard to the adequacy

of the evidence and the conclusion on facts and secondly

of foremost importance, is the power of reappraisal of

quantum of punishment.

41. In Bharat Heavy Electricals Ltd. [2005 (2) S.C.C.

481] the Apex Court was confronted with the proposition

as to whether power available to the Industrial Tribunal

under section 11-A of the Act are unlimited. The Court

opined that “there is no such thing as unlimited jurisdiction

vested with any judicial or quasi judicial forum and

unfettered discretion is sworn enemy of the constitutional

guarantee against discrimination. An unlimited jurisdiction

leads to unreasonableness. No authority, be it

administrative or judicial, has any power to exercise the

discretion vested in it unless the same is based on

justifiable grounds supported by acceptable materials and

reasons thereof”. The Apex Court relied its judgement in

C.M.C. Hospital Employees Union [1987 (4) S.C.C. 691]

wherein it was held that “section 11-A cannot be considered

as conferring an arbitrary power on the Industrial Tribunal

or the Labour Court. The power under section 11-A of the

Act has to be exercised judiciously and the Industrial

Tribunal or Labour Court is expected to interfere with the

decision of a management under section 11-A of the Act

only when it is satisfied that the punishment imposed by

the management is highly disproportionate to the degree

of guilt of the workmen concerned. The Industrial Tribunal

or Labour Court has to give reasons for its decision”. In

Hombe Gowda Educational Trust [2006 (1) S.C.C. 430] the

Apex Court announced that the Tribunal would not

normally interfere with the quantum of punishment

imposed by the employer unless an appropriate case is

made out therefore.

42. Power to set aside order of discharge or

dismissal and grant relief of reinstatement or lesser

punishment is not untrammeled power. This power has to

be exercised only when Tribunal is satisfied that the order

of discharge or dismissal was not justified. This

satisfaction of the Tribunal is objective satisfaction and

not subjective one. It involves application of the mind by

the Tribunal to various circumstances like nature of

delinquency committed by the workman, his past conduct,

impact of delinquency on employer’s business, besides

length of service rendered by him. Furthermore, the

Tribunal has to consider whether the decision taken by

the employer is just or not. Only after taking into

consideration these aspects, the Tribunal can upset the

punishment imposed by the employer. The quantum of

punishment cannot be interfered with without recording

specific findings on points referred above. No indulgence

is to be granted to a person, who is guilty of grave

misconduct like cheating, fraud, misappropriation of

employers fund, theft of public property etc. A reference

can be made to the precedent in Bhagirath Mal Rainwa

[1995 (I) LLJ 960].

43. As noted above, the claimant prepared fictitious

voucher on 10.04.1997, after destruction of voucher for a

sum of Rs.40,080.00 for issuance of draft for an amount of

Rs.40,000.00 in favour of Shri Piyush Kumar at BO

Kashipur. While using that fictitious voucher, he issued

draft No.RFA 046974 favouring Shri Ashish Kumar, payable

at BO:Chowk Allahabad for a sum of Rs.40,000.00. On

21.04.1997, he prepared cash payment voucher for

cancellation of draft No.RFA 046974 showing cash

payment to one Shri Sanjay Kumar, a non-existent person.

He entered the amount of Rs.40,000.00 in suspense register.

He also prepared fictitious draft on 02.02.1999 for a sum of

Rs.25,075.00 for issuance of draft for a sum of Rs.25,000.00

fvoring Shri Anil Kumar, payable at BO:Chowk Allahabad,

after destruction of draft voucher for issuance of a draft in

favour of Shri Vijay Kumar. He prepared draft No.RRW

166888 on the basis of above fictitious cash voucher,

showing Sankay Kumar as an applicant. On 03.05.1999,

he prepared cash payment voucher for cancellation of draft

No.RRW 166888 for Rs.25000.00, on the strength of letter

dated 03.05.1999 purporting to be from one Shri Sanjay

Kumar, which letter was written by the claimant in his own

hand. On misrepresentation of those facts, he prepared

another draft No.RRW 167824 for a sum of Rs.25,000.00

favouring Shri Ashish Kumar payable at BO:Chowk

Allahabad, which was later on paid on 17.06.1999 for credit

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to the account of Shri Ashish Kumar with Canara Bank,

Mirzapur. Shri Ashish Kumar happened to be brother in

law of the claimant. The above facts make it apparent that

serious misconduct of fraud, preparation of false vouchers,

preparation of application purported to have been written

by Shri Sanjay Kumar, besides loss to the tune of

Rs. 65,000.00 to the bank were committed by the claimant.

Misconduct like cheating, fraud and misappropriation of

employers funds are grave one, justifying punishment of

dismissal from service. Taking into account impact of

delinquency, besides past conduct of the claimant I am of

the considered opinion that the punishment imposed on

the claimant does not require any interference by the

Tribunal.

44. Question for consideration comes as to whether

punishment awarded to the claimant was shockingly

disproportionate to his misconduct, justifying interference

by this Tribunal? In Firestone Tyre and Rubber Company

of India (Pvt.) Ltd. [1973 (1) S.C.C. 813], the Apex Court

ruled that once misconduct is proved, the Tribunal had to

sustain order of punishment unless it was harsh indicating

victimization. It has been further laid therein that if a proper

enquiry is conducted by an employer and a correct finding

arrived at regarding the misconduct, the Tribunal, even

though now empowered to differ from the conclusion

arrived at by the management, will have to give very cogent

reasons for not accepting the view of the employer. Again

in Divisional Controller K.S.R.T.C. (N.W.K.R.T.C) [2005

(3) S.C.C. 254] it was laid that question of quantum of

punishment would not be weighed on amount of money

misappropriated but it should be based on loss of

confidence, which is a primary factor to be taken into

account. Once a person is found guilty of

misappropriating his employer’s fund, there is nothing

wrong for the employer to lose confidence or faith in such

a person, awarding punishment of dismissal.

45. Punishment of dismissal from service without

notice commensurate to the misconduct committed by the

claimant. It cannot be said that the punishment awarded

to the claimant was shockingly disproportionate to his

misconduct, justifying interference by the Tribunal. The

punishment of dismissal without notice cannot be said to

be harsh, indicating victimization. One who commits

misconducts, like cheating and fraud loses confidence of

his employer. Therefore, I am of the considered opinion

that the claimant has miserably failed to project that

punishment awarded to him is to be substituted by any

other punishment. The issue is, therefore, answered in

favour of the bank and against the claimant.

Issue No. 3

46. No evidence worth name has been highlighted

to show that the claimant has been victimized or bank had

malafide intention or followed unfair labour practice.

Whether the penalty of compulsory retirement from service

would relate back to the date of order of dismissal passed

by the bank? For an answer, it is expedient to consider the

precedents handed down by the Apex Court. In Ranipur

Colliery [(1959) Supp. 2 SCR 719] the employer conducted

a domestic enquiry though defective and passed an order

of dismissal and moved the Tribunal for approval of that

order. It was ruled therein that if the enquiry is not defective,

the Tribunal has only to see whether there was a prima

facie case for dismissal and whether the employer had

come to the bonafide conclusion that the employee was

guilty of misconduct. Thereafter on coming to that

conclusion that the employer had bonafide come to the

conclusion that the employee was guilty, that is, there

was no unfair labour practice and no victimization, the

Tribunal would grant the approval which would relate back

to the date from which the employer had ordered the

dismissal. If the enquiry is defective for any reason, the

Tribunal would also have to consider for itself on the

evidence adduced before it whether the dismissal was

justified. However on coming to the conclusion on its

own appraisal of evidence adduced before it that the

dismissal was justified its approval of the order of

dismissal made by the employer on defective enquiry

would still relate back to the date when order was made.

47. In Phulbari Tea Estate [1960 (I) S.C.R. 32] the

domestic enquiry held by the employer culminating in the

order of dismissal was found to be invalid, being in gross

violation of the rules of natural justice. Even before the

Tribunal, the employer did not lead proper evidence to

justify the order of dismissal and contended itself by merely

producing the statement of certain witnesses recorded

during the domestic enquiry and the workman had no

opportunity to cross-examine the witnesses before the

Tribunal. In the absence of any evidence before it,

justifying the dismissal, the Tribunal set aside the order of

dismissal and granted compensation in lieu of

reinstatement, which order was upheld by the Apex Court.

In that case question of relating back of the order of

dismissal did not arise.

48. In P.H. Kalyani [1963 (1) LLJ 673] the employer

dismissed the workman after holding a domestic enquiry

into the charges. Since some dispute was pending before

the Industrial Tribunal, the employer applied for “approval”

of action of dismissal in compliance with the proviso to

section 33(2)(b) of the Act. The workman made an

application under section 33-A of the Act. Apart from

relying on validity of domestic enquiry, the employer

adduced all the evidence before the Tribunal in support of

its action. On basis of evidence before it, the Tribunal

came to the conclusion that the facts of misconduct

committed by the workman were of serious nature

involving danger to human life and therefore dismissed

the application under section 33-A and accorded

1382

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

“approval” to the action of dismissal taken by the

employer. In this situation the Apex Court held that if the

enquiry is not defective and the action of the employer is

bonafide, the Tribunal will grant the approval and the

dismissal would “relate back to the date from which the

employer had ordered dismissal”. If the enquiry is invalid

for any reason, the Tribunal will have to consider for itself

on the evidence adduced before it, whether the dismissal

was justified. If it comes to the conclusion on its own

appraisal of such evidence that the dismissal was justified,

the dismissal would “still relate back to the date when the

order was made”. Sasa Musa Sugar Works case (supra)

was distinguished saying that observations made therein

“apply only to a case where the employer had neither

dismissed the employee nor had come to the conclusion

that a case for dismissal had been made. In that case, the

dismissal of the employee takes effect from the date of the

award and so until then the relation of employer and

employee will continue in law and in fact”.

49. D.C. Roy [(1976) Lab. I.C. 1142] is the illustration

where domestic enquiry held by the employer was found

to be invalid being violative of principles of natural justice

and the employer had justified the order of dismissal by

leading evidence before the Labour Court, on appraisal of

which the Labour Court found the order of dismissal

justified. In appeal, the Apex Court upheld the award with

the observation that “the ratio of Kalyani’s case (supra)

would therefore, govern the case and the judgment of the

Labour Court must relate back to the date on which the

order of dismissal was passed”.

50. In Gujrat Steel Tubes Ltd. [1980 (1) LLJ 137]

inverted image of the D.C. Roy’s case was presented by a

majority of three judge bench wherein it was held that

“where no enquiry has preceded punitive discharge, and

the Tribunal for the first time upholds the punishment,

this court in D.C. Roy vs. Presiding Officer (supra) has

taken the view that full wages be paid until the date of the

award. There cannot be any relation back of the date of

dismissal when the management passed the void order”.

Though the court ruled that law laid in D.C.Roy is correct

yet it followed obiter instead of the decision. Observations

of the Apex Court in above decision, bearing on the relate

back rule, were faulted in R.Thiruvirkolam [1997 (1) SCC 9]

on the ground that they “are not in the line with the

decision in Kalyani which was binding or with D.C. Roy to

which learned Judge Krishna Iyer J. was a party. It also

does not match with the juristic principle discussed in

Wade”. The view taken in R.Thiruvirkolam (supra) was

affirmed in Punjab Dairy Development Corporation Ltd.

[1997 (2) LLJ 1041].

51. In view of the catena of decisions, detailed above,

it is clear that an employer can justify its action by leading

evidence before the Tribunal. This equally applies to cases

of total absence of enquiry and defective enquiry. A case

of defective enquiry stands on the same footing as no

enquiry. If no evidence is led or evidence adduced does

not justify the dismissal by the employer, the Tribunal can

order reinstatement or payment of compensation as it may

think fit. But if it finds on the evidence adduced before it

that the dismissal is justified, the doctrine of relate back is

pressed into service to bridge the time gap between the

rupture of the relationship of employer and employee and

the finding of the Tribunal.

52. If the workman is to be paid wages upto the

date of the award of the Tribunal, the Parliament has to

enact so, declares the Delhi High Court in Ranjit Singh

Tomar (ILR 1983 Delhi 802). Obviously the Act does not

make any provision for the situation. Precedents in

Ghanshyam Das Shrivastava [1973 (1) SCC 656], Capt.

M.Paul Anthony [1999 (3) SCC 679] and South Bengal

State Transport Corporation [2006 (2) SCC 584] nowhere

deal with the controversy, hence are not discussed.

53. In view of the facts detailed above, punishment

of dismissal from service without notice would relate back

to the date of the order. Claimant could not bring it to light

that the order of dismissal from service would be applicable

from the date of the award and not from the date of the

order. All these facts would project that punishment of

dismissal without notice, awarded to the claimant, is legal,

fair and justified. Claimant could not show any illegality in

the order of dismissal passed by the bank against him.

The issue is, therefore, answered in favour of the bank

and against the claimant.

Relief

54. In view of above discussion, I am of the

considered opinion that the claimant is not a person on

whom the bank can depend upon. Banking business is

conducted on trust and confidence. When an employee is

found not to be trust worthy, his retention in service may

affect the business of the bank. Such an employee cannot

be retained in service. Therefore punishment of dismissal

is not to be interfeared with by this Tribunal. The claimant

is not entitled to any relief not to talk of relief of

reinstatement in service. His claim statement is liable to be

dismissed. Accordingly it is concluded that the action of

the bank in dismissing him from the service is legal and

justified. Claim statement is brushed aside. An award is

passed in favour of the bank and against the claimant. It

be sent to appropriate Govt. for publication.

Date : 10.12.2013

Dr. R. K. YADAV, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

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1383

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lqefr ldykuh] vuqHkkx vf/dkjh

New Delhi, the 24th January, 2014

S.O. 491.—In pursuance of Section 17 of the

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

Government hereby publishes the Corrigendum Award Ref.

No. 6/2013, 7/2013, 9/2013, 10/2013, 13/2013, 14/2013,

15/2013, 16/2013, 17/2013, 18/2013, 19/2013, 21/2013,

22/2013, 23/2013, 24/2013, 25/2013, 26/2013, 27/2013,

28/2013, 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 Madhya

Bihar Gramin Bank, and their workmen, received by the

Central Government of 24-01-2014.

[No. L-12011/08/2013-IR(B-I),

No. L-12011/09/2013-IR(B-I),

No. L-12011/12/2013-IR(B-I),

No. L-12011/10/2013-IR(B-I),

No. L-12011/20/2013-IR(B-I),

No. L-12011/18/2013-IR(B-I),

No. L-12011/26/2013-IR(B-I),

No. L-12011/27/2013-IR(B-I),

No. L-12011/24/2013-IR(B-I),

No. L-12011/25/2013-IR(B-I),

No. L-12011/23/2013-IR(B-I),

No. L-12011/44/2013-IR(B-I),

No. L-12011/45/2013-IR(B-I),

No. L-12011/46/2013-IR(B-I),

No. L-12011/47/2013-IR(B-I),

No. L-12011/48/2013-IR(B-I),

No. L-12011/49/2013-IR(B-I),

No. L-12011/50/2013-IR(B-I),

No. L-12011/51/2013-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

In the matter of reference U/s 10(1)(d)(2A) of I.D. Act,

1947

Reference Nos. 6/2013, 7/2013, 9/2013, 10/2013,

13/2013, 14/2013, 15/2013, 16,2013, 17/2013,

18/2013, 19/2013, 21/2013, 22/2013, 23/2013,

24/2013, 25/2013, 26/2013, 27/2013, 28/2013

PARTIES :

Employer in relation to the management of

Madhya Bihar Gramin Bank, Patna

AND

Their workmen.

PRESENT :

Sri R. K.Saran, Presiding Officer

1384

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

APPEARANCES :

For the Employers : None.

For the workman

: Sri Arun Kumar Singh, Rep.

State: Bihar

Industry : Banking

Dated 11/11/ 2013

AWARD

The Central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of

sub -section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947 referred the following dispute

for adjudication to this Tribunal :

Ref. No. 6/2013 [ Order No. L-12011/08/2013-IR (B-1) dated

17.5.2013]

SCHEDULE

‘‘Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for ?”

Ref. No. 7/2013 [Order No. L-120 11/09/2013-IR (B-1) dated

17.5.2013 ]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for?”

Ref. No. 9/20 13 [ Order No. L-12011/1 2/2013-IR (B-1) dated

20.5.2013 ]

SCHEDULE

‘‘Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for ?”

Ref. No. 10/2013 [Order No. L-12011/10/2013-IR (B-1) dated

28.5.2013 ]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for ?”

Ref. No. 13/20 13 [Order No. L-12011/20/2013- IR (B-1) dated

04.06.2013 ]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for ?”

Ref. No. 14/2013 [Order No. L-12011/18/2013-I R (B-1) dated

04.06.2013 ]

SCHEDULE

‘‘Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for ?”

Ref. No. 15/2013 [Order No. L-12011/26/2013-I R (B-1) dated

17.6.2013]

SCHEDULE

‘‘Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating

the services of Sri Madan Mohan Ram (2)

Sri Parmeshwar Prasad (3) Nagendra Kumar (4)

Sri Deepak Kumar who worked as part time sweeper

in the branch of the bank for more than 13 years. If

not what relief they are entitled for ?”

Ref. No.16/2013 [Order No. L-12011/27/20 13-IR (B-1) dated

17.6.2013]

SCHEDULE

‘‘Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services (1) Sri Ramesh Kumar Shukla (2) Sri Arun

Kumar (3) Sri Ashok Kumar Mandal (4) Sri Santosh

Tiwary (5) Sri Biraju Kumar who worked as part time

sweeper in the branch of the bank for more than 13

years. If not what relief they are entitled for ?”

Ref. No. 17/2013 [Order No. L-12011/24/2013 IR (B-1) dated

17.6 .2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services (1) Sri Mahabir Ram (2) Sri Manoj Kumar

Sah (3) Sri Surendra Kumar (4) Sri Budhan Singh,

who worked as part time sweeper in the branch of

the bank for more than 13 years. If not what relief

they are entitled for ?”

Ref. No.18/2013 [Order No. L-12011/25/2013-IR (B-1) dated

17.6.2013]

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1385

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of (1) Sri Pintu Kumar Singh (2) Sri Uday

Kumar Singh (3) Sri Manajar Kumar (4) Sri Dilip

Kumar Singh, who worked as part time sweeper in

the branch of the bank for more than 13 years. If not

what relief they are entitled for ?”

Ref. No.19/2013 [Order No. L-12011/23/2013-I R (B-1) dated

17.6.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of (1) Dilip Kumar (2) Sri Dharmendra Kumar

(3) Sri Nagdesh Ram (4) Sri Vijay Thakur, who worked

as part time sweeper in the branch of the bank for

more than 13 years. If not what relief they are entitled

for ?”

Ref. No. 21/2013 [Order No. L-12011/44/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 9

years. If not what relief they are entitled for ?”

Ref. No. 22/2013 [Order No. L-12011/45/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 10

years. If not what relief they are entitled for ?”

Ref. No. 23/2013 [Order No. L-12011/46/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than 10

years. If not what relief they are entitled for ?”

Ref. No. 24/2013 [Order No. L-12011/47/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than

10 years. If not what relief they are entitled for ?”

Ref. No. 25/2013 [Order No. L-12011/48/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than

10 years. If not what relief they are entitled for ?”

Ref. No. 26/2013 [Order No. L-12011/49/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than

10 years. If not what relief they are entitled for ?”

Ref. No. 27/2013 [Order No. L-12011/50/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than

10 years. If not what relief they are entitled for ?”

Ref. No. 28/2013 [Order No. L-12011/51/2013-IR (B-1) dated

19.7.2013]

SCHEDULE

“ Whether the action of the management of Madhya

Bihar Gramin Bank was justified in terminating the

services of the workman who worked as part time

sweeper in the branch of the bank for more than

10 years. If not what relief they are entitled for ?”

2. After receipt of the reference. The Secretary of

Sponsoring Union of all reference submitted that the same

management and same workman’s dispute is pending

before the Industrial Tribunal, Patna for decision.

Accordingly he prays to withdraw the reference pending

before this Tribunal. This being the situation it is felt that

presently there is no dispute between the parties. Hence

no dispute award is passed. Communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 23 tuojh] 2014

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1386

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

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

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¹la- ,y&42012@57@2012&vkbZ vkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 23rd January, 2014

S.O. 492.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No.

157/2012) of the Central Government Industrial Tribunal/

Labour Court No.1, Delhi now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of The Commissioner, Municipal

Corporation of Delhi and their workmen, which was

received by the Central Government on 18-01-2014.

[No. L-42012/57/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. I,

KARKARDOOMA COURTS COMPLEX : DELHI

I.D. No. 157/2012

The General Secretary,

Through Nagar Nigam Karamchari Sangh,

Delhi Pradesh, P-2/624, Sultanpuri,

Delhi.

. . . Workman

Versus

The Commissioner,

Municipal Corporation of Delhi,

Town Hall, Chandni Chowk,

Delhi-110006.

. . . Management

AWARD

Shri Surender Kumar was working as Safai

Karamchari on daily wage basis with Municipal Corporation

of Delhi (in short the Corporation). He died in harness.

Smt. Maya Devi, survived the deceased employee. She

claimed for grant of family pension. Since the deceased,

Shri Surender Kumar was a casual employee, the

Corporation denied claim of family pension, put forward

by Smt. Maya Devi, widow of the deceased employee. She

approached the Nagar Nigam Karamchari Sangh (in short

the union) for redressal of her grievances. Thus union

raised a dispute before the Conciliation Officer. Since the

Corporation contested the claim, conciliation proceedings

ended into a failure. On consideration of failure report, so

submitted by the Conciliation Officer, appropriate

Government referred the dispute to this Tribunal for

adjudication vide order No. L-42012/57/2012-IR (DU) New

Delhi dated 08-11-2012, with following terms :

“Whether the action of the management of Municipal

Corporation of Delhi (MCD) for non-grant of family

pension of Smt. Maya Devi, W/o Late Shri Surender

Kumar, Safai with effect from 11.1.2007 onward is

justified or not? If not, what relief the deceased’s

widow, Smt. Maya Devi is entitled to and from which

date?”

2. In the reference order, the appropriate

Government commanded the parties to the dispute to file

statement of claim, complete with relevant documents, list

of reliance and witnesses with this Tribunal within 15 days

of receipt of the reference order and to forward a copy of

such statement of claim to the opposite parties involved

in the dispute. Despite directions, so given, Smt. Maya

Devi opted not to file her claim statement with the Tribunal.

3. Notice was sent to Smt. Maya Devi by registered

post on 05.12.2012, calling upon her to file claim statement

before the Tribunal on or before 02-01-2013. This notice

was sent to her through the union, at P-2/624, Sultanpuri,

Delhi, the address provided by the appropriate Government

in order of reference. Neither the claimant nor the union

responded to the notice, so sent.

4. Since none came forward on behalf of the claimant

to file her claim statement, fresh notice was sent to her by

registered post on 02.01.2013 calling upon her to file claim

statement before the Tribunal on 29.01.2013. Notice was

again transmitted to the claimant by registered post on

31.01.2013 asking her to file her claim statement on or before

20.02.2013. Lastly, notice dated 22.02.2013 was sent by

registered post commanding the claimant to file her claim

statement before the Tribunal on or before 22.03.2013.

Neither the postal articles, referred above, were received

back nor was it observed by the Tribunal that postal

services remained affected in the period, referred above.

Therefore, every presumption lies in favour of the fact

that the above notices were served upon the claimant.

Despite service of these notices, claimant opted to abstain

away from the proceedings. No claim statement was filed

on her behalf.

5. Since onus of the question referred for

adjudication was there on the Corporation, it was called

upon to file its response to the reference order. In its

response to the reference order, the Corporation projects

that the claim is not maintainable for want of espousal.

The Corporation also claims that no notice of demand was

served on it prior to raising of the dispute. The Corporation

further pleads that dispute has not acquired character of

an industrial dispute on account of delay and latches,

since the dispute has been raised after lapse of about

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1387

5 years. Even otherwise, Shri Surender Kumar never

worked with the Corporation as a regular employee and as

such, the claimant is not entitled for any family pension

after his death. It has been projected that the claim is liable

to be dismissed.

6. Arguments were heard at the bar. None came

forward on behalf of the claimant to advance arguments.

Shri Umesh Gupta, authorized representative, raised

submissions on behalf of the Corporation. I have given

my careful considerations to the arguments advanced at

the bar and cautiously perused the record. My findings

on issues involved in the controversy are as follows :

7. Corporation contests the dispute on the count

that the dispute has not acquired status of an industrial

dispute for want of espousal by the union or considerable

number of the workmen in its establishment. For an answer

to this proposition, definition of the term ‘industrial

dispute’ is to be construed. Section 2(k) of the Industrial

Disputes Act, 1947 (in short the Act), defines the term

‘industrial dispute’, which definition is extracted thus :

“2(k) “Industrial dispute” means any dispute or

difference between employers and employers, or

between employers and workmen, or between

workmen and workmen, which is connected with

the employment or non-employment or the terms of

employment or with the conditions of labour, of any

person;”

8. The definition of “industrial dispute” referred

above, can be divided intofour parts, viz. (i) factum of

dispute, (2) parties to the dispute, viz.(a) employers and

employers, (b) employer and workmen, or (c) workmen

and workmen, (3) subject matter of the dispute, which

should be connected with (i) employment or non

employment or (ii) terms of employment, or (iii) condition

of labour of any person, and (4) it should relate to an

“industry”.

9. The definition of “industrial dispute” is worded in

very wide terms and unless they are narrowed by the

meaning given to word “workman” it would seem to include

all “employers”, all “employments” and all “workmen”,

whatever the nature or scope of the employment may be.

Therefore, except in the case where there can be a dispute

between the employers and employers and workmen and

workmen, one of the parties to an industrial dispute must

be an employee or a class of employees. The first point,

therefore, to be noted, perhaps self evident, is that the

phrase “employer and workmen”, the plural may include

singular on either side or any permutation of singular or

plural, the masculine including the feminine. In order,

therefore, to determine as to whether a controversy or

.difference or a dispute is an “an industrial dispute’ or not,

it must first be determined whether the workman concerned

or workmen sponsoring his cause satisfy the conditions

of clause (s) of section 2 of the Act. The Corporation does

not dispute status of the claimant, being a workman within

the meaning of section 2(s) of the Act. .

10. The Apex Court put gloss on the definition of

“industrial dispute” in Dimakuchi Tea Estate (1958 (1) LLJ

500) and ruled that the expression “any person” in clause

(k) of section 2 of the Act must be read subject to such

limitation and qualification as arise from the context, the

two crucial limitations are (i) the dispute must be a real

dispute between the parties to the dispute (as indicated in

the first two parts of the definition clause) so as to be

capable of settlement or adjudication by one party to the

dispute giving necessary relief to other, and (2) the person

regarding whom the dispute is raised must be one for

whose employment non employment, terms of employment

or conditions of labour, as case may be, the parties dispute

for a direct or substantial interest. Where workman raised

a dispute as against their employment, the person

regarding whose employment, non employer, terms of

employment or conditions of labour, the dispute is raised

need not be strictly speakinq “workman” within the

meaning of the Act, but must be one in whose employment,

non employmen terms of employment, or conditions of

labour the workmen as a class have a direct or substantial

interest. The observations made by the Apex Court are to

be extracted thus :

“We also agree with the expression “any person” is

not eo extensive with any workman, particular or

otherwise, equal with other, that the crucial test is

one of community of interest and the person

regarding whom the dispute is raised must be one in

whose employment, non employment, terms of

employment, conditions of labour, as the case may

be) the parties to the dispute have a direct or

substantial interest. Whether such direct or

substantial interest has been established in a

particular case will depend on its facts and

circumstances.”

11. In Kyas Construction Company (Pvt ) Ltd. (1958

(2) LLJ 660), the Apex Court ruled that an industrial dispute

need not be a dispute between the employer and his

workman and that the definition of the expression

“industrial dispute’’ is wide enough to cater a dispute

raised by the employer’s workman with regard to non

employment of others, who may not be employed as

workman at the relevant time. The Apex Court in Bombay

Union of Journalist (1961 (11) LLJ 436) has observed that

in each case in ascertaining whether an individual dispute

has acquired the character of an industrial dispute, the

test is whether at the date of reference, the dispute was

taken up as submitted by the union of the workmen of the

employer against whom, the dispute is raised by an

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[PART II—SEC. 3(ii)]

individual workman or by an appreciable number of

workmen in order, therefore, to convert an individual

dispute into an industrial dispute, it has to be established

that it has been taken up by the union of employees of the

establishment or by an appreciable number of the

employees of the establishment. As far as union of the

workmen of establishment itself is concerned, the problem

of espousal by them generally presents little difficulty,

since such workmen who are members of such unions

generally have a continuity of interest with an individual

employee who is one of their fellow workman. But difficulty

arise when the cause of a workman, in a particular

establishment is sponsored by a union which is not of the

workmen of that establishment but is one of which

membership is open to workmen of their establishment as

well as in that industry. In such a case a union which has

only microscopic number of the workmen as its member,

cannot sponsor any dispute arising between the workmen

and the management. A representative character of the

union has to be gathered from the strength of the actual

number of co-workers sponsoring the dispute. The mere

fact that a substantial number of workmen of the

establishment in which the concerned workman was

employee were also members of the union would not

constitute sponsorship. It must be shown that they were

connected together and arrived at an understanding by a

resolution or by other means and collectively submitted

the dispute.

12. The expression “industrial disputes” has been

construed by the Apex Court to include individual

disputes, because of the scheme of the Act. In Raghu

Nath Gopal Patvardhan (1957(1) LLJ 27) the Apex Court

ruled as to what dispute can be called as an industrial

dispute. It was laid thereon that (1) a dispute between the

employer and a single workman cannot be an industrial

dispute, (2) it cannot per-se be an industrial dispute but

may become if it is taken up by a trade union or a number

of workmen. In Dharampal Prem Chand (1965 (1) LLJ 668) it

was commanded by the Apex Court that a dispute raised

by a single workman cannot become an industrial dispute

unless it is supported either by is union or in the absence

of a union by substantial number of workmen. Same law

was laid in the case of Indian Express Newspaper (Pvt.)

Limited (1970 (1) LLJ 132). However in Western India Match

Company (1970 (II) LLJ 256), the Apex Court referred the

precedent in Dimakuchi Tea Estate’s case (1958 (1) LLJ

500) and ruled that a dispute relating to “any person

becomes a dispute where the person in respect of whom it

is raised is one in whose employment, non employment,

terms of employment or conditions of labour, the parties,

dispute for a direct or substantial interest”.

13. What a substantial or considerable number of

workmen would be in a given case, depend on particular

facts of the case. The fact that an “industrial dispute”, is

supported by other workmen will have to be established

either in the form of a resolution of the union of which

workman may be member or of the workmen themselves

who support the dispute or in any other manner. From the

mere fact that a general union, at whose instance an

“industrial dispute” concerning an individual workman is

referred for adjudication, has on its roll a few of the workmen

of the establishment as its members, it cannot be inferred

that the individual dispute has been converted into an”

industrial dispute”. The Tribunal has therefore, to consider

the question as to how many of the fellow workman

actually espoused the cause of the concerned workman

by participating in the particular resolution of the Union.

In the absence of a such a determination by the Tribunal,

it cannot be said that the individual dispute acquired the

character of an industrial dispute and the Tribunal will not

acquire jurisdiction to adjudicate upon the dispute.

Nevertheless, in order to make a dispute an industrial

dispute, it is not necessary that there should always be a

resolution of substantial or appreciable number of

workmen. What is necessary is that there should be some

express or collective will of a substantial or an appreciable

member of the workmen treating the cause of the individual

workman as their own cause. Law to this effect was laid in

P. Somasundrameran (1970 (1) LLJ 558).

14.It is not necessary that the sponsoring union is a

registered trade union or a recognized trade union. Once it

is shown that a body of substantial number of workmen

either acting through a union’ or otherwise had sponsored

the worrkman’s cause, it is sufficient to convert it into an

industrial dispute. In Pardeep Lamp Works (1970 (1) LLJ

507) complaints relating to dispute of ten workmen were

filed before the Conciliation Officer by the individual

workmen themselves. But their case was subsequently

taken up by a new union formed by a large number of co-

workmen, if not a majority of them. Since this union was

not registered or recognized, the workmen elected five

representatives to prosecute the cases of ten dismissed

workmen. Thus cases of the dismissed workmen were

espoused by the new union, yet unregistered and

unrecognized. The Apex Court held that the fact that these

disputes were not taken up by a registered or recognized

union does not mean that they were not “industrial

dispute”.

15. It is not expedient that same union should remain

incharge of that dispute till its adjudication. The dispute

may be espoused by the workmen of an establishment,

through a particular union for making such a dispute an

“industrial dispute”, while the workman may be repesented

before the Tribunal for the purpose of section 36 of the

Act by a member of executive or office bearer of altogether

another union. The crux of the matter is that the dispute

should be a dispute between the employer and his

workmen. It is not necessary that the dispute must be

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1389

espoused or conducted only by a registered trade union.

Even if a trade union ceases to be registered trade union

during the continuance of the adjudication proceedings

that would not affect the maintainability of the order of

reference. Law to this effect was laid by the High Court of

Orissa in Gammon India Limited (1974 (11) LLJ 34). For

ascertaining as to whether an individual dispute has

acquired character of an individual dispute, the test is

whether on the date of the reference the dispute was taken

up as supported by the union of the workmen of the

employer against whom the dispute is raised by the

individual workman or by an appreciable number of the

workman. In other words, the validity of the reference of

an industrial dispute must be judged on the facts as they

stood on the date of the reference and not necessarily on

the date when the cause occurs. Reference can be made to

a precedent in Western India Match Co. Ltd. (1970 (11)

LLJ 256).

16. Here in the case, not even an iota of facts are

brought over the record to the effect that the union took

up the cause of the claimant as their own. It is also not

shown that the members of the union had shown their

collective will in favour of the cause of the claimant. Thus

it is evident that there is a complete vacuum of facts to the

effect that the union espoused the cause of the claimant.

Resultantly there is no material to conclude to the effect

that the dispute acquired status of an industrial dispute.

The reference is liable to be answered against the claimant

on that score.

17. Corporation further contests the dispute on the

count that no notice of demand was served on it prior to

raising a dispute before the Conciliation Officer. This fact

also remained uncontroverted. The object of the Act is to

protect workman against victimization by the employer

and ensure termination of industrial dispute in a peaceful

manner. The Act, however, does not provide for any set of

social and economic principles for adjustment of conflicting

interests. Such norms have been evolved and devised by

industrial adjudication, keeping in view the social and

economic conditions, the needs of the workmen, the

requirement of the industry, social justice, relative interests

of the parties and common good. These norms have given

rights to the industrial employees what may be called

industrial rights, as such rights may not be available at

common law. Disputes as to the conditions of employment

can be resolved by resorting to a technique known as

collective bargaining. This tool is resorted to between an

employer or group of employers and a bonafide labour

union. Policy behind this is to protect workmen as a class

against unfair labour practices. What imparts to the dispute

of a workman the character of an “industrial dispute” is

that it affects the right of the workmen as a class.

18. An industrial dispute comes into existence when

the employer and the workman are at variance and the

dispute/difference is connected with the employment or

non-employment, terms of employment or with conditions

of labour. In other words, dispute or difference arises when

a demand is made by the workman on the employer and it

is rejected by him and vice versa. In Sindhu Resettlement

Corporation Ltd. (1968(1) LLJ 834), the Apex Court has

held that mere demand, asking the appropriate Government

to refer a dispute for adjudication, without being raised by

the workmen with their employer, regarding such demand,

cannot become an industrial dispute. Hence, an industrial

dispute cannot be said to exist until and unless a demand

is made by the workman or workmen on the employer and

it has been rejected by him. In Feeders Lloyd Corporation

Pvt. Ltd. (1970 Lab. I.C. 421), High Court of Delhi went a

step ahead and held that “ ... demand by the workman

must be raised first on the management and rejected by it,

before an industrial dispute can be said to arise and exist

and that the making of such a demand to the Conciliation

Officer and its communication by him to the management,

who rejected the demand, is not sufficient to constitute an

industrial dispute.”

19. The above decision was followed by Orissa High

Court in Orissa Industries Pvt. Ltd. (1976 Lab. I.C. 285)

and Himachal Pradesh High Court in Village Paper Pvt.

Ltd. (1993 Lab. I.C. 99). However, the Apex Court in Bombay

Union of Journalists (1961 (2) LLJ 436) had ruled that an

industrial dispute must be in existence or apprehended on

the date of reference. If, therefore, a demand has been

made by the workman and it has been rejected by the

employer before the date of reference, whether direct or

through the Conciliation Officer, it would constitute an

industrial dispute. In Shambhunath Goyal (1978(1) LLJ 484),

the Apex Court appreciated facts that the workman had

not made a formal demand for his reinstatement in service.

However, he had contested his dismissal before the Enquiry

Officer and claimed reinstatement. Against the findings of

the Enquiry Officer, he preferred an appeal to the Appellate

Authority, claiming reinstatement on the ground that his

dismissal was bad in law. Then again, he claimed

reinstatement before the Conciliation Officer in the course

of conciliation proceedings, which was contested by the

employer. Appreciating all these facts, the Apex court

inferred that there was impeccable evidence that the

workman had persistently demanded reinstatement,

rejection of which brought an industrial dispute into

existence.

20. In New Delhi Tailor Mazdoor Union (1979 (39)

FLT 195), High Court of Delhi noted that Shambunath

Goyal had not overruled Sindhu Resettlement Pvt. Ltd.

But it had distinguished it on facts. It was also pointed

out that decision of three Judges bench in Sindhu

Resettlement Pvt. Ltd. could not have been overruled by

two Judge bench in Shambunath Goyal. The High Court

concluded that decision in Sindhu Resettlement Pvt. Ltd.,

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[PART II—SEC. 3(ii)]

in case of any conflict between the two decisions, must

prevail. The High Court held that making of the demand

by the workman on the management was sine qua non for

giving rise to an industrial dispute.

21.The High Court of Madras in Management of

Needle Industries (1986(1) LLJ 405) has held that dispute

or difference between management and the workman,

automatically arises when the workman is dismissed from

service. His dismissal per se creates a dispute or difference

between the management and the workman. The Court

further observed that “it is nowhere stipulated in the Act,

particularly in section 2(k), that existence of the dispute as

such is not enough but then there should be a demand by

the workman on the management to give rise to an industrial

dispute”. However, this decision appears to be

inconsistent with the ratio of decision in Bombay Union

of Journalists (supra) and Sindhu Resettlement (supra).

No doubt, for existence of an industrial dispute, there

should be a demand by the workman and refusal to grant

it by the management. However, a demand should be raised,

cannot be a legal notion of fixity and rigidity. Grievances

of the workman and demand for its redressal must be

communicated to the management. Means and mechanism

of the communication adopted are not matters of much

significance, so long as demand is that of the workman

and it reaches the management. Reference can be made to

the precedent in Ram Krishna Mills Coimbatore Ltd. (1984

(2) LLJ 259).

22.The Act nowhere contemplates that the industrial

dispute can come into existence in any particular, specific

or prescribed manner nor there is any particular or prescribed

manner in which refusal should be communicated. For an

industrial dispute to come into existence, written claim is

not sine qua non. To read into the definition, requirement

of written demand for bringing an industrial dispute into

existence would tantamount to rewriting the section,

announced the Apex Court in Shambunath Goyal (supra).

In other words, oral demand and its rejection will as much

bring into existence an industrial dispute, as written one.

If facts and circumstances of the case show that the

workman had been making a demand, which the

management had been refusing to grant, it can be said

that there was an industrial dispute between the parties.

23. Since the claimant had not come forward to

project that demand notice was served on the Corporation,

under these circumstances, stand taken by the Corporation

is to be believed. The Corporation projects that no notice

of demand was served on it, before industrial dispute was

raised before the Conciliation Officer. Thus, it is emerging

over the record that it has not been established that

demand was raised on the Corporation, which was rejected

by it and as such, dispute has not acquired status of an

industrial dispute.

24. The Corporation further projects that a stale

claim has been made, since it has been raised after a gap of

5 years. Section 10 (1) of the Act does not prescribe any

period of limitation for making reference of the dispute for

adjudication. The words ‘at any time’ used in sub-section

(1) of section 10 of the Act, does not admit of any limitation

in making an order of reference. Law of limitation, which

might bar any Civil Court from giving remedy in respect of

lawful rights, cannot be applied by Industrial Tribunals.

However, policy of industrial adjudication is that stale

claim should not be generally encouraged or allowed

unless there is satisfactory explanation for delay. In

Shalimar Works Ltd. (1959 (2) LLJ 26), the Apex Court

pointed out that though there is no limitation prescribed

in making reference of the dispute to Industrial Tribunal,

even so, it is only reasonable that disputes should be

referred as soon as possible after having arisen and on

failure of conciliation proceedings. In Western India Match

Company (1970 (2) LLJ 256) the Apex Court observed that

in exercising its discretion, Government will take into

account time which has lapsed between its earlier decision

and the date when it decides to consider it in the interest

of justice and industrial peace to make the reference for

adjudication. Same view was taken in Mahabir Jute Mills

Ltd. (1975 (2) LLJ 326). In Gurmail Singh (2000 (1) LLJ

1080) Industrial Adjudicator dismissed the reference on

the ground that there was delay of 8 years in raising the

dispute, which delay was condoned by the Apex Court

and it was ordered that the workman would not be entitled

to any back wages for the period of 8 years but would be

entitled to 50% of wages from the date it raised the dispute

till the date of his reinstatement. In Prahalad Singh (2000

(2) LLJ 1653), the Apex Court approved the award of the

Tribunal in not granting any relief to the workman who

preferred the claim after a period of 13 years without any

reasonable or justifiable grounds. From above decisions,

it can be said that the law relating to delay in raising or

reference of dispute is bereft of any principles, which can

be easily comprehended by the litigants.

25. Claimant raised the dispute in respect denial of

family pension to her after death of the deceased workman,

Shri Surender Kumar, which occurred on 11.11.2007. The

dispute was raised by her in the year 2012. Thus, it is

emerging over the record that the claimant had raised the

dispute after a gap of 5 years. No explanation has been

offered for this inordinate delay. It appears that there was

no industrial dispute in existence or could be even aid to

have been apprehended in the year 2012, when the

appropriate Government applied its mind to the facts of

the present controversy.

26. For claim of family pension, it was incumbent

upon the claimant to establish that her husband was

appointed with the Corporation against a sustentative

post. As projected in response to the reference order, Shri

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1391

Surender Kumar was engaged as a safai karamchari on

daily wage basis. Shri Surender Kumar was not working

on any substantive post, details the Corporation. A daily

wager Safai Karamchari is not borne on the strength of the

Corporation, where he was engaged intermittently in

exigencies of service. Such casual employee would not

render any service against any substantive post. Therefore,

such casual employee would not render any service within

the meaning of Central Civil Services (Pension) Rules, 1972.

In view of these facts, widow of deceased, Shri Surender

Kumar is not entitled to raise a claim for family pension.

Resultantly, it is concluded that action of the Corporation

in denying family pension to Smt. Maya Devi is found to

be justified. Smt. Maya Devi is not entitled to any relief on

factual proposition too.

27. The foregoing reasons make me to conclude that

Smt. Maya Devi is not entitled to any family pension. Action

of the Corporation in denying family pension to Smt. Maya

Devi is found to be justified. No relief can be granted in

favour of Smt. Maya Devi. An award is, accordingly,

passed. It be sent to the appropriate Government for

publication.

Dated : 20-01-2014

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 23rd January, 2014

S.O. 493.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No.

163/2012) of the Central Government Industrial Tribunal/

Labour Court No.1, Delhi now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of The Commissioner, Municipal

Corporation of Delhi and their workmen, which was

received by the Central Government on 18-01-2014.

[No. L-42012/42/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. I,

KARKARDOOMA COURTS COMPLEX : DELHI

I.D. No. 163/2012

The General Secretary,

Municipal Employees Union,

Aggarwal Bhawan, G.T. Road,

Tis Hazari, Delhi-110054

. . . Workman

Versus

The Commissioner,

Municipal Corporation of Delhi,

Town Hall, Chandni Chowk,

Delhi-110006.

. . . Management

AWARD

Claimants, namely, Shri Ashok, Mahender, Inder

Singh, Krishan Kumar and Vineet Kumar joined as safai

karamchari on muster roll with Municipal Corporation of

Delhi (in the Corporation) on 25.10.1997, while Shri Praveen

Kumar joined on 01.01.1998. They worked with the

Corporation as muster roll safai karamchari since then.

They be laboured under a belief that their services ought

to have been regularized since the date of their initial

engagement. They approached the Municipal Employees

Union (in short the union) for redressal of their grievance.

The union raised an industrial dispute before the

Conciliation Officer. Since the Corporation contested the

claim, conciliation proceedings ended into a failure. On

consideration of failure report, submitted by the

Conciliation Officer, the appropriate government referred

the dispute to this Tribunal for adjudication, vide order·

No.L-42012/42/2012/1R(DU) New Delhi dated 09.11.2012

with following terms :

“Whether the action of the management of Municipal

Corporation of Delhi (MCD) in denying the

regularization of services and payment of salary

thereof to Shri Ashok, S/o late Shri Goverdhan and

05 others (total 06) working as daily wager safai

karamcharis from the date of appointment, i.e.

11.07.1997 showing against each workman named

(when the management of MCD has already

regularized the services of such daily wager safai

karamcharis where appointment/engaged upto

31.03.1996) is justified or not. If not, what relief the

workman concerned are entitled to and from which

date?”

2. Claim statement was filed on behalf of the aforesaid

claimants pleading therein that they joined the services of

the Corporation as safai karamchari on muster roll since

11.07.1997. They were paid minimum wages as notified by

the appropriate Government from time to time. Regular

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[PART II—SEC. 3(ii)]

employees of their category are being paid in proper pay

scales, which is much higher than the minimum wages

paid to them. The Corporation was supposed to regularize

their services since the date of their initial engagement.

Non-payment of wages equal to regular employees of their

category is totally illegal, biased, unjust and malafide. They

performed work of permanent and regular nature. Payment

of less wages to them amounts to unfair labour practice.

Action of the Corporation is violative of provisions of

Article 14, 16 and 39 of the Constitution of India. It amounts

to exploitation of labour. On completion of 90 days

continuous service, they have acquired status of a

permanent employee. They have been meted out with

hostile discrimination. Notice of demand was sent to the

Corporation on 21.06.2010. The Corporation had not replied

the same. It has been claimed that they be held to be

regularized on the post of safai karamchari from the date

of their initial engagement or in the alternative as per policy

of the Corporation and be paid entire difference of salary

on the principle of equal pay for equal work.

3. Claim was demurred by the Corporation pleading

that the dispute has not acquired status of an industrial

dispute for want of espousal by a union or considerable

number of workmen in its establishment. No notice of

demand was served on the Corporation and the dispute

has not acquired character of an industrial dispute on this

count too. The Corporation has its own policy of

regularization in a phased manner. Casual employees

engaged for the period for 01.04.1994 to 31.03.1996 have

already been reqularized. No worker has been regularized

from the date of their initial engagement as daily wager.

4. The Corporation projects that Shri Ashok Kumar,

Shri Mahender, Krishan Kumar, Shri Vineet Kumar and

Shri Inder Singh were engaged on 25.10.1997, while

Shri Praveen Kumar was engaged on 01.01.1998. It has

been disputed that they continuously served the

Corporation since the dates of their engagement. Regular

employees of the Corporation are governed by CCS Rules,

while daily wagers are governed by Minimum Wages Act,

1948. Model Standing Orders are not applicable to

employees of the Corporation. Claimants were never meted

out with hostile discrimination. They are not entitled to

pay equal to regular employees of the Corporation. Claim

put forward is liable to be dismissed, being devoid of merits.

5. On pleadings of the parties, following issues were

settled :

(i)

Whether dispute has not acquired status of an

industrial dispute for want of espousal by the

union or considerable number of workmen in the

establishment of the management ?

(ii)

Whether the dispute has not acquired status of

an industrial dispute for want to demand notice ?

(iii)

As in terms of reference.

6. Despite grant of four opportunities to the

claimants, they opted not to adduce any evidence. When

no evidence was adduced on behalf of the claimants, the

Corporation also opted not to examine any witness. Thus,

no evidence was adduced by either of the parties.

7. Arguments were heard at the bar. Shri Surender

Bhardwaj, authorized representative, advanced arguments

on behalf of the claimants. Shri Umesh Gupta, authorized

representative, presented facts on behalf of the

Corporation. I have given my careful considerations to

the arguments advanced at the bar and cautiously perused

the record. My findings on issues involved in the

controversy are as follows:

Issue No. 1 :

8. The Corporation argues that the dispute has not

acquired status of an industrial dispute for want of espousal

of the claim by the union or considerable number of the

workmen in its establishment. For an answer to this

proposition, definition of the term ‘industrial dispute’ is to

be construed. Section 2(k) of the Industrial Disputes Act,

1947 (in short the Act), defines the term ‘industrial dispute’,

which definition is extracted thus :

“2(k) “Industrial dispute” means any dispute or

difference between employers and employers, or

between employers and workmen, or between

workmen and workmen, which is connected with

the employment or non-employment or the terms of

employment or with the conditions of labour, of any

person;”

9. The definition of “industrial dispute” referred

above, can be divided into four parts, viz. (i) factum of

dispute, (2) parties to the dispute, viz. (a) employers and

employers, (b) employer and workmen, or (c) workmen

and workmen, (3) subject matter of the dispute, which

should be connected with (i) employment or non -

employment, or (ii) terms of employment, or (iii) condition

of labour of any person, and (4) it should relate to an

“industry”.

10. The definition of “industrial dispute” is worded

in very wide terms and unless they are narrowed by the

meaning given to word “workman” it would seem to include

all “employers”, all “employments” and all “workmen”,

whatever the nature or scope of the employment may be.

Therefore, except in the case where there can be a dispute

between the employers and employers and workmen and

workmen, one of the parties to an industrial dispute must

be an employee or a class of employees. The first point,

therefore, to be noted, perhaps self evident, is that the

phrase “employer and workmen”, the plural may include

singular on either side or any permutation of singular or

plural, the masculine including the feminine. In order,

therefore, to determine as to whether a controversy or

difference or a dispute is an “an industrial dispute’ or not,

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it must first be determined whether the workman concerned

or workmen sponsoring his cause satisfy the conditions

of clause (s) of section 2 of the Act. Here in the case the

Corporation does not dispute status of the claimant to be

of a workman within the meaning of section 2(s) of the

Act.

11. The Apex Court put gloss on the definition of

“industrial dispute” in Dimakuchi Tea Estate [1958 (1) LLJ

500] and ruled that the expression “any person” in clause

(k) of section 2 of the Act must be read subject to such

limitation and qualification as arise from the context, the

two crucial limitations are (1) the dispute must be a real

dispute between the parties to the dispute (as indicated in

the first two parts of the definition clause) so as to be

capable of settlement or adjudication by one party to the

dispute giving necessary relief to other, and (2) the person

regarding whom the dispute is raised must be one for

whose employment, non-employment, terms of

employment or conditions of labour, as case may be, the

parties dispute for a direct or substantial interest. Where

workman raised a dispute as against their employment,

the person regarding whose employment, non employer,

terms of employment or conditions of labour, the dispute

is raised need not be strictly speaking “workman” within

the meaning of the Act, but must be one in whose

employment, non-employment terms of employment, or

conditions of labour the workmen as a class have a direct

or substantial interest. The observations made by the Apex

Court are to be extracted thus :

“We also agree with the expression “any person” is

not co-extensive with any workman, particular or

otherwise, equal with other, that the crucial test is

one of community of interest and the person

regarding whom the dispute is raised must be one in

whose employment, non-employment, terms of

employment, conditions of labour (as the case may

be) the parties to the dispute have a direct or

substantial interest. Whether such direct or

substantial interest has been established in a

particular case will depend on its facts and

circumstances.”

12.

In Kyas Construction Company (Pvt ) Ltd. [1958

(2) LLJ 660], the Apex Court ruled that an industrial dispute

need not be a dispute between the employer and his

workman and that the definition of the expression

“industrial dispute “is wide enough to cater a dispute

raised by the employer’s workman with regard to non

employment of others, who may not be employed as

workman at the relevant time. The Apex Court in Bombay

Union of Journalist [1961 (11) LLJ 436] has observed that

in each case in ascertaining whether an individual dispute

has acquired the character of an industrial dispute, the

test is whether at the date of reference, the dispute was

taken up as submitted by the union of the workmen of the

employer against whom, the dispute is raised by an

individual workman or by an appreciable number of

workmen. In order, therefore, to convert an individual

dispute into an industrial dispute, it has to be established

that it has been taken up by the union of employees of the

establishment or by an appreciable number of the

employees of the establishment. As far as union of the

workmen of establishment itself is concerned, the problem

of espousal by them generally presents little difficulty,

since such workmen who are members of such unions

generally have a continuity of interest with an individual

employee who is one of their fellow workman. But difficulty

arise when the cause of a workman, in a particular

establishment is sponsored by a union which is not of the

workmen of that establishment but is one of which

membership is open to workmen of their establishment as

well as in that industry. In such a case a union which has

only microscopic number of the workmen as its member,

cannot sponsor any dispute arising between the workmen

and the management. A representative character of the

union has to be gathered from the strength of the actual

number of co-workers sponsoring the dispute. The mere

fact that a substantial number of workmen of the

establishment in which the concerned workman was

employee were also members of the union would not

constitute sponsorship. It must be shown that they were

connected together and arrived at an understanding by a

resolution or by other means and collectively submitted

the dispute.

13. The expression “industrial disputes” has been

construed by the Apex Court to include individual

disputes, because of the scheme of the Act. In Raghu

Nath Gopal Patvardhan [1957(1) LLJ 27] the Apex Court

ruled as to what dispute can be called as an industrial

dispute. It was laid thereon that (1) a dispute between the

employer and a single workman cannot be an industrial

dispute, (2) it cannot per-se be an industrial dispute but

may become if it is taken up by a trade union or a number

of workmen. In Dharampal Prem Chand [1965 (1) LLJ 668] it

was commanded by the Apex Court that a dispute raised

by a single workman cannot become an industrial dispute

unless it is supported either by his union or in the absence

of a union by substantial number of workmen. Same law

was laid in the case of Indian Express Newspaper (Pvt.)

Limited [1970 (1) LLJ 132]. However in Western India Match

Company [1970 (11) LLJ 256], the Apex Court referred the

precedent in Dimakuchi Tea Estate’s case [1958 (1) LLJ

500] and ruled that a dispute relating to “any person

becomes a dispute where the person in respect of whom it

is raised is one in whose employment, non-employment,

terms of employment or conditions of labour, the parties,

dispute for a direct or substantial interest”.

14. What a substantial or considerable number of

workmen would be in a given case, depend on particular

facts of the case. The fact that an “industrial dispute”, is

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supported by other workmen will have to be established

either in the form of a resolution of the union of which

workman may be member or of the workmen themselves

who support the dispute or in any other manner. From the

mere fact that a general union, at whose instance an

“industrial dispute” concerning an individual workman is

referred for adjudication, has on its roll a few of the workmen

of the establishment as its members, it cannot be inferred

that the individual dispute has been converted into an

‘‘industrial dispute” The Tribunal has therefore, to

consider the question as to how many of the fellow

workman actually espoused the cause of the concerned

workman by participating in the particular resolution of

the Union. In the absence of a such a determination by the

Tribunal, it cannot be said that the individual dispute

acquired the character of an industrial dispute and the

Tribunal will not acquire jurisdiction to adjudicate upon

the dispute. Nevertheless, in order to make a dispute an

industrial dispute, it is not necessary that there should

always be a resolution of substantial or appreciable number

of workmen. What is necessary is that there should be

some express or collective will of a substantial or an

appreciable member of the workmen treating the cause of

the individual workman as their own cause. Law to this

effect was laid in P. Somasundrameran [1970 (1) LLJ 558].

15. It is not necessary that the sponsoring union is

a registered trade union or a recognized trade union. Once

it is shown that a body of substantial number of workmen

either acting through a union or otherwise had sponsored

the workman’s cause, it is sufficient to convert it ,into an

industrial dispute. In Pardeep Lamp Works [1970 (1) LLJ

507] complaints relating to dispute of ten workmen were

filed before the Conciliation Officer by the individual

workmen themselves. But their case was subsequently

taken up by a new union formed by a large number of co-

workmen, if not a majority of them. Since this union was

not registered or recognized, the workmen elected five

representatives to prosecute the cases of ten dismissed

workmen. Thus cases of the dismissed workmen were

espoused by the new union, yet unregistered and

unrecognized. The Apex Court held that the fact that these

disputes were not taken up by a registered or recognized

union does not mean that they were not “industrial

dispute”.

16. It is not expedient that same union should remain

incharge of that dispute till its adjudication. The dispute

may be espoused by the workmen of an establishment,

through a particular union for making such a dispute an

“industrial dispute”, while the workman may be

represented before the Tribunal for the purpose of section

36 of the Act by a member of executive or office bearer of

altogether another union. The crux of the matter is that the

dispute should be a dispute between the employer and his

workmen. It is not necessary that the dispute must be

espoused or conducted only by a registered trade union.

Even if a trade union ceases to be registered trade union

during the continuance of the adjudication proceedings

that would not affect the maintainability of the order of

reference. Law to this effect was laid by the High Court of

Orissa in Gammon India Limited [1974 (11) LLJ 34]. For

ascertaining as to whether an individual dispute has

acquired character of an individual dispute, the test is

whether on the date of the reference the dispute was taken

up as supported by the union of the workmen of the

employer against whom the dispute is raised by the

individual workman or by an appreciable number of the

workman. In other words, the validity of the reference of

an industrial dispute must be judged on the facts as they

stood on the date of the reference and not necessarily on

the date when the cause occurs. Reference can be made to

a precedent in Western India Match Co. Ltd. [1970 (11)

LLJ 256].

17. Here in the case, not even an iota of facts are

brought over the record to the effect that the union took

up the cause of the claimants as their own. It is also not

shown that the members of the union had shown their

collective will in favour of the cause of the claimants.Thus

it is evident that there is a complete vacuum of facts to the

effect that the union espoused the cause of the claimants.

Resultantly there is no material to conclude to the effect

that the dispute acquired status of an industrial dispute.

The reference is liable to be answered against the claimants

on that score. Issue is therefore answered in favour of the

Corporation and against the claimants.

Issue No. 2 :

18. The Corporation further contests the dispute on

the count that no notice of demand was served on it prior

to raising a dispute before the Conciliation Officer. These

facts also remained uncontroverted. The object of the Act

is to protect workman against victimization by the

employer and ensure termination of industrial dispute in a

peaceful manner. The Act, however, does not provide for

any set of social and economic principles for adjustment

of conflicting interests. Such norms have been evolved

and devised by industrial adjudication, keeping in view

the social and economic conditions, the needs of the

workmen, the requirement of the industry, social justice,

relative interests of the parties and common good. These

norms have given rights to the industrial employees what

may be called industrial rights, as such rights may not be

available at common law. Disputes as to the conditions of

employment can be resolved by resorting to a technique

known as collective bargaining. This tool is resorted to

between an employer or group of employers and a bonafide

labour union. Policy behind this is to protect workmen as

a class against unfair labour practices. What imparts to

the dispute of a workman the character of an “industrial

dispute” is that it affects the right of the workmen as a

class.

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19. An industrial dispute comes into existence when

the employer and the workman are at variance and the

dispute/difference is connected with the employment or

non-employment, terms of employment or ,with conditions

of labour. In other words, dispute or difference arises

when a demand is made by the workman on the employer

and it is rejected by him and vice versa, In Sindhu

Resettlement Corporation Ltd. [1968(1) LLJ 834], the Apex

Court has held that mere demand, asking the appropriate

Government to refer a dispute for adjudication, without

being raised by the workmen with their employer, regarding

such demand, cannot become an industrial dispute. Hence,

an industrial dispute cannot be said to exist until and

unless a demand is made by the workman or workmen on

the employer and it has been rejected by him. In Fedders

Lloyd Corporation Pvt. Ltd. (1970 Lab.I.C.421), High Court

of Delhi went a step ahead and held that “ ... demand by

the workman must be raised first on the management and

rejected by it, before an industrial dispute can be said to

arise and exist and that the making of such a demand to

the Conciliation Officer and its communication by him to

the management, who rejected the demand, is not sufficient

to constitute an industrial dispute.”

20. The above decision was followed by Orissa High

Court in Orissa Industries Pvt. Ltd. [1976 Lab. I.C. 285]

and Himachal Pradesh High Court in Village Paper Pvt.

Ltd. (1993 Lab. I.C. 99). However, the Apex Court in Bombay

Union of Journalists [1961 (2) LLJ 436] had ruled that an

industrial dispute must be in existence or apprehended on

the date of reference. If, therefore, a demand has been

made by the workman and it has been rejected by the

employer before the date of reference, whether direct or

through the Conciliation Officer, it would constitute an

industrial dispute. In Sharnbhunath Goyal [1978 (1) LLJ

484], the Apex Court appreciated facts that the workman

had not made a formal demand for his reinstatement in

service. However, he had contested his dismissal before

the Enquiry Officer and claimed reinstatement. Against

the findings of the Enquiry Officer, he preferred an appeal

to the Appellate Authority, claiming reinstatement on the

ground that his dismissal was bad in law. Then again, he

claimed reinstatement before the Conciliation Officer in

the course of conciliation proceedings, which was

contested by the employer. Appreciating all these facts,

the Apex court inferred that there was impeccable evidence

that the workman had persistently demanded

reinstatement, rejection of which brought an industrial

dispute into existence.

21. In New Delhi Tailor Mazdoor Union [1979 (39)

FLT 195], High Court of Delhi noted that Shambunath

Goyal had not overruled Sindhu Resettlement Pvt. Ltd.

But it had distinguished it on facts. It was also pointed

out that decision of three Judges bench in Sindhu

Resettlement Pvt. Ltd. could not have been overruled by

two Judge bench in Shambunath Goyal. The High Court

concluded that decision in Sindhu Resettlement Pvt. Ltd.,

in case of any conflict between the two decisions, must

prevail. The High Court held that making of the demand

by the workman on the management was sine qua non for

giving rise to an industrial dispute.

22.The High Court of Madras in Management of

Needle Industries [1986(1) LLJ 405] has held that dispute

.or difference between management and the workman,

automatically arises when the workman is dismissed from

service. His dismissal per se creates a dispute or difference

between the management and the workman. The Court

further observed that “it is nowhere stipulated in the Act,

particular in section 2(k), that existence of the dispute as

such is not enough but then there should be a demand by

the workman on the management to give rise to an

industrial dispute”. However, this decision appears to be

inconsistent with the ratio of decision in Bombay Union

of Journalists (supra) and Sindhu Resettlement (supra).

No doubt, for existence of an industrial dispute, there

should be a demand by the workman and refusal to grant

it by the management. However, a demand should be

raised, cannot be a legal notion of fixity and rigidity.

Grievances of the workman and demand for its redressal

must be communicated to the management. Means and

mechanism of the communication adopted are not matters

of much significance, so long as demand is that of the

workman and it reaches the management. Reference can

be made to the precedent in Ram Krishna Mills Coimbatore

Ltd. [1984(2) LLJ 259].

23. The Act nowhere contemplates that the industrial

dispute can come into existence in any particular, specific

or prescribed manner nor there is any particular or prescribed

manner in which refusal should be communicated. For an

industrial dispute to come into existence, written claim is

not sine qua non. To read into the definition, requirement

of written demand for bringing an industrial dispute into

existence would tantamount to rewriting the section,

announced the Apex Court in Shambunath Goyal (supra).

In other words, oral demand and its rejection will as much

bring into existence an industrial dispute, as written one.

If facts and circumstances. of the case show that the

workman had been making a demand, which the

management had been refusing to grant, it can be said

that there was an industrial dispute between the parties.

24.Since the claimnants had not come forward to

project that demand notice was served on the Corporation,

under these circumstances, stand taken by the Corporation

is to be believed. The Corporation projects that no notice

of demand was served on it, before industrial dispute was

raised before the Conciliation Officer. Thus, it is emerging

over the record that it has not been established that

demand was raised on the Corporation, which was rejected

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by it and as such, dispute has not acquired status of an

industrial dispute. Issue is , therefore, answered in favour

of the Corporation and against the claimants.

Issue No. 3 :

25. Onus was there on the claimants to establish

that they were engaged by the Corporation on 11.07.1997

and rendered continuous service since then. They were

also supposed to establish that they were entitled to

regularization of their service since the date of their initial

engagement. It was also incumbent on them to prove that

the Corporation has regularized services of daily wagers,

who were engaged in 1997 and thereafter. Contra to it, the

Corporation projects that the claimants were engaged on

25.10.1997, except Shri Praveen Kumar, who was engaged

on 01.01.1998. Daily wagers engaged in the period from

01.04.1994 to 31.03.1996 have been regularized as per office

order No. 1989/HC/ADC/DEMC/HQ/2009 dated

03.10.2008. Persons engaged thereafter are yet to be

regularized as per policy of the Corporation. Thus it is

evident that for want of evidence, claimants failed to

establish that they were initially engaged since 11.07.1997

and entitled for regularization of their services since the

date of their initial engagement, on factual matrix too.

26. Claimants agitates that they were taken on job

as daily rated/muster roll and were paid minimum wages

as fixed and revised from time to time under the Minimum

Wages Act, while their counterparts doing identical work

were paid much higher than the minimum wages. The

Corporation cannot differentiate between the workers on

the principles of equal pay for equal work. For an answer

to this proposition, the Tribunal is required to take note of

the constitutional rights available to the claimants. Equality

before law and equal protection of laws are fundamental

rights of every person, ordains Article 14 of the

Constitution. The guiding principles laid in Article 14 are

that persons, who are similarly situated, shall be treated

alike both in privileges conferred and liability imposed,

which means that amongst equals the law should be equal

and should be equally administered and that like should

be treated alike. Article 16 of the Constitution guarantees

equality of opportunities for all citizens in matters relating

to employment or appointment to any office under the

State. What is guaranteed is the equality of opportunity.

Like all other employers, government is also entitled to

pick and choose from amongst a large number of

candidates offering themselves for employment. But the

selection process must not be arbitrary. The guarantee

given by clause (a) of Article 16 of the Constitution will

cover (a) initial appointments (b) promotions (c)

termination of employment (d) and matters relating to

salary, periodical increments, leaves, gratuity, pension, age

of superannuation etc. Matters relating to employment or

appointments include all matters in relations to employment

both prior and subsequent to the employment which are

incidental to the employment and form part of the terms

and conditions of such employment.

27. Fundamental rights guaranteed by Article 14

forbids class legislation, but does not forbid classification

or differentiation which rests upon reasonable ground of

discretion. Classification is the recognition of the relations,

and in making it the Government must be allowed a wide

latitude of discretion and judgment. In a way, the

consequences of such classification would undoubtedly

be to differentiate persons belonging to that class from

others. The classification must be founded on an intelligible

differentia which distinguishes persons or things that are

grouped together from others left out of the group and the

differentia must have a rational relation to the object

sought to be achieved. Classification may be made

according to the nature of persons, nature of business,

and may be based with reference to time.

28. Concept of equality guaranteed by Article 16 of

the Constitution is something more than formal equality

and enables the underprivileged groups to have a fair

share by having more than equal chance and enables the

State to give favoured treatment to those groups by

achieving real equality with reference to social needs.

‘Protection discrimination’ enabled the State to adopt new

strategy to bring underprivileged at par with the rest of

the society, by providing all possible opportunities and

incentives to them. Therefore a class may be allowed to

have preferential treatment in the matter relating to

employment or appointment. There cannot be rule of

equality between members of separate and independent

group of persons. Persons can be classified in different

groups, based on in terms of nature of persons, nature of

business and with reference to time. Therefore classification

based on nature of business for which sweepers were

employed by the management, has a reasonable differentia.

29. Now it would be considered as to whether the

claimants are entitled for wages for the post of beldar

equal to regular employees of their category. Doctrine of

“equal pay for equal work” has been enshrined under

Article 39(d) of the Constitution as one of the directive

principles of the State policy, requiring the State to secure

“equal pay for equal work” for both, men and Women.

This constitutional goal is capable of attainment through

constitutional remedies by way of enforcement of

constitutional rights, declares the Supreme Court in

Randhir Singh [1982 (I) LLJ 344]. In G. Sreenivasa Rao

[1989 (11) LLJ 149], the Apex Court announced that right

to “equal pay for equal work” is an accompaniment of the

equality clause enshrined in Article 14 and 16 of the

Constitution of India. Nevertheless, abstract doctrine of

“equal pay for equal work” cannot be read in Article 14.

Reasonable classification, based on intelligible criteria

having nexus with the object sought to be achieved, is

permissible.

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30. In Grih Kalyak Kendra Workers Union [1991 (1)

LLJ 349] Apex Court had gone to the extent of saying that

“equal pay for equal work” has assumed the status of

fundamental right in service jurisprudence having regard

to the constitutional mandate of equality in Articles 14

and 16 of the Constitution. It was pronounced therein that

it has ceased to be a judge made law as it is the part of the

constitutional philosophy which ensures a welfare

socialistic pattern of State providing equal opportunity to

all and equal pay for equal work for similarly placed

employees of the State. The principles does not apply to

the State only but also applies to the State

instrumentalities.

31. In 1976, Equal Remuneration Act 1976 was

enacted to implement provisions of Article 39(d) of the

Constitution. Construing provisions of that Act, Supreme

Court in Audrey D’Costa [1987(1) LLJ 536] pronounced

that the Act does not permit the management to pay to a

section of its employees, doing the same work or work

similar in nature, lower pay contrary to the provisions of

section 4(1) of the Act only because it is not able to pay

equal remuneration to all. The Court further observed that

the applicability of the Act does not depend upon the

financial ability of the management to pay equal

remuneration as provided by it.

32. In deciding whether the work is the same or is

broadly the same, the Authority should take a broad view

and also adopt a broad approach in ascertaining whether

any differences are of practical importance because from

the subject of ‘similar work’ implies difference in detail.

Actual duties performed should be looked into and not

those that are theoretically possible. Elaborating the

concept of “equal pay for equal work” and its application,

the Apex Court in Randhir Singh (Supra) observes as

follows :

“Where all things are equal that is, where all relevant

considerations are the same, persons holding

identical posts’ may not be treated differentially in

the matter of their pay merely because they belong

to different departments. Of course, if officers of the

same rank perform dissimilar functions and the

powers, duties and responsibilities of the posts held

by them vary, such officers may not be heard to

complain of dissimilar pay merely because the posts

are of the same rank and the nomenclature is the

same *** and there are different grades in a service,

with varying qualifications for entry into a particular

grade, the higher grade often being a promotional

avenue for officers of the lower grade. The higher

qualification for higher grade, which may be either

academic qualification or experience based on length

of service, reasonably sustain the classification of

the officers into two grades with different scales of

pay. The principle of “equal pay for equal work”

would be an abstract doctrine not attracting Article

14 if sought to be applied to them”.

33.In Delhi Veterinary Association (AIR 1984 SC

1221), the Supreme Court ruled that apart from the nature

of work, the pay structure should reflect many other values

and observed that the employer ·should follow certain

basic principles in fixing the pay scales of various posts

and cadres in the Government service. The degree of skill,

strain of work, experience involved, training required,

responsibility undertaken, mental and physical

requirements, disagreeableness of the task, hazard

attendant on work and fatigue involved are, according to

the Third Pay Commission, some of the relevant factors

which should be taken into consideration in fixing pay

scales. The method of recruitment, the level at which the

initial recruitment is made in the hierarchy of service or

cadre, minimum educational and technical qualifications

prescribed for the post, the nature of dealings with the

public, avenues of promotion available and horizontal and

vertical relativity with other jobs in the same service or

outside are also relevant factors, announced the Court.

34. In JP Chaurasia [1989 (1) LLJ 309], the Apex

Court, elaborating the same theme, ruled that apart from

the nature of work or volume of the work done the other

relevant factors to be taken into account, are ‘evaluation

of duties and responsibilities of the respective posts’. In

Hari Narain Bhowal [1995 (II) LLJ 328], the Apex Court

pronounced that the principle of “equal pay for equal

work” can be enforced when claiming persons satisfy the

Court that not only the nature of work is identical but in all

other respects they belong to the same class and there is

no apparent reason to treat “equals as unequals”.

35. In Ram Ashray Yadav [1996 (II) LLJ 92], the Apex

Court observed that principle of “equal pay for equal work”

will not apply where qualification prescribed, mode of

recruitment and the nature of duties are different for regular

employees and a temporary employee. The claim of

temporary Investigator cum Computer for payment of

salary at par with the regular Investigator-cum-Computer

was discarded by the Court in the said case. However

classification of officers into two groups, namely,

deputations and non-deputations, for paying different

rates of special pay was held to be not permissible under

Article 14 and 16 of the Constitution, as it did not bear any

rational relation to the Objects of the classification. See

M.P. Singh (A.I.R. 1987 S.C. 485).

36. In Jasmer Singh, [1996(11) SCC 77], the Apex

Court made it clear that equal pay can be given for equal

work of equal value. How work of two employees can be

assessed to be of equal value was laid down by the Apex

Court as follows:

“It is, therefore, claimed that quality of work

performed by different sets of persons holding

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different jobs will have to be evaluated. There may

be differences in educational or technical

qualifications which may have a bearing on the skills

which the holders bring to their job although the

designation of the job may be the same. There may

also be other considerations which have relevance

to efficiency in service which may justify differences

in pay-scales of the basis of criteria such as

experience and seniority, or a need to prevent

stagnation in the cadre, so that good performance

can be elicited from persons who have reached the

top of the pay-scale. There may be various other

similar considerations which may have a bearing on

efficient performance in a job. This Court has

repeatedly observed that evaluation of such jobs

for the purposes of pay-scale must be left to expert

bodies and, unless there are any malafides, its

evaluation should be accepted”.

37. In case nature of work is the same, irrespective

of educational” qualification, mode of appointment,

experience and other relevant factors, principle of equal

pay for equal work cannot apply, as held by the Apex

Court in Tarun K Roy [2004 (1) SCC 347]. Whether members

of the claimant Union can project his case for grant of pay

for the post of enquiry clerk on the ground that he

performed equal work as performed by the enquiry clerk/

clerks? Answer lies in the negative. At the cost of

repetition, it is said that the work performed by the claimant

and clerks, recruited by the management, had no nexus of

equality. The Apex Court in Surender Singh [2007 (115)

FLR 1003] had reviewed the law and laid that for grant of

equal pay for equal work, it has to be shown that there is

total and complete identity between two persons and only

thereafter they can be granted equal pay for equal work.

The law laid is reproduced thus :

“Principles of equal pay for equal work has

undergone a sea change. Earlier view of this Court

was that if two persons are discharging the same

functions, they will be entitled to same wages.

Subsequently, that view has been changed and now

the view of this Court is that there should be

complete and total identity between two persons,

similarly situated so as to grant equal pay for equal

work. Recently, this Court has held that identity

between two persons is to be complete and total. In

case of regular appointee, he has undertaken

selection process and his services are regular. Even

if a daily wager employee who is discharging the

same function as a regular employee, the authorities

are not bound to grant equal pay to such a person

who is appointed on daily wage basis, i.e. he is

appointed for a short term and has not faced the

selection process. Thus the principle of equal pay

for equal work is to be granted only if there is total

complete identity between the two persons. In this

view, we are supported by decision of this Court in

the case of Shri S.C. Chandra and others vs. State of

Jharkhand and others [2007 (9) SCR 130], which is

referred to in earlier decision of this court.”

38. In Surjit Singh [2009 (123) FLR 38] Apex Court

was confronted with the proposition as to whether the

persons employed as daily wagers in different capacities

by Public Health Department of State of Punjab were

entitled for “equal pay for equal work” to that of the

employees who were appointed against regular posts, by

following process of recruitment. It was ruled therein that

grant of benefit of doctrine of “equal pay for equal work”

depends upon a large number of factors, including equal

work, equal value, source and manner of appointment,

equal identify of group and wholesale or complete identity

with the employee with whom equality is claimed. The

same threads of thoughts were there in Ramesh Chandra

Bajpai [2009 (123) FLR 525] wherein the Apex Court ruled

that similarity in the designation or nature or quantum of

work is not determinative of equality in the matter of pay

scales. It was emphasized that the Court has to consider

the factors like the source and mode of recruitment/

appointment, qualifications, the nature of work, the value

thereof, responsibilities, reliability, experience,

confidentiality, functional need, etc. In other words, the

equality clause can be invoked in the matter of pay scales

only when there is wholesale identity between the holders

of two posts.

39. Relying on the above law, it would be considered

as to whether there is complete and wholesale identity

between the claimants and regular employees recruited

by the Corporation, following recruitment rules. Answer

lies in negative. The claimants were engaged on 25.10.1997/

01.01.1998, as daily wagers. They were not engaged in

consonance of recruitment rules. There is no identity

between them and regular beldars, recruited in consonance

of the rules of recruitment. In such a situation the claimant

cannot invoke the doctrine of “equal pay for equal work”.

The Corporation has not committed any illegality when

minimum wages were paid to the claimants.

40. The foregoing reasons make me to conclude that

the claimants are not entitled to any relief. Action of the

Corporation in denying regularization in its service and

payment of salary thereof to Shri Ashok and 5 others is

found to be justified. No relief can be granted in favour of

the claimants. An award is, accordingly, passed. It be sent

to the appropriate Government for publication.

Dated : 29-11-2013

Dr. R. K. YADAV, Presiding Officer

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ubZ fnYyh] 24 tuojh] 2014

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dk 17) ds vuqlj.k esa dsUnzh; ljdkj dfe'uj E;qfufliy

dkjiksjs'ku vkWiQ fnYyh ds izca/r=k ds lac¼ fu;kstdksa vkSj muds

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(lanHkZ la[;k 168@2012) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj

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¹la- ,y&42012@68@2010&vkbZ vkj (Mh;w)º

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New Delhi, the 24th January, 2014

S.O. 494.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No.

168/2012) of the Central Government Industrial Tribunal/

Labour Court No.1 , Delhi now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of The Commissioner, Muncipal

Corporation of Delhi and their workman, which was

received by the Central Government on 18-01-2014

[No. L-42012/68/2010-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. I,

KARKARDOOMA COURTS COMPLEX : DELHI

I.D. No. 168/2012

Shri Suresh Singh,

S/o. Late Shri Bhudev Prasad,

Through The General Secretary, Nagar Nigam

Karamchari Sangh,

Delhi Pradesh, P-2/624, Sultanpuri,

Delhi.

. . . Workman

Versus

The Commissioner,

Municipal Corporation of Delhi,

Town Hall, Chandni Chowk,

Delhi-110006.

. . . Management

AWARD

A chowkidar employed by Municipal Corporation

of Delhi (in short the Corporation) claimed payment of

overtime allowance, since he was made to work beyond

normal duty hours. His claim was not conceded to by the

Corporation. He approached the Nagar Nigam Karamchari

Sangh (Delhi) (in short the union) for redressal of his

grievances. The union served notice on the Corporation

seeking overtime allowance for duties performed in excess

of normal working hours, wages for weekly holidays,

gazetted holidays and casual leaves which notice was not

responded to. A dispute was, raised before the Conciliation

Officer. Since the Corporation contested the claim,

conciliation proceedings ended into a failure. On

consideration of failure report, submitted by the

Conciliation Officer, the appropriate Government referred

the dispute to this Tribunal for adjudication, vide order

No. L-42012/68/2010-IR(DU) dated 22.11.2012, with

following terms:

“Whether action of the management of Municipal

Corporation of Delhi (MCD) in denying overtime

wages to the workman, Shri Suresh Singh. S/o late

Shri Bhudev Prasad, Chowkidar for performing 10

(ten) hours duty per day since the regularization of

the workman Shri Suresh Singh with effect from

01.04.2004 is justified or not.? If not, what relief the

workman is entitled to and from which date?”

2. In the reference order, the appropriate

Government commanded the parties to the dispute to file

statement of claim, complete with relevant documents, list

of reliance and witnesses with this Tribunal within 15 days

of receipt of the reference order and to forward a copy of

such statement of claim to the opposite parties involved

in the dispute. Despite directions, so given, the Chowkidar,

namely, Shri Suresh Singh opted not to file his claim

statement with the Tribunal.

3. Notice was sent to Shri Suresh Singh by

registered post on 03.12.2012, calling upon him to file claim

statement before the Tribunal on or before 02.01.2013. This

notice was sent to him through the union, at P-2/624,

Sultanpuri, Delhi, the address provided by the appropriate

Government in order of reference. Neither the claimant nor

the union responded to the notice, so sent.

4. Since none came forward on behalf of the claimant

to file his claim statement, fresh notice was sent to him by

registered post on 04.01.2013 calling upon him to file claim

statement before the Tribunal on 29.01.2013. Notice was

transmitted to the claimant by registered post on 31.01.2013

asking him to file his claim statement on or before

20.02.2013. Lastly, notice dated 22.2.2013 was sent by

registered post commanding the claimant to file his claim

statement before the Tribunal on or before 22.03.2013.

Neither the postal articles, referred above, were received

back nor was it observed by the Tribunal that postal

services remained affected in the period, referred above.

Therefore, every presumption lies in favour of the fact

that the above notices were served upon the claimant.

Despite service of these notices, claimant opted to abstain

away from the proceedings. No claim statement was filed

on his behalf.

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[PART II—SEC. 3(ii)]

5. Since onus of the question referred for

adjudication was there on the Corporation, it was called

upon to file its response to the reference order. Corporation

filed its response, pleading therein that the dispute was

not properly espoused by the union, hence liable to be

rejected. It further asserted that the dispute has been

raised at a belated stage, hence it became stale. The

Appropriate Government cannot refer such a dispute for

adjudication, as it has become stale. The dispute is liable

to be rejected on this count also, claims the Corporation.

6. The Corporation projects that claimant was getting

overtime allowance @ Rs. 625.00 upto a maximum of 50

hours in a month in accordance with circular dated

15.03.1997. For work performed on Sundays and holidays,

the chowkidars gets compensatory leave in lieu thereof,

hence not - entitled to overtime allowance. Chowkidars

are entitled to 15 days casual leave 3 national holidays

and 6 other holidays of their choice in every calendar year.

Their normal duty hours are 10 hours per day and

previously chowkidars were entitled to 24 hours rest (one

day) in fortnight. Now, a chowkidar is getting overtime

allowance for 100 hours per month in accordance with

circular dated 09.05.2011. Details of overtime allowance

granted to the claimant from June 88 to March 2013 are

annexed as Annexure C with the response. In view of these

facts, claimant is not entitled to any relief, claims the

corporation.

7. Arguments were heard at the bar. None came

forward on behalf of the claimant to advance arguments.

Shri Umesh Gupta, authorized representative, assisted by

Ms. Jaishri, School Inspector, raised submissions on behalf

of the Corporation. I have given my careful considerations

to the arguments advanced at the bar and cautiously

perused the record. My findings on issues involve in the

controversy are as follows:

8. At the outset, it has been argued that the dispute

has not acquired status of an industrial dispute since it

has not been validly espoused by the union. For an

answer, definition of the term industrial dispute is to be

construed. For sake of convenience, definition of the term

“industrial dispute”, as defined by section 2(k) of the

Industrial Disputes Act, 1947 (in short the Act).

“(k) “Industrial dispute” means any dispute or

difference between employers and employers, or

between employers and workmen, or between

workmen and workmen, which is connected with

the employment or non-employment or the terms of

employment or with the conditions of labour, of any

person”.

9. The definition of “industrial dispute” referred

above, can be divided into four parts, viz. (i) factum of

dispute, (2) parties to the dispute, viz.(a) employers and

employers, (b) employer and workmen, or (c) workmen

and workmen, (3) subject matter of the dispute, which

should be connected with -(i) employment or non

employment, or (ii) terms of employment, or (iii) condition

of labour of any person, and (4) it should relate to an

“industry”.

10. The definition of “industrial dispute” is worded

in very wide terms and unless they are narrowed by the

meaning given to word “workman” it would seem to include

all “employers”, all “employments” and all “workmen”,

whatever the nature or scope of the employment may be.

Therefore, except in the case where there can be a dispute

between the employers and employers and workmen and

workmen, one of the parties to an industrial dispute must

be an employee or a class of employees. The first point,

therefore, to be noted, perhaps self evident, is that the

phrase “employer and workmen”, the plural may include

singular on either side or any permutation of singular or

plural, the masculine including the feminine. In order,

therefore, to determine as to whether a controversy or

difference or a dispute is an “an industrial dispute’’ or not

it must first be determined whether the workman concerned

or workmen sponsoring his cause satisfy the conditions

of clause (s) of section 2 of the Act. .Here in the case, the

Corporation does not dispute that the claimant is workman

within the meaning of clause(s) of section 2 of the Act.

11. The Apex Court put gloss on the definition of

“industrial dispute” in Dimakuchi Tea Estate [1958 (1) LLJ

500] and ruled that the expression “any person” in clause

(k) of section 2 of the Act must be read subject to such

limitation and qualification as arise from the context, the

two crucial limitations are (i) the dispute must be a real

dispute between the parties to the dispute (as indicated in

the first two parts of the definition clause) so as to be

capable of settlement or adjudication by one party to the

dispute giving necessary relief to other, and (2) the person

regarding whom the dispute is raised must be one for

whose employment, non employment, terms of employment

or conditions of labour, as case may be, the parties dispute

for a direct or substantial interest. Where workman raised

a dispute as against their employment, the person

regarding whose employment, non employer, terms of

employment or conditions of labour, the dispute is raised

need not be strictly speaking “workman” within the

meaning of the Act, but must be one in whose employment,

non employer, terms of employment, or conditions of labour

the workmen as a class have a direct or substantial interest.

The observations made by the Apex Court are to be

extracted thus :

“We also agree with the expression “any person” is

not co-extensive with any workman, particular or

otherwise, equal with other, that the crucial test is

one of community of interest and the person

regarding whom the dispute is raised must be one in

whose employment, non employment, terms of

¹Hkkx II—[k.M 3(ii)º

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1401

employment, conditions of labour (as the case may

be) the parties to the dispute have a direct or

substantial interest. Whether such direct or

substantial interest has been established in a

particular case will depend on its facts and

circumstances.”

12. In Kyas Construction Company (Pvt.) Ltd. [1958

(2) LLJ 660] the Apex Court ruled that an industrial dispute

need not be a dispute between the employer and his

workman and that the definition of the expression

“industrial dispute’’ is wide enough to cater a dispute

raised by the employer’s workman with regard to non

employment of others, who may not be employed as

workman at the relevant time. The Apex Court in Bombay

Union of Journalist [1961 (II) LLJ 436] has observed that

in each case in ascertaining whether an individual dispute

has acquired the character of an industrial dispute, the

test is whether at the date of reference, the dispute was

taken up as submitted by the union of the workmen of the

employer against whom, the dispute is raised by an

individual workman or by an appreciable number of

workmen. In order, therefore, to convert an individual

dispute into an industrial dispute, it has to be established

that it has been taken up by the union of employees of the

establishment or by an appreciable number of the

employees of the establishment. As far as union of the

workmen of establishment itself is concerned, the problem

of espousal by them generally presents little difficulty,

since such workmen who are members of such unions

generally have a continuity of interest with an individual

employee who is one of their fellow workman. But difficulty

arise when the cause of a workman, in a particular

establishment is sponsored by a union which is not of the

workmen of that establishment but is one of which

membership is open to workmen of their establishment as

well as in that industry. In such a case a union which has

only microscopic number of the workmen as its member,

cannot sponsor any dispute arising between the workmen

and the management. A representative character of the

union has to be gathered from the strength of the actual

number of co-workers sponsoring the dispute. The mere

fact that a substantial number of workmen of the

establishment in which the concerned workman was

employee were also members of the union would not

constitute sponsorship. It must be shown that they were

connected together and arrived at an understanding by a

resolution or by other means and collectively submitted

the dispute.

13. The expression “industrial disputes” has been

construed by the Apex Court to include individual

disputes, because of the scheme of the Act. In Raghu

Nath Gopal Patvardhan [1957(1) LLJ 27] the Apex Court

ruled as to what dispute can be called as an industrial

dispute. It was laid thereon that (1) a dispute between the

employer and a single workman cannot be an industrial

dispute, (2) it can not be per-se be an industrial dispute

but may become if it is taken up by a trade union or a

number of workmen. In Dharampal Prem Chand [1965 (1)

LLJ 668] it was commanded by the Apex Court that a dispute

raised by a single workman cannot become an industrial

dispute unless it is supported either by his union or in the

absence of a union by substantial number of workmen.

Same law was laid in the case of Indian Express Newspaper

(Pvt.) Limited [1970 (1) LLJ 132]. However in Western India

Match Company [1970 (II) LLJ 256], the Apex Court referred

the precedent in Drona Kuchi Tea Estate’s case [1958 (1)

LLJ 500] and ruled that a dispute relating to “any person

becomes a dispute where the person in respect of whom it

is raised is one in whose employment, non employment,

terms of employment or conditions of labour, the partie

dispute for a direct or substantial interest”.

14. What a substantial or considerable number of

workmen would be in a given case, depend on particular

facts of the case. The fact that an “industrial dispute”, is

supported by other workmen will have to be established

either in the form of a resolution of the union of which

workman may be member or of the workmen themselves

who support the dispute or in any other manner. From the

mere fact that a general union, at whose instance an

“industrial dispute” concerning an individual workman is

referred for adjudication, has on its roll a few of the workmen

of the establishment as its members, it cannot be inferred

that the individual dispute has been converted into an

‘‘industrial dispute”. The Tribunal has therefore, to

consider the question as to how many of the fellow

workman actually espoused the cause of the concerned

workman by participating in the particular resolution of

the Union. In the absence of such a determination by the

Tribunal, it cannot be said that the individual dispute

acquired the character of an industrial dispute and the

Tribunal will not acquire jurisdiction to adjudicate upon

the dispute. Nevertheless, in order to make a dispute an

industrial dispute, it is not necessary that there should

always be a resolution of substantial or appreciable number

of workmen. What is necessary is that there should be

some express or collective will of a substantial or an

appreciable member of the workmen treating the cause of

the individual workman as their own cause. Law to this

effect was laid in P. Somasundrameran [1970 (1) LLJ 558].

15. It is not necessary that the sponsoring union is

a registered trade union or a recognized trade union. Once

it is shown that a body of substantial number of workmen

either acting through a union or otherwise had sponsored

the workman’s cause, it is sufficient to convert it into an

industrial dispute. In Pardeep Lamp Works [1970 (1) LLJ

507] complaints relating to dispute of ten workmen were

filed before the Conciliation Officer by the individual

workmen themselves. But their case was subsequently

taken up by a new union formed by a large number of co-

workmen, if not a majority of them. Since this union was

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[PART II—SEC. 3(ii)]

not registered or recognized, the workmen elected five

representatives to prosecute the cases of ten dismissed

workmen. Thus cases of the dismissed workmen were

espoused by the new union, yet unregistered and

unrecognized. The Apex Court held that the fact that these

disputes were not taken up by a registered or recognized

union does not mean that they were not “industrial

dispute”.

16. It is not expedient that same union should remain

incharge of that dispute till its adjudication. The dispute

may be espoused by the workmen of an establishment,

through a particular union for making such a dispute an

“industrial dispute”, while the workman may be

represented before the Tribunal for the purpose of section

36 of the Act by a member of executive or office’ bearer of

altogether another union. The crux of the matter is that the

dispute should be a dispute between the employer and his

workmen. It is not necessary that the dispute must be

espoused or conducted only by a registered trade union.

Even if a trade union ceases to be registered trade union

during the continuance of the adjudication proceedings

that would not affect the maintainability of the order of

reference. Law to this effect was laid by the High Court of

Orissa in Gammon India Limited [1974 (11) LLJ 34]. For

ascertaining as to whether an individual dispute has

acquired character of an individual dispute, the test is

whether on the date of the reference the dispute was taken

up as supported by the union of the workmen of the

employer against whom the dispute is raised by the

individual workman or by an appreciable number of the

workman. In other words, the validity of the reference of

an industrial dispute must be judged on the facts as they

stood on the date of the reference and not necessarily on

the date when the cause occurs. Reference can be made

to a precedent in Western India Match Co. Ltd. [1970 (II)

LLJ 256].

17. Here in the case, not even an iota of facts are

brought over the record to the effect that the union took

up the cause of the claimant as their own. It is also not

shown that the members of the union had shown their

collective will in favour of the cause of the claimant. Thus

it is evident that there is a complete vacuum of facts to the

effect that the union espoused the cause of the claimant.

Resultantly there is no material to conclude to the effect

that the dispute acquired status of an industrial dispute.

The reference is liable to be answered against the claimant

on that score.

18. Next count of attack made by the Corporation

that the dispute was raised by the claimant after 8 years,

which frustrates the relief in his favour. Section 10(1) of

the Act does not prescribe any period of limitation for

making reference of the dispute for adjudication. The

words ‘at any time’ used in sub section (1) of Section 10 of

Act does not admit of any limitation in making an order of

reference. Law of limitation, which might bar any Civil

Court from giving remedy in respect of lawful rights, cannot

be applied by Industrial Tribunals. However, policy of

industrial adjudication is that stale claim should not be

generally encouraged. or allowed unless there is

satisfactory explanation for delay. In Shalimar Works Ltd.

[1959 (2) LLJ 26], the Apex Court pointed out that though

there is no limitation prescribed in making reference of the

dispute to Industrial Tribunal, even so, it is only reasonable

that disputes should be referred as’ soon as possible after

having arisen and on failure of conciliation proceedings.

In Western India Match Company [1970 (2) LLJ 256] the

Apex Court observed that in exercising its discretion,

Government will take into account time which has lapsed

between its earlier decision and the date when it decides

to consider it in the interest of justice and industrial peace

to make the reference for adjudication. Same view was

taken in Mahabir Jute Mills Ltd. [1975 (2) LLJ 326]. In

Gurmail Singh [2000 (1) LLJ 1080] Industrial Adjudicator

dismissed the reference on the ground that there was delay

of 8 years in raising the dispute, which delay was condoned

by the Apex Court and it was ordered that the workman

would not be entitled to any back wages for the period of

8 years but would be entitled to 50% of wages from the

date it raised the dispute till the date of his reinstatement.

In Prahalad Singh [2000 (2) LLJ 1653], the Apex Court

approved the award of the Tribunal in not granting any

relief to the workman who preferred the claim after a period

of 13 years without any reasonable or justifiable grounds.

In Nedungadi Bank Ltd. [2002 (2) SCC 4] a lapse of seven

years in raising the dispute was held to be a factor to

refuse the relief. The Apex Court ruled that the appropriate

Government has to exercise its powers of referring the

dispute in a reasonable manner Delay of seven years made

the Court to conclude that there was no dispute existing

or apprehended when decision was taken to refer it for

adjudication. Same view was taken in Haryana State Co-

operative Land Development Bank [2005 (5) S.C.C. 91].

From above decisions, it can be said that the law relating

to delay in raising or reference of dispute is bereft of any

principles, which can be easily comprehended by the

litigants.

19. Claimant raised the dispute in respect of overtime

allowance paid to him with effect from 01.04.2004. Thus, it

is emerging over the record that the claimant had raised

the dispute after a long gap of 8 years. No explanation is

offered for this inordinate delay. It appears that there was

no industrial dispute in existence or could be even said to

have been apprehended in the year 2012, when the

appropriate Government applied its mind to the facts of

the present controversy.

20. Corporation contests the dispute on the count

that no notice of demand was served on it prior to raising

a dispute before the Conciliation Officer. These facts also

remained uncontroverted. The object of the Act is to

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protect workman against victimization by the employer

and ensure termination of industrial dispute in a peaceful

manner. The Act, however, does not provide for any set of

social and economic principles for adjustment of

conflicting interests. Such norms have been evolved and

devised by industrial adjudication, keeping in view the

social and economic conditions, the needs of the workmen,

the requirement of the industry, social justice, relative

interests of the parties and common good. These norms

have given rights to the industrial employees what may

be called industrial rights, as such rights may not be

available at common law. Disputes as to the conditions of

employment can be resolved by resorting to a technique

known as collective bargaining. This tool is resorted to

between an employer or group of employers and a bonafide

labour union. Policy behind this is to protect workmen as

a class against unfair labour practices. What imparts to

the dispute of a workman the character of an “industrial

dispute” is that it affects the right of the workmen as a

class.

21. An industrial dispute comes into existence when

the employer and the workman are at variance and the

dispute/difference is connected with the employment or

non-employment, terms of employment or with conditions

of labour. In other words, dispute or difference arises when

a demand is made by the workman on the employer and it

is rejected by him and vice versa. In Sindhu Resettlement

Corporation Ltd.(1968(1) LLJ 834), the Apex Court has held

that mere demand, asking the appropriate Government to

refer a dispute for adjudication, without being raised by

the workmen with their employer, regarding such demand,

cannot become an industrial dispute. Hence, an industrial

dispute cannot be said to exist until and unless a demand

is made by the workman or workmen on the employer and

it has been rejected by him. In Fedders Lloyd Corporation

Pvt. Ltd. (1970 Lab.I.C. 421), High Court of Delhi went a

step ahead and held that “. . .. demand by the workman

must be raised first on the management and rejected by it,

before an industrial dispute can be said to arise and exist

and that the making of such a demand to the Conciliation

Officer and its communication by him to the management,

who rejected the demand, is not sufficient to constitute an

industrial dispute.”

22. The above decision was followed by Orissa High

Court in Orissa Industries Pvt. Ltd. (1976 Lab.I.C. 285) and

Himachal Pradesh High Court in Village Paper Pvt. Ltd.

(1993 Lab.I.C. 99). However, the Apex Court in Bombay

Union of Journalists (1961 (2) LLJ 436) had ruled that an

industrial dispute must be in existence or apprehended on

the date of reference. If, therefore, a demand has been

made by the workman and it has been rejected by the

employer before the date of reference, whether direct or

through the Conciliation Officer, it would constitute an

industrial dispute. In Shambhunath Goyal (1978(1) LLJ 484),

the Apex Court appreciated facts that the workman had

not made a formal demand for his reinstatement in service.

However, he had contested his dismissal before the

Enquiry Officer and claimed reinstatement. Against the

findings of the Enquiry Officer, he preferred an appeal to

the Appellate Authority, claiming reinstatement on the

ground that his dismissal was bad in law. Then again, he

claimed reinstatement before the Conciliation Officer in

the course of conciliation proceedings, which was

contested by the employer. Appreciating all these facts,

the Apex court inferred that there was impeccable evidence

that the workman had persistently demanded

reinstatement, rejection’ of which brought an industrial

dispute into existence.

23. In New Delhi Tailor Mazdoor Union (1979(39) FL

T 195), High Court of Delhi noted that Shambunath Goyal

had not overruled Sindhu Resettlement Pvt. Ltd. But it

had distinguished it on facts. It was also pointed out that

decision of three Judges bench in Sindhu Resettlement

Pvt. Ltd. could not have been overruled by two Judge

bench in Shambunath Goyal. The High Court concluded

that decision in Sindhu Resettlement Pvt. Ltd., in case of

any conflict between the two decisions, must prevail. The

High Court held that making of the demand by the workman

on the management was sine qua non for giving rise to an

industrial dispute.

24. The High Court of Madras in Management of

Needle Industries (1986(1) LLJ 405) has held that dispute

or difference between management and the workman,

automatically arises when the workman is dismissed from

service. His dismissal per se creates a dispute or difference

between the management and the workman. The Court

further observed that “it is nowhere stipulated in the Act,

particular in section 2(k), that existence of the dispute as

such is not enough but then there should be a demand by

the workman on the management to give rise to an

industrial dispute”. However, this decision appears to be

inconsistent with the ratio of decision in Bombay Union

of Journalists (supra) and Sindhu Resettlement (supra).

No doubt, for existence of an industrial dispute, there

should be a demand by the workman and refusal to grant

it by the management. However, a demand should be raised,

cannot be a legal notion of fixity and rigidity. Grievances

of the workman and demand for its redressal must be

communicated to the management. Means and mechanism

of the communication adopted are not matters of much

significance, so long as demand is that of the workman

and it reaches the management. Reference can be made to

the precedent in Ram Krishna Mills Coimbatore Ltd. (1984

(2) LLJ 259).

25. The Act nowhere contemplates that the industrial

dispute can come into existence in any particular, specific

or prescribed manner nor there is any particular or prescribed

manner in which refusal should be communicated. For an

industrial dispute to come into existence, written claim is

1404

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

not sine qua non. To read into the definition, requirement

of written demand for bringing an industrial dispute into

existence would tantamount to rewriting the section,

announced the Apex Court in Shambunath Goyal (supra).

In other words, oral demand and its rejection will as much

bring into existence an industrial dispute, as written one.

If facts and circumstances of the case show that the

workman had been making a demand, which the

management had been refusing to grant, it can be said

that there was an industrial dispute between the parties.

26. Since the claimant had not come forward to

project that demand notice was served on the corporation,

under these circumstances, stand taken by the corporation

is to be believed. Corporation projects that no notice of

demand was served on it, before industrial dispute was

raised before the Conciliation Officer. Thus, it is emerging

over the record that it has not been established that

demand was raised on the corporation, which was rejected

by it and as such, dispute has not acquired status of an

industrial dispute.

27. Turning to facts presented by the Corporation, it

emerges that the Corporation takes. 10 hours duty from

Chowkidars. Keeping in view the nature of duties

performed, the Corporation was paying intermittent

allowance to Chowkidars for performing more than 10 hours

duty. Allowance was paid @ Rs.130.00 per month for

performance of duty upto 12 hours, Rs.180.00 per month

for duties performed for more than 12 hours but upto 16

hours and Rs.190.00 per month for performing duties more

than 16 hours a day. Workers union agitated the issue and

demanded overtime allowance in lieu of intermittent

allowance. On the basis of the resolution, the Corporation,

vide its decision dated 15.03.1997 decided to pay overtime

allowance to the maximum limit of 50 hours. The said

allowance was paid @Rs. 625.00 per month. Workers union

further demanded enhancement of maxima limit of overtime

allowance and in consideration of the said demand, the

Corporation started paying overtime allowance with a cap

of 100 hours a month. Now, the Corporation is paying

overtime allowance to Chowkidars at Rs.1250.00, in

pursuance of Office Order dated 09.05.2011.

28. Annexure C, when scanned, highlights that from

January 98 till March 2011, overtime allowance was paid

to the claimant @ Rs.625.00 per month. From April 2011 till

March 2013, overtime allowance has been paid to the

claimant @ 1250.00 per month. Therefore, it is emerging

over the record that overtime allowance is being paid to

the claimant in accordance with the circulars, issued by

the Corporation from time to time.

29. In view of the above reasons, it is evident that

the action of the Corporation in paying overtime allowance

to the claimant @ Rs.625.00 per month till March 2011 and

thereafter Rs.1250.00 till date is in accordance with the

circulars issued from time to time. Claimant is not entitled

to overtime allowance more than the amount referred

above. Resultantly, action of the Corporation is found to

be justified. No relief is available to the claimant. An award

is, accordingly, passed. It be sent to the appropriate

Government for publication.

Date: 06.12.2013

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 24 tuojh] 2014

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¹la- ,y&42012@50@2010&vkbZ vkj (Mh;w)º

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New Delhi, the 24th January, 2014

S.O. 495.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No.

200/2012) of the Central Government Industrial Tribunal/

LabourCourt No.1 , Delhi now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of The Commissioner, Muncipal

Corporation of Delhi and their workman, which was

received by the Central Government on 18-01-2014.

[No. L-42012/50/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. I,

KARKARDOOMA COURTS COMPLEX : DELHI

I.D. No. 200/2012

Smt. Memwati,

W/o. Late Shri Satish Chander,

Through Nagar Nigam Karamchari Sangh,

Delhi Pradesh, P-2/624, Sultanpuri,

Delhi.

...Workman

Versus

The Commissioner,

Municipal Corporation of Delhi,

Town Hall, Chandni Chowk,

Delhi-110006.

...Management

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1405

AWARD

One Shri Satish Kumar, was engaged on muster roll

by erstwhile Delhi Water Supply and Sewerage Disposal

Undertaking. His engagement was for intermittent period

in case of exigencies. In 1998, Delhi Jal Board (in short the

Board) came into existence. Some of the employees

working with Delhi Water Supply and Sewerage Disposal

Undertaking were transferred to the Board. As such, Shri

Satish Kumar also worked on muster roll with the Delhi Jal

Board for a period of seven months. He expired on

26.10.1998. After a long gap of 14 years his widow, namely

Smt. Memwati, raised a demand on the Municipal

Corporation of Delhi (in short the Corporation) as well ,as

the Board for grant of family pension. When her demand

was not conceded, she approached the Nagar Nigam

Karamchari Sangh (in short the union) for redressal of her

grievances. The union raised a dispute before the

Conciliation Officer. Since the Corporation and the Board

contested the claim, conciliation proceedings ended into

a failure. On consideration of failure report submitted by

the Ccnciliation Officer, the appropriate Government

referred the dispute to this Tribunal for adjudication, vide

order No.L-42012/50/2012/IR(DU), New Delhi dated

06.12.2012 with following terms :

“Whether the action of the management of Municipal

Corporation of Delhi (MCD) and Delhi Jal Board

(DJB) in denying the family pension with all

consequential benefits to Smt. Memwati, w/o late

Satish Chander. ex-Sewerage Beldar with effect from

the death of the workman. i.e. 26.10.1998 onward is

justified or not? If not, what relief the workman is

entitled to and from which date?”

2. In the reference order, the appropriate

Government commanded the parties to the dispute to file

statement of claim, complete with relevant documents, list

of reliance and witnesses with this Tribunal within 15 days

of receipt of the reference order and to forward a copy of

such statement of claim to the opposite parties involved

in the dispute. Despite directions. so given, Smt. Memwati

opted not to file her claim statement With the Tribunal.

3. Notice was sent to Ms. Memwati by registered

post on 29.12.2012, calling upon her to file claim statement

before the Tribunal on or before 17.01.2013. This notice

was sent to her through the union, at P-2/624. Sultanpuri,

Delhi, the address provided by the appropriate

Government in order of reference. Neither the claimant nor

the union responded to the notice, so sent.

4. Since none came forward on behalf of the claimant

to file her claim statement, fresh notice was sent to her by

registered post on 22.01.2013 calling upon her to file claim

statement before the Tribunal on 11.02.2013. Notices were

again transmitted to the claimant by registered post on

12.02.2013 and 12.03.2013 asking her to file her claim

statement on or before 08.03.2013 and 08.04.2013

respectively. Lastly, notice dated 04.07.2013 was sent by

registered post commanding the claimant to file her claim

statement before the Tribunal on or before 22.07.2013.

Neither the postal articles, referred above, were received

back nor was it observed by the Tribunal that postal

services remained affected in the period, referred above.

Therefore, every presumption lies in favour of the fact

that the above notices were served upon the claimant.

Despite service of these notices, claimant opted to abstain

away from the proceedings. No claim statement was filed

on her behalf.

5. Since onus of the question referred for

adjudication was on the Corporation and the Board, it

were called upon to file their response to the reference

order. In its response to the reference order, the

Corporation presents that as per facts given in the reference

order, Shri Satish Kumar expired on 26.10.1998. His widow,

namely, Smt. Memwati raised a dispute after about 14 years.

Long delay in raising the dispute frustrates her claim. Even

otherwise, her husband was working with the Board and

the Corporation has no concern with him. Smt. Memwati

has no claim against the Corporation for grant of family

pension.

6. The Board presents that Shri Satish was initially

engaged on muster roll as beldar in Delhi Water Supply

and Sewerage Disposal Undertaking. When the Board

came into existence in 1998, some of the employees working

with Delhi Water Supply and Sewerage Disposal

Undertaking were transferred to the Board. Shri Satish

worked for a period of seven months with the Board as

daily wager on muster roll. He expired on 26.10.1998. Since

he was a muster roll employee, his widow is not entitled to

family pension.

7. Arguments were heard at the bar. None came

forward on behalf of the claimant to advance arguments.

Shri Umesh Gupta, authorized representative, raised

submissions on behalf of the Corporation. Shri Rajender

Saini, authorised representative, advanced arguments on

behalf of the Board. I have given my careful considerations

to the arguments advanced at the bar and cautiously

perused the record. My findings on issues involved in the

controversy are as follows :

8. At the outset, it has been urged that the dispute

is not an industrial dispute for want of espousal by the

union or considerable number of workman in the

establishment of the Corporation or the Board. Since the

dispute is an individual dispute, this Tribunal has no

jurisdiction to entertain it. For an answer to this

proposition, definition of the term ‘industrial dispute’ is to

be construed. Section 2(k) of the Industrial Disputes Act,

1947 (in short the Act), defines the term ‘industrial dispute’,

which definition is extracted thus :

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

“2(k) “Industrial dispute” means any dispute or

difference between employers and employers, or

between employers and workmen, or between

workmen and workmen, which is connected with

the employment or non-employment or the terms of

employment or with the conditions of labour, of any

person;”

9. The definition of “industrial dispute” referred

above, can be divided into four parts, viz. (i) factum of

dispute, (2) parties to the dispute, viz. (a) employers and

employers, (b) employer and workmen, or (c) workmen

and workmen, (3) subject matter of the dispute, which

should be connected with — (i) employment or non

employment, or (ii) terms of employment, or (iii) condition

of labour of any person, and (4) it should relate to an

“industry”.

10. The definition of “industrial dispute” is worded

in very wide terms and unless they are narrowed by the

meaning given to word “workman” it would seem to include

all “employers”, all “employments” and all “workmen”,

whatever the nature or scope of the employment may be.

Therefore, except in the case where there can be a dispute

between the employers and employers and workmen and

workmen, one of the parties to an industrial dispute must

be an employee or a class of employees. The first point,

therefore, to be noted, perhaps self evident, is that the

phrase “employer and workmen”, the plural may include

singular on either side or any permutation of singular or

plural, the masculine including the feminine. In order,

therefore, to determine as to whether a controversy or

difference or a dispute is an “an industrial dispute’ or not,

it must first be determined whether the workman concerned

or workmen sponsoring his cause satisfy the conditions

of clause (s) of section 2 of the Act. Here in the case the

Corporation does not dispute status of the claimant to be

of a workman within the meaning of section 2(s) of the

Act.

11. The Apex Court put gloss on the definition of

“industrial dispute” in Dimakuchi Tea Estate [1958 (1) LLJ

500] and ruled that the expression “any person” in clause

(k) of section 2 of the Act must be read subject to such

limitation and qualification as arise from the context, the

two crucial limitations are (i) the dispute must be a real

dispute between the parties to the dispute (as indicated in

the first two parts of the definition clause) so as to be

capable of settlement or adjudication by one party to the

dispute giving necessary relief to other, and (2) the person

regarding whom the dispute is raised must be one for

whose employment, non employment, terms of employment

or conditions of labour, as case may be, the parties dispute

for a direct or substantial interest. Where workman raised

a dispute as against their employment, the person

regarding whose employment, non employer, terms of

employment or conditions of labour, the dispute is raised

need not be strictly speaking “workman” within the

meaning of the Act, but must be one in whose employment,

non employment, terms of employment, or conditions of

labour the workmen as a class have a direct or substantial

interest. The observations made by the Apex Court are to

be extracted thus :

“We also agree with the expression “any person” is

not co extensive with any workman, particular or

otherwise, equal with other, that the crucial test is

one of community of interest and the person

regarding whom the dispute is raised must be one in

whose employment, non employment, terms of

employment, conditions of labour (as the case may

be) the parties to the dispute have a direct or

substantial interest. Whether such direct or

substantial interest has been established in a

particular case will depend on its facts and

circumstances.”

12.In Kyas Construction Company (Pvt.) Ltd. [1958

(2) LLJ 660], the Apex Court ruled that an industrial dispute

need not be a dispute between the employer and his

workman and that the definition of the expression

“industrial dispute’’is wide enough to cater a dispute

raised by the employer’s workman with regard to non

employment of others, who may not be employed as

workman at the relevant time. The Apex Court in Bombay

Union of Journalist [1961 (II) LLJ 436] has observed that

in each case in ascertaining whether an individual dispute

has acquired the character of an industrial dispute, the

test is whether at the date of reference, the dispute was

taken up as submitted by the union of the workmen of the

employer against whom, the dispute is raised by an

individual workman or by an appreciable number of

workmen. In order, therefore to convert an individual

dispute into an industrial dispute, it has to be established

that it has been taken up by the union of employees of the

establishment or by an appreciable number of the

employees of the establishment. As far as union of the

workmen of establishment itself is concerned, the problem

of espousal by them generally presents little difficulty,

since such workmen who are members of such unions

generally have a continuity of interest with an individual

employee who is one of their fellow workman. But difficulty

arise when the cause of a workman, in a particular

establishment is sponsored by a union which is not of the

workmen of that establishments but is one of which

membership is open to workmen of their establishment as

well as in that industry. In such a case a union which has

only microscopic number of the workmen as its member,

cannot sponsor any dispute arising between the workmen

and the management. A representative character of the

union has to be gathered from the strength of the actual

number of eo workers sponsoring the dispute. The mere

fact that a substantial number of workmen of the

establishment in which the concerned workman was

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1407

employee were also members of the union would not

constitute sponsorship. It must be shown that they were

connected together and arrived at an understanding by a

resolution or by other means and collectively submitted

the dispute.

13. The expression “industrial disputes” has been

construed by the Apex Court to include individual

disputes, because of the scheme of the Act. In Raghu

Nath Gopal Patvardhan [1957(1) LLJ 27] the Apex Court

ruled as to what dispute can be called as an industrial

dispute. It was laid thereon that (1) a dispute between the

employer and a single workman cannot be an industrial

dispute, (2) it cannot per-se be an industrial dispute but

may become if it is taken up by a trade union or a number

of workmen. In Dharampal Prem Chand [1965 (1) LLJ 668]

it was commanded by the Apex Court that a dispute raised

by a single workman cannot become an industrial dispute

unless it is supported either by his union or in the absence

of a union by substantial number of workmen. Same law

was laid in the case of Indian Express Newspaper (Pvt.)

Limited [1970 (1) LLJ 132]. However in Western India Match

Company [1970 (II) LLJ 256], the Apex Court referred the

precedent in Dimakuchi Tea Estate’s case [1958 (1) LLJ

500] and ruled that a dispute relating to “any person

becomes a dispute where the person in respect of whom it

is raised is one in whose employment, non employment,

terms of employment or conditions of labour, the parties,

dispute for a direct or substantial interest”.

14. What a substantial or considerable number of

workmen would be in a given case, depend on particular

facts of the case. The fact that an ‘‘industrial dispute”, is

supported by other workmen will have to be established

either in the form of a resolution of the union of which

workman may be member or of the workmen themselves

who support the dispute or in any other manner. From the

mere fact that a general union, at whose instance an

“industrial dispute” concerning an individual workman is

referred for adjudication, has on its roll a few of the workmen

of the establishment as its members, it cannot be inferred

that the individual dispute has been converted into an

‘‘industrial dispute”. The Tribunal has therefore, to

consider the question as to how many of the fellow

workman actually espoused the cause of the concerned

workman by participating in the particular resolution of

the Union. In the absence of a such a determination by the

Tribunal, it cannot be said that the individual dispute

acquired the character of an industrial’ dispute and the

Tribunal will not acquire jurisdiction to adjudicate upon

tile dispute. Nevertheless, in order to make a dispute an

industrial dispute, it is not necessary that them should

always be a resolution of substantial or appreciable

number of workmen. What is necessary is that there

should be some express or collective will of a substantial

or an appreciable member of the workmen treating the

cause of the individual workman as their own cause. Law

to this effect was laid in P. Somasundrameran [1970 (1) LLJ

558].

15. It is not necessary that the Sponsoring union is

a registered trade union or a recognized trade union. Once

it is shown that a body of substantial number of workmen

either acting through a union or otherwise had sponsored

the workman’s cause, it is sufficient to convert it into an

industrial dispute, In Pardeep Lamp Works [1970 (1) LLJ

507] complaints relating to dispute of ten workmen were

filed before the Conciliation Officer by the individual

workmen themselves. But their case was subsequently

taken up by a new union formed by a large number of co

workmen, if not a majority of them. Since this union was

not registered or recognized, the workmen elected five

representatives to prosecute the cases of ten dismissed

.workmen. Thus cases of the dismissed workmen were

espoused by the new union, yet unregistered and

unrecognized. The Apex Court held that the fact that these

disputes were not taken up by a registered or recognized

union does not mean that they were not “industrial

dispute”.

16. It is not expedient that same union should remain

incharge of that dispute till its adjudication. The dispute

may be espoused by the workmen, of an establishment,

through a particular union for making such a dispute an

“industrial dispute”, while the workman may be

represented before the Tribunal for the purpose of section

36 of the Act by a member of executive or office bearer of

altogether another union. The crux of the matter is that the

dispute should be a dispute between the employer and

his workmen. It is not necessary that the dispute must be

espoused or conducted only by a registered trade union.

Even if a trade union ceases to be registered trade union

during the continuance of the adjudication proceedings

that would not affect the maintainability of the order of

reference. Law to this effect was laid by the High Court of

Orissa in Gammon India Limited [1974 (II) LLJ 34]. For

ascertaining as to whether an individual dispute has

acquired character of an individual dispute, the test is

whether on the date of the reference the dispute was taken

up as supported by the union of the workmen of the

employer against whom the dispute is raised by the

individual workman or by an appreciable number of the

workman. In other words, the validity of the reference of

an industrial dispute must be judged on the facts as they

stood on the date of the reference and not necessarily on

the date when the cause occurs. Reference can be made to

a precedent ‘in Western India Match Co. Ltd. [1970 (II)

LLJ 256].

17.Here in the case, not even an iota of facts are

brought over the record to the effect that the union took

up the cause of the claimant as their own. It is also not

shown that the members of the union had shown their

collective will in favour of the cause of the claimant. Thus

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

it is evident that there is a complete vacuum of facts to the

effect that the union espoused the cause of the claimant.

Resultantly there is no material to conclude to the effect

that the dispute acquired status of an Industrial dispute.

The reference is liable to be answered against the claimant

on that score.

18. Next count of attack has been made projecting

that Shri Satish Kumar expired on 26.10.1998. Now, in the

year 2012, dispute under reference has been raised. Long

delay of 14 years had taken place, which frustrates the

claim. Section 10 (1) of the Act does not prescribe any

period of limitation for making reference of the dispute for

adjudication. The words ‘at any time’ used in sub-section

(1) of section 10 of Act does not admit of any limitation in

making an order of reference. Law of limitation, which might

bar any Civil Court from giving remedy in respect of lawful

rights, cannot be applied by Industrial Tribunals. However,

policy of industrial adjudication is that stale claim should

not be generally encouraged or allowed unless there is

satisfactory explanation for delay, In Shalimar Works Ltd.

[1959 (2) LLJ 26], the Apex Court pointed out that though

there is no limitation prescribed in making reference of the

dispute to Industrial Tribunal, even so, it is only reasonable

that disputes should be referred as soon as possible after

having arisen and on failure of conciliation proceedings.

In Western India Match Company [1970 (2) LLJ 256] the

Apex Court observed that in exercising its discretion,

Government will take into account time which has lapsed

between its earlier decision and the date when it decides

to consider it in the interest of justice and industrial peace

to make the reference for adjudication. Same view was

taken in Mahabir Jute Mills Ltd. [1975 (2) LLJ 326]. In

Gurmail Singh [2000 (1) LLJ 1080] Industrial Adjudicator

dismissed the reference on the ground that there was delay

of 8 years in raising the dispute, which delay was condoned

by the Apex Court and it was ordered that the workman

would not be entitled to any back wages for the period of

8 years but would be entitled to 50% of wages from the

date it raised the dispute till the date of his reinstatement.

In Prahalad Singh [2000 (2) LLJ 1653], the Apex Court

approved the award of the Tribunal in not granting any

relief to the workman who preferred the claim after a period

of 13 years without any reasonable or justifiable grounds.

In Nedungadi Bank Ltd. [2002 (2) SCC 4] a lapse of seven

years in raising the dispute was held to be a factor to

refuse the relief. The Apex Court ruled that the appropriate

Government has to exercise its powers of referring the

dispute in a reasonable manner. Delay of seven years made

the Court to conclude that there was no dispute existing

or apprehended when decision was taken to refer it for

adjudication. Same view was taken in Haryana State Co-

operative Land Development Bank [2005 (5) S.C.C. 91].

From above decisions, it can be said that the law relating

to delay in raising or reference of dispute is bereft of any

principles, which can be easily comprehended by the

litigants.

19. Claimant expired on 26,10.1998. After his death,

Ms. Memwati approached the union in the year 2011. The

union raised the dispute before the Conciliation Officer,

which dispute was contested. It is emerging over the record

that for a period of more than 14 years, she remained in

hibernation. One fine morning, she comes out of slumbers

and approached the union for redressal of her grievance.

Delay in raising the dispute would frustrate relief in her

favour. Taking into account all these aspects, delay of

nearly 14 years in raising the dispute would certainly come

in her way. I am of the considered opinion that on account

of delay of nearly 14 years, the claimant is not entitled to

any relief.

20. The Board presents that Shri Satish Kumar

worked for a period of 7 months as daily wager beldar. His

services were never regularized by the Board. He never

worked on any civil post. Question for consideration would

be as to whether Ms. Memwati is entitled to family

pension? Family pension is granted to the family of a

Government service in the event of his death while in

service or after retirement. Family Pension Scheme 1964

was introduced with effect from 01.01.1964. As per the

Scheme, in the event of death of a Government servant

while in service or after retirement, his family will get family

pension if :

(i)

In the case of death while in service :

(a)

He has completed a minimum period of one

years’ service; or

(b)

He had been medically examined and found

fit for appointment in Government service

when his death occurred before completion

of one years’ service

(ii)

In case of death after retirement :

He was on the date of death in receipt of pension

or compassionate allowance

21.Family pension is payable to the family of the

deceased Government servant/pensioner. In the scheme,

family has been defined to mean :

(i)

Wife (whether marriage took place before or after

retirement )in the case of male government servant

(ii)

Husband (whether marriage took place before or

after retirement) in the case of female Government

service

(iii)

Unmarried son(s)/unmarried daughters (born

before or after retirement) who have not attained

the age of 25 years.

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1409

(iv)

Widowed daughters/divorced daughter (born

before or after retirement) without any age

restriction.

(v)

Parents who were wholly dependent on the

Government servant when he was alive, provided

that the deceased Government servant had left

behind neither the widow/widower nor an eligible

son or daughter or a widowed/divorced daughter

and that the earnings of the parents is not more

than Rs.3500.00 per month.

Unmarried son(s) below the age of 25 years or

married daughter below the age of 25 years include such

sons and daughters adopted before or after retirement.

Wife or husband shall include respectively judicially

separated wife and husband.

22.From January 2006, period for which family

pension is payable is as follows :

(i)

In the case of childless widow, for life or till her

independent income from all sources becomes

equal to Rs. 3500.00 per month or more, i.e. even

after remarriage.

(ii)

In the case of widow with child (ren) or widower

upto to the date of death or remarriage, whichever

is earlier.

(iii)

In the case of unmarried son/unmarried daughter,

until he/she attains age of 25 years or upto to the

date of his/her marriage or till the date from which

her/his income becomes equal to Rs. 3500.00 or

more per month.

(iv)

In the case of widow (including widowed/

disabled)/divorced daughter(s) (including

disabled) for life up to the date of her remarriage

or till the date his/her income becomes equal to

Rs. 3500.00 or more per month, or death,

whichever is earlier. Such daughter shall not be

required to come back to her parental home.

(v)

In the case of wholly dependent parents (till his/

her death).

23. When facts of the present controversy are

gauged through provisions of the scheme referred above,

it came to light that Shri Satish Kumar never rendered

service on a civil post. Therefore, his widow is not entitled

to any relief of family pension under the scheme on factual

matrix too.

24. In view of the foregoing reasons, it is evident

that the above dispute has not acquired character of an

industrial dispute and delay & laches also frustrates the

relief. On factual matrix too, it has not been established

that Shri Satish Kumar rendered service on civil post and

service rendered by him qualifies for family pension. All

these aspects make it clear that action of the Board in

denying family pension to Smt. Memwati with all

consequential benefits is legal and justified. Smt. Memwati

is not entitled to any family pension. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Date : 09.12.2013

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 496-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

iqjLdkj izdkf'kr djrk gS (lanHkZ la[;k 135@2011) tujy eSustj]

v'kksdk gksVy] ubZ fnYYkh ds izca/r=k ds lac¼ fu;kstdksa vkSj

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

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;&1] fnYyh

ds iapkV dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 18&01&2014

dks izkIr gqvk Fkk A

¹la- ,y&42012@289@2010&vkbZ vkj (Mh;w)º

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 24th January, 2014

S.O.

496.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D No.

135/2011) of the Central Government Industrial Tribunal/

Labour Court No. 1, Delhi now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of The General Manager, Ashok Hotel

New Delhi and their workmen, which was received by the

Central Government on 18-01-2014.

[No. L-42012/289/2010-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. I, KARKARDOOMA COURTS COMPLEX ,

DELHI

I.D. No. 135/2011

The Surinder Kumar,

S/o. Late Shri Ramji Lal,

R/o. L-64, Patel Nagar,

New Delhi.

. . . Workman

Versus

The General Manager,

M/s. Ashok Hotel,

50-B, Chanakyapuri,

New Delhi.

. . . Management

1410

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

AWARD

A utility hand working with Ashok Hotel (in short

the Hotel) started absenting himself from duties. His

unauthorized long absence from duties caused

inconvenience in smooth functioning of the Hotel. Despite

advice, he continued to remain absent for long spells, which

compelled the Hotel to serve a charge sheet on him.

Domestic enquiry was constituted. Despite several

opportunities accorded to him, he opted to abstain away

from the enquiry. The Enquiry Officer conducted the

enquiry ex-parte and submitted his report to the

Disciplinary Authority. Concurring with the findings of

the Enquiry Officer, the Disciplinary Authority awarded

punishment of termination from service, vide order dated

15.06.2007. Feeling aggrieved, the utility hand raised an

industrial dispute on 08.07.2008 before a Labour Court

constituted by Government of NCT of Delhi, while using

provisions of sub-section (4A) (inserted by the State

Legislature on the strength of Act No. 9 of the 2013) after

sub-section (4) of section 10 of the Industrial Disputes

Act, 1947 (in short the Act). The said industrial dispute

was held to be barred by time, vide award dated 28.11.2008.

Writ petition preferred by the utility hand came to be

dismissed by the High Court of Delhi, vide order dated

30.03.2009.

2. The utility hand raised a dispute thereafter before

the Conciliation Officer (Central), Government of India,

New Delhi, seeking reinstatement in service of the Hotel.

The Hotel contested his claim. Conciliation proceedings

ended into a failure. On consideration of failure report, so

submitted by the Conciliation Officer, the appropriate

Government referred the dispute to this Tribunal for

adjudication, vide order No.L-42012/289/2010-IR(DU), New’

Delhi dated 12.12.2003, with following terms :

“Whether action of the management of Ashok Hotel,

New Delhi, in termination of service of Shri Surender

Kumar, utility workman, with effect from 15.06.2007

is legal and justified? What relief the workman is

entitled for ?”

3. Claim statement was filed by the utility workman,

namely, Shri Surender Kumar, pleading that he was serving

the Hotel since 08.10.1998. He rendered service to the

entire satisfaction of his superiors. His superior officer,

namely, Shri Inder Dutt, used to put pressure on him for

getting his personal work done, beyond duty hours. He

was ordered to pick up Shri Inder Dutt from his residence

and drop him there after office hours. Often and then, he

used to pressurize him to bring vegetables and other

grocery items for him. He was made to perform overtime

duties but without payment of overtime allowance. When

his seniors came to know that he was a member of

scheduled caste community, they started calling him in

caste names. They started harassing him. He was shown

absent in the attendance register despite being present

for his duties. With a view to harass him, he was made to

lift heavy bags of sugar, wheat and vegetables etc. though

it was not part of his duties. The above pressure tactics

put him in tension and he started suffering from

depression.

4. Claimant presents that in the year 2005-06, he

remained ill and availed leave on medical grounds. He

informed his seniors on telephone as well as by way of

sending message through his family members, about his

ailment. Instead of sanctioning leaves to him, he was

shown absent. His wages were also deducted on false

and frivolous grounds in order to penalize him. He presents

that he remained on leave from 01.01.2006 to 13.02.2006.

He submitted his medical certificate for that period but

was shown absent by the Hotel.

5. Claimant declares that he attended his duties from

14.02.2006 to 11.03.2006 but was shown absent willfully.

He also performed duties on 11.04.2006, 16.04.2006 and

17.04.2006, but was shown absent. Though 18.04.2006 and

25.04.2006 were his weekly offs, he was shown absent. He

was on duty 28.04.2006, 07.05.2006, 09.05.2006, 21.05.2006,

22.05.2006, 26.05.2006, 30.05.2006 and 31.05.2006 but was

shown absent, with ulterior motives. He remained on

medical leave from 02.06.2006 to 11.08.2006.

6. Claimant asserts that sometimes he had to work in

the canteen, under orders of his superiors. Canteen

authorities have issued certificate for rendering his duties

there with effect from 14.02.2006 to 11.03.2006 but that

period was shown as absent. It was so done with the

intention to harass him. He was getting his treatment from

Leprosy Home, Tahirpur, as well as from a private

practitioner. He was treated by Shri Rakesh Malhotra, who

had issued medical and fitness certificate in respect of his

treatment in the months of June, July and August 2006.

His medical certificate was neither taken on record nor he

was allowed to join duties on 01.09.2006. He claims that no

opportunity was accorded to him to offer his defence

before the Enquiry Officer. No notice was issued to him by

the Enquiry Officer. Enquiry was not conducted at all. Even

otherwise, the enquiry was in violation of principles of

natural justice. Enquiry report was not served on him.

Termination of his services cannot be held to be justified.

7. According to him, direct industrial dispute raised

before the Labour Court, constituted by Government of

NCT Delhi, was rejected on technicalities. He assailed that

award before High Court of Delhi but to no avail. His

dispute was not adjudicated on merits. It led the

appropriate Government to refer his dispute for

adjudication to this Tribunal. Since action of the Hotel

was violative of the provisions of Section 25F, 25G and

25H of the Act, he is entitled for reinstatement in service

with continuity and full back wages.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1411

8. Claim was demurred by the Hotel pleading that

the claimant was habitually absenting from his duties. His

absence from duties caused inconvenience to the Hotel.

A charge sheet was served upon him. A domestic enquiry

was conducted in consonance with principles of natural

justice. Every opportunity was accorded to the claimant

to defend himself. On consideration of report of the

Enquiry Officer, the Disciplinary Authority inflicted

punishment of termination from service on the claimant

vide order dated 15.06.2007. He raised a direct dispute

before the Labour Court, constituted by Government of

NCT Delhi, which was decided against him vide award

dated 25.11.2008. Writ petition, preferred by him, was also

dismissed by the High Court, vide its order dated

30.03.2009.

9. The Hotel projects that services rendered by the

claimants were not at all satisfactory. He remained absent

in an unauthorized manner from his duties for the period

from 01.01.2006 to 13.02.2006, 01.03.2006 to 11.03.2006,

11.04.2006, 16.04.2006 to 18.04.2006, 25.04.2006, 28.04.2006,

07.05.2006 to 09.05.2006, 21.05.2006, 22.05.2006, 26.05.2006,

30.05.2006, 31.05.2006, 02.06.2006 to 31.08.2006. In all he

remained absent for 160 days form January 2006 to August

2006, which led the Hotel to serve charge sheet on him.

Charge sheet was also served on him for his unauthorized

absence in the year 2005 when he remained absent for 181

days from June 2005 to December 2005. Claimant never

informed the Hotel about his alleged ailment. Full

opportunities were given to the claimant to defend himself

by the Enquiry Officer. On receipt of report of the Enquiry

Officer, show. cause notice dated 30.05.2007 was served

on proposed punishment. Copy of the Enquiry Report

was sent to him. Claimant refused to accept the show

cause notice. Ultimately, termination order dated 15.06.2007

was issued. Action of the Hotel in terminating his services

cannot be said to be violative of principles of natural justice

and fair play. It has been claimed that the dispute merits

dismissal, hence it may be dismissed.

10.On pleadings of the parties, following issues were

settled :

Whether enquiry conducted by the management

was just, fair and proper ?

Whether punishment awarded to the claimant

was proportionate to his misconduct?

III

As in terms of reference.

11. Issue No. (I) was treated as preliminary issue.

Claimant had examined himself in support of his claim.

Hotel brought Shri Amit Wadera and Shri Subhash Chandra

in the witness box to fend facts. No other witness was

examined by either of the parties.

12. On consideration of written arguments,

submitted by the parties, besides records of the case,

preliminary issue was answered in favour of the Hotel and

against the claimant, vide order dated 20.03.2013.

13. Arguments were heard at the bar. Ms. Shipra

Shukla, authorized representative, advanced arguments

on behalf of the Hotel on proportionality of punishment.

She also filed her written submissions. On the other hand,

none came forward on behalf of the claimant to make

submissions. Written arguments were also not filed on his

behalf. I have given my careful consideration to the

arguments advanced at the bar and cautiously perused

the record. My findings on issues involved in the

controversy are as follows :

Issue No. II

14. In order to assess as to whether punishment

imposed is proportionate to the misconduct committed by

the claimant, it is expedient to note charges levelled against

him. Those charges emerge out of the charge sheet dated

18.02.2006, contents of which are reproduced thus :

“It has been reported against you that on receipt of

information from Chef (Bakery) vide his IOCs dated

04.07.2006 and 06.06.2006, regarding your

absenteeism with effect form 02.06.2006, you were

directed to report for duty immediately vide

telegraph/letter No.PB-28(364)/4870 dated 06.06.2006

of Manager (HR) sent at your residential address.

But you did not report for duty. Again a letter bearing

No.PB-28(364)/4870 dated 05.07.2006 of

Manager(HR) was sent to you through Regd. AD

post on 06.07.2006 to report for duty immediately.

But you did not report for duty as stipulated by

Chef (Bakery), vide his IOC dated 18.08.2006. Thus

you have been absenting from duty unauthorizedly

with effect from 02.06.2006 without any intimation

and violating the instructions of the management.

2. Thus, it is well evident from the above as well as

your attendance record for the period from January

2006 to August 2006 that you remained absent

unauthorizedly on following days, besides vailing

other leaves entitled to you :

Absent 01.01.2006 to 13.02.2006, 01.03.2006 to

11.03.2006, 11.04.2006, 16.04.2006 to 18.04.2006,

25.04.2006, 28.04.2006, 07.05.2006 to 09.05.2006,

21.05.2006, 22.05.2006, 26.05.2006, 30.05.2006,

31.05.2006, 02.06.2006 to 31.08.2006 -

Total = 160 days.

3. Your remaining unauthorizedly absent from duty

for the above stated period in above manner

constitute breach of section 8 of the Standing Orders

of Ashok Hotel and warrants disciplinary action

against you. You are, therefore, charged for the

following act of misconduct alleged to have been

committed by you under section 14(VI), (IX) and

14(XXXV).

1412

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

14(VI) : Habitual late attendance and habitual

absence without sanctioned leave or without

sufficient cause or obtaining visa, leaving the

station/country without permission

14(IX) : Commissions of any act subversive

of discipline or good behaviour within the

establishment or outside.

14(XXXV) : Breach of Standing Orders of any

rules or instructions for the maintenance and

working of any department, plant or section,

or for the maintenance of its cleanliness.

4. You are, hereby, directed to submit your written

explanation within 72 hours of the receipt of this

charge-sheet showing cause as to why strict

disciplinary action should not be taken against you

for the above acts of misconduct alleged to have

been committed by you. In case you fail to submit

your written explanation within the stipulated time,

it will be presumed that you have no explanation to

offer and admit the charges levelled against you.”

15. As projected above, the Enquiry Officer was

constrained to proceed with the matter ex-parte when

claimant opted to abstain from the enquiry proceedings.

He examined Smt. Ranglani, Shri Rohit Kumar, Shri Jagan

Nath and Shri S. V. Dua, who were produced before him by

the Hotel. He appreciated evidence adduced before him,

in the light of the documents proved by the Hotel. On

appreciation of the documents produced in the enquiry as

well as depositions made by the witnesses, he recorded

findings against the claimant, which are reproduced

thus :

“Shri Surender Kumar was charged, sheeted vide

orders dated 21.09.2006 (Ex.M-1) for unauthorized

absenteeism without any information or prior

intimation w.e.f. 02.06.2006. Acknowledgment of the

charge sheet dated 21.09.2006 was obtained from

Sh.Surinder Kumar and the same has been marked

as EX.M-15.

In response to the IOCs dated 04.07.2006 (Ex.M-3)

& 06.06.2006 (Ex. M-5) Chef (Bakery) regarding

absenteeism of Sh.Surinder Kumar w.e.f. 02.06.2006,

a telegraph/letter No.PB-28(364)/4870 dated

06.06.2006 (Ex.M-6) of Mgr. (HR) was sent to

Sh.Surinder Kumar at his last recorded residential

address and the Regd. AD (Ex. MA) was returned

undelivered with remarks ^^ckj ckj tkus ij izkIrdrkZ

ugha feyrk A vr% okil**. Again a letter bearing No.

PB-28(364)4870 dated 05.07.2006 of Mgr. (HR) was

sent to him and the Regd. AD (Ex.M-8) was returned

undelivered with remarks ^^ckj ckj tkus ij edku cUn

feyrk gS A vr% okil**. But Sh.Surinder Kumar did

not report for duty as stipulated by Chef (Bakery)

vide his IOC dated 18.08.2006(Ex.M-9). Thus, he was

absenting himself from duty unauthorisedly w.e.f.

02.06.2006 without any intimation and violating the

instructions of the Management Except proceedings

dated 15.01.2007, which was duly acknowledged, all

enquiry proceedings dated 27.12.2006, 05.02.2007,

07.04.2007, 17.04.2007, 30.04.2007 and 15.05.2007 were

sent to his last recorded address through Registered

AD Post and the same were returned back as

undelivered with the remarks from the postal

authority that ^^ckj ckj tkus ij rFkk bryk nsus ij Hkh

izkIr djrk ugha feyk A vr% okil tk,a** and the same

have been taken on record in the enquiry file.

Keeping in view the principle of natural justice and

fair play, sufficient opportunities were given to

Sh.Surinder Kumar to attend the enquiry

proceedings and present his case in his defence,

but he failed to do so. In spite of that, Sh.Surinder

Kumar, CSE failed to attend even single enquiry

proceedings in the above case.

It is well evident from the above that Sh.Surinder

Kumar, Utility Workers, T.No.4870 has been

absenting himself w.e.f. 02.06.2006 and during the

period from 01.01.2006 to 31.08.2006, Sh.Surinder

Kumar remained absent for 160 days unauthorisedly

without prior permission/information from his Head

of the Department or the HR Department of Ashok

Hotel.

Conclusion

On the basis of the document filed, witnesses

produced and the above discussion, the charges,

contained under section 14(VI), (IX) and (XXXV) of

the Certified Standing Orders (Modified) of Ashok

Hotel, levelled against Sh.Surinder Kumar, are held

“Established/proved”.

16. Now an exercise would be undertaken to see as

to whether punishment is proportionate to the misconduct

of the claimant. Before adverting to the exercise, it would

be expedient to have a glance on powers of the industrial

adjudicator in that regard. Prior to introduction of section

11A of the Act, adjudicatory powers of the Tribunal were

articulated in Buckingham & Carnatak Company (1951 (2)

LLJ 314). Four standards were delineated by the Labour

Appellate Tribunal in the above case to render managerial

right of taking disciplinary action vulnerable, namely, (i)

where there is a want of bonafides or (ii) when it is a case

of victimization or unfair labour practice or violation of the

principles of natural justice, or (iii) when there is basic

error of facts, or (iv) when there has been a perverse finding

on the materials. This articulation was adopted by the

Apex Court with slight modification in Indian Iron and

Steel Company Limited (1958 (1) LLJ 260), without any

acknowledgement to the precedent in Buckingham &

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1413

Carnatic case (supra), wherein it was ruled that the power

of the management to direct its own internal administration

and discipline was not unlimited and liable to be interfered

with by industrial adjudicator when a dispute arises to see

whether termination of services of a workman is justified

and to give appropriate relief. However, it was announced

that the jurisdiction of an Industrial Tribunal to interfere

with the managerial prerogative of taking disciplinary

action is not of appellate nature as the legislature has not

chosen to confer such jurisdiction upon it Hence Tribunal

could not substitute its own judgement for that of the

management. The Court laid down that in the following

circumstances an industrial adjudicator can interfere with

the disciplinary action taken by the employer: (1) when

there is want of good faith, (2) when there was victimization

or unfair labour practice, (3) when the management had

been guilty of a basic error or violation of the principles of

natural justice, or (4) when on the materials, the finding

was completely baseless or perverse.

17. Enunciation (1) and (2), referred above, are

addressed to the bona fides of the employer in initiating

the action and inflicting the punishment, while postulates

(3) and (4) are addressed to domestic enquiry. Therefore,

an employer is required to act bonafide in initiating

disciplinary action as well as in inflicting the punishment.

In initiating the action, the alleged act of misconduct should

not be a ruse for something else, such as the trade union

activities of the workman or employers dislike of him for

some personal reasons. The action should not be motivated

by vindictiveness or ulterior purpose, so as to smack for

victimization or unfair labour practice. Likewise in the

matter of inflicting punishment, the employer should act

fairly. In case punishment awarded is so shockingly

disproportionate to the act of the misconduct, as no

reasonable man would ever impose that itself may lead to

an inference of malafides, victimization or unfair labour

practice. In holding enquiry, the Enquiry Officer must

comply with the rules of natural justice. He must not be a

biased person and give reasonable opportunity to both

sides for being heard. His findings should not be baseless

or perverse.

18. In Ramswarth Sinha (1954 L.A.C. 697) the Labour

Appellate Tribunal recognized the right of the management

to ask for permission to adduce evidence before the

Tribunal to justify its action in a “no enquiry” case.

Following that proposition the Apex Court equated the

cases of “defective enquiry” with “no enquiry” cases and

ruled that in either cases, the Tribunal have jurisdiction to

go into the merits of the case on the basis of evidence

adduced before it by the parties. Reference can be made

to the precedent in Motipur Sugar Factory Pvt. Ltd. (1965

(2) LLJ 162) where the employer had held no enquiry at all

before the dismissal and, therefore, adduced evidence to

justify its action before the Tribunal, which decision was

upheld. The Apex Court discarded the plea on behalf of

the workman that since no enquiry at all had been held by

the employer, it had no right to adduce evidence to justify

its stand before the Tribunal. In Ritz Theatre (1962 (11)

LLJ 498) it was ruled by the Supreme Court that the Tribunal

would be justified to go to the merits of the case and

decide for itself on the basis of the evidence adduced

whether the charges have indeed been made out. It

announced that it would neither be fair to the management

nor fair to the workman himself in such a case that the

Tribunal should refuse to take the evidence and thereby

drive the management to pass through the whole process

of holding the enquiry all over again. Reference can also

be made to the precedent in Bharat Sugar Mills Ltd. (1961

(11) LLJ 644).

19. In Delhi Cloth and General Mills Company (1972

(1) LLJ 180), Apex Court considered the catena of decisions

over the subject and laid down the following principles :

“(1) If no. domestic enquiry had been held by the

management, or if the management makes it clear

that it does not rely upon any domestic enquiry that

may have been held by it, it is entitled to

straightaway adduce evidence before the Tribunal

justifying its action. The Tribunal is bound to

consider that evidence. so adduced before it, on

merits, and give a decision thereon. In such a case,

it is not necessary for the Tribunal to consider the

validity of the domestic enquiry as the employer

himself does not rely on it.

(2) If a domestic enquiry had been held, it is open to

the management to rely upon the domestic enquiry

held by it, in the first instance, and alternatively and

without prejudice to its plea that the enquiry is

proper and binding, simultaneously adduce

additional evidence betore the Tribunal justifying

its action. In such a case no inference can be drawn,

without anything more, that the management has

given up the enquiry conducted by it.

(3) When the management relies on the enquiry

conducted by it, and also simultaneously adduces

evidence before the Tribunal, without prejudice to

its plea that the enquiry proceedings are proper, it is

the duty of the Tribunal, in the first instance, to

consider whether the enquiry proceedings

conducted by the management, are valid and proper.

If the Tribunal is satisfied that the enquiry

proceedings have been held properly and are valid,

the question of considering the evidence adduced

before it on merits, no longer survives. It is only

when the holds that the enquiry proceedings have

not been properly held, that it derives jurisdiction

to deal with the merits of the dispute and in such a

case it has to consider the evidence adduced before

it by the management and decide the matter on the

basis of such evidence.

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

(4) When the domestic enquiry has been held by

the management and the management relies on the

same, it is open to the latter to request the Tribunal

to try the validity of the domestic enquiry as a

preliminary issue and also ask for an opportunity to

adduce evidence before the Tribunal, if the finding

on the preliminary issue is against the management.

However, elaborate and cumbersome the procedure

may be, under such circumstances, it is open to the

Tribunal to deal, in the first instance, as a preliminary

issue the validity of the domestic enquiry. If its

finding on the preliminary issue is in favour of the

management, then no additional evidence need be

cited by the management. But, if the findinq on the

preliminary issue is against the management, the

Tribunal will have to give the employer an

opportunity to cite additional evidence and also give

a similar opportunity to the employee to lead

evidence contra, as the request to adduce evidence

had been made by the management to the Tribunal

during the course of the proceedings and before the

trial has come to an end. When the preliminary issue

is decided against the management and the latter

leads evidence before the Tribunal, the position,

under such circumstances, will be, that the

management is deprived of the benefit of having the

finding of the domestic tribunal being accepted as

prima facie proof of the alleged misconduct. On the

other hand, the management will have to prove, by

adducing proper evidence, that the workman is guilty

of misconduct and that the action taken by it is

proper. It will not be just and fair either to the

management or to the workman that the Tribunal

should refuse to take evidence and thereby ask the

management to take a further application, after

holding a proper enquiry, and deprive the workman

of the benefit of the Tribunal itself being satisfied,

on evidence adduced before it, .that he was or was

not guilty of the alleged misconduct.

(5) The management has got a right to attempt to

sustain its order by adducing independent evidence

before the Tribunal. But the management should

avail itself of the said opportunity by making a

suitable request to the Tribunal before the

proceedings are closed. If no such opportunity has

been available of, or asked for by the management,

before the proceedings are closed, the employer can

make no grievance that the Tribunal did not provide

such an opportunity. The Tribunal will have before

it only the enquiry proceedings and it has to decide

whether the proceedings have been held properly

and the findings recorded therein are also proper.

(6) If the employer- relies only on the domestic

enquiry and does not simultaneously lead additional

evidence or ask for an opportunity during the

pendency of the proceedings to adduce such

evidence, the duty of the Tribunal is only to consider

the validity of the domestic enquiry as well ass the

finding recorded therein and decide the matter. If

the Tribunal decides that the domestic enquiry has

not been held properly, it is not its function to invite

suo moto the employer to adduce evidence before it

to justify the action taken by it.

(7) The above principles apply to the proceedings

before the Tribunal, which have come before it either

on a reference under Section 10 or by way of an

application under Section 33 of the Act.

20. Keeping in view the proposition laid by the Apex

Court in Delhi Cloth and General Mills Company (supra),

the Parliament inserted section 11-A in the Act, which came

into force w.e.f. 15^th of December,1971. In the statement of

objects and reasons for inserting section 11-A, it was

stated :

“In Indian Iron and Steel Company Limited and

Another Vs. Their Workmen (AIR 1958 S.C. 130 at

p.138), the Supreme Court, while considering the

Tribunal’s power to interfere with the management’s

decision to dismiss, discharge or terminate the

services of a workman, has observed that in case of

dismissal on misconduct, the Tribunal does not act

as a court of appeal and substitute its own judgment

for that of the management and that the Tribunal

will interfere only when there is want of good faith,

victimization, unfair labour practice, etc., on the part

of the management.

2. The International Labour Organisation, in its

recommendation (No.119) concerning ‘Termination

of employment at the’ initiative of the employer’

adopted in June 1963, has recommended that a worker

aggrieved by the termination of his employment

should be entitled to appeal against the termination

among others, to a neutral body such as an

arbitrator, a court, an arbitration committee or a similar

body and that the neutral body concerned should

be empowered to examine the reasons given in the

termination of employment and the other

circumstances relating to the case and to render a

decision on the justification of the termination, The

International Labour Organisation has further

recommended that the neutral body should be

empowered (if it finds that the termination of

employment was unjustified) to order that the worker

concerned, unless reinstated with unpaid wages,

should be paid adequate compensation or afforded

some other relief.

3. In accordance with these recommendations, it is

considered that the Tribunal’s power in an

adjudication proceeding relating to discharge or

¹Hkkx II—[k.M 3(ii)º

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dismissal of a workman should not be limited and

that the Tribunal should have the power, in cases

wherever necessary to set aside the order of

discharge or dismissal and direct reinstatement of

the workman on such terms and conditions, if any,

as it thinks fit or give such other reliefs to the

workman including the award of any lesser

punishment in lieu of discharge or dismissal as the

circumstances of the case may require. For this

purpose, a new Section 11-A is proposed to be

inserted in the Industrial Disputes Act, 1947 ......’’.

21. After insertion of section 11-A, the Apex Court

summed up the law in the case of Firestone Tyre and

Rubber Company (1973 (1) LLJ 278) in the following

propositions :

“(1) The right to take disciplinary action and to

decide upon the quantum of punishment are mainly

managerial functions, but if a dispute is referred to a

Tribunal, the latter has power to see if action of the

employer is justified.

(2) Before imposing the punishment, as employer is

expected to conduct a proper enquiry in accordance

with the provisions of the Standing Orders, if

applicable, and principles of natural justice. The

enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an

employer, and the finding of misconduct is a

plausible conclusion flowing from the evidence,

adduced at the said enquiry, the Tribunal has no

jurisdiction to sit in judgement over the decision of

the employer as an appellate body. The interference

with the decision of the employer will be justified

only when the findings arrived at in the enquiry are

perverse or the management is guilty of victimization,

unfair labour practice or malafide.

(4) Even if no enquiry has been held by an employer

or if the enquiry held by him is found to be defective,

the Tribunal in order to satisfy itself about the

legality and validity of the order, had to give an

opportunity to the employer and employee to adduce

evidence before it. It is open to the employer to

adduce evidence for the first time justifying his

action, and it is open to the employee to adduce

evidence contra.

(5) The effect of an employer not holding an enquiry

is that the Tribunal would not have to consider only

whether there was a prima facie case. On the other

hand, the issue about the merits of the impugned

order of dismissal or discharge is at large before the

Tribunal and the latter, on the evidence adduced

before it, has to decide for itself whether the

misconduct alleged is proved. In such cases, the

point about the exercise of managerial functions

does not arise at all. A case of defective enquiry

stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the

evidence placed before it for the first time in

justification of the action taken only, if no enquiry

has been held or after the enquiry conducted by an

employer is found to be defective.

(7) It has never been recognized that the Tribunal

should straightaway, without anything more, direct

reinstatement of a dismissed or discharged

employee, once it is found that no domestic enquiry

has been held or the said enquiry is found to be

defective.

(8) An employer, who wants to avail himself of the

opportunity of adducing evidence for the first time

before the Tribunal to justify his action, should ask

for it at the appropriate stage. If such an opportunity

is asked for, the Tribunal has no power to refuse.

The giving of an opportunity to an employer to

adduce evidence for the first time before the Tribunal

is in the interest of both the management and the

employee and to enable the Tribunal itself to be

satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the

enquiry conducted by an employer or by the

evidence placed before a Tribunal for the first time,

punishment imposed cannot, be interfered with by

the Tribunal except in cases where the punishment

is so harsh as to suggest victimization.

(10) In a particular case, after setting aside the order

of dismissal, whether a workman should be

reinstated or paid compensation is, as held by this

Court in The Management of Panitole Tea Estate

Vs. The Workmen, within the judicial decision of a

Labour Court or Tribunal” .

22. Jurisdiction to interfere with the punishment is

also not confined to the case where punishment is

shockingly disproportionate to the act of the misconduct.

The Tribunal has power of substituting its own measure

of punishment in place of managerial wisdom. Change in

legal position, post introduction of section 11A of the Act,

has been effectively summarized in the case of

Ambassador Sky Chef (1996 Lab. I.C. 299) wherein High

Court of Bombay observed that the section gives

specifically two fold powers to an industrial adjudicator:

firstly, it is a virtual power of appeal against the findings

of fact made by the Enquiry Officer in his report with regard

to the adequacy of the evidence and conclusion on facts,

and secondly, and far more important, it is the power of

re-appraisal of quantum of punishment. Now no restriction

lies on an industrial adjudicator to interfere with the enquiry

only on four grounds, referred above. However, wide

discretionary powers with the adjudicator are to be

1416

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

exercised in judicial and judicious manner before it

interferes with the order of misconduct or punishment.

23. With this prelude in mind, now I would turn to

facts of the present controversy. As record projects, the

claimant opted not to attend the enquiry proceedings.

The Enquiry Officer, in the light of the evidence put

forward by the Hotel, ocular as well as documentary, and

on consideration of circumstances of the case, concluded

that the charges against the claimant stood proved. When

preliminary issue was addressed to for adjudication,

aspects relating to bonafides of the Hotel in initiating the

domestic enquiry were considered. It was taken into

account as to whether the charges were specific and clear.

Care was taken to see as to whether the Enquiry Officer

followed principles of natural justice and gave reasonable

opportunity to the claimant to defend himself. It was also

considered as to whether the enquiry report was in

consonance with the evidence produced or perverse. At

the cost of repetition, it is announced that the Hotel acted

bonafide and there had been no violations of principles of

natural justice, in conduct of the domestic enquiry.

24. Punishment of removal/termination from service

was awarded to the claimant. Question for consideration

would be as to whether there are any justifications for

punishment of removal/termination from service? Right of

an employer to inflict punishment of discharge or dismissal

is not unfettered. The punishment imposed must

commensurate with gravity of the misconduct, proved

against the delinquent workman. Prior to enactment of

section 11-A of the Act, it was not open to the industrial

adjudicator to vary the order of punishment on finding

that the order of dismissal was too severe and was not

commensurate with the act of misconduct. In other words,

the industrial adjudicator could not interfere with the

punishment as it was not required to consider propriety or

adequacy of punishment or whether it was excessive or

too severe. The Apex Court, in this connection, had,

however, laid down in Bengal Bhatdee Coal Company

[1963(1) LLJ 291] that where order of punishment was

shockingly disproportionate with the act of the misconduct

which no reasonable employer would impose in like

circumstances, that itself would lead to the inference of

victimization or unfair labour practice which would vitiate

order of dismissal or discharge. But by enacting the

provisions of section 11-A of the Act, the Legislature has

transferred the discretion of the employer, in imposing

punishment, to the industrial adjudicators. It is now the

satisfaction of the industrial adjudicator to finally decide

the quantum of punishment for proved acts of misconduct,

in cases of discharge or dismissal. If the Tribunal is satisfied

that the order of discharge or dismissal is not justified in

any circumstances on the facts of a case, it has the power

not only to set aside order of punishment and direct

reinstatement with back wages, but it has also the power

to imposed certain conditions as it may deem fit and also

to give relief to the workman, including award of lesser

punishment in lieu of discharge or dismissal.

25. It is established law that imposing punishment

for a proved act of misconduct is a matter for the punishing

authority to decide and normally it should not be interfered

with by the Industrial Tribunals. The Tribunal is not

required to consider the propriety or adequacy of

punishment. But where the punishment is shockingly

disproportionate, regard being had to the particular conduct

and past record, or’ is such as no reasonable employer

would ever impose in like circumstance, the Tribunal may

treat the imposition of such punishment as itself showing

victimization or unfair labour practice. Law to this effect

was laid by the Apex Court in Hind Construction and

Engineering Company Labour [1965 (1) LLJ 462]. Likewise

in Management of the Federation of Indian Chambers of

Commerce and Industry [1971 (11) LLJ 630] the Apex Court

ruled that the employer made a mountain out of a mole hill

and had blown a trivial matter into one involving loss of

prestige and reputation and as such punishment of

dismissal was held to be unwarranted. In Ram Kishan [1996

(1) LLJ 982] the delinquent employee was dismissed from

service for using abusive language against a superior

officer. On the facts and in the circumstances of the case,

the Apex Court held that the punishment of dismissal was

harsh and disproportionate to the gravity of the charge

imputed to the delinquent. It was ruled therein, “when

abusive language is used by anybody against a superior,

it must be understood in the environment in which that

person is situated and the circumstances surrounding the

event that led to the use of abusive language. No straight-

jacket formula could be evolved-in adjudicating whether

the abusive language in the given circumstances would

warrant dismissal from service. Each case has to be

considered on its own facts.

26. In B.M.Patil [1996 (11) LLJ 536], Justice Mohan

Kumar of Karnataka High Court observed that in exercise

of discretion, the disciplinary authority should not act like

a robot and justice should be moulded with humanism

and understanding. It was assess each case on its own

merit and each set of fact should be decided with reference

to the evidence recording the allegation, which should be

basis of the decision. The past conduct of the worker may

be a ground for assuming that he might have a propensity

to commit the misconduct and to assess the quantum of

punishment to be imposed In that case a conductor of the

bus was dismissed from service for causing revenue loss

of 50p to the employer by irregular sale of tickets. It was

held that the punishment was too harsh and

disproportionate to the act of misconduct.

27. After insertion of section 11-A of the Act, the

jurisdiction to interfere with the punishment is there with

the Tribunal, who has to see whether punishment imposed

by the employer commensurate with the gravity of the act

¹Hkkx II—[k.M 3(ii)º

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1417

of misconduct. If it comes to the conclusion that the

misconduct is proved, it may still hold that the punishment

is not justified because misconduct alleged and proved is

such as it does not warrant punishment of discharge or

dismissal and where necessary, set aside the order of

discharge or dismissal and direct reinstatement with or

without any terms or conditions as it thinks fit or give any

other relief, including the award of lesser punishment, in

lieu of discharge or dismissal, as the circumstance of the

case may warrant. Reference can be made to a precedent

in Sanatak Singh [1984 Lab. I.C.817]. The discretion to

award punishment lesser than the punishment of

discharge or dismissal has to be judiciously exercised and

the Tribunal can interfere only when it is satisfied that the

punishment imposed by the management is highly

disproportionate to the decree of the guilt of the workman.

Reference can be made to the precedent in Kachraji Motiji

Parmar [1994 (11) LLJ 332]. Thus it is evident that the

Tribunal has now jurisdiction and power of substituting

its own measure of punishment in place of the managerial

wisdom, once it is satisfied that the order of discharge of

dismissal is not justified. On facts and in the circumstances

of a case, Section 11A of the Act specifically gives two

folds powers to the Industrial Tribunal, first is virtually

the power of appeal against findings of fact made by the

Enquiry Officer in his report with regard to the adequacy

of the evidence and the conclusion on facts and secondly

of foremost importance, is the power of reappraisal of

quantum of punishment.

28. Power to set aside order of discharge or dismissal

and grant relief of reinstatement or lesser punishment is

not untramaled power.’ This power has to be exercised

only when Tribunal is satisfied that the order of discharge

or dismissal was not justified. This satisfaction of the

Tribunal is objective satisfaction and not subjective one.

It involves application of the mind by the Tribunal to

various circumstances like nature of delinquency

committed by the workman, his past conduct, impact of

delinquency on employer’s business, besides length of

service rendered by him. Furthermore, the Tribunal has to

consider whether the decision taken by the employer is

just or not. Only after taking into consideration these

aspects, the Tribunal can upset the punishment imposed

by the employer. The quantum of punishment cannot be

interfered with without recording specific findings on

points referred above. No indulgence is to be granted to a

person, who is guilty of grave misconduct like cheating,

fraud, misappropriation of employers fund, theft of public

property etc. A reference cannot be made to the precedent

in Bhagirath Mal Rainwa [1995 (1) LLJ 960].

29. As facts of the controversy project, the claimant

absented himself from his duties for a considerable long

period in an unauthorized manner. An employee is under

an obligation not to absent himself from work without

good cause. Absence without leave is misconduct in

industrial employment, warranting disciplinary punishment.

Habitual absence from duty without leave has been made

a misconduct under Model Standing Orders, framed under

Industrial Employment Standing Orders Act, 1946. Likewise,

industrial employers also include “absence from duty”,

without leave in the list of misconduct in their standing

orders. Sanction of leave can be a significant defence to

misconduct of absence without leave. No employee can

claim leave of absence as a matter of right and remaining

absent without leave will constitute violation of discipline.

The fact that the claimant was continuously absent from

work without leave, on account of his detention in jail for

an offence, will not give an immunity to the claimant and

the employer will be justified in discharging him from

services, announces the Apex Court in Burn & Company,

[1959 (1) L.L.J. 450].

30. In Indian Iron and Steel Company Ltd. [1958 (1)

L.L.J.260] the Apex Court was confronted with a

proposition as to whether provisions in the standing

orders authorizing the employer to terminate services of

its employee on account of absence without leave was an

inflexible rule. In that matter seven workmen were absent

without leave for 14 consecutive days, as they were in

police custody. During police custody they applied for

leave which were refused by the company and services of

the workmen were terminated under relevant standing.

order for remaining absent without leave. The Industrial

Tribunal took a view that the relevant standing order was

not an inflexible rule and mere application for leave was

sufficient to arrest the operation of the standing order. In

appeal, though the Labour Appellate Tribunal did not

maintain the award of the Tribunal on that count, yet it

held that in view of the circumstances that the workmen

were in custody, the company was not justified in refusing

leave. When the matter reached the Apex Court, it set

aside the order of the Labour Appellate Tribunal, relying

its precedent in Burn & Company Ltd. (supra) and ruled

thus :—

“It is true that the arrested men were not in a position

to come to their work, because they had been arrested

by the police. This may be unfortunate for them, but

it would be unjust to hold that in such circumstances

the company must always give leave when an

application for leave is made. If a large number of

workmen are arrested by the authorities in charge of

law and order by raising of their questionable

activities in connection with a labour dispute (as in

this case), the work of the company will be paralysed

if the company is forced to give leave to all of them

for more or less indefinite period. Such a principle

will not be just, nor will it restore harmony between

labour and capital or ensure normal flow of

production. It is immaterial whether the charges on

which the workmen are arrested by the police are

ultimately proved or not in a court of law. The

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

company must carry on its work and may find it

impossible to do so if a large number of workmen are

absent. Whether in such circumstances leave should

be granted or not must be left to the discretion of

the employer. It may be rightly accepted that if the

workmen are arrested at the instance of the company

for the purpose of victimization and in order to get

rid of them on the ostensible pretext of continued

absence, the position will be different. It will then be

a colorable or malafide exercise of power under the

relevant standing order, that however, is not the case

here.”

31. Defence open to an employee, against charge of

absence without leave, is that the absence was on account

of circumstances beyond his control. For instance, where

absence of a workman was on account of his sudden or

serious illness or serious illness of a relation that would

be an extenuating circumstance which the employer will

have to take into consideration. However, if a workman

feigns sickness in order to avoid duty by producing a

false medical certificate, this would itself be a serious act

of misconduct. In Tata Engineering and Locomotive

Company Ltd., [1990 (1) LLJ 403] the Patna High Court

was addressed to a proposition where workman absented

himself without leave or permission for a considerable

period. After about 20 days of his absence, a memo and

charge sheet was issued, notifying that a domestic enquiry

would be held in the matter. The workman failed to appear

in a domestic enquiry and the Enquiry Officer conducted

the proceedings ex-parte. On consideration of the report

of the Enquiry Officer, the Disciplinary Authority

discharged him from service. Later on workman informed

the management that he was arrested by the police in

connection with a murder case and requested to allow him

to join duty. On refusal, an industrial dispute was raised. A

High Court placed reliance on the precedent in Indian Iron

& Steel Company (supra) and Burn & Company (supra)

and ruled that the discharge of the workman was valid and

justified for continuous absence without permission or

leave.

32. Absence without leave constitutes a misconduct

justifying disciplinary action against the delinquent

workman. Punishment can only be imposed either by

complying with the procedure prescribed by the standing

orders of the establishment, if any, or the rules of natural

justice. Normally punishment should be inflicted after the

workman has been found guilty of the misconduct, after

holding a domestic enquiry. Reference can be made to

Mufatlal Narain Dass Barot [1966 (1) LLJ 437] and Kalika

Prasad Srivastava [1987 Lab.I.C. 307]. Quantum of

punishment in case of misconduct for absence from duty

without leave would depend upon the facts of each case.

In order to justify the extreme penalty of discharge or

dismissal, it is to be proved that the workman remained

absent without leave for an inordinate long period. In

Bokaro Steel Plant, Steel Authority of India Ltd (2007 L.L.R.

238) removal of workman from service who remained

unauthorisedly absent for a period of three months was

held to be justified. In Sushil Kumar (2007 L.L.R. 45) it was

ruled that absence, which is continuous for a long period,

amounts to serious misconduct to justify dismissal from

service. In Borman (2003 L.L.R. 364) 62 days absence of

workman was held to be justified for his dismissal from

service.

33. Now, it would be considered as to what

punishment is appropriate to the misconduct, committed

by the claimant. An employee is under an obligation not

to absent himself from work place without good cause.

Absence without leave is misconduct in industrial

employment warranting disciplinary punishment. Habitual

absence from duty without leave has also been made

misconduct under CCS (Conduct) Rules, 1964. When an

employee absents himself, he must have applied for and

obtained leave from the employer. No employee can claim

leave of absence as a matter of right and remaining absent

without leave will constitute violation of discipline.

Quantum of punishment for such cases would depend

upon facts of each case. In order to justify extreme penalty

of discharge or dismissal it is to be proved that the

employee remained absent without leave for an inordinate

long period or has habituated to absent himself from duty.

Here in the case the Hotel has been able to project that the

claimant remained absent for more than five months,

without moving any application for leave. When letter

dated 06.06.2006 was sent, advising him to join duties, he

opted not to respond to it. Another letter dated 05.07.2006

was also not replied by him. He opted not to make a written

statement of his defence, when charge-sheet was served

upon him. He opted not to join the enquiry proceedings.

He never explained reasons for his absence from duties.

All these facts make it clear that his absence from duties

was without any justification. Such an employee has no

right to remain in service. Hence punishment, awarded to

the claimant is found to be proportionate to his misconduct.

Issue is, therefore, answered in favour of the Hotel and

against the claimant.

Issue No. III

34. In view of the foregoing discussion it is evident

that removal/termination from service of the claimant, on

account of his long unauthorized absence, is found to be

in consonance with law and principles of natural justice.

The claimant is not entitled to any relief. His claim statement

is liable to be discarded, being devoid of merits.

Consequently his claim statement is discarded. An award

is passed, against the claimant and in favour of the Hotel.

It be sent to the appropriate Government for publication.

Dated : 27.11.2013.

Dr. R. K. YADAV, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

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New Delhi, the 24th January, 2014

S.O. 497.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No.204/2012)

of the Central Government Industrial Tribunal/Labour Court

No. 1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of The Director General, National Archieves

of India, New Delhi and their workman, which was received

by the Central Government on 18-01-2014.

[No. L-42011/87/2012-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX,

DELHI

I.D. No. 204/2012

The Secretary,

Janvadi General Mazdoor Union,

C/o Room No. 95, Barrack No. 1/10,

Jam Nagar House,

New Delhi.

...........Workman

Versus

The Director General

Natinal Archieves of India,

Janpath, New Delhi.

.....Management

AWARD

Claimant, who was engaged as daily wager by

National Archives of India (in short the management) for

different intervals, raised a demand for regularization of his

services. This demand annoyed the management. His

services were abruptly dispensed with on 23-12-2010. He

raised a demand on the management for reinstatement in

service, which was not conceded to Ultimately, he raised a

dispute before the Conciliation Officer. Since his claim was

contested by the management, conciliation proceedings

ended into a failure. On consideration of failure report, so

submitted by the Conciliation Officer, the appropriate

Governement referred the dispute to this Tribunal for

adjudication vide order No. L-42011/87/2012-IR(DU), New

Delhi dated 05-12-2012 with following terms :

"Whether the action of the management of National

Archives of India, New Delhi in terminating services

of the workman, Shri Ravi Chand on 23-12-2000 is

fair and just? If not, to what relief the workman is

entitled to?

2. Claim statement was filed by the claimant, namely,

Shri Ravi Chand, pleading therein that he was initially

engaged as daily wager by the management with effect

from 24-05-2008. His services were engaged through

Employment Exchange and he completed 290 days in

service in each calendar year. Office of the management

functions for five days in a week and to count his working

days Saturdays and Sundays are to be taken into account,

as contemplated by section 25B of the Industrial Disputes

Act, 1947 (in short the Act). He made a request for

regularization of his services, which request annoyed the

management. His services were dispensed with, without

assigning any reason on 23-12-2000. S/Shri Sandeep, Ranjit,

Ajay, Vijay, Chandrakant and Rahul, juniors to him, were

retained in service while his services were dispensed with.

Action of the management in terminating his services is

violative of provisions of section 25F, 25G and 25H of the

Act. His seniority of service was not considered and

principle of 'last come and first go' was not followed. Action

of the management is illegal. He is unemployed since the

date of termination of his services. He claims reinstatement

in service with continuity and full back wages.

3. Claim was resisted by the management pleading

that functions performed by it are regal. It has been disputed

that the claimant rendered continuous service of 290 days

in every calendar year. Tabular statement of the period for

which the claimant worked with the management is detailed

thus:

Year

Period of working tenure

Total days

2008

22-5-2008 - 12-09-2008

89 days

2008-09

17-11-2008 - 13-03-2009

88 days

2009-2010

06-10-2009 - 31-01-2010

89 days

2010

17-03-2020 - 25-06-2010

89 days

2010

01-07-2010 - 21-10-2010

89 days

2010

09-11-2010 - 21-12-2010

33 days

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[PART II—SEC. 3(ii)]

4. The management pleads that the claimant worked

for 118 days in the year 2008, 119 days in the year 2009 and

240 days in the year 2010. It is wrong to assert that he

completed 290 days in every calender year, while serving

with the management. Saturdays and Sundays cannot be

counted in reckoning the period for which claimant worked

with the management. No service of notice was required

before termination of his services, pleads the management.

Since all daily wagers, including the claimant, were selected

as per norms, there was no issue of seniority for them.

Claimant does not have claim for reinstatement in service.

Claim may be dismissed, pleads the management.

5. On pleadings of the parties, following issues were

settled :

(i) Whether management performs sovereign

functions and as such is not an industry?

(ii) Whether the claimant rendered more than 240

days continuous service in the preceding

12 months from the date of termination of his

services?

(iii) As in terms of reference.

6. Claimant entered the witness box to testify facts

in support of his claim Dr. M.A. Haque detailed events on

behalf of the management. No other witness was examined

by either of the parties.

7. Arguments are heard at the bar. Shri B.K. Prasad,

authorized representative, advanced arguments on behalf

of the claimant. Shri Rajan Lal authorized representative

raised submissions on behalf of the management. I have

given my careful considerations to the arguments advanced

at the bar and cautiously perused the record. My findings

on issues involved in the controversy are as follows:-

Issue No. 1

8. At the outset, Shri Rajan Lal argued that the

management is not an industry within the meaning of

section 2(j) of the Act. He presents that the management is

custodian of records of permanent nature of Government

of India. The said activity is relatable to sovereign functions

and cannot be termed as industry. He concludes that there

is no profit motive in maintaning records of permanent

nature of Government of India, which fact dispels the

contention that activities of the management fall within the

ambit of industry. Contra to it, Shri Prasad argued that

triple test of industry, as laid down in Bangalore Water and

Sewerage Board (1978 Lab. I.C. 778) are satisfied in the

present controversy. It does not lie in the mouth of the

management to claim that it is not an industry.

9. When claim is made by the management that it is

not an industry within the meaning of section 2(j) of the

Act, it becomes expedient to consider the definition of the

term ‘industry’. The Act defines the term 'industry' as

follows :

“industry’’ means any business, trade, undertaking,

manufacture or calling of employers and includes

any calling, service, employment handicraft, or

industrial occupation or avocation of workmen.”

10. The definition of "industry" is both exhaustive

and inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., Business,

trade, undertaking, manufacture of calling. The second part

views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes, By this part of the definition any calling,

employment, handcraft, industrial occupation or avocation

of workmen is included in the concept of industry. This

part gives extended connotation.

11. Gloss was put on the definition of word

“industry” by the High Courts and the Apex Court time

and again. The question as to what is “industry” has

continuously baffled and perplexed the courts. A graph of

the cases decided by the Apex Court, if plotted on the

background of the expression used in two parts of the

definition of “industry”, would represent rather a zig zag

curve. There have been various judicial ventures in this

rather volatile area of law. The decided cases show that the

efforts were made to evolve test by reference to

characteristics regarded as essential for counstituting an

activity as an “Industry”. Various cases would show that

the Apex Court has been guided more by empirical rather

than a strctly analytical approach. Most of the decision

have centered around the expression “undertaking” used

in the definition. In Bangalore Water Supply and Sewerage

Board (supra) the Apex Court reviewed the earlier decisions

on interpretation of the wide words encompassed in the

definition and formulated positive and negative principles

for identifying “industry” as enacted by clause (j) of

section 2 of the Act. It would be expedient to reproduce the

authoritative pronouncement of the court, in the very words

set out in the majority decision, handed down by Justice

Krishna lyer, which are extracted thus:

I. “Industry” as defined in S.2(j) and explained in

Banerji (AIR 1953 S.C. 58) has a wide import.

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(a) Where (i) systematic activity, (ii) organized by

Co-operation between employer and empoyee

(the direct and substantial element is chimerical)

(iii) for the production and/or distribution of goods

and services calculated to satisfy human wants

and wishes (not spiritual or religious but inclu-

sive of material things or services geared to ce-

lestial bliss i.e. making, on a large scale prasad or

foods) prima facie, there is an “industry” in that

enterprise.

(b) Absence of profit motive or gainful objective

is irrelevant be the venture in the public, joint,

private or other sector.

test is the nature of the activity with special em-

phasis on the emplyer-employee relations.

(d) If the organization is a trade or business it

does not cease to be one because of philanthropy

animating the undertaking.

II. Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot

be magnified to overreach itself.

(a) “Undertaking” must suffer a contextual and

associational shrinkage as explained in Banerjee

and in this judgement, so also, service calling and

the like. This yields the inference that all organized

activity possessing the triple elements in

1(supra), although no trade or business, may still

be ‘industry’ provided the nature of activity, viz.

the employer-empoyee basis, bears resemblance

to what we find in trade or business. This takes

into the fold ‘industry’ undertaking, calling and

services, adventure,” analogous to the carrying

on the trade or business”. All features, other than

the methodology of carrying on the activity viz in

organizing the co-operation between employer and

employee, may be dissimilar. It does not matter, if

on the employment terms there is analogy.

III.

Application of these guidelines should not short of

their logical reach by invocation of creeds, cults or inner

sense of incongruity or outer sense of motivation for or

resultant of the economic operations. The ideology of the

Act being industrial peace, regulation and resolution of

industrial disputes between employer and workmen, the

range of their statutory ideology must inform the reach of

the statutory definition. Nothing less, nothing more.

(a) The consequences are (i) profession, (ii) clubs

(iii) education institutions, (iv) co-operatives (v)

research institutes, (vi) charitable projects and

(vii) other kindered adventures, if they fulfil the

triple tests listed in 1(supra), cannot be exempted

from the scope of section 2(j).

(b) A restricted category of professions, clubs, co-

operatives and even gurukulas and little research

labs may qualify for exemption if in simple

ventures, substantially, and going by the

dominant nature criterion, substantively no

employees are entertained but in menial matters,

marginal emplyees are hired without destroying

the non employee character of the unit.

themselves, free or for small honoraria of like

return, mainly drawn by sharing in the purpose

or cause, such as lawyers volunteering to run a

free legal services clinic or doctors serving in

their spare hours in a free medical centre or

ashramites working at the bidding of the

holiness, divinity or like central personality, and

the services are supplied free or at nominal cost

and those who serve are not engaged for

remuneration or on the basis of master and not

engaged for remuneration or on the basis of

master and servant relationship, then, the

institution is not an industry even if stray

servants, manual or technical, are hired. Such

eleemosynary or like undertaking alone are

exempt not other generosity, compassion,

developmental passion or project.

IV.

The dominant nature test:

(a) Where a complex of activities, some of which

qualify for exemption, other not, involves

employees on the total undertaking, some of

whom are not “workmen” as in the University of

Delhi case (AIR 1963 S.C. 1873) or some

departments are not productive of goods and

services if isolated, even then, the predominant

nature of the services and the integrated nature

of the departments as explained in the

Corporation of Nagpur (AIR 1960 S.C. 657) will

be the true test. The whole undertaking will be

industry although those who are not “workmen”

by definition may not benefit by the status.

(b) Notwithstanding the previous clauses,

sovereign functions, strictly understood (alone)

qualify for exemption, not the welfare activities

or economic adventures undertaking by Govt.

or statutory bodies.

maintains records of permanent nature.

(d) Constitutional and competently enacted

legislative provisions may remove from the

scope of the all categories which otherwise may

be covered thereby.

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[PART II—SEC. 3(ii)]

(V)

We overrule Safdarjung (AIR 1970 S.C. 1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana (AIR 1968

S.C. 554), Delhi University (AIR 1963 S.C. 1873), Dhanraj

Giriji Hospital (AIR 1975 SC 2032) and other rulings whose

ratio runs counter to the principles enunciated above, and

the Hospital Mazdoor Sahba (AIR 1960 SC 610) is hereby

rehabilitated.”

12. Principles laid down in Bangalore Water Supply

& Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The management agitates that it is not an industry. The

view point held by the management is that no profit motive

activities are being carried on by it. No business is being

run, hence the management cannot be termed as an

“industry”. Except the facts referred above, the

management nowhere projects any other factors to lay

emphasis on the fact that it is not an ‘industry’.

13. Whether maintenance of records of permanent

nature of the Government of India would fall within the

ambit of material services to the society ? Legal precedents

would enlighten us. In Ahmedabad Textile Industry’s

Research Association [1960 (2) LLJ 720] the association

was established to carry on research with respect to the

textile industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were “material

services” to the textile industry hence the association

answered the definition of industry. But in Safdarjung

Hospital case (supra) it was not held to be an industry

because it was a non-profit making body and its work was

in the nature of training, research and treatment. In Indian

Standard Institute [1966 (1) LLJ 33] the Apex Court

suggested that in order to be recognized as an undertaking

analogous to trade or business, the activity must be an

economical activity in the sense that it is productive of

material goods or material services. In Bangalore Water

Supply and Sewerage Board (supra), the Apex Court laid

down that an activity systematically or habitually

undertaken for production or distribution of goods for

rendering material services to the community at large or a

part of such community with the help of employees is an

undertaking. An ‘industry’ thus was said to involve

cooperation between the employer and employees for the

object of satisfying material human needs but not for

oneself nor for pleasure nor necessity for profit. Lack of

business and profit motive or capital investment would

not take out an activity from the sweep of ‘industry’, if

other conditions are satisfied. It is the activity in question

which attracts the definition and absence of investment of

any capital or the fact that the activity is conducted for

profit motive or not, would not make material difference.

Conversely mere existence of profit motive will not

necessarily convert the activity into “industry” if other

tests are not satisfied.

14. One may project that the management carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry” ? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court observed

that it could not have been in contemplation of the legislature

to bring in the regal functions of the State within the

definition of “industry” and to confer jurisdiction on

Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumbrated the test:

can such activity be carried on by a private individual or

group of individuals ? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while if

it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions, strictly

understood, (alone) qualify for exemption, not the welfare

activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

15. In Physical Research Laboratory [1997 (2) LLJ

625] the Apex Court held that the Physical Research

Laboratory is not an ‘industry’ because it is not engaged

in an activity which can neither be called business, trade or

manufacturing nor it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as is is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not rendering

any services to others. It is engaged in pure research in

space science.

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16. While reaching the conclusion, referred above,

the Apex Court relied observations made in Bangalore

Water Supply (supra) with respect to research institutes,

which observations are extracted thus :

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists, para-

scientists and other personnel. Is scientific research

service ? Undoubtedly it is. Its discoveries are

valuable contributions to the wealth of the nation.

Such discoveries may be sold for a heavy price in

the industrial or other markets. Technology has to

be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recoded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratefied and gratful earth

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industires and the nation in terms of goods

and services and wealth. It follows that research

institutes, albeit run without profict-motive, are

industries”.

17. In the light of the above legal proposition, facts

of the present controversy are to be scanned. As claimed

by the management, it is custodian of records of permanent

nature of Government of India and as such, functions

performed by it are sovereign and regal. When called upon

to explain as to whether management carried out welfare

funtions, Shri Lal had to cut a sorry figure. Admittedly, the

functions performed by the management do not fall within

the ambit of administration of justice, maintenance of order,

repression of crime, security of borders from external

aggression and legislative powers of the State. Activities

carried out by the management cannot be described as

regal or sovereign activities, since such activities could be

carried out by private individuals or group of individuals.

18. As projected by Shri Lal, management maintains

records of permanent nature of Government of India. It

engages casual labours of maintain such records, besides

it permanent employees. Functions of maintenance of

records of permanent nature are carried out with the help

of casual labours. Its activities are systematic. performed

with co-operation between the management and its

employees. Activities peformed by the management

renders service to the community at large. Therefore, it is

evident that the triple test of industry as propounded in

Bangalore Water and Sewerage Board (supra) stand

satisfied in the present. It does not lie in the mouth of the

management to claim that it is does not fall wihin the ambit

of industry as defined in section 2(j) of the Act. Mere

absence of profit motive will not necessarily push the

activity out of the pale of industry, as defined by the Act.

Resultantly, it is concluded that activities performed by

the management falls within the ambit of industry as defined

under section 2(j) of the Act. The issue is, therefore,

answered infavour of the claimant and against the

management.

Issue No. 2

19. Claimant unfolds in his affidavit Ex. WW1/A that

he was initially engaged by the management on 24-05-2008

as a daily wager through employment exchange. He

completed more than 240 days in each calender year. He

requested for regularization of his services, which act

annoyed the management and his services were terminated

on 23-12-2010. Dr. M. A. Haque presents that the claimant

never completed 290 days continuous service in any

calender year. According to him, he redered 89 days services

from 22-05-2008 to 12-09-2008, 88 days from 17-05-2008 to

13-05-2009, 89 days service from 06-10-2009 to 31-01-2010,

89 days from 17-03-2010 to 25-03-2010, 89 days from

01-07-2010 to 25-03-2010, 89 days from 01-07-2010 to

21-10-2010 and 33 days service from 09-11-2010 to

21-12-2010. However, he concedes that in the year 2010,

claimant rendered continuous service of 240 days.

20. An employer may discharge a portion of his

labour force as surplusage in a running or continuing

business for variety of reasons, e.g., for economy,

convenience, rationalization in industry, installation of a

new labour saving machinery etc. The Act defines

“termination by the employer of the service of a workman

for any reasons whatsoever”, except the categories

exempted in sub-section 2(oo), to be retrenchment. The

definition of the term “retrenchment”, as enacted by the

Act, is extracted thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted by

way of disciplinary action, but does not include—

(a) voluntary retirement of the workman; or

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[PART II—SEC. 3(ii)]

(b) retirement of the workman on reaching the age of

superannuation if the contract of employment

between the employer and the workman concerned

contains a stipulation in that behalf; or

(bb) termination of the services of the workman as a

result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such contract

being terminated under a stipulation in that behalf

contained therein; or

ground of continued ill-health”.

21. 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].

22. Section 25F of the Act lays down conditions

pre-requisite to retrenchment, which are as follows :

(i) There should be one month’s notice in writing to

the workman concerned.

(ii) The notice should specify the reasons for

retrenchment.

(iii) The period of one month’s notice should have

expired before retrenchment is enforced, or the

workman has been paid in lieu of such notice the

wages for the period.

(iv) The workman has been paid retrenchment

compensation which should be equivalent to

15 days’ average pay for every one years’ service

or any part thereof provided it exceeds six months.

(v) The notice is also given to the appropriate

Government.

23. For seeking protection under section 25-F of the

Act an employee should be in continuous service under

an employer for not less than one year. Continuous service

for a period of one year may include period of interruption

on account of sickness or authorized leave of accident or

strike, which is not illegal or lockout or cessation of work

which is not due to any fault on the part of the workmen, as

enacted by provisions of sub-section (1) section 25B of

the Act. Sub-section (2) of the said section introduces a

fiction to the effect that even if a workman is not in

“continuous service” within the meaning of clause (1) for a

period of one year or six months, he shall be deemed to in

continuous service for that period under an employer if he

has actually worked for the days specified in clauses (a)

and (b) thereof. In Vijay Kumar Majoo (1968 Lab.I.C. 1180)

it was held that one year’s period contemplated by sub-

section (2) furnished a unit of measure and if during that

unit of measure the period of service actually rendered by

the workman is 240 days, then he can be considered to

have rendered one year’s continuous service for the

purpose of the section. The idea is that if within a unit

period of one year a person had put in atleast 240 days of

service, then he must get the benefit conferred by the Act.

Consequently, an enquiry has to be made to find out

whether the workman acutally worked for not less than

240 days during the period of 12 calendar months

immediately preceding the retrenchment.

24. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders continuous

service of not less than 240 days in 12 calendar months, he

is deemed to have completed one years’ service in the

industry. It would be expedient to reproduce observations

made by the Apex Court in that regard, which are extracted

thus :

“Under Section 25-B a workman who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 is to be deemed to

have completed One year’s service in the industry.

Consequently an enquiry has to be made to find out

whether the workman had actually worked for not

less than 240 days during period of 12 calendar

months immediately preceding the retrenchment.

These provisions of law do not show that a workman

after satisfying the test under Section 25B has further

to show that he has worked during all the period he

has been in the service of the employer for 240 days

in the years”.

25. Interruption of service occurred during the

course of job has to be included in uninterrupted services.

Fiction under section 25-B of the Act will operate if workmen

has actually worked for 240 days in a calendar year. The

explanation appended to section 25-B of the Act

specifically includes the days on which workman was laid

off under an agreement or he has been on leave with full

wages, or he has been absent due to temporary disablement

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caused by accident arising out of and in the course of his

employment and in the case of a female, maternity leave,

under the expression ‘actually worked’ used under sub-

section (2) of section 25-B of the Act. Question for

consideration would be as to whether the words ‘actually

worked’ would not include holidays, Sunday and Saturdays

for which full wages are paid. The Apex Court was

confronted with such a proposition in American Express

Banking Corporation [1985 (2) LLJ 539], wherein it was

ruled that the expression ‘actually worked under the

employer’, cannot mean those days only when the workman

worked with hammer, sickle or pen, but necessarily

comprehend all those days during which he was in the

employment of the employer and for which he had been

paid wages either under express or implied contract of

service or by compulsion of statute, standing orders etc.

The Court ruled that Sundays and other holidays, would

be comprehended in the words ‘actually worked’ and it

countenanced the contention of the employer that only

days which are mentioned in the explanation should be

taken into account for the purpose of calculating the number

of days on which the workman had actually worked though

he had not so worked and no other days. The Court

observed that the explanation is only clarificatory, as all

explanations are, and cannot be used to limit the expanse

of the main provision. Precedent in Lalappa Lingappa [1981

(1) LJ 308] was distinguished by the Apex Court in the case

referred above. The precedent was followed in Standard

Motor Products of India Ltd. [1986 (1) LLJ 34]. Thus, it is

crystal clear from the law laid above that Sundays and

holidays shall be included in computing continuous service

under section 25-B of the Act.

26. In order to ascertain quantum of days for which

the claimant rendered service in the year 2008 and 2009, the

Tribunal is saddled with a responsibility to scan facts

testified by the claimant as well as Dr. Haque. Though the

claimant projects that he had rendered continuous service

of 240 days in the year 2009, yet he had not produced any

document to substantiate that fact. His ocular evidence,

unfolded by the claimant in that regard, does not get any

corroboration from any other cogent evidence. On the other

hand, Dr. Haque details the period for which the claimant

worked with the management in 2008 and 2009. His

testimony gets support from the record relating to

engagement of casual labours by the management.

Photocopies of Orders dated 03-03-2008, 13-05-2008,

29-09-2008, 25-09-2009, 16-03-2010, 29-06-2010 and

08-11-2010 are placed over the record to project names of

daily wagers engaged by the management from time to

time. Record relating to payment of wages to the daily

wagers, engaged by the management, has also been placed

before this Tribunal. When that record is scrutinized, it

came to light that the claimant was engaged for a period of

118 days in the year 2008 and 119 days in 2009.

27. Period of service rendered by the claimant in the

year 2008 and 2009 nowhere includes Sundays and

holidays. In a year an employee may get 52 weekly offs,

besides three national holidays. In case 52 weekly offs and

3 national holidays are added to the period for which the

claimant rendered services to the management, even in

that situation, claimant had not been able to project that he

rendered continuous service of 240 days in 2008 and 2009,

to avail benefits of provisions of section 25F of the Act.

However Dr. Haque makes an admission that the claimant

rendered continuous service of 240 days in the year 2010.

Thus it is clear that there is no dispute that in the year 2010,

the claimant rendered continuous service of one year, as

contemplated by section 25-B of the Act. The issue is

answered accordingly, in favour of the calimant.

Issue No. 3.

28. As admitted by Dr. Haque in his testimony, the

claimant had rendered continuous service of 240 days in

the calendar year 2010. He was engaged for the last time for

a period of 89 days, vide order dated 08-11-2010. However,

he was bade farewell on 21-12-2010, prior to expiry of period

of 89 days. It is not the case of the management that one

months’ notice or pay in lieu thereof with reasons specifying

the cause of retrenchment was given to the claimant. It is

also not pointed out by Dr. Haque that retrenchment

compensation, as contemplated by section 25F of the Act,

was given.

29. It is not the case that the claimant reached the

age of superannuation or sought voluntary retirement. No

evidence was brought to show that he was employed for a

fixed term of contract and his services came to an end on

non-renewal of contract of employment. It was not asserted

that his services were terminated on the ground of continued

ill-health. Neither services of the claimant were done away

as punishment for a domestic action nor action of the

management falls within the category exempted under

second limb of section 2(oo) of the Act. Thus it is obvious

that termination of services of the claimant, for any other

reason, amounts to retrenchment, as defined by clause

(oo) of section 2 of the Act.

30. The claimant had rendered continuous service

for a period of one year, as contemplated by section 25-B

of the Act. According to him, retrenchment compensation

was not paid, which fact was not dispelled by the

management. The management was under an obligation to

pay him compensation for retrenchment, when his services

were dispensed with. Payment of retrenchment

compensation is a condition precedent to a valid order of

retrenchment. Precedents in Bombay Union of Journalists

[1964 (1) LLJ 351], Adaishwar Laal [1970 Lab.I.C. 936] and

B.M Gupta [1979 (1) LLJ 168] announce that subsequent

payment of compensation can not validate an invalid order

of retrenchment.

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[PART II—SEC. 3(ii)]

31. The claimant deposed that his services were

terminated by the management on 21-12-2010 without any

notice. Out of facts unfolded by the claimant, it stand

crystallized that neither notice nor pay in lieu thereof nor

retrenchment compensation was paid to him by the

management. Services of the claimant were retrenchment

without payment of notice pay and retrenchment

compensation. Act of termination of services of the claimant

is violative of provisions of section 25F of the Act. When

act of terminating services of a workman is illegal, normal

rule is to order reinstatement in service.

32. There may be exceptional circumstances which

makes it impossible or wholly inequitable vis-a-vis

employer and the workman to direct reinstatement in

service. When employer looses confidence in a workman

or retention of the workman would lead to apprehension of

breach of security, in such a situation there is vestige of

discretion available with the Tribunal to make appropriate

consequential orders. In exceptional circumstances, an

industrial adjudicator has discretion to give such other

relief to the workman as it may deem fit, in lieu of his

reinstatement in service.

33. In Uma Devi [2006 (4) SCC 1] the Apex Court

considered the proposition as to whether the person who

got employment, without following of a regular procedure

or even from the back door or on daily wages can be ordered

to be made permanent in their posts, to prevent regular

recruitment to the posts concerned. Catena of decisions

over the subject were considered and the court declined

the submissions of the workmen to be made permanent on

the posts which were held by them temporary or ad-hoc

capacity for a fairly long spell. The Court ruled thus :

‘‘With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our

view, is bound to insists on the State making regular

and proper recruitments, and is bound not to

encourage or shut its eyes to the persistent

transgression of the rules of regular recruitment. The

direction to make permanent the distinction between

regularization and making permanent, was not

emphasized here-can only encourage the State, the

model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many

waiting to compete. With respect the directions made

in Piara Singh [1992 (4) SCC 118] is to some extent

inconsistent with the conclusion in para 45 of the

said judgement therein. With great respect, it appears

to us that the last of the directions clearly runs counter

to the constitutional scheme of employment

recognized in the earlier part of the decision. Really,

it cannot be said that this decision has laid down the

law that all ad-hoc temporary or casual employees

engaged without following a regular recruitment

procedure should be made permanent’’.

34. In P. Chandra Shekhara Rao and Others [2006

(7) SCC 488] the Apex Court referred Uma Devi’s Case

(Supra) with approval. It also relied the decision in a Uma

Rani [2004 (7) SCC 112] and ruled that no regularization is

permissible in exercise of statutory powers conferred in

Article 162 of the Constitution, if the appointments have

been made in contravention of the statutory rules. In

Somveer Singh [2006 (5) SCC 493] the Apex Court ruled

that appointment made without following due procedure

cannot be regularized. In Indian Drugs & Pharmaceuticals

Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law

and announced that the rules of recruitment can not be

relaxed and court can not direct regularization of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

35. In Uma Devi (supra) it was laid that "when a

person enters a temporary employment or get engagement

as contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of legitimate

expectation for being confirmed for the post, when an

appointment to the post could be made only by following

a proper procedure or selection in any concerned cases,

in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of those

precedent neither continuance nor regularization of

services of the claimants can be ordered, since it would

amount to back door entry into Government job".

36. When facts of the present controversy are

scanned, it came to light that the claimant was engaged

through employment exchange. His name was sponsored

time and again to the management when it was in need of

engaging casual employees. Thus, it is crystal clear that

engagement of the claimant by the management was

in consonance with the instructions issued by the

Government of India in that regard. Engagement of the

claimant as casual labour cannot be termed as dehors the

rules. Above precedents do not come to the rescue of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1427

the management. Resultantly, it is apparent that the

management cannot argue that engagement of the claimant

was violative of the rules and his case falls within

exceptional category to refuse him reinstatement in service.

Considering all these facts, I am of the considered view

that the claimant has been able to project a case for

reinstatement in service.

37. Though in his affidavit the claimant had made

bald assertion to the effect that he is unemployed since

the date of termination of his service, yet he opted not to

produce any other evidence in that regard. Ocular facts

testified by the claimant on that issue is found to be

farther from truth. Claimant opted not to come forward with

evidence to this effect that he made efforts but could not

gain fresh employment. There is vacuum of evidence on

the issue also as to whom (employer) he approached for

employment, but failed. Considering all these facts, I am of

the considered opinion that the claimant has not been able

to project the case for reinstatement with full back wages.

Considering all these facts, it is concluded that the claimant

is entitled for reinstatement in service of the management

with continuity and 20% of the back wages. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

Dated: 20-11-2013.

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 24th January, 2014

S.O. 498.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D. No.327/2011)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of The Powergrid Corporation of India Limited

and Everest Enterprises, New Delhi and their workman,

which was received by the Central Government on

18-01-2014.

[No. L-42012/64/2011-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX,

DELHI.

I.D. No. 327/2011

Shri lakhan S/o Sh.Ghasi Ram,

R/o H.No.2377-B, L1 Gali No.15,

Sangam Vihar,

Delhi - 110065 .....Workman

Versus

1. The Management of

M/s Power Grid Corporation of India Limited,

D-9. Qatab Institutional Area,

Katwaria Sarai,

Delhi - 110016.

2. M/s Everest Enterprises,

Corporation Office, Q-60,

Sector-12, Noida,

Gautam Buddh Nagar (U.P.) ..... Management

AWARD

Power Grid Corporation of India Ltd. (in short the

Corporation) awarded work of assets management, building

upkeep services, housekeeping, mail management and allied

services to M/s Everest Enterprises (in short the

Contractor) at its complex located at Katwaria Sarai, New

Delhi. To carry out its contractual obligations, the

Contractor engaged Shri lakhan Singh, besides other

employees. Shri Lakhan Singh rendered services to the

Contractor at the premises of the Corporation from June

2007 to 2nd December 2009, Shri Lakhan Singh allegerlly

misbehaved with Miss Ritu Pandey, Front Desk Officer,

who made a complaint against the former. Since 3rd of

December 2009, Shri Lakhan Singh opted not to report for

his duties. On the other hand he projected a claim that his

services were dispensed with by a verbal order by the

Corporation. He raised a demand for reinstatement in

service of the Corporation. When his demand was

dispelled, he raised a dispute before the Conciliation Officer.

Since his claim was contested, conciliation proceedings

ended in failure. On consideration of failure report,

submitted by Conciliation Officer, the appropriate Govt.

referred the dispute to this Tribunal for adludicatlon, vide

order No. L-42012/64/2011-IR(DU) New Delhi, dated

1428

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

20.09.2011, with following terms:

"Whether the action of the management of

M/s Everest Enterprises, a contractor of Power Grid

Corporation of India, New Delhi, in terminating the

services of Shri Lakhan S/o Shri Ghasi Ram, Ex-Safai

Karamchari w.e.f. 03-12-2009, is legal and justified?

What relief the workman is entitled to and from which

date with consequential benefits?"

2. Claim statement was filed by Shri Lakhan Singh

pleading therein that he was working with the Corporation

in its housekeeping department through the Contractor

since June 2007. The Corporation used to assign duties to

him. The Contractor was a middle man, who was engaged

by the Corporation to make payment of wages to the

claimant, after receiving it from the Corporation. Neither

the Corporation was registered nor the Contractor was

having a licence from the Labour Department, to provide

labour force to the Corporation.

3. The claimant presents that he continuously

rendered services to the Corporation and completed 240

days service in every calendar year. His services were

dispensed with in an illegal manner, w.e.f. 3-12-2009. No

notice or pay in lieu thereof was given to him, hence action

of the Corporation was violative of the provisions of section

25-F of the Industrial Disputes Act 1947 (in short the Act).

His services were dispensed with by the Corporation in

connivance with the Contractor. He used to render

services at premises of the Corporation, who was

beneficiary of his services. The contract entered into

between the Corporation and the Contractor was sham

and nominal. Job carried out by him was of perennial in

nature, for which a contract cannot be awarded. He claims

reinstatement in service in housekeeping department of

the Corporation with continuity and full back wages.

4. Claim was demurred by the Corporation pleading

that the claimant was an employee of a Contractor. The

Corporation was having no privity of contract with the

claimant. The Contractor was under an obligation to make

payment of wages and other facilities to its employees.

The claimant was deployed as one of the housekeepers by

the Contractor, to carry out its contractual obligations, in

respect of work awarded vide order dated 1-3-06. Contract

was for a period of two years, which was extended for

another one year. Another contract was awarded for period

of two years to the Contractor, vide order dated

23-04-2009.

5. The claimant was performing duties as per

instructions of the Contractor, at the site of the Corporation.

Work of cleaning and sweeping was awarded to the

Contractor on area basis, to be done either with the help of

machinery or manually or both. The claimant was engaged

by the Contractor to carry out cleaning and sweeping job.

The Corporation was the principal employer, who used to

release payment in favour of the contractor on sq.feet basis

of the area cleaned by the Contractor.

6. The Corporation pleads that it has registration

certificate, while the Contractor has a licence to supply

labour force, issued by the Regional Labour Commissioner.

It has been denied that the contract between the

Corporation and the Contractor was sham and nominal.

The Contractor used to carry out his contractual

obligations by deploying its labour force. Wages of the

claimant were never paid by the Corporation. The claimant

was called upon by the contractor though letters dated

2-4-10 and 13-5-10 to resume his duties but he intentionally

opted not to join his duties. Claim put forward by the

claimant has no substance, hence it is liable to be dismissed,

pleads the Corporation.

7. The Contractor dispels the claim pleading that the

claimant had not worked for 240 days, in preceding 12

months from the date of his alleged termination. The

claimant committed serious misconduct, when he

misbehaved with Ms. Ritu Pandey on 02-12-2009. He

abandoned his services and never visited his place of duty

thereafter.

8. The Contractor presents that there was a valid

contract between it and the Corporation. The Contractor

disputes to be a middle man. Since the claimant had

abandoned his services and term of the contract, entered

into between the Contractor and the Corporation, has

expired hence services of the claimant automatically come

to an end. Under these circumstances there was no case

for giving notice or pay in lieu thereof and retrenchment

compensation. The work performed by the Contractor was

not of permanent in nature. The Corporation, being the

principal employer, was having no liability of any sort in

respect of the claimant. Since the claimant had abandoned

his job, he is not entitled to any relief. His claim is devoid

of merits, hence it may be dismissed.

9. On perusal of pleadings following issues were

settled :

(i) Whether the claimant committed misconduct,

when he misbehaved with a female employee on

02-12-2009 ?

(ii) Whether the claimant had abandoned his

services when show cause notice was served

upon him on 02-04-2010?

(iii) As in terms of reference.

10. After settlement of issue, an application was

moved by the Contractor seeking permission to prove

misconduct of the claimant before the Tribunal. On hearing

the parties, the application was granted and the Contractor

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1429

was allowed to prove misconduct of the claimant before

the Tribunal, vide order dated 18-5-2012.

11. Instead of adducing any evidence, the Contractor

absented from putting its appearance before the Tribunal

hence proceeded ex-parte, vide order dated 16-11-2012.

12. The claimant has examined himself to discharge

onus resting on him. Shri Mahesh Chand was examined on

behalf of the Corporation. No other witness was examined

by either of the parties.

13. Arguments were heard at the bar.

Shri S.S.Upadhyay, authorised representative, advanced

arguments on behalf of the claimant. Shri G.P. Sharma,

authorised representative, raised submissions on behalf

of the Corporation. None came forward to advance

arguments on behalf of the Contractor. Written submissions

were also filed by the claimant as well as the Corporation. I

have given my careful consideration to the arguments

advanced at the bar and cautiously perused the record.

My findings on issues involved in the controversy are as

follows:

Issue No. 1

14.Onus to discharge the issue was on the

Contractor. Though the Contractor sought permission

from the Tribunal to prove misconduct of the claimant,

since it was a case of no enquiry, yet no evidence was

adduced by the contractor to establish that the claimant

misbehaved with a female employee and he committed a

misconduct. There had been a complete vacuum of evidence

on the count. For desideratum of evidence it cannot be

concluded that the claimant misbehaved with a female

employee and committed a misconduct. The issue is,

therefore, answered in favour of the claimant and against

the Contractor.

Issue No. 2 & 3

15. Issue No.2 relates to alleged abandonment of

service by the claimant, while reference order raises a issue

as to whether action of terminating service of the claimant

by the Contractor is legal and justified. Abandonment of

service by the claimant is in contrast to alleged termination

of service by the Contractor. These two issues are

diametrically opposed to each other. Adjudication of one

issue will negative existence of fact relating to the other.

Since adjudication of these two issues are dependent on

facts, which make existence of facts of the other issue

highly improbable, hence these two issues would be

articulated simultaneously.

16.In affidavit Ex. WW1/A, tendered as evidence,

the claimant claims that he was working with the Corporation

since June 2007. The Corporation was using his services

though the Contractor, who was a middle man between him

and the Corporation. The Corporation was paying his salary

through the Contractor. Gate pass was issued by the

Corporation at the request of the Contractor. He used to

mark his attendance in housekeeping department of the

Corporation. He used to get his salary on wage register. He

was under administrative control of the Corporation. Work,

carried on by him, was of perennial nature and could not be

carried through a contract worker. The Corporation was

not having a registration certificate nor the Contractor was

having a licence to supply labour force. The Corporation

was his principal employer while the Contractor was a

middle man. He was working at the premises of the

Corporation. To substantiate facts unfolded by him, he

relied on photocopy of identity cards, photocopy of

cheques for his salary, letters dated 26-12-2008 and

24-04-2009, attendance record for June 2009 and copy of

wage register from December 2008, which documents are

Ex.WW1/1 to Ex.WW1/9.

17. Shri Mahesh Chand Sharma unfolds in his

affidavit Ex.MW1/A tendered as evidence that the claimant,

besides other employees, was deployed by the Contractor

at its premises. Claimant was paid his wages and other

facilities by the Contractor. The Contractor was liable to

make all payment and follow labour laws, in respect of its

employees. The work was awarded to the Contractor vide

order dated 01-03-2006 for a period of two years, which

term was extended for another period of one year. The

contract was again awarded to the Contractor. for a period

of two years, vide order dated 23-04-2009. The claimant

was working under instructions of the Contractor at the

site of the Corporation. Letters dated 02-04-2010, 13-05-

2010 and 25-07-2010 were written by the Contractor to the

claimant. The Contractor called the claimant to resume his

duties, but in vain. He has relied on contract agreements

entered into between the Corporation and the Contractor,

registration certificate and licence issued in favour of the

Corporation and the Contractor respectively, which

documents are Ex.MW1/1 to Ex.MW1/7.

18. Whether relationship of employer and employee

existed between the parties? For an answer to this

proposition, it is to be appreciated as to how a contract of

service is entered into. The relationship of employer and

employee is constituted by a contract, express or implied

between employer and employee. A contract of service is

one in which a person undertakes to serve another and to

obey his reasonable orders within the scope of the duty

undertaken. A contract of employment may be inferred

from the conduct which goes to show that such a contract

was intended although never expressed and when there

has, in fact, been employment of the kind usually performed

by the employees. Any such inference, however, is open

to rebuttal as by showing that the relation between the

parties concerned was on a charitable footing or the parties

were relations or partners or were directors of a limited

1430

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

company which employed no staff. While the employee, at

the time, when his services were engaged, need not have

known the identity of his employer, there must have been

some act or contract by which the parties recognized one

another as master or servant.

19. In order to assess as to whether there was

relationship of employer and employee between the

Corporation and the Contractor, facts unfolded by the

claimant and those detailed by Shri Sharma are to be

appreciated. The claimant unfolds in his affidavit

Ex.WW1/A that he was working with the Corporation

through the Contractor, a middle man. Thus claimant

projects that his services were availed by the Corporation

through the Contractor. In order to assess veracity of these

facts,· documents brought over the record are scanned.

Ex.WW1/1 is temporary gate pass issued in favour of the

claimant by the authorities of Central Industrial Security

Force, having its unit at the premises of the Corporation.

In this document there is a column relating to name of the

Contractor, which is lying blank. Ex.WW1/2 is the other

gate pass which has been issued for a period of three

months. In this document too column relating to name of

the Contractor is also left bank. In none of these two

documents it is mentioned that the claimant is an employee

of the Corporation. On the other hand, the claimant projects

that gate passes were issued in his favour at the instance

of the Contractor. Ex.WW1/3 is another gate pass wherein

column relating to name of the Contractor projects that

M/s Everest Enterprises was the employer of the claimant.

Cheques of wages dated 07.04.2008 and 07.05.2008, proved

as Ex.WW1/7 and Ex.WW1/5, were issued in favour of the

claimant by the Contractor. Letters dated 26.12.2008 and

24.07.2008, proved as Ex.WW1/6 and Ex.WW1/7, were

written by the Contractor to the Corporation, requesting-

renewal of gate passes in favour of its employees, wherein

name of the claimant is also mentioned. Wage register

Ex.WW1/9 pertains to December 2008, which was

mentained by the Contractor. Ex.WW1/8 is a copy of

attendance register for 30.06.2009. This document nowhere

unfolds that it relates to the Corporation. The claimant

recorded a writing over it purported to have been written

by one Bharat Kumar, housekeeping supervisor of the

Corporation. However Ex.WW1/7 highlights that Bharat

Kumar is an employee of the Contractor. Thus, it is evident

that the claimant forged this document to put forward a

claim to the effect that his attendance was marked by an

employee of the Corporation. Documents, referred above,

bring it to the light of the day that the claimant was an

employee of the Contractor. The Contractor used to pay

wages to the claimant and exercise control over him.

20. Letters Ex. WW1/M1 and Ex.WW1/M2 were put

to the claimant during the course of his cross-examination.

He admitted to have received these letters. When perused,

it came to light that these letters were written by the

Contractor to the claimant. In letter Ex.WW1/M1 the

Contractor commands the claimant to show cause as to

why disciplinary action may not be initiated against him

for the misconduct committed by him, on 02-12-2009. Thus

the Contractor, asserts its right to initiate disciplinary action

against the claimant. EX.WW1/M2 was written by the

Contractor calling upon the claimant to attend to his duties

at its Noida office. These two documents point out that the

Contractor had exercised rights of an employer on the

claimant and commanded him to join duties at its Noida

office and to show cause why disciplinary action should

not be initiated against him. Therefore these documents

also conclude that the claimant was an employee of the

Contractor.

21. The Corporation produced copy of the wage

bills. During the course of cross examination of

Shri Mahesh Chand Sharma, the claimant used those bills

and confronted Shri Sharma with bills Ex.MW1/W2 and

Ex.MW1/W3 in order to show that his wages for the month

of January 2008 and November 2009 were not paid.

Authenticity of other wage bills was not disputed by the

claimant at all. When these wage bills are scrutinised, it

came to light that the Contractor paid wages to the claimant

for the month of June 2007, November and December 2007,

February to December 2008, March 2009 to August 2009

and October 2009. Thus it stood established over the record

that wages of the claimant were paid by the Contractor for

more than 21 months. At no point of time, the claimant

questioned authority of the Contractor as his employer,

when wages were paid to him by the latter.

22. Except his bald statement, the claimant could not

bring anything over the record to project the Contractor to

be a middle man. On the other hand, the Corporation

brought contract agreements Ex.MW1/7 and Ex.MW1/W4

over the record to highlight that work of assets

management, building upkeep services, mail management

and allied services were assigned to the Contractor. When

scanned these two documents were found to be genuine.

Nothing emerged over the record to record a findings to

the effect that administrative, managerial, financial and

disciplinary control of the claimant was in the hands of the

Corporation. The Contractor was pay master of the

claimant, who engaged the claimant to discharge his

contractual obligations with the Corporation. It doesn't lie

in the mouth of the claimant to assert his employer to be an

agent of the Corporation. There was no privity of contract

between the Corporation and the claimant.

23. The claimant makes a claim that on 03.12.2009 he

was not allowed by the Corporation as well as the

Contractor to perform his job. He projects that his services

were orally terminated in an illegal manner. On the other

hand the claimant does not dispute receipt of letters

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1431

Ex.WW1/M1 and Ex.WW1/M2 written by the Contractor

to him. In Ex.WW1/M1 it is claimed that the claimant was

absent from his duties since 03-12-2009. The Contractor

detailed therein that despite various requests telephonically

and otherwise the claimant did not report for his duties at

its Noida office. In Ex.WW1/M2 the Contractor again

speaks of absence of claimant from duty. The claimant was

again advised to report for duties at Noida office of the

Contractor, through letter Ex.MW1/M2. When the claimant

was confronted with these two letters, during course of his

cross examination, he had not offered any explanation

about factum of his absence from duty since 03.12.2009.

His eerie silence on contents of Ex.WW1/M1 and Ex.WW1/

M2 would make an ordinary prudent man to belive that the

claimant is absenting from his duties since 03.12.2009.

24. As facts of the controversy project, the claimant

absented himself from his duties for a considerable long

period, in an unauthorized manner. An employee is under

an obligation not to absent himself from work without

good cause. Absence without leave is misconduct in

industrial employment, warranting disciplinary punishment.

Habitual absence from duty without leave' has been made

a misconduct under Model Standing Orders, framed under

Industrial Employment Standing Orders Act, 1946 .

Likewise, industrial employers also include "absence from

duty", without leave in the list of misconduct in their

standing orders. Sanction of leave can be a significant

defence to misconduct of absence without leave. No

employee can claim leave of absence as a matter of right

and remaining absent without leave will constitute

violation of discipline. The fact that the claimant was

continuously absent from work without leave, on account

of his detention in jail for an offence, will not give an

immunity to the claimant and the employer will be justified

in discharging him from services, announces the Apex

Court in Burn & Company, [1959 (1) L.L.J. 450].

25. In Indian Iron and Steel Company Ltd. [1958

(1) L.L.J.260] the Apex Court was confronted with a

proposition as to whether provisions in the standing orders

authorizing the employer to terminate services of its

employee on account of absence without leave was an

inflexible rule. In that matter seven workmen were absent

without leave for 14 consecutive days, as they were in

police 'custody. During police custody they applied for

leave which were refused by the company and services of

the workmen were terminated under relevant standinq order

for remaining absent without 1eave. The Industrial Tribunal

took a view that the relevant standing order was not an

inflexible rule and mere application for leave was sufficient

to arrest the operation of the standing order. In appeal,

though the Labour Appellate Tribunal did not maintain the

award of the Tribunal on that count, yet it held that in view

of the circumstances that the workmen were in custody,

the company was not justified in refusing leave. When the

matter reached the Apex Court, it set aside the order of the

Labour Appellate Tribunal, relying its precedent in Burn &

Company Ltd. (supra) and ruled thus:-

"It is true that the arrested men were not in a position

to come to their work, because they had been arrested

by the police. This may be unfortunate for them, but

it would be unjust to hold that in such circumstances

the company must always give leave when an

application for leave is made. If a large number of

workmen are arrested by the authorities in charge of

law and order by raising of their questionable

activities in connection with a labour dispute (as

in this case), the work of the company will be

paralysed if the company is forced to give leave to

all of them for more or less indefinite period. Such a

principle will not be just, nor will it restore harmony

between labour and capital or ensure normal flow of

production. It is immaterial whether the charges on

which the workmen are arrested by the police are

ultimately proved or not in a court of law. The

company must carry on its work and may find it

impossible to do so if a large number of workmen are

absent. Whether in such circumstances leave should

be granted or not must be left to the discretion of the

employer. It may be rightly accepted that if the

workmen are arrested at the instance of the company

for the purpose of victimization and in order to get

rid of them on the ostensible 'Pretext of continued

absence, the position will be different. It will then be

a colorable or malafide exercise of power under the

relevant standing order, that however, is not the case

here."

26. Defence open to an employee, against factum of

his absence without leave, is that the absence was on

account of circumstances beyond his control. For instance,

where absence of a workman was on account of his sudden

or serious illness or serious illness of a relation that would

be an extenuating circumstance which the employer will

have to take into consideration. However, if a workman

feigns sickness in order to avoid duty by producing a false

medical certificate, this would itself be a serious act of

misconduct. No such case of absence beyond control has

been set up by the claimant, in the present controversy.

27. It was incumbent on the claimant to establish

that he reported for his duties but the Contractor failed to

allow him to resume the same. Contents of letter Ex.WW1/

M2 make me to believe that in reply to Ex.WW1/M1 the

claimant questioned status of the Contractor to be his

employer. Instead of reporting for duties the claimant

accused his employer, which act led the latter to show his

anguish in letter Ex.WW1/M2. Contents of the said letter

gives an inference that the claimant was not willing to join

his duties with the contractor. There facts dispel claim put

1432

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

forward by the claimant to the effect that his services were

terminated by the contractor, in conspiracy with the

Corporation. On the other hand it is stood establish that

the claimant abandoned his job since 3/12/09 and opted

not to report for his duties, when called upon do to so by

his employer.

28.When claimant abandoned his duties and put an

end to relationship of employer and employee, in such a

situation in cannot be said that his services were

retrenched by the contractor, No action was taken by the

contractor to put an end to the service of the claimant.

Provisions of sec 25-F of the Act had not come into

operation, in the present controversy. There is no occassion

to attribute any illegality or un-justifiability to the act of

the contractor, when claimant had abandoned his services

since 03.12.2009 and snapped relationship of employer and

employee. Issues are accordingly answered against the

claimant.

29. In view of forgoing reasons, it is evident that the

claim put forward by Shri Lakhan is not maintainable.

He is not entitled to any relief, not to talk of relief of

reinstatement in service with continuity and back wages.

His claim is discarded. An award is accordingly passed in

favour of the Corporation, the contractor and against the

claimant. It be sent to the appropriate Govt. for publication.

Dated: 13-01-2014

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 24th January, 2014

S.O. 499.—In pursuance of Section 17 of the

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

Government hereby publishes the award (I.D. No. 134/2011)

of the Central Government Industrial Tribunal/Labour Court

No. 1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of The Director, Animal Quarantine and

Certificate on Services, New Delhi and their workman, which

was received by the Central Government on 18-01-2014.

[No. L-42012/288/2010-IR (DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.1, KARKARDOOMA COURTS COMPLEX,

DELHI.

I.D. No. 134/2011

Shri Mukesh

C/o Janavadi Kamgar Mazdoor Union,

Room No.95, Barrack No.1/10,

Jamnagar House, Shahjahan Road,

New Delhi -110011

…Workman

Versus

The Director,

Anilmal Quarantine and Certificate on services,

Delhi Gurgaon Road, Kapashera,

New Delhi-110037

…Management

AWARD

Quarantine certification services are provided in

respect of import of livestock products into India by the

Institute of Animal Quarantine and Certification Services

(hereinafter referred to as the Institute). The Institute is

supposed to carry out import risk analysis in respect of

livestock products imported in the country. For that

purpose, livestock products are inspected at entry point

and live animals are kept in sheds for quarantine period of

30 days or as specified in health protocol. Live animals,

when kept in sheds, are fed at quarantine stations. To

clean sheds and nearby areas, the Institute engages casual

labours. Shri Mukesh Kumar was engaged as safai

karamchari by the Institute at intervals, in exigencies. When

his services were not required, he was not engaged by the

Institute. Aggrieved by that act, Shri Mukesh Kumar raised

a demand for reinstatement in service of the Institute, which

demand was not conceded to. He approached the

Conciliation Officer for redressal of his grievances. Since

the Institute contested his claim, conciliation proceedings

ended into a failure. On consideration of failure report,

submitted by the Conciliation Officer, the appropriate

Government referred the dispute to this Tribunal for

adjudication vide order No.L-42012/288/2010-IR(DU), New

Delhi dated 26.04.2011 with following terms:

“(1)

Whether action of the management of Animal

Quarantine and Certification Services,

Kapashera, New Delhi, in termination of

services of Shri Mukesh Kumar, daily wager

with effect from 06.06.2008 is legal and

justified? What relief the workman is entitled

to?

(2)

Whether Shri Mukesh Kumar is entitled to

temporary status with effect from 01.02.1993

and regularization with effect from

01.05.2007?”

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1433

2. Claim statement was filed by Shri Mukesh Kumar

pleading therein that initially he was engaged on muster

roll as safai karamchari in February 1993. Copy of letter

No.12032/1/96-Admn.-II of February 1993, wherein his

name appears at serial No.18, projects that he has been

performing his duties with the Institute since February

1993. He has been performing his duties continuously.

Some artificial breaks were given in his service with the

intention to deny him temporary status. His services were

dispensed with by the Institute on 30.06.1999. He filed

OA No.198 of 1999 before the Central Administration

Tribunal (in short the CAT) which was decided on

08.12.1999, wherein following directions were issued:

“In the context of the position of law and the facts

as aforesaid, OA is disposed of with the following

directions:

(i)

The applicant shall have priority of re-

engagement over freshers and new comers.

(ii)

Applicant should be re-engaged as soon as

jobs are available and in case he has completed

more than 240 days, as alleged by the applicant,

he shall also be considered for conferment of

temporary status in terms of instructions

contained in OM dated 10.09.1993.

(iii)

No costs”.

3. Thereafter, the Institute re-engaged him but did

not confer temporary status. He was discriminated in that

regard, since Shri Lekh Ram, junior to him, was granted

temporary status and subsequently regularized in service.

17 other workers, appointed on the very date on which he

was engaged, were granted temporary status and

regularized in service by the Institute. Most of them were

junior to him. Instead of granting temporary status and

regularizing his services, he was bade farewell by the

Institute on 06.06.2008 without any notice or pay in lieu

thereof. Provisions of section 25G and 25H of the

Industrial Disputes Act, 1947 (in short the Act) were also

violated. Retrenchment compensation was not paid to him.

Since the act of termination of service was illegal and

unjustified, he is entitled for reinstatement in service with

continuity and full back wages.

4. Claimant asserts that he rendered continuous

service of 240 days in each calendar year since the date of

his initial engagement. He is entitled for grant of temporary

status as per provisions of OM No.51016/2/90-Estt(C)

dated 10.09.1993. He presents that the Institute may be

directed to grant him temporary status and regularization

of his services with effect from 01.05.2007, the date when

juniors to him were regularized in service by the Institute.

According to him, an award may be passed in his favour,

with relief of reinstatement in service with full back wages

and grant of temporary status, besides regularization of

his services.

5. Claim was demurred by the Institute pleading that

the dispute referred for adjudication is not an industrial

dispute, since the Institute is not an industry within the

meaning of section 2(j) of the Act. The Institute has been

set up as a subordinate office under the Department of

Animal Husbandry, Dairying and Fisheries, Ministry of

Agriculture, Government of India, New Delhi, to implement

provisions for regularization of import of livestock under

Livestock Importation Act, 1988. The Institute cannot be

said to be providing services when it carries out quarantine

and certification services in respect of livestock imported

in the country. Activities carried out by the Institute

cannot be called as systematic activity carried on by co-

operation between employer and his workmen for

production, supply or distribution of goods or services

with a view to satisfy human wants or wishes. Since the

Institute is not an industry, claimant is not clothed with

the character of workman, as defined under section 2(s) of

the Act. As such, this Tribunal has no jurisdiction to

adjudicate the dispute.

6. The Institute pleads that the claimant filed a

petition before the CAT to claim temporary status, which

petition was disposed of vide order dated 08.12.1999. The

CAT directed that in case claimant had completed more

than 240 days continuous service, he should be considered

for conferment of temporary status in terms of OM dated

10.09.1993. Since the claimant did not fulfill the conditions

prescribed in the aforesaid office memorandum, temporary

status was not granted to him. He filed another petition

No.2556/2000 wherein CAT ordered on 06.12.2000 that case

of the claimant be considered for grant of temporary status

if he had completed required number of days as per the

claim. Pursuant to the order passed by the CAT, a speaking

order was passed by the Institute on 09.01.2001, declaring

therein that the claimant was not entitled for grant of

temporary status. He filed another petition No.1877/2001

before the CAT projecting therein that one Sanju was

appointed on the post of safaiwala on 12.05.2000 in

violation of order dated 08.12.1999, ignoring his claim. It

was also alleged that one Lekh Ram, junior to him as muster

roll casual employee, was appointed by the Institute as

safaiwala. The said petition was dismissed by the CAT on

25.01.2002. Review application No.91 of 2002 was filed in

OA No.1877 of 2001, which was also declined. Thus, issue

for grant of temporary status and regularization of services

of the claimant was finally adjudicated by the CAT and

now he cannot raise that very issue. Re-agitation of the

issue is barred on the principles of res-judicata.

7. The Institute claims that the claimant was never

engaged as a casual labour in 1993. Document, bearing

No.12032/1/96-Admn.-II of February 1993 showing name

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

of the claimant at serial No.18, is a forged and fabricated

document. When matter was examined, it came to light

that the claimant had fabricated muster roll of daily rated

workers for the month of February 1997 and projected it to

be muster roll for the month of February 1993 to avail

benefits under the scheme for grant of temporary status.

Claimant was not engaged as casual labour in the Institute

after February 2001. Hence, question of termination of his

services with effect from 06.06.2008 does not arise.

8. In OA No.1980/1999 filed before the CAT, claimant

pleaded that he was employed with the Institute in April

1996 as casual worker on daily wages through Employment

Exchange, Kamla Market, New Delhi. He further pleads

therein that his services were terminated on 05.11.1996.

He was again employed by the Institute for the period

from 28.01.1997 to 28.02.1997 and from 01.05.1997 to

30.06.1999 with intermittent breaks. He pleads therein that

his services were disengaged by the Institute with effect

from 01.07.1999. Above facts belies his contention that he

was engaged by the Institute in February 1993. The

Institute projects that since the claimant had not rendered

continuous service of 240 days in a calendar year, he was

not considered for grant of temporary status, pursuant to

office memorandum dated 10.09.1993. In view of these

facts, there is no case for regularization of services of the

claimant with effect from 01.05.2007. The Institute projects

that besides its regular manpower of Group D staff in the

quarantine station, daily wagers are engaged for animal

management purposes from time to time as per requirement.

Services of such daily wagers are dispensed with when

animals are not in quarantine station. It is so done to

avoid extra burden on public exchequer. Pursuant to

directions of the CAT in order dated 08.12.1990, claimant

was engaged with effect from May 2000 on availability of

work. His services were dispensed with in September 2000

on completion of the work. He was again engaged for

short duration in November and December 2000 and lastly

engaged for another short spell in January and February

2001. His engagement, in compliance of order of the CAT,

was for the following period:

March 2000- 6 days, June 2000- 25 days, July 2000 –

25 days, August 2000 – 21 days, September 2000 –

23 days, November 2000 – 16 days, December 2000

– 22 days, January 2001 – 23 days and February –

26 days.

9. Since the claimant was not engaged in 1993,

question of conferment of temporary status as per Office

Memorandum dated 10.09.1993 does not arise. Daily wager

is not an official holding civil posts, hence cannot claim

regularization of his appointment as a matter of right.

Casual labours with temporary status are to be regularized

in terms of provisions contained in office memorandum

dated 10.09.1993. None of the 17 workers, as claimed by

the claimant, were regularized by the Institute in its service.

The Institute presents that the claim put forward by Shri

Mukesh Kumar may be discarded, being devoid of merits.

10. On pleadings of the parties, following issues

were settled:

(i)

Whether the claimant rendered continuous

service with the management for a period of

more than 240 days in any calendar year?

(ii)

Whether management is not an industry within

the meaning of clause (j) of section 2 of the

Industrial Disputes Act?

(iii)

As in terms of reference.

(iv)

Relief.

11. Claimant examined himself in support of his

claim. Dr. Vijay Kumar and Shri L.C. Mehra were examined

on behalf of the Institute. No other witness was examined

by either of the parties.

12. Arguments were heard at the bar. Shri B.K.

Prasad, authorized representative, advances arguments

on behalf of the claimant. Dr. S.A. Khan, authorized

representative, raised submissions on behalf of the

Institute. I have given my careful considerations to the

arguments advanced at the bar and cautiously perused

the record. My findings on issues involved in the

controversy are as follows:-

Issue No. II

13. At the outset, Shri Khan argued that the

Institute is not an industry within the meaning of clause

2(j) of the Act. He presents that the Institute keeps animals

at quarantine station for a quarantine period of 30 days or

as specified in health protocol prescribed by the

Government of India for monitoring health status of

animals, takes samples of livestock products to be tested

in relevant laboratories, maintains health record of animals,

collect necessary samples, carry out hematological, urine

and fecal examination, takes follow up action, examine

animals for infestation of ecto parasite, take steps for

disinfection, vaccination, immunization for the purpose of

quarantine clearance certificates etc. According to Shri

Khan, these functions are sovereign functions and cannot

be termed as functions of an industry. He argued that

since the Institute is not an industry, the dispute referred

for adjudication has not acquired status of an industrial

dispute. Contra to it, Shri Prasad presents that the

functions, carried out by the Institute are normal functions

in the nature of systematic activity as done to pursue a

trade or business. Activities performed by the Institute

are being run in co-operation of the employer and its

employees for production, supply and distribution of

goods or services to satisfy human wants or wishes. He

concludes that the Institute falls within all four corners of

¹Hkkx II—[k.M 3(ii)º

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1435

the definition of industry, as contained in section 2(j) of

the Act.

14. When a claim is made by the Institute that it is

not an industry within the meaning of clause (j) of section

2 of the Act, it becomes expedient to consider the term

‘industry’. Definition of term ‘industry’, as enacted by

section 2(j) of the Act, is extracted thus:

“industry, means any business, trade, undertaking,

manufacture or calling of employers and includes

any calling, service, employment, handicraft, or

industrial occupation or avocation of workmen.”

15. The definition of “industry” is both exhaustive

and inclusive. It is in two parts. The first part says that it

“means any business, trade, undertaking, manufacture or

calling of employers” and then goes to say that it “includes

any calling, service, employment, handicraft or industrial

occupation or avocation of workman.” Thus one part

defined it from the stand point of the employer, and the

other part from the stand point of the employees. The first

part of the definition gives the statutory meaning of the

industry, whereas the second part deliberately refers to

several other items of industry and bring them in the

definition in an inclusive way. The first part of the definition

determines any industry by reference to occupation of

employers in respect of certain activities viz., business,

trade, undertaking, manufacture or calling. The second

part views the matter from the angle of employees and is

designed to include something more in what the term

primarily denotes. By this part of the definition any calling,

employment, handicraft, industrial occupation or

avocation of workmen is included in the concept of

industry. This part gives extended connotation.

16. Gloss was put on the definition of word

“industry” by the High Courts and the Apex Court time

and again. The question as to what is “industry” has

continuously baffled and perplexed the courts. A graph

of the cases decided by the Apex Court, if plotted on the

background of the expression used in two parts of the

definition of “Industry”, would represent rather a zig zag

curve. There have been various judicial ventures in this

rather volatile area of law. The decided cases show that

the efforts were made to evolve test by reference to

characteristics regarded as essential for constituting an

activity as an “Industry”. Various cases would show that

the Apex Court has been guided more by empirical rather

than a strictly analytical approach. Most of the decision

have centered around the expression “undertaking” used

in the definition. In Bangalore Water Supply and Sewerage

Board ( 1978 Lab. I.C. 778) the Apex Court reviewed the

earlier decisions on interpretation of the wide words

encompassed in the definition and formulated positive

and negative principles for identifying “industry”’ as

enacted by clause (j) of section 2 of the Act. It would be

expedient to reproduce the authoritative pronouncement

of the Court, in the very words set out in the majority

decision, handed down by Justice Krishna Iyer, which are

extracted thus:

“I.

“Industry” as defined in S.2(j) and explained in

Banerjee (AIR 1953 S.C.58) has a wide import.

(a)Where (i) systematic activity, (ii) organized by

Co-operation between employer and employee

(the direct and substantial element is chimerical)

(iii) for the production and/or distribution of

goods and services calculated to satisfy human

wants and wishes (not spiritual or religious but

inclusive of material things or services geared to

celestial bliss i.e. making, on a large scale prasad

or foods) prima facie, there is an “industry” in

that enterprise.

(b) Absence of profit motive or gainful objective

is irrelevant, be the venture in the public, joint,

private or other sector.

test is the nature of the activity with special

emphasis on the employer-employee relations.

(d) If the organization is a trade or business it

does not cease to be one because of philanthropy

animating the undertaking.

II.

Although section 2(j) uses words of the widest

amplitude in its two limbs, the re-meaning cannot

be magnified to overreach itself.

(a) “Undertaking” must suffer a contextual and

associational shrinkage as explained in

Banerjee and in this judgement, so also,

service, calling and the like. This yields the

inference that all organized activity

possessing the triple elements in 1(supra),

although not trade or business, may still be

‘industry’ provided the nature of activity,

viz. the employer-employee basis, bears

resemblance to what we find in trade or

business. This takes into the fold ‘industry’

undertaking, calling and services,

adventures, “analogous to the carrying on

the trade or business”. All features, other

than the methodology of carrying on the

activity viz in organizing the co-operation

between employer and employee, may be

dissimilar. It does not matter, if on the

employment terms there is analogy.

III.

Application of these guidelines should not short

of their logical reach by invocation of creeds,

cults or inner sense of incongruity or outer sense

of motivation for or resultant of the economic

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THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

operations. The ideology of the Act being

industrial peace, regulation and resolution of

industrial disputes between employer and

workmen, the range of their statutory ideology

must inform the reach of the statutory definition.

Nothing less, nothing more.

(a) The consequences are (i) profession, (ii)

clubs, (iii) education institutions, (iv) co-

operatives, (v) research institutes, (vi)

charitable projects and (vii) other kindered

adventures, if they fulfil the triple tests listed

in 1(supra), cannot be exempted from the

scope of section 2(j).

(b) A restricted category of professions, clubs,

co-operatives and even gurukulas and little

research labs may qualify for exemption if in

simple ventures, substantially, and going by

the dominant nature criterion, substantively

no employees are entertained but in menial

matters, marginal employees are hired without

destroying the non employee character of

the unit.

employ themselves, free or for small

honoraria or like return, mainly drawn by

sharing in the purpose or cause, such as

lawyers volunteering to run a free legal

services clinic or doctors serving in their

spare hours in a free medical centre or

ashramites working at the bidding of the

holiness, divinity or like central personality,

and the services are supplied free or at

nominal cost and those who serve are not

engaged for remuneration or on the basis of

master and servant relationship, then, the

institution is not an industry even if stray

servants, manual or technical, are hired. Such

eleemosynary or like undertakings alone are

exempt not other generosity, compassion,

developmental passion or project.

IV.

The dominant nature test:

(a) Where a complex of activities, some of which

qualify for exemption, other not, involves

employees on the total undertaking, some of

whom are not “workmen” as in the University of

Delhi case (AIR 1963 S.C.1873) or some

departments are not productive of goods and

services if isolated, even then, the predominant

nature of the services and the integrated nature

of the departments as explained in the Corporation

of Nagpur (AIR 1960 S.C.657) will be the true

test. The whole undertaking will be industry

although those who are not “workmen” by

definition may not benefit by the status.

(b) Notwithstanding the previous clauses,

sovereign functions, strictly understood (alone)

qualify for exemption, not the welfare activities

or economic adventures undertaking by govt. or

statutory bodies.

functions, if there are units which are industries

and they are substantially severable, then they

can be considered to come within S.2(j)

(d) Constitutional and competently enacted

legislative provisions may remove from the scope

of the all categories which otherwise may be

covered thereby.

We overrule Safdarjung (AIR 1970 S.C.1407),

Solicitors case (AIR 1962 S.C. 1080), Gymkhana

(AIR 1968 S.C. 554), Delhi University (AIR 1963

S.C.1873), Dhanraj Giriji Hospital (AIR 1975 SC

2032) and other rulings whose ratio runs counter

to the principles enunciated above, and the

Hospital Mazdoor Sabha (AIR 1960 SC 610) is

hereby rehabilitated.”

17. Principles laid down in Bangalore Water Supply

& Sewerage Board (supra) hold ground. Therefore, the

controversy raised will be adjudicated in view of the law

laid by the Apex Court in the precedent referred above.

The Institute agitates that it is not an industry. The view

point held by the Institute is that no profit motive activities

are being carried on by it. No business is being run, hence

the Institute cannot be termed as an ‘industry”. Except

the facts referred above, the Institute nowhere projects

any other factors to lay emphasis on the fact that it is not

an ‘industry’.

18. In Ahmedabad Textile Industry’s Research

Association [1960 (2) LLJ 720], the Association was

established to carry on research with respect to the textile

industry with a view to secure greater efficiency,

rationalization and reduction of cost, which were “material

services” to the textile industry hence the Association

was held to fall within the ambit of definition of industry.

But in Safdarjung Hospital case (supra) it was not held to

be an industry because it was a non-profit making body

and its work was in the nature of training, research and

treatment. In Indian Standard Institute [1966 (1) LLJ 33]

the Apex Court suggested that in order to be recognized

as an undertaking analogous to trade or business, the

activity must be an economical activity in the sense that it

is productive of material goods or material services. In

Bangalore Water Supply and Sewerage Board (supra), the

Apex Court laid down that an activity systematically or

habitually undertaken for production or distribution of

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1437

goods for rendering material services to the community at

large or a part of such community with the help of

employees is an undertaking. An ‘industry’ thus was said

to involve cooperation between the employer and

employees for the object of satisfying material human

needs but not for oneself nor for pleasure nor necessity

for profit. Lack of business and profit motive or capital

investment would not take out an activity from the sweep

of ‘industry’, if other conditions are satisfied. It is the

activity in question which attracts the definition and

absence of investment of any capital or the fact that the

activity is conducted for profit motive or not, would not

make material difference. Conversely mere existence of

profit motive will not necessarily convert the activity into

“industry’ if other tests are not satisfied.

19. Shri Khan argued that the Institute carry out

sovereign functions hence it cannot be termed as an

industry. Therefore it is expedient to know as to what are

regal and sovereign functions of the State which may

qualify for exemption from the ambit of the definition of

word “industry”? Regal powers of the State has acquired

a definite connotation, which can be described as

“administration of justice, maintenance of order, repression

of crime, security of borders from external aggression and

legislative powers, as among the primary and inalienable

functions of a Constitutional Government”. In Corporation

of City of Nagpur [1960 (1) LLJ 523] the Apex Court

observed that it could not have been in contemplation of

the legislature to bring in the regal functions of the State

within the definition of “industry” and to confer jurisdiction

on Industrial Tribunal to decide disputes in respect thereof.

The activities of the Government which can be properly

described as regal or sovereign activities, are therefore,

outside the scope of industry. In Hospital Mazdoor Sabha

[1960 (1) LLJ 251] the Supreme Court adumberated the

test: can such activity be carried on by a private individual

or group of individuals? The answer to this is : if a business

or activity could not be carried on by a private individual

or group of individuals, it could not be an industry, while

if it could be, it might fall within the scope of “industry”.

This test was reiterated in Corporation of City of Nagpur

(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].

In Bangalore Water Supply and Sewerage Board (supra)

the Apex Court observed “*** sovereign functions,

strictly understood, (alone) qualify for exemption, not the

welfare activities or economic adventures undertaken by

Government or statutory bodies. Even in departments

discharging sovereign functions, if there are units, which

are “industry” and they are substantially severable, they

can be considered to come within section 2(j)”. In Chief

Conservator of Forests [1996 (1) LLJ 1223] the above

proposition was reiterated where in it was observed “***

even within the wider circle of sovereign function, there

may be an inner circle encompassing some units which

could be considered as “industry”, if substantially

severable”.

20. In Physical Research Laboratory [1997 (2) LLJ

625] the Apex court held that the Physical Research

Laboratory is not an ‘industry’ because it is not engaged

in an activity which can neither be called business, trade

or manufacturing nor it is an undertaking analogous to

business or trade. It is not engaged in commercial or

industrial activity and cannot be described as an economic

venture or commercial enterprise as it is not its objective

to produce and discharge services which would satisfy

wants and needs of consumer community. It is not

rendering any services to others. It is engaged in pure

research in space science.

21. While reaching the conclusion, referred above,

the Apex Court relied observations made in Bangalore

Water Supply (supra) with respect to research institutes,

which observations are extracted thus:

“Does research involve collaboration between

employer and employee ? It does. The employer is

the institution, the employees are the scientists,

para-scientists and other personnel. Is scientific

research service? Undoubtedly it is. Its discoveries

are valuable contributions to the wealth of the

nation. Such discoveries may be sold for a heavy

price in the industrial or other markets. Technology

has to be paid for and technological inventions and

innovations may be patented and sold. In our

scientific and technological age nothing has more

cash value, as intangible goods and invaluable

services, than discoveries. For instance, the

discoveries of Thomas Alva Edison made him

fabulously rich. It has been said that his brain had

the highest cash value in history for he made the

world vibrate with the miraculous discovery of

recorded sound. Unlike most inventors, he did not

have to wait to get his reward in heaven; he received

it munificently on this gratified and grateful earth,

thanks to conversion of his inventions into, money

a plenty. Research benefits industry. Even though a

research institute may be a separate entity

disconnected from the many industries which funded

the institute itself, it can be regarded as an

Organisation, propelled by systematic activity,

modelled on co-operation between employer and

employee and calculated to throw up discoveries

and inventions and useful solutions which benefit

individual industries and the nation in terms of

goods and services and wealth. It follows that

research institutes, albeit run without profit-motive,

are industries”.

22. In the light of above legal propositions, facts of

the present controversy are to be scanned. As claimed by

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[PART II—SEC. 3(ii)]

the Institute, it performs sovereign functions of

implementation of provisions of Livestock Importation Act,

1988. Under that Act, the Institute had to carry out import

risk analysis in respect of livestock products which are

imported in the country. The Institute is also supposed to

conduct quarantine inspection, sampling and testing as

post import requirements. After inspection of livestock

products, the Institute issues certificate in respect of

livestock products imported in the country. It also accords

quarantine clearance for entry of livestock products.

Wherever disinfection or any other treatment is necessary

in respect of livestock products, the Institute issues

directions to the importers to arrange for disinfection or

other treatment of the consignment. Shri Khan argued

that all these functions are sovereign functions, hence

the Institute cannot be termed as an industry. I am afraid

that submissions made by Shri Khan have any force.

Functions which are being carried out by the Industry are

welfare activities. These functions, as projected by the

Institute, do not fall within the ambit of administration of

justice, maintenance of order, repression of crime, security

of borders from external aggression and legislative powers

of the State. Activities carried out by the Institute cannot

be described as regal or sovereign activities, since such

activities could be carried out by private individuals or

group of individuals.

23. Even in departments discharging sovereign

functions, there may be units, which are “industry” and

they are substantially severable, they can be considered

to come within section 2(j) of the Act. As projected by

Shri Khan, Institute maintains sheds and food stocks at

quarantine stations where imported animals are kept for

quarantine period. The Institute engages casual labours

to maintain those sheds and stocks, since animals

discharge urine and dung during its stay at quarantine

stations. Functions of cleaning and maintenance of

quarantine stations cannot be termed as sovereign

functions by any stretch of imagination. Therefore, such

functions as carried out by casual labours, like the claimant,

are industry within the wider circle of sovereign functions,

if activities of the Institute are held to be regal. Thus, it is

evident that there is hardly any activity performed by the

Institute which a private entrepreneur cannot carry out.

Resultantly, it emerges over the record that activities

carried on by the Institute cannot be termed as regal.

24. The Institute carry out its functions with co-

operation between it and its casual employees. Activities

performed by the Institute are systematic one. It renders

services to satisfy human wants. Lack of business or profit

motive or capital investment would not take out attributes

of the Institute from the sweep of industry, if other

conditions are satisfied. These facts make me to comment

that triple test, referred above stood satisfied and activities

of the Institute fall within the ambit of industry, as defined

under section 2(j) of the Act. Objections raised by the

Institute is brushed aside on that count. The issue is,

therefore, answered in favour of the claimant.

Issue No. I

25. An employer may discharge a portion of his

labour force as surplusage in a running or continuing

business for variety of reasons, e.g., for economy,

convenience, rationalization in industry, installation of a

new labour saving machinery etc. The Act defines

“termination by the employer of the service of a workman

for any reasons whatsoever”, except the categories

exempted in sub-section 2(oo), to be retrenchment. The

definition of the term “retrenchment”, as enacted by the

Act, is extracted thus:

“(oo) “retrenchment” means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include :

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age

of superannuation if the contract of

employment between the employer and the

workman concerned contains a stipulation in

that behalf; or

(bb)

termination of the services of the workman as

a result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation

in that behalf contained therein; or

(c)

termination of the services of a workman on

the ground of continued ill-health”.

26. 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].

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27. Section 25F of the Act lays down conditions

pre-requisite to retrenchment, which are as follows:

(i)

There should be one month’s notice in writing

to the workman concerned.

(ii)

The notice should specify the reasons for

retrenchment.

(iii)

The period of one month’s notice should have

expired before retrenchment is enforced, or

the workman has been paid in lieu of such

notice the wages for the period.

(iv)

The workman has been paid retrenchment

compensation which should be equivalent to

15 days’ average pay for every one years’

service or any part thereof provided it exceeds

six months.

(v)

The notice is also given to the appropriate

Government.

28. For seeking protection under section 25-F of

the Act an employee should be in continuous service

under an employer for not less than one year. Continuous

service for a period of one year may include period of

interruption on account of sickness or authorized leave or

accident or strike, which is not illegal or lockout or

cessation of work which is not due to any fault on the part

of the workmen, as enacted by provisions of sub section

(1) of section 25-B of the Act. Sub-section (2) of the said

section introduces a fiction to the effect that even if a

workman is not in “continuous service” within the meaning

of clause (1) for a period of one year or six months, he shall

be deemed to in continuous service for that period under

an employer if he has actually worked for the days specified

in clauses (a) and (b) thereof. In Vijay Kumar Majoo (1968

Lab.I.C.1180) it was held that one year’s period

contemplated by sub-section (2) furnished a unit of

measure and if during that unit of measure the period of

service actually rendered by the workman is 240 days,

then he can be considered to have rendered one year’s

continuous service for the purpose of the section. The

idea is that if within a unit period of one year a person had

put in at least 240 days of service, then he must get the

benefit conferred by the Act. Consequently, an enquiry

has to be made to find out whether the workman actually

worked for not less than 240 days during the period of 12

calendar months immediately preceding the retrenchment.

29. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex

Court announced that when a workman renders

continuous service of not less than 240 days in 12 calendar

months, he is deemed to have completed one years’ service

in the industry. It would be expedient to reproduce

observations made by the Apex Court in that regard, which

are extracted thus:

“Under Section 25-B a workman who during the

period of 12 calendar months has actually worked in

an industry for not less than 240 days is to be deemed

to have completed One year’s service in the industry.

Consequently an enquiry has to be made to find out

whether the workman had actually worked for not

less than 240 days during period of 12 calendar

months immediately preceding the retrenchment.

These provisions of law do not show that a workman

after satisfying the test under Section 25-B has

further to show that he has worked during all the

period he has been in the service of the employer for

240 days in the year”.

30. Interruption of service occurred during the

course of job has to be included in uninterrupted services.

Fiction under section 25-B of the Act will operate if

workmen has actually worked for 240 days in a calendar

year. The explanation appended to section 25-B of the

Act specifically includes the days on which workman was

laid off under an agreement or he has been on leave with

full wages, or he has been absent due to temporary

disablement caused by accident arising out of and in the

course of his employment and in the case of a female,

maternity leave, under the expression ‘actually worked’

used under sub-section (2) of section 25-B of the Act.

Question for consideration would be as to whether the

words ‘actually worked’ would not include holidays,

Sundays and Saturdays for which full wages are paid.

The Apex Court was confronted with such a proposition

in American Express Banking Corporation [1985 (2) LLJ

539], wherein it was ruled that the expression ‘actually

worked under the employer’, cannot mean those days only

when the workman worked with hammer, sickle or pen, but

must necessarily comprehend all those days during which

he was in the employment of the employer and for which

he had been paid wages either under express or implied

contract of service or by compulsion of statute, standing

orders etc. The Court ruled that Sundays and other

holidays, would be comprehended in the words ‘actually

worked” and it countenanced the contention of the

employer that only days which are mentioned in the

explanation should be taken into account for the purpose

of calculating the number of days on which the workman

had actually worked though he had not so worked and no

other days. The Court observed that the explanation is

only clarificatory, as all explanations are, and cannot be

used to limit the expanse of the main provision. Precedent

in Lalappa Lingappa [1981 (1) LJ 308] was distinguished

by the Apex Court in the case referred above. The

precedent was followed in Standard Motor Products of

India Ltd. [1986 (1) LLJ 34]. Thus, it is crystal clear from

the law laid above that Sundays and holidays shall be

included in computing continuous service under section

25-B of the Act.

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[PART II—SEC. 3(ii)]

31. In order to establish continuous period of 240

days in preceding 12 months from the date of his alleged

termination by the Institute, the claimant had tendered

his affidavit as Ex.WW1/A, as evidence. In affidavit

Ex.WW1/A, he swears that he was engaged on muster roll

by the Institute in February 1993. Copy of letter No.10232/

1/96-Admn.-II dated 04.02.1993, proved as Ex.WW1/1,

would project that he performed duties with the Institute

with effect from February 1993, asserts the claimant. He

performed continuous services with some artificial breaks

for one or two days in each calendar year. He approached

the CAT vide OA No.1980 of 1999 wherein directions were

issued to the Institute to re-engage him with preference

over freshers or new comers and to consider conferment

of temporary status in case he had completed 240 days

continuous service. The said order was not implemented

by the Institute. He had completed more than 240 days in

each calendar year, swears the claimant. His wages for the

month of April 93 were paid to him by the Institute on the

strength of Ex.WW1/4.

32. Dr. Vijay Kumar entered the witness box to rebut

facts unfolded by the claimant. In his affidavit, Ex.MW1/

A, Dr.Vijay Kumar projects that the claimant was initially

engaged in April 1996. He was subsequently engaged as

per requirement from time to time till February 2001.

Thereafter, he was not engaged by the Institute. Temporary

status was not granted to the claimant since he does not

fulfil conditions prescribed in office memorandum dated

10.09.1993. He asserts that as per record, the Institute

engaged daily wagers with effect from April 1996 and not

prior to it.

33. Shri L.C. Mehra, unfolded that Ex.WW1/1 was

interpolated which purports to have been issued from file

No.12031/1/96/Admn.II dated 04.02.1993. He declares that

this file was opened in 1996. It was not possible to issue

that document in February in February 1993 when file in

question was opened in 1996. He unfolds that Ex.WW1/

W20 bears his signatures, which document relates to

February 1997.

34. In order to assess facts unfolded by rival parties,

depositions of the claimant, Dr. Vijay Kumar and Shri L.C.

Mehra are meticulously assessed, in the light of documents

proved over the record. Ex.WW1/2 is an order passed by

CAT in OA No.1980 of 1999 wherein facts are detailed to

the effect that the claimant pleaded that after having been

engaged in April 1996, he continued to work with the

Institute upto November 1996. Thereafter, he was re-

engaged on 20.01.1997 and continued to work upto

30.09.1999 with occasional breaks. Order referred above,

recites facts which demolishes case of the claimant to the

effect that he joined services with the Institute in February

1993. Furthermore, Ex.WW1/1 purports to have been

signed by Shri L.C. Mehra, who denounces that document

completely. Shri Mehra places Ex.MW1/W20 over the

record to establish that Ex.WW1/1 relates to muster roll

for the month of February 1997, which has been fabricated

by the claimant as muster roll for the month of February

1993. Testimony of Shri Mehra remained un-assailed on

that proposition. Therefore, it emerged that Ex.WW1/1

was fabricated by the claimant in order to establish that he

was serving with the Institute since February 1993. In

fact, muster roll for the month of February 97 was used by

the claimant to project his claim to the effect that he served

the management since February 1993.

35. With a view to substantiate his claim of serving

the Institute since 1993, the claimant attempt to prove

photocopy of letter No.12032/1/06-Adm.-II purporting to

be muster roll of daily rated workers for the month of April

1993 as Ex.WW1/4. This document seems to have been

issued by Shri H.K. Jagota, Under Secretary, Ministry of

Agriculture, Government of India, New Delhi, wherein

names of Raj Kumar and the claimant appear purporting to

have worked for 6 days and 5 days respectively in April

1993. As per this document, they were paid @ Rs.71.35

per day as their wages. When this document is scrutinized,

it emerged that as per contents of this document, file was

opened in the Ministry in the year 2006, which proposition

cannot be correct since wages for the month of April 1993

were to be released in favour of Shri Raj Kumar and the

claimant. When attempts were made to reconcile facts

detailed in Ex.WW1/1 and Ex.WW1/4 it came to light that

wages @ Rs.77.40 per day were allegedly paid in February,

1993 while wages @ Rs.71.35 per day was paid in April

1993. This fact makes the claim of the claimant unworthy

of credence. In February 1993 minimum wages cannot be

higher than the minimum wages notified in April 1993.

Resultantly Ex.WW1/4 is also found to be a fabricated

document. Ex.MW1/W18 is also placed on record by the

claimant. As per contents of this document, file was

opened in 1996 for release of wages of muster roll

employees in October 1993. Wages @ Rs.77.40 per day

were paid to the causal employees in October 1993, while

in April 1993 wages @ Rs.71.35 per day was paid. Minimum

rates of wages are notified, effective from 1st April, by the

appropriate Government. Hence wages paid in February

1993 cannot be higher than the wages paid in April 1993

and wages paid in October 1993 cannot be at the same rate

as paid in February, 1993. These facts make it apparent

that Ex.MW1/W18 is also a forged document. Annexure

D, filed by the claimant, alongwith his application dated

18.10.2011, is an exact copy of Ex.WW1/4, except that it

purports to be muster roll of daily rated workers for the

month of April 1996. Annexure E is the facsimile of

Ex.WW1/4. Except the interpolation of the month to which

Annexure E or Ex.WW1/4 relate, these two documents

purport to be copy of Annexure D. As pointed out above,

file in respect of these documents purport to have been

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1441

opened in the year 2006. File for muster roll for the month

of April 1993 as well as April 1996 cannot be opened in the

year 2006, as explained by Shri Mehra. Thus, it is obvious

that Ex.WW1/4, Annexure D and Annexure E were

fabricated by the claimant only with an idea to project that

he was working with the Institute in April 1993. When

closely perused, it came to light that this file was opened

in 1995 and it relates to muster roll of daily rated workers

for the month of April 1996. Resultantly, Ex.WW1/4 cannot

espouse the cause of the claimant, being a fabricated

document.

36. As per the case projected by the claimant before

the CAT, it emerge out of order Ex.MW1/2, that he was

engaged by the Institute for the first time in 1996, which

proposition is not disputed by the Institute. Period for

which the claimant worked with the Institute was detailed

by the latter in its written statement filed before the

Conciliation Officer. The Institute details period of

engagement of the claimant in the said document as follows:

January 1997 – 4 days, February 1997 – 20 days,

March 1997 – 21 days, April 1997 – 15 days, May

1997 – 5 days, June 1998 – 26 days, July 1997 –

25 days, August 1997 – 19 days, September 1997 –

24 days, October 1997 – 23 days, November 1997 –

11 days, December 1997 – 25 days, January 1998 –

27 days, February 1998 – 24 days, March 1998 –

25 days, May 1998 – 17 days, June 1998 – 25 days,

July 1998 – 26 days, August 1998 – 26 days, September

1998 – 25 days, October 1998 – 26 days, January

1999 – 25 days, February 1999- 23 days, March 1999

– 23 days, May 1999 - 15 days, June 1999 – 16 days,

May 2000 – 6 days, June 2000 – 25 days, July 2000 –

25 days, August 2000 – 21 days, September 2000 –

23 days, November 2000 – 16 days, December 2000

– 22 days, January 2001 – 23 days, February 2001 –

26 days.

37. The claimant was re-engaged on 20.01.1997 and

worked with the Institute at different spells till 30.06.1999.

His services were dis-engaged, which action was

challenged by him before the CAT. The CAT directed the

Institute to give him priority of re-engagement over freshers

and new comers. Pursuant to the said directions, claimant

was re-engaged by eh Institute in May 2000. He worked

for the following period till his services were again

dispensed vide order dated 09.03.2001:

May 2000-6 days, June 2000-25 days, July 2000-25

days, August 2000-21 days, September 2000 - 23

days, November 2000-16 days, December 2000-22

days, January 2001-23 days, February 2001-27 days

and March 2001-9 days.

38. Contra to it, claimant attempts to say that he

continuously served the Institute till 06.06.2008, the date

when his serves were terminated. Except the bald statement

made in his affidavit, no documents in the form of record

of attendance, payment of wages or other service record

was placed before the Tribunal by the claimant to project

that he continuously served the Institute till 06.06.2008. It

is for the claimant to lead evidence to show that he had in

fact worked for 240 days in a year preceding his termination

and mere filing of affidavit cannot be regarded as sufficient

evidence in that regard.

39. Burden to prove that he had worked for 240

days in a year lies on the claimant, when such a claim is

denied by his employer. Mere ocular facts in that regard

would not be enough to prove the factum of continuously

serving the employer for 240 days. To discharge that onus,

claimant had to adduce cogent evidence, both ocular and

documentary. He is to bring over the record nominal muster

rolls for the given period, letter of engagement or

termination, wage register, attendance register. In case he

fails to produce such documentary evidence to

substantiate his claim, his ocular testimony would be of

no avail. Law to this effect was laid by the Apex Court in

Rajasthan State Ganganagar Mills [2004 (103) FLR 192],

R.M. Yelati [2006(1) SCC 206] and Shymal Chandra

Bhowmik [2006 (1) SCC 337].

40. Claimant makes a bald statement to this effect

that he continuously served the Institute till 06.06.2008.

On the other hand, his termination letter dated 09.03.2001

has been placed over the record. Dr. Vijay Kumar also

deposes that the claimant was not engaged thereafter.

Consequently, it is concluded that services of the claimant

were dispensed with on 09.03.2001 and he was not engaged

thereafter.

41. As pointed out above, continuous service of

240 days is to be reckoned in preceding 12 months from

the date when services of an employee is dispensed with

by his employer. Therefore, this Tribunal has to reckon

period of 240 days from 09.03.2001 in order to ascertain

continuity of service for a period of one year, as

contemplated by section 25B of the Act. When this exercise

is undertaken, it emerges that claimant rendered continuous

service of 182 days from March 2001 to April 2000, 31 days

from March 2000 to April 1999, 216 days from March 1999

to April 1988, 249 days from March 1988 to April 1997 and

45 days service from March 1997 to June 1997. When he

was re-engaged in May 2000, he served the Institute till

09.03.2001. After his re-engagement the claimant rendered

continuous service of 196 days.

42. Period of service rendered by the claimant, as

detailed above, nowhere includes Sundays and holidays.

In a year, an employee may get 52 weekly offs, besides

three national holidays. In case 52 weekly offs and three

national holidays are added to the periods referred above,

it would come over the record that the claimant rendered

continuous service of 240 days in calendar year from March

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[PART II—SEC. 3(ii)]

1999 to April 1998 and from March 1998 to April 1997,

within the meaning of section 25B of the Act. Issue, is

therefore, answered in favour of the claimant and against

the Institute.

Issue No. III

43. Next count of attack was made by the Institute

claiming that orders passed by the CAT operates as res

judicata. According to Shri Khan, claimant is estopped

from raising any grievance in respect of the propositions

which were adjudicated by the CAT in its order dated

08.12.1999. Contra to it, Shri Prasad submits that CAT

does not exercise concurrent jurisdiction with this Tribunal

in respect of matters covered under the Act. He agitates

that since CAT does not exercise concurrent jurisdiction

with this Tribunal, orders passed by CAT do not operate

as res judicata. For an answer to this proposition, it would

be considered as to whether order dated 08.12.1999, proved

as Ex.MW1/2, operates as res judicata. For an answer to

this proposition, law relating to doctrine of res-judicata

would be noted. Law laid under section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgment, as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by

Das Gupta J. in the case of Satyadhyan Ghosal (AIR 1960

S.C. 941) in following words:

“The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter – whether on a

question of fact or a question of law – has been

decided between two parties in one suit or

proceeding and the decision is final, either because

no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither

party will be allowed in a future suit or proceedings

between the same parties to canvass the matter

again”.

44. It is not every matter decided in a former suit

that will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue

in the subsequent suit must be the same matter

which was directly and substantially in issue

either actually or constructively in the former.

The former suit must have been a suit between

the same parties or between parties under

whom they or any of them claim.

Such parties must have been litigating under

the same title in the former suit.

The court which decided the former suit must

be a court competent to try the subsequent

suit or the suit in which such issue is

subsequently raised.

The matter directly and substantially in issue

in the subsequent suit must have been heard

and finally decided by the court in the former

suit.

45. In Nawab Hussain, (1977 Lab. I.C.911), the Apex

Court enunciated general principles of doctrine of res-

judicata as under:

“The principle of estoppel per res judicata is a rule

of evidence. As has been stated in Marginson v.

Blackburn Borough Council [1939 (2) KB 426 at P.437]

it may be said to be “the broader rule of evidence

which prohibits the reassertion of a cause of action.”

This doctrine is based on two theories: (i) the finality

and conclusiveness of judicial decisions for the final

termination of disputes in the general interest of the

community as a matter of public policy, and (ii) the

interest of the individual that he should be protected

from multiplication of litigation. It, therefore, serves

not only a public but also a private purpose by

obstructing the reopening of matters which have

once been adjudicated upon. It is thus not

permissible to obtain a second judgment for the same

civil relief on the same cause of action, for otherwise

the spirit of contentiousness may give rise to

conflicting judgments of equal authority, lead to

multiplicity of actions and bring the administration

of justice into disrepute. It is the cause of action

which gives rise to an action, and that is why it is

necessary for the courts to recognize that a cause of

action which results in a judgment must lose its

identity and vitality and merge in the judgment when

pronounced. It cannot therefore survive the

judgment, or give rise to another cause of action on

the same facts. This is what is known as the general

principle of res-judicata.”

46. Whether CAT is competent to try the present

industrial dispute, in order to form an opinion that the

order under reference operates as res judicata. It emerged

out of order Ex.MW1/1 that the claimant moved a petition

before the CAT pleading therein that he was working with

the Institute as a casual employee since April 1996. His

services were discontinued at the end of November 1996.

However, he was re-engaged on 20.01.1997 and served he

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Institute continuously till 13.06.1999 with occasional

breaks. His services were dispensed with by oral order of

13.06.1999. He claimed reinstatement in service, besides

conferment of temporary status in terms of instructions

contained in office memorandum dated 10.09.1993. On

hearing the parties, the CAT concluded that the claimant

shall have priority of re-engagement over freshers and

new comers and in case he has completed more than 240

days, he was also to be considered for conferment of

temporary status. As projected above, this Tribunal has

to adjudicate as to whether the claimant is entitled for

conferment of temporary status with effect from 01.02.1993.

Thus, obviously in OA No.1980 of 1999, claimant raised

the issue before the CAT that he was entitled to

conferment of temporary status, which proposition was

answered in order Ex.MW1/2. Therefore, it is evident that

the matter which is directly and substantially in issue in

the present adjudication was directly and substantially

the issue in original application filed before the CAT and

parties were the same. Only proposition which is to be

adjudicated is as to whether CAT is competent to

adjudicate the industrial dispute referred for adjudication

to this Tribunal. Section 14 of the Administrative Tribunal

Act, 1985 contemplates that the CAT shall exercise

jurisdiction, powers and authority in relation to recruitment

and matters concerning any civil services or civil post in

the union. For sake of convenience, provisions of sub-

section (i) of section 14 of the Administrative Tribunal

Act, 1985 are extracted thus:

“14(1) Save as otherwise expressly provided in this

Act, the Central Administrative Tribunal shall

exercise, on and from the appointed day, all the

jurisdiction, powers and authority exercisable

immediately before that day by all courts except the

Supreme Court in relation to—

(a) recruitment, and matters concerning recruitment,

to any All- India Service or to any civil service of

the Union or a civil post under the Union or to a

post connected with defence or in the defence

services, being, in either case, a post filled by a

civilian;

(b) all service matters concerning—

(i) a member of any All- India Service; or

(ii) a person [not being a member of an All- India

Service or a person referred to in clause (c)]

appointed to any civil service of the Union or

any civil post under the Union; or

(iii) a civilian not being a member of an All- India

Service or a person referred to in clause (c)]

appointed to any defence, services or a post

connected with defence, and pertaining to the

service of such member, person or civilian, in

connection with the affairs of the Union or of

any State or of any local or other authority

within the territory of India or under the control

of the Government of India or of any

corporation [or society] owned or controlled

by the Government;

connection with the affairs of the Union

concerning a person appointed to any service or

post referred to in sub-clause (ii) or sub-clause

(iii) of clause (b), being a person whose services

have been placed by a State Government or any

local or other authority or any corporation [or

society] or other body, at the disposal of the

Central Government for such appointment”.

47. Section 28 of the Administrative Tribunals Act,

1985 projects that Industrial Tribunal, Labour Court or

other authority constituted under the Act shall exercise

jurisdiction in respect of service conditions and matters

contained in the Act. For sake of convenience, provisions

of the said section are reproduced thus:

“28. ‘On and from the date from which any

jurisdiction, powers and authority becomes

exercisable under this Act by a Tribunal in relation

to recruitment and matters concerning recruitment

to any service or post or service matters concerning

members of any service or persons appointed to

any service or post, no court except-

(a)

the Supreme Court; or

(b)

any Industrial Tribunal, Labour Court or other

authority constituted under the Industrial

Disputes Act, 1947 or any other corresponding

law for the time being in force, shall have or be

entitled to exercise any jurisdiction, powers

or authority in relation to such recruitment or

matters concerning such recruitment or such

service matters.”

48. The above provisions make it apparent that

though CAT shall exercise all jurisdiction, powers and

authority in relation to recruitment to any civil service or

post under the Union or to a post connected with defence

or in the defence services, in either case, a post filled by a

civilian, yet an Industrial Tribunal constituted under the

Act shall have jurisdiction in relation to recruitment and

matters concerning recruitment, in service or post or

services matters concerning any person who falls within

the ambit of the Act. Therefore, it emerges that the CAT

exercises concurrent jurisdiction with Industrial Tribunal

or Labour Court, constituted under the Act in relation to

recruitment and matters concerning recruitment to any

service or post or service matters concerning any person,

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[PART II—SEC. 3(ii)]

who falls within the ambit of workmen as defined under

the Act.

49. Whether civil court has jurisdiction in relation

to industrial dispute, the Apex Court dealt with the matter

in Premier Automobiles (1976(1) SCC 496). On

consideration of catena of decisions on the subject, The

Apex Court enunciated following principles :

“(1) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right under

the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out

of a right or liability under the general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election of

the suitor concerned to choose his remedy for the

relief which is competent to be granted in particular

remedy.

(3) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suitor is to get

an adjudication under the Act.

(4) If the right which is sought to be enforced is a

right created under the Act such as Chapter VA then

the remedy for its enforcement is either section 33C

or the raising of an industrial dispute, as the case

may be.

We may, however, in relation to principle 2 stated

above hasten to add that there will hardly be a

dispute which will be an industrial dispute within

the meaning of section 2(k) of the Act and yet will be

one arising out of a right or liability under the general

or common law only and not under the Act. Such a

contingency, for example, may arise in regard to the

dismissal of an unsponsored workman which in view

of the provision of law contained in Section 2A of

the Act will be an industrial dispute even though it

may otherwise be an individual dispute. Civil Courts,

therefore, will have hardly an occasion to deal with

the type of cases falling under principle 2. Cases of

industrial disputes by and large, almost invariably,

are bound to be covered by principle 3 stated

above.”

50. While analysing principles adumbrated in

Premier Automobiles (supra), the Apex Court in Rajasthan

State Road Transport Corporation (1995(5) SCC 75)

summarised those principle as follows:

“(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

“industrial dispute’’ within the meaning of Section

2(k) or Section 2-A of the Industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of right and

obligations created by enactment like Industrial

Employment (Standing Orders) Act, 1946 - which

can be called “sister enactments” to Industrial

Disputes Act-and which do not provide a forum for

resolution of such disputes, the only remedy shall

be to approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forums created by the

Industrial Disputes Act. Otherwise, recourse to civil

court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the Government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex facie. The power conferred

is the power to refer to refer and not the power to

decide, though it may be that the Government is

entitled to examine whether the dispute is ex facie

frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

recommend to Parliament and the State Legislatures

to make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly- i.e.,

without the requirement of a reference by the

Government in case of industrial disputes covered

by Section 2-A of Industrial Disputes Act. This would

go a long way in removing the misgivings with

respect to the effectiveness of the remedies provided

by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

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1445

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to “statutory provisions”. Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created

by the Industrial Disputes Act or the civil court where

recourse to civil court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute-resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and unencumbered by the plethora of

procedural laws and appeals upon appeals and

revisions applicable to civil courts. Indeed, the

powers of the courts and tribunals under the

Industrial Disputes Act are far more expensive in

the sense that they can grant such relief as they

think appropriate in the circumstances for putting

an end to an industrial dispute.

51. As detailed above, the Apex Court ruled that

when a dispute involves recognition, observance or

enforcement of any of the rights or obligations created by

the Act, the only remedy is to approach the forums created

by the Act only. For adjudication of an industrial dispute,

which falls within the ambit of the Act, the CAT does not

have any jurisdiction. It is obvious that provisions of

section 28 of the Administrative Tribunals Act, 1985 are in

contradiction to the law laid down by the Apex Court,

when it relates to exercise of jurisdiction, powers or

authority in relation to recruitment or matters concerning

such recruitment or conditions of service of any person,

who happens to be a workman within the meaning of

section 2(s) of the Act. This proposition was considered

by the CAT in its decision in A. Padmavalley etc. 1991(1)

SLR 245) wherein proposition of law laid in Premier

Automobile (supra), provisions of the Act as well as

provisions of Administrative Tribunals Act, 1985 were

construed and it was ruled that the CAT is not a substitute

for the authorities constituted under the Act and does not

exercise concurrent jurisdiction in regard to matters

covered by the Act. The CAT concluded the proposition

as follows:

(i)

Administrative Tribunal constituted in the

Administrative Tribunals Act are not

substitutes for the authorities constituted under

the Industrial Tribunals Act and hence the

Administrative Tribunal does not exercise

concurrent jurisdiction with those authorities

in regard to matters covered by that Act. Hence,

all matters over which the Labour Court of the

Industrial Tribunal or other authorities had

jurisdiction under the Industrial Disputes Act,

do not automatically become vested in the

Administrative Tribunal for adjudication. The

decision in the case of Sisodia, which lays down

a contrary interpretation is, in our opinion, not

correct.

(ii)

An applicant seeking relief under the provisions

of the Industrial Disputes Act must ordinarily

exhaust the remedies available under that Act.

(iii)

The powers of the Admin. Tribunal are the

same as that of the High court under Article 226

of the Constitution and the exercise of that

discretionary power would depend upon the

facts and circumstances of each case as well as

on the principles laid down in the case of Rohtas

Industries (supra).

(iv)

The interpretation given to the term

‘arrangement in force’ by the Jabalpur Bench in

Rammoo’s case is not correct.

52. In view of the legal principles laid above, it is

evident that CAT does not exercise concurrent jurisdiction

with this Tribunal in regard to rights and obligations arising

out of the Act. Resultantly, it is crystal clear that the CAT

is not competent to adjudicate the industrial dispute, and

as such, order passed by it in OA No.1980 of 1999 on

08.12.1999 would not operate as res judicata. Submissions

made by Shri Khan, to the effect that the claimant cannot

re-agitate the very issue relating to conferment of temporary

status, which was adjudicated by the CAT vide order

Ex.MW1/2, are untenable. His submissions in that regard

are brushed aside.

53. Claimant seeks conferment of temporary status,

since he claims to have rendered continuous service of

240 days in the aforesaid period. For adjudication of his

claim for grant of temporary status, it is expedient to note

the scheme formulated by Government of India in that

regard. Scheme was formulated vide office memorandum

No.51016/2/90-Estt (C) dated 10.09.1993, which runs as

under:

“1. This scheme shall be called “Casual Labourers

(Grant of Temporary Status and Regularization)

Scheme of Government of India, 1993.”

2. This Scheme will come into force with effect

from 1.9.1993.

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[PART II—SEC. 3(ii)]

3. This scheme is applicable to casual labourers

in employment of the Ministries/Departments of

Government of India and their attached and

subordinate offices, on the date of issue of these

orders. But it shall not be applicable to casual

workers in Railways, Department of

Telecommunication and Department of Posts who

already have their own schemes.

4. Temporary Status

(i) Temporary status would be conferred on all

casual labourers 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 offices observing 5 days week).

(ii) Such conferment of temporary status would

be without reference to the creation/availability

of regular Group ‘D’ posts.

(iii) Conferment of temporary status on a casual

labourer would not involve any change in his

duties and responsibilities. The engagement will

be on daily rates of pay on need basis. He may be

deployed anywhere within the recruitment unit/

territorial circle on the basis of availability of work.

(iv) Such casual labourers who acquire temporary

status will not, however, be brought on to the

permanent establishment unless they are selected

through regular selection process for Group ‘D’

posts.

5. Temporary status would entitle the casual

labourers to the following benefits:-

(i) Wages at daily rates with reference to the

minimum of the pay scale for a corresponding

regular Group ‘D’ official including DA, HRA and

CCA

(ii) Benefits of increments at the same rate as

applicable to a Group ‘D’ employee would be

taken into account for calculating pro-rata wages

for every one year of service subject to

performance of duty for at least 240 days, 206

days in administrative offices observing 5 days

week) in the year from the date of conferment of

temporary status.

(iii) Leave entitlement will be on a pro-rata basis

at the rate of one day for every 10 days of work,

casual or any other kind of leave, except

maternity leave, will not be admissible. They

will also be allowed to carry forward the leave at

their credit on their regularization. They will not

be entitled to the benefits of encashment of leave

on termination of service for any reason or on

their quitting service.

(iv) Maternity leave to lady casual labourers

as admissible to regular Group ‘D’ employees

will be allowed.

(v) 50% of the service rendered under temporary

status would be counted for the purpose of

retirement benefits after their regularization.

(vi) After rendering three years’ continuous

service after conferment of temporary status,

the casual labourers would be treated on par with

temporary Group ‘D’ employees for the purpose

of contribution to the General Provident Fund,

and would also further be eligible for the grant of

Festival Advance/Flood Advance on the same

conditions as are applicable to temporary Group

‘D’ employees, provided they furnish two

sureties from permanent Government servants

of their Department.

(vii) Until they are regularized, they would be

entitled to Productivity Linked Bonus/ Ad- hoc

bonus only at the rates as applicable to casual

labourers.

6. No benefits other than those specified above

will be admissible to casual labourers with

temporary status. However, if any additional

benefits are admissible to casual workers working

in Industrial establishments in view of provisions

of Industrial Disputes Act, they shall continue to

be admissible to such casual labourers.

7. Despite conferment of temporary status, the

services of a casual labourer may be dispensed

with by giving a notice of one month in writing. A

casual labourer with temporary status can also

quit service by giving a written notice of one

month. The wages for the notice period will be

payable only for the days on which such casual

worker is engaged on work.”

54. As projected above, an employee has to render

continuous service of 240 days in a calendar year for

conferment of temporary status. Calender year for the

purpose of section 25B of the Act is to be reckoned going

backwards from the date when the services of the workman

has been dispensed with by his employer. From the date

of termination of his services, it is to be noted whether he

had rendered continuous service of 240 days in preceding

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12 months. Therefore calendar year for section25B of the

Act is different than the calendar year which is to be taken

into account while reckoning 240 days continuous service

for grant of temporary status to the claimant. For that

purpose, when an exercise is undertaken it emerged over

the record that the claimant rendered 244 days continuous

service from April to November 1996, 218 days continuous

service from January 1997 to December 1997, 221 says

from January 1998 to December 1998, 102 days continuous

service from January 1999 to December 1999, 138 days

from January 2000 to December 2000 and 58 days from

January 2001 to 9^th March 2001. As noted above, he

rendered continuous service of 240 days in the year 1996.

Whether continuous service of 244 days rendered by the

claimant in the year 1996 would entitle him for conferment

of temporary status. Answer has been provided by Office

Memorandum No.40011/6/2002-Estt(C) dated 06.06.2002,

which runs as under:

“Subject: Casual Labourers (Grant of Temporary

Status and Regularization) Scheme of Govt. of India,

1993-Clarifications.

The Undersigned is directed to say that the Casual

Labourers (Grant of Temporary Status &

Regularization) Scheme of Government of India, 1993

formulated in pursuance of the CAT, Principal Bench

judgement dated 16^thFebruary, 1990 in the case of

Raj Kamal & Others Vs. Union of India and circulated

vide this Department’s OM no.51016/2/90-Estt(C )

dated 10^thSeptember, 1993, inter alia stipulate the

following conditions for grant of temporary status

to the persons recruited on daily wage basis in the

Central Government Offices:-

(i) Temporary status would be conferred on all casual

labourers who are in employment on the date of

issue of the OM (namely 10-9-93);

(ii) Should 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 offices observing five days a

week); and

(iii) Conferment of temporary status on casual

labourer would not involve any change in his duties

and responsibilities and the engagement will be on

daily rates of pay on need basis. He may be deployed

anywhere within the recruitment unit/territorial circle

on the basis of availability of work.

2. Various Benches of the CAT and some High Courts

have been taking the view that the scheme is an

ongoing affair and that any casual employee who is

engaged for 240 days or more (206 days in case

of five days a week offices) acquired a right to

temporary status. The Supreme Court has finally

decided the matter in SLP ( Civil ) No. 2224/2000) in

the case of Union of India& Anr. Vs. Mohan Pal etc.

etc. The Supreme Court has directed that:-

“The Scheme of 1-9-93 is not an ongoing Scheme

and the temporary status can be conferred on the

casual labourers under that Scheme only on fulfilling

the conditions incorporated in clause 4 of the

scheme, namely, they should have been casual

labourers in employment on the date of the

commencement of the scheme and they should have

rendered continuous service of at least one year i.e.

at least 240 days in a year or 206 days (in case of

offices having 5 days a week). We also make it clear

that those who have already been given ‘temporary’

status on the assumption that it is an ongoing

Scheme shall not be stripped of the ‘temporary’

status pursuant to our decision”.

3. The Supreme Court in the above case have also

considered the question as to whether the services

of casual labourers who had been given ‘temporary

status could be dispensed with as per clause 7 as

if they were regular casual labourers and observed

that-

“The casual labourers who acquire ‘temporary’

status cannot be removed merely on the whims and

fancies of the employer. If there is sufficient work

and other casual labourers are still to be employed

by the employer for carrying out the work, the casual

labourers who have acquired ‘temporary’ status shall

not be removed from service as per clause 7 of the

Scheme. If there is serious misconduct or violation

of service rules, it would be open to the employer to

dispense with the services of a casual labourer who

had acquired the ‘temporary’ status”

55. As detailed above, for conferment of temporary

status, casual labour should be in the employment on the

date of commencement of the scheme and should have

rendered continuous service of atleast one year, i.e. 240

days or 206 days in case of offices observing 5 day week,

in a year. Therefore, it becomes expedient for conferment

of temporary status that the claimant should have been in

the employment as on 10.09.1993. Since the scheme is not

an ongoing scheme, it does not pertain to a casual employee

who has been engaged for the first time in April 1996.

Resultantly, it is clear that factum of rendering continuous

service of 244 days in 1996 would not entitle the claimant

for conferment of temporary status under the scheme

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[PART II—SEC. 3(ii)]

referred above. Law to this effect has been laid by the

Apex Court in Wazir Singh [JT 2002(3) SC 49] wherein it

was concluded that casual employee should be in

continuous service of 240 days from the date of issuance

of the circular till be becomes eligible for conferment of

temporary status.

56.When claimant had rendered continuous service

of 240 days with the Institute, in such a situation

the Institute was under an obligation to give one

months’ notice or pay in lieu thereof and

retrenchment compensation to the claimant. It is

not the case of the Institute that on 09.03.2001,

claimant reached the age of superannuation or

sought voluntary retirement. No evidence was

brought to show that he was employed for a fixed

term of contract or his services came to an end on

none renewal of the contract agreement. It was also

not asserted that his services were terminated on

grounds of continued ill health. Neither services of

the claimant were done away as punishment for a

domestic action nor action of the management falls

within the category exempted under second limb of

section 2(oo) of the Act. Thus it is obvious that

termination of services of the claimant, for any other

reason, amounts to retrenchment, as defined by

clause (oo) of section 2 of the Act.

57. The Institute was under an obligation to pay

him compensation for retrenchment, when his services

were dispensed with. Payment of retrenchment

compensation is a condition precedent to a valid order of

retrenchment. Precedents in Bombay Union of Journalists

[1964 (1) LLJ 351], Adaishwar Lal (1970 Lab.I.C.936) and

B.M. Gupta [1979 (1) LLJ 168] announce that subsequent

payment of compensation cannot validate an invalid order

of retrenchment.

58. Since one month notice or pay in lieu thereof

specifying reasons for retrenchment and retrenchment

compensation was not given to the claimant, his

retrenchment is violation of provisions of section 25F of

the Act. When order of termination of service is illegal or

wrongful, the industrial adjudicator has to make a specific

order of reinstatement of a workman. The problem

confronting the industrial adjudicator is to promote its

two objectives, security of an employee and protection

against wrongful discharge or dismissal on the one hand

and industrial peace and harmony on the other, fully

leading ultimately to the goal of maximum possible

production. In dealing with these problems, an industrial

adjudicator is to balance relevant factors without adopting

legalistic and doctrinaire approach. The Tribunal has to

examine through circumstances of each case to see

whether reinstatement of dismissed employee is not

inexpedient or improper. It has to take a decision in a spirit

of fairness and justice following rules of justice and reason

and after carefully examination of the facts and

circumstances of the case. Past record of the employee,

nature of his alleged present lapse and the grounds on

which order of the management is set aside are also

relevant factors for consideration. Normally, where a

workman cannot said to be a type of person whose

presence as an employee is undesirable and not conducive

to maintenance of industrial peace, it will not be fit case

for depriving him relief of reinstatement and grant him

compensation in lieu thereof. Law to this effect was laid

by the Apex Court in Ruby General Insurance Company

Ltd. [1970(1) LLJ 63] and Management of Monghyr Factory

of ITC Ltd.,Monghyr (1978 Lab.I.C. 1256). Reference can

also be made to Western India Plywood Ltd. [1982(1) LLJ

113] and Delhi Cloth and General Mills Co. Ltd. [1989

Lab.I.C. 490].

59. As projected above, termination of service of

the claimant is violative of provisions of section 25F of

the Act. However, it emerged over the record that the

claimant fabricated documents in order to project a claim

for conferment of temporary status and reinstatement in

service. Since this Tribunal is not a civil court within the

meaning of section 340 of the Code of Criminal Procedure,

1973, no enquiry was instituted in the matter to lodge a

complaint against the claimant. However, it emerged over

the record that the claimant is a type of person whose

presence as an employee is undesirable and not conducive

to maintaining industrial peace. Therefore, I am of the

considered opinion that relief of reinstatement in service

is found not to be justified. Section 11 A of the Act vests

the industrial adjudicator with discretionary powers to

give ‘such other relief to the workman’ in lieu of dismissal

as circumstances of the case may require, where for some

valid reasons, it considers that reinstatement with or

without conditions will not be fair or proper.

60. When relief of reinstatement is not granted, in

the alternative, the Tribunal may award compensation to

the claimant in lieu of his reinstatement. No definite

yardstick for measuring the quantum of compensation is

available. In S.S.Shetty [1957 (11) LLJ 696] the Apex Court

indicated some relevant factors which an adjudicator has

to take into account in computing compensation in lieu of

reinstatement, in the following words:

“The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party,

the possibility of retrenchment by the employer or

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resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future........ In

computing the money value of the benefits of

reinstatement, the industrial adjudicator would also

have to take into account the present value of what

his salary, benefits etc. would be till he attained the

age of superannuation and the value of such

benefits would have to be computed as from the

date when such reinstatement was ordered under

the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors

pro and con”.

61. A Divisional Bench of the Patna High Court in

B.Choudhary Vs. Presiding Officer, Labour Court,

Jamshedpur (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee’s age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer’s business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

62. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that “it would be fair and just to direct the appellant a

substantial sum as compensation to her”. In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K.Roy [1970 (1) LLJ 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLJ 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs.50000/- as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P.Bhandari [1986 (II) LLJ 509], the Apex Court

observed that it was a fit case for grant of compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In M.K.

Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the

back salary to 50% of what would otherwise be payable to

the employee. In Yashveer Singh (1993 Lab.I.C.44) the

court directed payment of Rs.75000/- in view of

reinstatement with back wages. In Naval Kishor [1984 (II)

LLJ 473] the Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs.2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs.2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs.2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab.I.C.107) a compensation of Rs.65000/- was

granted in lieu of reinstatement, since the employee was

gainfully employed elsewhere. In V.V.Rao (1991

Lab.I.C.1650) a compensation of Rs.2.50 lac was awarded

in lieu of reinstatement.

63. Claimant rendered two years’ continuous service

to the Institute, besides other spells which fell short of

240 days. His services were dispensed with in the year

2001 and he had to fight for redressal of his grievance. He

was a young man, when he was engaged by the Institute.

Now, he had crossed maxima of age, required for

recruitment in Government service. Keeping in view all

these facts, I am of the view that an amount of Rs.75,000.00

as compensation in lieu of reinstatement in service, would

meet the ends of justice. The Institute shall pay aforesaid

amount of compensation to the claimant in lieu of his

reinstatement in service. An award is, accordingly, passed.

It be sent to the appropriate Government for publication.

Dated: 14.11.2013

Dr. R. K. YADAV, Presiding Officer

1450

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 500-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

iqjLdkj izdkf'kr djrk gS (lanHkZ la[;k 94@2000) lqi¯jaVsa¯Mx

bathfu;j] VsfydkWe flfoy l£dy] iVuk ds izca/ra=k ds lac¼

fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;&2]

/uckn ds iapkV (lanHkZ la[;k 94@2000) dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&40012@237@2000&vkbZ vkj (Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 24th January , 2014

S.O. 500.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 94/2000)

of the Central Government Industrial Tribunal/Labour Court

No. 2, Dhanbad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of The Suptd. Engineer, Telecom Civil

Circle, Patna and their workman, which was received by

the Central Government on 20-1-2014.

[No. L-40012/237/2000-IR (DU)]

P. K. VENUGOPAL, 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(l)(d) of the I.D. Act,1947.

REFERENCE NO. 94 OF 2000

PARTIES : Shri Hari Nandan Sharma,

Vill. Gauri Pundah, Fatuha, Patna

Vs.

Suptd. of Engineer (H.Qr)

Telecom Civil Circle,

Abdul Hai Commercial Complex,

Exhibition Road, Patna

APPEARANCES:

On behalf of the workman/Union :

Mr. S.N. Goswami,

Ld. Advocate

On behalf of the Management

Mr. Sishil Kumar,

Ld. Advocate

State : Jharkhand

Industry : Telecommunication

Dated, Dhanbad, the 27th Dec., 2013.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on then under Sec. 10(1)

(d) of the LD. Act,1947 has referred the following dispute

to this Tribunal for adjudication vide their Order No.

L-40012/237/2000-IR(DU) dt.29.08.2000.

SCHEDULE

"Whether the action of the management of Telecom

Deptt. in terminating the services of Shri Hari Nandan

Sharma . w.e.f,. 14.1.97 is justified? If not to what

relief the workman is entitled?"

2. The case of workman Hari Nandan Sharma stated

in his written statement is that he had been continuously

working as permanent Group "D" staff since 2.9.94 against

permanent vacancy like permanent workman for eight hours

a day, yet the management illegally designated him as a

casual workman. Despite his several representations to

the management for his regularization, payment of wages

and other benefits at par with other Group "D" workmen,

and though on repeated insistence, it was agreed to pay

wage for the holiday, the management unreasonably and

illegally terminated his service w.e.f., 14.1.1997 in utter

violation of the mandatory provision of Sec. 25-F and N of

the I.D. Act. When he made several representations before

the Management against the illegal and arbitrary

termination of service, the industrial dispute raised by the

workman at last due to adamant attitude of the management

failed in its reconciliation, resulted in the reference for

adjudication. The action of the management, vindictive

and anti-labour, was illegal and unjustified.

3. The workman in his rejoinder categorically denying

the allegations of the management has stated that he was

getting the wages and other benefits; he had put in more

than 240 days attendance in each calendar year. The Telecom

Department is an industry as per the settled law of Hon'ble

Supreme Court, so the reference is maintainable on the

facts and laws.

4. Whereas the case of the O.P./Management with

specific denials is that workman Hari Nandan Sharma was

engaged as a Daily Wager part time peon by the Asstt.

24th Sept., 1994 to 1997 as specified i.e., for 138, 211 and

116 days during the period from Sept.,1994 to March,1995,

accordingly in the year 1995-96 and 1996-97 respectively.

Since he was engaged for Gaya on purely temporarily and

part time, and the class IV was posted at Jamshedpur Sub-

Division. So acceptance of service of the workman does

not arise. The petition of the applicant was unconsiderable;

hence his case was terminateable without any

consideration, so the applicant is not entitled to continue

his service based on part time and temporary for short

time. The engagement of the workmen was purely

temporary and part time for 6 hours only, so termination of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1451

the workman was bonafide, legal and justified. It was neither

vindictive nor anti-labour policy nor against the mandatory

provision of Sec. 25 F and N of the I.D. Act.The workman

was not given any relief before the Regional Labour

Telecommunication does not come as an Industry under

the Industrial Dispute Act as per the observation of the

Hon'ble Supreme Court in 1998.The case of the workman is

unmaintainable, so he is not entitled to any relief.

FINDING WITH REASONS

5. In the Reference, WW Hari Nandan Sharma, the

workman for his own sake, and MWI Ashok Kumar, the

S.D.O. (Civil), BSNL, Civil Sub-division I Gaya for the O.P./

Management have been examined.

Mr. S.N. Goswami, the Leaned Counsel for workman

Hari Nandan Sharma as per his written argument has argued

that the workman had been serving as the peon since his

appointment against permanent vacancy from 2.9.94 putting

in more than 240 days each year until this illegal termination

from his service w.e.f. 14.1.97 without any show cause or

any payment of compensation for it, so he is entitled to

reinstatement in his service with back wages. Whereas

assailing the argument of Mr. Goswami, Mr.Sushil Kumar,

the Learned Advocate for the O.P./Management has

contended that the workman (WWI) in his cross-

examination has clearly admitted not to posses any paper

or any I.D. to show his appointment as Group D Staff by

the Management for the period of his work, nor his name

was forwarded by the Employment Exchange to the

management for the appointment, nor the management had

advertised any vacancy for any such appointment, rather

as per the statement of MWI Ashok Kumar, the S.D.O.

(Civil), B.S.N.L., Civil Sub-Division I at Gaya has affirmed

that the workman was temporarily engaged for some days

on daily basis for which his wage was paid to him directly

by the S.D.E. through ACG.17 and since he was never

appointed under DOT or BSNL,there is no matter of his

termination.

6. After hearing both Learned Counsels for their

respective parties and perusal of the oral statements of

workman Hari Nandan Sharma (WWI) and Mr.Ashok

Kumar (MWI), I find that the status of the workman as a

purely temporary worker on daily basis who was paid his

wage through vouchers for his work done is indisputable.

The workman has not any proof of his continuous working

as peon for 240 days in a calendar year concerned, nor any

chit of document to show his appointment permanently

against permanent vacancy, so no applicability of the word

"termination" applies to the case . Since the workman was

a daily rated temporary worker who never completed

minimum 240 days in a calendar year preceding the date of

the reference as required and defined under Sec.25 B (a) (ii)

for "continuous service" under the Industrial Disputes Act,

1947, so the unengagement of the temporary workman

working for some days only cannot be a termination of his

temporary service at any moment in the case, as he was

never legally appointed by the Management.

In result, it is,

ORDERED

That Award is and the same be passed that since

workman Hari Nandan Sharma was purely a temporary

casual worker for some days who was never in continuous

service as a peon for minimum period of relevant calendar

year under Sec. 25 B (a) (ii) of the I.D. Act 1947, no question

of the alleged action of the Management of Telecom Dept.

in allegedly terminating his service w.e.f. 14.1.97 as justified

or unjustified arises. The case is completely devoid of

merits. Hence, the workman is not at all entitled to any

relief.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 24 tuojh] 2014

dk-vk- 501-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rn~}kjk

iqjLdkj izdkf'kr djrk gS (lanHkZ la[;k 14@2008) Mk;jsDVj]

nwjn'kZu dsUnz] jkaph ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds

deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;&2] /uckn ds

iapkV (lanHkZ la[;k 14@2008) dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 20&1&2014 dks izkIr gqvk Fkk A

¹la- ,y&42012@74@2006&vkbZ vkj (Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 24th January , 2014

S.O. 501.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 14/2008)

of the Central Government Industrial Tribunal/Labour Court,

No. 2, Dhanbad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of The Director, Doordarshan Kendra,

Ranchi and their workman, which was received by the

Central Government on 20-1-2014.

[No. L-42012/74/2006-IR (DU)]

P. K. VENUGOPAL, 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. 14 OF 2008

1452

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

PARTIES :

Pradeep Chandra Poddar,

HEC, PO : Dhurwa, Ranchi

Vs.

Director,

Doordarshan Kendra,

Ranchi, Jharkhand

APPEARANCES :

On behalf of the

Mr. S. N. Goswami,

workman/Union

Ld.Advocate

On behalf of the

Mr. D. K. Verma,

Management

Ld. Advocate

State : Jharkhand

Industry : Information & Broadcasting

Dated, Dhanbad, the 26th August, 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-420

12/74/2006-IR(DU) dt.09.0 1.2007

SCHEDULE

“Whether the action of the management of

Doordarshan Kendra, Ranchi in terminating the

services of Shri Pradeep Chandra Poddar,w.e.f.

9.1.1991 is legal and justified? If not, what relief the

workman is entitled to?”

2. The case of workman Pradeep Chandra Poddar is

that on sponsoring the name of the workman by the

Employment Exchange at the request of the management

of Doordarshan Kendra, Ranchi, for the post of Clerk-cum-

Typist against its permanent vacancy, he was interviewed

and selected for the post. He joined as Clerk-cum-Typist

on 01.05.1986 against permanent vacancy. Since then he

has been continuously working. A certificate of his

engagement from 01.05.1986 to 30.04.1988 was issued by

the Management .When the workman began to demand

regular pay scale and other benefits at par with other

employees of the establishments, he was not further issued

his subsequent experience Certificate .The management

annoyed with his repeated insistence for the aforesaid

facilities just as other 23 similarly situated workers had,

terminated his services w.e.f. 8.1.1991 but they were

regularized as per the Award dt.26.09.2011 passed by the

CGIT No.1, Dhanbad, in the Reference No. 249/1990 they

had brought in challenge to their termination. Despite

several earlier representations and later on representation

to the management for his reinstatement and back wages,

it was not responded, rather management orally informed

him not to consider his case until decision of the Hon'ble

High Court in their case instituted as a challenge to the

said Award, not only Hon'ble High Court but also Hon'ble

Supreme Court also confirmed the Award. Thereafter again

the representation of the workman for his case similar to

that of the aforesaid workmen for his reinstatement was

unconsidered by the management by not taking positive

steps for redressal of his grievance.

3. At last as per the order dt, 21.9.2000 of the Hon'ble

High Court passed in his CWJC No.1041/99(R),the workman

withdrew it, and filed an application before the Central

Administrative Tribunal(CAT). Accordingly as per the order

of the C.A.T. dt. 7.12.2004 in the O.A.No.169/02, he was

advised to move the legal forum, i.e., Industrial Tribunal

for redressal of his grievance , as also upheld by the Hon'ble

High Court, Ranchi in the W.P.(S) No.635/05 filed by him as

per its Order dt.5.1.2006, holding the finding of the Industrial

dispute as an Industrial Tribunal under the purview of the

Industrial Tribunal Act, and the CAT having no jurisdiction.

Consequently, the workman raised the present dispute

due to adamanant attitude of the management failed,

resulting in the reference for an adjudication. The petitioner

had been continuously working from 01.05.1986 to 8.1.1991

during which by putting more than 240 days attendance in

a calendar year. But the termination of his service w.e.f.

9.1.1991 by the management without following the

mandatory provision of Sec.25 F of the Industrial Dispute

Act, is neither legal nor justified and against the principle

of natural justice.

4. The workman in his rejoinder has specifically

denied all the allegations of the O.P./Management, and

stated that disengagement of an employee and termination

stand on the same footing. He was a permanent workman

working against permanent vacancy. The number of

attendance may be a consideration for regularization, but

by showing poor attendance, the management has no legal

right to terminate service of the workman.

5. Whereas the contra case of the O.P./Management

with categorical denials is that reference being illegal is

unsustainable. The applicant has moved for Industrial

Dispute after lapse of 15 years highly belatedly. He has

now attained the age of 43 years 10 months as on

09.11.2006.The workman was purely engaged on

assignment basis as and when required. There is no scheme

formulated by the Government of India for regularization

of such casual workers who have rendered their service on

the casual basis only for five to ten days in a month, and

they have not completed 240 days of work in any calendar

year. As per letter No. 401/2/93-5 dt.30.09.93 issued by

Director General Doordarshan Kendra, Mandi House, New

Delhi the guidelines have been framed formulating a scheme

for regularization of casual workers, and for grant of

temporary status. The workmen has break in service in

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1453

every month, as he was engaged on a casual basis only

from 25.8.1986 as also for assignment basis as and whenever

required. The allegation of the workman about sponsoring

his name by Employment Exchange for Doordarshan

Kendra, Ranchi, inapplicable, in the case, as the post of

Tabulator Clerk comes under Group C category and as per

the recruitment Rules, the appointment is to be made on

the recommendation of the Staff Selection Commission,

but not on sponsoring by the Employment Exchange. The

case of the petitioner stands not similar to the case of 23

persons who were in Group D, was referred by the CGIT.

No.1, Dhanbad under the Industrial Dispute Act.

6. Further alleged on behalf of the O.P./Management

is that the Director Doordarshan had rightly submitted his

counter affidavit Para 5 before the Hon'ble High Court,

Ranchi Bench, concerning the Writ of the workman that he

had filed it without exhausting internal remedy available

under the provision of the Industrial Dispute Act, hence it

was liable to be dismissed the Hon'ble Central

Administrative Tribunal (CAT), Patna Bench, Patna (Ranchi

Circuit Bench) as per order dt.31.10.2001 held that that cause

of action arose in the case of the applicant against illegal

termination as also for regularization in 1991 if not before

that time, and the applicant sought to challenge his

termination as well as non-regularization in the O.A. filed

in the year 2001 which is grossly barred by the limitation.

On consideration of the representation filed by the

petitioner, the management as per its Doordarshan Kendra,

Ranchi letter dt.18.4.2002 had intimated that no other

persons similarly situated in fact and circumstances have

been regularized. At last the O.A.No.169/2002 and the Writ

W.P.(S)No.635/2005 again filed by the petitioner before the

CAT and the Hon'ble Jharkhand High Court were dismissed

on 17.12.2004 and 5.1.2006 respectively which are binding,

so the petitioner can not seek any relief before the present

Tribunal.

7. Besides, the allegation of the O.P./management is

that the petitioner had never worked on assignment basis

whenever required for more than 10 days in a month between

the period 25.8.1986 to 8.1.2001, nor completed 240 days of

working a calendar year as evident from his working days:

30,110,90,100,59 and 8 days in the years 1986 to 1991

respectively. In fact, it is not a case of termination; rather it

is a case of disengagement. The petitioner has moved for

Industrial Dispute after lapse of 15(fifteen) years which

being barred by limitation is unsustainable.

8. The O.P./Management in its rejoinder has

categorically denied the allegations of the workman, and

stated that the workman's initial C.W.J.C.No.1041/1999(R)

was dismissed as per the Order dt.21.9.2000 just as his case

before the C.A.T., Patna Bench, Ranchi was dismissed again

his W.P.(C) No. 635/2005 was also dismissed as per the

order dt. 05.01.2006. In the event of an adjudication by the

Hon'ble High Court, the Sub-ordinate Court should refrain

from entering into the merits of the case. Moreover, the

workman had not taken any leave or liability from the

Hon'ble High Court for moving before the Tribunal. The

workman now about 44 years is not entitled to any relief.

He had appeared for test, practical, written, interviewed at

the office of Doordarshan Kendra, Ranchi on 14.05.1986

but the oral test (interview)was further shifted from

12.06.1986 to 09.07.1986 at 12 a.m. The case of the workman

being devoid of merits is liable to be rejected.

FINDING WITH REASONS

9. In the reference case,WWI Pradip Chandra Poddar,

the workman for himself and MW1 Pradeep Kumar

Dutta,the UDC and MW2 Sheo Kumar Singh, the

Admn.Officer for the O.P./management have been examined

respectively. On bringing the case of the applicant Pradip

Chandra Poddar face to face with that of the O.P./

Management, the indisputable facts are that after

withdrawal of his CWJC No.1041/1991 (R) as per Order

dt.21.9.2000 of the Hon'ble High Court at Patna (Ranchi

Bench)(Ext.W4/1), the petitioner filed the D.A.10/2000(R)

before the Central Administrative Tribunal(CAT),Patna

Bench for implied regularization. But it was disposed of as

per Order dt.31.10.2001 of the C.A.T. holding it grossly

barred by limitation in view of his alleged termination in the

year 1991,with observation permitting him to approach the

Respondents for regularization, if any person similarly

situated and junior to him has been regularized in recent

years (Ext.W-2).Therefore, as per the Office Memo of the

Management dt.18.04.2002 (Ext.W.6) in response to the

applicant's applications dt.12.11.2001 and 11.12.2001, he

was intimated of non-regularization of any other person

similarly situated in Doordarshan Kendra, Ranchi in recent

years ,his case was not covered under the existing Scheme

for regularization of casual Artists, and non-existing of

sanctioned post of Typist-cum-Clerk at Doordarshan

Kendra, Ranchi.though he had also earlier filed his three

representations (Ext.W.5 series) for it.

The O.A. No. 169/2002 filed by the petitioner was

dismissed as per Order dt.17.12.2004 of the CAT, Circuit

Court at Ranchi(Ext.W-4/3),with observation for him to have

recourse to any other alternative legal Forum for redressal

of his grievance.

Likewise consequent upon the dismissal of the

petitioner's another W.P.(S)No.635/2005 as per Order

dt.05.01.2006 of the Hon'ble High Court of Jharkhand at

Ranchi (Ext.WA),the present Industrial Dispute came into

existence on 09.01.2007.

10. According to the statement of workman Pradeep

Chandra Poddar (WW1), he was appointed on sponsoring

of his name by the Employment Exchange for the post of

C1erk-cum-Typist, following his selection for it by the

Management and he continuously worked accordingly

under and for the management of Doordarshan Kendra

1454

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Ranchi since his appointment on 01.05.1986 till 8.1.1991,but

without any notice or any compensation, the management

terminated his services, though his 23 colleagues, some of

them senior, working in the same category after the verdict

of the Court concerned were regularized. The claim of the

workman for his regularization with full back wages appears

to be based on the two factors:

Firstly, his documents, i.e., his Identity Card

(Ext.W.1), Service Certificate dt.6.5.1988 (Ext.W.2 with

objection), the letters dt. 29.4.1986 and 2.7.1986 issued by

the Management of Doordarshan Kendra, Ranchi for his

written test and interview for the post of Tabulator Clerk

(Ext.W.3 & 3/1) respectively, and

Secondly, the regularization of his 23 colleagues in

the same category as per the Verdict (Award) of the Court

(Tribunal) concerned. But the workman has miserably failed

to establish which colleague in similarly situated was

regularized. In this regard, it is indisputable fact that as per

the Office Memo of the Management Doordarshan

No. RAN/DDK/1(2)2002-03 dt.18.04.2002 to the workman

(Ext.W.6) in response to the application dt. 12.11.2001 and

11.12.2001 following the Order of the CAT, Patna,

dt.31.10.2001, he was intimated about non-regularization

of other persons similarly situated in Doordarshan Kendra,

Ranchi recently, his case not covered under the existing

scheme for regularization of casual Artist in Doordarshan

as “Typist-cum Clerk” “in which capacity he was engaged

on casual basis does not belong to the erstwhile Staff Artist

Category”, and no sanctioned post of Typist-cum-Clerk

exists at Doordarshan Kendra, Ranchi, in that

circumstances his request for regularization was not

acceded.

So far the aforesaid documents (Extt. W.1-3 series)

of the workman are concerned, each of them clearly relates

to his status as a casual General Asstt. (Typist) as also

certified w.e.f. 01.051986 to 30.04.1988 on casual basis.

There is no dispute that the workman was paid by the

vouchers Extt.M-1 series, the three ones as Casual general

Asstt. under his receipt signature for 10 and 11 days work

done per day Rs.50 in the month of July,1987,Feb &

March,1989 respectively.

11. The statement of MWI Pradeep Kumar Dutta, the

U.D.C. at Doordarshan Kendra, Ranchi affirms non-

maintenance of any Attendance register for casual worker,

the payment of wages to the casual worker through

vouchers verified by the Supervisor /Controlling Authority

of the section of the management in a month on the basis

of the contract and the contract of the workman for his

engagement according to the needs. He (MW1) also clearly

stated the term the assignment means instrument of work

such as typing for a specified period; the recruitment rules

of the management provide for filling up the permanent

vacancy of Tabulator Clerk post on recommendation of the

Staff Selection Commission Gr.C but the workman performed

the job of Typist General Asstt.for which, his name was

sponsored by the Employment Exchange for casual worker.

Likewise the statement of MW2 Shoe Kumar

Singh,the Administrative Officer in the office of the

Director,Doordarshan Kendra Ranchi evidently

corroborates the statement of MW1 Pradip Kumar Dutta.

He (MW2) has to state that the workman had worked 10

days per month in July, Nov., 1987 Nov., 1988, Feb, March,

July, Oct., Dec., 1989 and 1990 and 9 days in Jan.,1990 (Ten

photocopies of Replysheet (Ext.M.2 series) for which he

was paid his wages at the rate of R.50 per day though

contract sheets Voucher (Ext.M.1 series) and Reply Sheets

under the signatures of the contract authority and of the

workman as well the photocopies of ten Reply sheets

(Ext.M.2 series)filed by the Management for the period

from 01.07.1987 to 28.02.1992,as their originals were

destroyed as per the Rules of the Company after six years

as per the record. The management witness (MW2)has

though asserted the forwarding the name of the workman

by the Employment Exchange concerned and the issuance

of his interview letter as the Tabulator Clerk, yet affirmed

his appointment on contract basis as there is no post of

Tabulator Clerk in their, department, and the meaning of

the term 'assignment' as 'engagement' whenever required.'

12. Drawing my attention to the settled laws as held

by the Hon'ble Apex Court in the case of Delhi Cloth and

General Mill Co. Ltd., Vs. their workmen reported in S.C.L.J.

Vol. 4 page 2307 (SC), the workman as per his written

argument has to emphatically submit that the Tribunal must

confine its adjudication to points of disputes referred; one

of the issue framed on the basis that there was a strike and

there was a lock -out workman cannot challenge existence

of strike, and management can not deny declaration of

lock out .. .'held the parties can not be allowed to go a

stage further and contended that the foundation of the

dispute mentioned in the order of the reference was to

non-existent, and that true dispute was something else.

Further stress of the workmen is that since he was selected

after interview for the post of Tabulator Clerk following the

sponsorship of his name by the Employment Exchange, he

continuously worked from 1.5.1986 till 8.1.1991, and

thereafter he was illegally terminated by the Management

w.e.f. 9.1.1991 countrary to the mandatory provision of the

Sec.25 F of the Industrial Dispute Act, 1947.

Whereas the contention of the O.P./Management as

per its written argument is that the workman was engaged

on casual basis only from 25.8.1986 as on assignment basis,

as and whenever required and any assignment did not

exceed ten days in a month as evident from his work on

assignment basis - 30,110,90,100,59 and 8 days during the

year 1986 to 1991 respectively as specifically stated by

MW1 Pradeep Kumar Dutta. As such he never completed

240 days of work in a calendar year . There is no such

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1455

scheme formulated by the Government of India for

regularization of such casual workers rendering their

services on casual basis only for five to ten days a

month.The post of the Tabulator Clerk comes in Group C

Category, and as per the Recruitment Rules the appointment

is to be made only on the recommendation of the Staff

Selection Commission, but not on sponsoring by the

Employment Exchange; the case of the petitioner does not

stand on the same similar footing as that of 23 persons.

As the terms of the reference relating to termination

of services of the workman involves the point whether the

workman has acquired the status of a permanent worker as

Casual General Assistant (Typist) as an incidental issue to

it. But in the face of the workman's admission about the

three vouchers with its payment of wages (Ext. M.1 series)

other Reply sheet of the Vouchers ( Ext. M.2 series) under

his signatures, it stands crystal clear that the workman

worked as a casual General Assistant on assignment basis

worked for not more than ten days each month during the

said period of August,1986 to January, 1991. So the

application of Sec. 25F of the Industrial Tribunal

presupposes the first requisite that 'workman must have

been in continuous service for not less than one year, and

the continuous service as defined under Sec. 25 B 2(a)(ii)

of the said Act means" 'two hundred and forty days in any

other case."

In the case, it is an acknowledged fact that since the

workman was casually employed for ten days a month on

assignment basis, he had never any continuous service

for one year preceding to his Industrial Dispute. In result,

it is barely awarded that the question whether the action of

the management of Doordarshan Kendra, Ranchi, in

terminating the services of Sri Pradeep Chandra Poddar

w.e.f. 9.1.1991 as legal or justified does not arise in view of

the lack of his continuous service. It is not a case of his

termination; rather it is a case of his non-enagement

unemployment on assignment basis. Hence the workman

is not entitled to any relief.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 5 fnlEcj] 2013

dk-vk- 502-—jk"Vªifr U;k;ew£r Jh lR; iwr esgjks=kk] dks

14&11&2013 (iqokZg~u) ls dsUnzh; ljdkj vkS|ksfxd U;k;kfèkdj.k&

lg&Je u;k;ky; ua- 1] eqEcbZ ds ihBlhu vf/dkjh ds :i esa

65 o"kZ dh vk;q izkIr gksus rd tks dh 16&10&2016 gS vFkok

vxys vkns'kksa rd] tks Hkh igys gks] fu;qDr djrs gaS A

¹la- ,&11016@4@2012&lh,y,l&II]

jkts'k oqQekj] voj lfpo

New Delhi, the 5th December , 2013

S.O. 502.—The President is pleased to appoint

Justice Satya Poot Mehrotra as Presiding Officer of the

Central Government Industrial Trbunal-cum-Labour Court

No. 1, Mumbai w.e.f. 14-11-2013 till he attains the age

65 years i.e. up to 16-10-2016 or until further orders,

whichever is earlier.

[No. A-11016/4/2012-CLS-II]

RAJESH KUMAR , Under Secy.

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 503-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; lh lh ,y ds izca/ra=k

ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V

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

U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 23@2007) dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&20012@07@2007&vkbZ vkj (lh,e&1)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January , 2014

S.O. 503.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 23/2007)

of the Central Government Industrial Tribunal/Labour Court,

No. 1, Dhanbad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of CCL and their workman, which was

received by the Central Government on 27-1-2014.

[No. L-20012/07/2007-IR (CM-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO.1), DHANBAD

IN THE MATIER OF A REFERENCE U/S 10(1) (D)

(2A) OF I.D. ACT, 1947.

Ref. No. 23 of 2007

Employers in relation to the management of Sirka Colliery

M/ s C.C.L.

AND

Their workmen.

Present : Sri Ranjan Kumar Saran, Presiding Officer

Appearances:

For the Employers : Sri D.K. Verma Advocate

For the workman : Sri D. Mukherjee, Advocate

State : Jharkhand

Industry : Coal

Dated 6-12-2013

AWARD

By Order No.l-20012/07/2007-IR (CM-I), dated

13/17-04-2007, the Central Government in the Ministry of

Labour has, in exercise of the powers conferred by clause (d)

of sub-section (1) and sub-section (2A) of Section 10 of

the Industrial Disputes Act, 1947, referred the following

1456

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

disputes for adjudication to this Tribunal:

SCHEDULE

(i) "Whether the action of the management of Sirka

Colliery of M/s. CCL in not providing dependent

employment to Smt. Fulia Devi W/o Late Sewa Mahto,

Ex-coal Cutter, under the provisions of para 9.3.2 of

NCWA-V is justified and legal? ( ii) If not, to what

relief is the dependent wife of the concerned

deceased employee entitled?"

2. The case is received from the Ministry of Labour

on 01.05.2007. After receipt of reference, both parties are

noticed, the Sponsoring Union files their written statement

on 10.08.2007. And the management files their written

statement -cum-rejoinder on 30.09.2008.

3.The short point involved in the case is the

dependents employment as the husband of the applicant

died during service. Though the applicant applied for job

in place of her husband, she was offered monetary

compensation in lieu of job as she was aged more than

45 years. But if the claim of the application of the applicant

will be scrutinized it will be seen, that she was below

45 years at the time she applied for job. Therefore there is

no reason to deny the claim of the applicant.

4. Considering the facts and circumstances of this

case, I hold that the action of the management of Sirka

Colliery of M/s. CCL in not providing dependent

employment to Smt Fulia Devi W/o Late Sewa Mahto

Ex-Coal Cutter under the provision of of para 9.3.2 of

NCWA-V is not justified. Hence the management is directed

to give the job to the applicant as deem fit proper, after

observing the minimum formalities within 3 months form

the date of publication of the award.

This is my award.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 504-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj VkVk LVhy

fyfeVsM ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k

33@2010) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014

dks izkIr gqvk Fkk A

¹la- ,y&20012@01@2010&vkbZ vkj (lh,e&1)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January, 2014

S.O. 504.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 33/2010)

of the Central Government Industrial Tribunal/Labour Court,

No. 1, Dhanbad now as shown in the Annexure in the

Industrial Dispute between the Management of M/s. Tata

Steel Ltd. and their workman, which was received by the

Central Government on 27-1-2014.

[No. L-20012/01/2010-IR (CM-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO.1), DHANBAD

IN THE MATIER OF A REFERENCE U/S 10(1) (D) (2A)

OF I.D. ACT, 1947.

Ref. No. 33 of 2010

Employers in relation to the management of Jamadoba

Colliery M/s. Tata Steel Ltd.

AND

Their workmen.

Present:- Sri Ranjan Kumar Saran, Presiding Officer

Appearances:

For the Employers. :- Sri D. K.Verma, Advocate

For the workman. :- Sri S.Paul, Advocate

State : Jharkhand

Industry : Coal

Dated 9-12-2013

AWARD

By Order No. L-20012/01/2010-IR(CM-1), dated

16-3-2010, the Central Government in the Ministry of Labour

has, in exercise of the pwoers conferred by clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the

Industrial Disptes Act,1947, referred the following disputes

for adjudication to this tribunal :

SCHEDULE

1. "Whether the action of the management of

Jamadoba Colliery of M/s. Tata Steel Limited in dismissing

Shri Atique Khan On setter from the Service of the Company

w.e.f. 05.01.2009 is justified and legal? (ii) To what relief is

the workman concerned entitled?"

2. The case is received from the Ministry of Labour

on 09.04.2010. After receipt of reference, both parties are

noticed, the Sponsoring Union /workman files their written

statement on 13.05.2010. And the management files their

written statement -cum- rejoinder on 05.05.2011.

3. This is a case of dismissal of the workman on the

ground that he illegally gave electric connection from his

quarters to his near by quarters. The enquiry conducted

by the department held as fair and proper. Therefore it is to

be seen from the materials as to whether the dismissal of

the workman was fair and proper.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1457

4. In this case the MW-1 the Enquiry Officer has

stated that before him the quarters allotment register was

not produced. But he has stated that on the basis of town

management deptt Y.K. Panda C.S was filed before him.

5. Before the Enquiry Officer Sri Y.K. Panda was not

examined. The enquiry Officer has stated that he has not

given any opportunity the workman to adduce his witness

of defence. Of course the departmental enquiry has been

declared fair and proper. But material produced before the

Tribunal is not sufficient to up held the dismissal of the

management, proper specially when neither Y.K. Panda nor

quarters allotment register produced before this Tribunal,

Hence the dismissal of the workman is not proper.

6. Considering the facts and circumstances of this

case, I hold that the action of the management of Jamadoba

Colliery of M/s. Tata Steel Limited in dismissing Shri Atique

Khan On setter from the Service of the Company w.e.f.

05.01.2009 is not justified. Hence he be reinstated in service,

without giving him any back wages what so ever.

This is my award

R. K. SARAN, Presiding Officer

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 505-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y

ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k ,oa Je U;k;ky;] 1] /uckn ds iapkV (lanHkZ la[;k

16@1992) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014

dks izkIr gqvk Fkk A

¹la- ,y&20012@212@1991&vkbZ vkj (lh,e&1)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January , 2014

S.O. 505.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 16/1992)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Dhanbad as shown in the Annexure in the

Industrial Dispute between the Management of M/s.

BCCL and their workman, received by the Central

Government on 27-1-2014.

[No. L-20012/212/1991-IR (CM-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

Reference: No. 16/ 1992

In the matter of reference U/s 10 (1) (d) (2A) of I. D.

Act. 1947.

Employer in relation to the management of Loyabad

Coke Plant M/s. BCCL

AND

Their workmen

Present: Sri R.K.Saran Presiding Officer

Appearances:

For the Employers : Sri D.K.Verma, Advocate

For the workman. : Sri S.C.Gour, Rep.

State: Jharkhand

Industry : Coal

Dated, the 12th November, 2013

AWARD

By Order No. L-20012/212/ 91-IR (C-I) dated Nil, the

Central Government in the Ministry of Labour has, in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of section 10 of the

Industrial Disputes Act, 1947 referred the following dispute

for adjudication to this Tribunal:

SCHEDULE

" Whether the action of the Management of Loyabad

Coke Plant of M/s. BCCL in demoting Shri Kuldeep

Chouhan from Clerical Grade-I to Clerical Grade-II is

justified? If not to what relief the workman is entitled?"

2. After receipt of the reference, both parties are

noticed. But appearing for certain dates none appears

subsequently. Case remain pending. Representative of

Union is submitted that the workman is not interested, It is

felt that the disputes between the parties have been

resolved in the meantime. Hence No Dispute Award is

passed. Communicate.

R.K. SARAN, Presiding Officer

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 506-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZ lh ,y ds

izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k

,oa Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k 9@1992)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&20012@175@1991&vkbZ vkj (lh&1)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January , 2014

S.O. 506.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D. No. 9/1992)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Dhanbad as shown in the Annexure in the

Industrial Dispute between the Management of M/s. ECL

and their workman, received by the Central Government

on 27-1-2014.

[No. L-20012/175/1991-IR (C-I)]

M. K. SINGH, Section Officer

1458

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL No. l, DHANBAD

Reference: No. 9/ 1992

In the matter of reference U/s 10 (l) (d) (2A) on I. D.

Act. 1947.

Parties: Employer in relation to the management of Mugma

CCC Stores, M/s. E.C.L

AND

Their workmen

Present: Sri R.K.Saran, Presiding Officer

Appearances:

For the Employers :- None

For the workman. :- None

State: Jharkhand. Industry- Coal

Dated, the 12th November, 2013

AWARD

By Order No. L-20012/175/91-IR (C-I) dated Nil , the

Central Government in the Ministry of Labour has, in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of section 10 of the

Industrial Disputes Act, 1947 referred the following dispute

for adjudication to this Tribunal:

SCHEDULE

"Whether Sh. Anandi Nath Das and 12 others working

in the Mugma Central Colliery Cooperative store are

to be treated as workmen of M/s. Eastern Coalfields

Ltd. and whether the demand that these persons be

regularized in the services of the said management is

justified? If so, to what relief are these persons

entitled?"

ANNEXURE -II

List of the workers of mugma c.c.c. Stores, Nirsha

Chatti, Dhanbad whose services should be regulerised:-

(1) Anandi Nath Das, (2) Himadri Sarkar, (3) Tapeshwar

Singh, (4)Anand May Malakar, (5)Nimal Chand Mondal,

(6) Bhola Mahato, (7) Laksmi Narayan Singh, (8) Ram Pukar

Singh, (9) Budhan Prasad, (10) Jyotish Pd. Sah, (11) Gopal

Chandra Mondal, (12) Shio Shankar Jha, (13) Badal Chandra

Nalakar.

2. After receipt of the reference, both parties are

noticed. But appearing for certain dates none appears

subsequently. Case remain pending. It is felt that the

disputes between the parties have been resolved in the

meantime. Hence No Dispute Award is passed.

Communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 507-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh lh ,y ds

izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k

,oa Je U;k;ky; u- 1] /uckn ds iapkV (lanHkZ la[;k 14@2005)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&20012@139@2004&vkbZvkj (lh&I)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January , 2014

S.O. 507.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (R.ef. No. 14/2005)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Dhanbad as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of CCL and their workman, received by

the Central Government on 27-1-2014.

[No. L-20012/139/2004-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL No. l, DHANBAD

In the matter of reference U/s 10(1)(d)(2A) of I.D.

Act. 1947.

Reference No. 14 of 2005

Employer in relation to the management of N.S.D Colliery

of M/s. CCL.

AND

Their workman

Present :- Sri R.K.Saran, Presiding Officer

Appearances:

For the Employers : Sri D.K.Verma, Advocate

For the Workman : Sri D.Mukherjee, Advocate

State : Iharkhand Industry : Coal

Dated 10-12-2013

AWARD

By Order No.-L20012/139/2004-IR (C-I), dated

17/12/2004 the Central Govt. in the Ministry of Labour has,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1459

in exercise of powers conferred by clause (d) of Sub -Section

(I) and disputes Sub-Section (2.A) 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 N.S.D

Colliery of M/s. CCL to dismiss Shri Bhuwan Nag,

Dumper Operator Gr. II "C" From the service of the

company w.e.f. 31.03.94 is fair, legal and just? If not,

to what relief is the workman concerned entitled?"

2. The case is received from the Ministry of Labour

on 03.01.2005. After receipt of reference, both parties are

noticed, the workman files their written statement on

16.06.2005. And the management files their written

statement-cum-rejoinder on 21.05.2007. The point involved

in the reference is that the workman has been dismissed

from his services.

3. During preliminary hearing it is revealed that the

case is dismissal of workman for long absence on duty. But

he has already out of service for 19 years. It is felt to give

another chance to the workman to serve.

4. Considering the facts and circumstances of this

case, I hold that he be taken into job as a fresh employee.

Therefore the question of back wages does not arise at all.

This is my award.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 508-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y

ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; u- 1] /uckn ds iapkV (lanHkZ la[;k

40@2011) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014

dks izkIr gqvk Fkk A

¹la- ,y&20012@95@2010&vkbZ vkj (lh,e&1)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January , 2014

S.O. 508.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 40/2011)

of the Central Government Industrial Tribunal/Labour Court,

No. 1, Dhanbad now as shown in the Annexure in the

Industrial Dispute between the employers in relation to

the Management of M/s. BCCL and their workman, which

was received by the Central Government on 27-1-2014.

[No. L-20012/95/2010-IR (CM-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO.1), DHANBAD

IN THE MATIER OF A REFERENCE U/S 10(1) (D)

(2A) OF I.D. ACT, 1947.

Ref. No. 40 of 2011

Employers in relation to the management of

Gopalichuk Colliery, M/s. BCCL

AND

Their workmen

Present : Sri Ranjan Kumar Saran, Presiding Officer

Appearances:

For the Employers. : Sri D. K.Verma, Advocate

For the workman. : Sri R.R.Ram, Rep.

State : Jharkhand Industry : Coal

Dated. 10-12- 2013

AWARD

By Order No.L-20012/95/2010-IR (CM-I), dated.

08/08/2011, the Central Government in the Ministry of

Labour has, in exercise of the powers conferred by clause

(d) of sub-section (1) and sub -section (2A) of Section 10

of the Industrial Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of

Gopalichuk Colliery of M/s. BCCL in not correcting

the date of birth of Sri Ramdhiraj Ram, Electric Mistry

as 01.07.1956 is fair and justified? To what relief the

concerned workman is entitled?”

2. The case is received from the Ministry of Labour

on 29.08.2011. After receipt of the reference both parties

are noticed. The Sponsoring Union/workman files their

written statement on 05.09.2011. Thereafter the management

files their written statement-cum- rejoinder on 06.12.2012.

The workman has examined himself as a witness.

3. The claim of the workman is, his date of birth as

per his matriculation certificate 01.07.1956 instead of

10.03.1954. From the Service excerpt filed by the workman,

it is found that the Date of Birth is scored and the same

appears to be confusing.

4. As per MW-1 (Form "B" Register) he appointed

as fitter helper on 10.03.1979. On closed scrutinized it is

found that the date 05.03.1981 is not the joining date but it

1460

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

is date of work distribution as fitter helper. And the workman

concerned put his signature in the form "B" register.

5. The workman in his evidence marked WW-1, has

stated that before his job he passed the matriculation

examination. The workman in his evidence in chief has

stated that he joined in job on 25.03.1981. But the photocopy

of his High School certificate dated 04.08.1981 which has

been granted by Uttar Pradesh Board, the workman was

working during 1981.Then how he read appeared and

passed from U.P Board. He does not file any paper or

permission granted by the management for his study.

6. The said certificate does not speak on what date

the examination was conducted as to whether it was annual

or supplementary examination. Moreover as per the

evidence of the workman, he passed matriculation

examination in the year 1981 .But it is not known as to why

the dispute was raised in the year 2007. Moreover the

original matriculation certificate has not been filed.

Therefore belated dispute appears to be malafide and the

claim of workman is not at all tenable.

7. Considering the facts and circumstance of this

case, I hold that the action of the management of Gopalichuk

Colliery of M/s. BCCL in not accepting the date of birth of

Sri Ramdhiraj Ram, Electric Mistry as 01.07.1956 is fair and

justified. Hence he is not entitled to get any relief.

This is my award.

R.K.SARAN, Presiding Officer

ubZ fnYyh] 27 tuojh] 2014

dk-vk- 509-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y

ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; u- 1] /uckn ds iapkV (lanHkZ la[;k

18@2009) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&1&2014

dks izkIr gqvk Fkk A

¹la- ,y&20012@16@2009&vkbZ vkj (lh,e&1)]

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 27th January , 2014

S.O. 509.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 18/2009)

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 BCCL

and their workman, received by the Central Government

on 27-1-2014.

[No. L-20012/16/2009-IR (CM-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 1), DHANBAD

IN THE MATTER OF A REFERENCE U/s 10(1) (D)

(2A) OF I.D. ACT, 1947.

Ref. No. 18 of 2009

Employers in relation to the management of Mudidih

Colliery, Sijua Area of M/s. BCCL

AND

Their workmen

Present:- SRI RANJAN KUMAR SARAN, Presiding Officer

Appearances:

For the Employers : Sri D.K.Verma, Advocate

For the workman : Sri S.K.Chamaria, Advocate

State : Jharkhand Industry : Coal

Dated. 15-11- 2013

AWARD

By Order No.L-20012/16/2009-IR -(CM-I), dated

30/03/2009, the Central Government in the Ministry of

Labour has, in exercise of the powers conferred by clause

(d) of sub-section (1) and sub - section (2A) of Section 10

of the Industrial Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

(i) Whether the action of the management of Mudidih

Colliery under Sijua Area of M/s. BCCL in dismissing

Shri Kameshwar Dhoni., M/L from the services of

the company w.e.f. 23.08.2004 is legal and justified?

(ii) To what relief is the concerned workman entitled?"

2. The case is received from the Ministry of Labour

on 13.04.2009. After receipt of reference, both parties are

noticed, the workman files their written statement on

16.06.2009. The point involved in the reference is that the

workman has been dismissed from his services.

3. During preliminary hearing it is revealed that the

case is dismissal of workman for long absence on duty. He

has already out of service for 9 years, It is felt to give

another chance to the workman to serve.

4. Considering the facts and circumstances of this

case, I hold that he be taken into job as a fresh employee.

Therefore the question of back wages does not arise at all.

This is my award.

R. K. SARAN, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1461

ubZ fnYyh] 29 tuojh] 2014

dk-vk- 510-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eqacbZ iÙku

U;kl ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; ua-2] eqacbZ ds iapkV (lanHkZ la[;k 7@2009)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&31011@11@2008&vkbZ vkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 29th January , 2014

S.O. 510.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 7/2009)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Mumbai as shown in the Annexure in the

Industrial Dispute between the Management of Mumbai

Port Trust and their workmen, received by the Central

Government on 29-1-2014.

[No. L-31011/11/2008-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-2/7 of 2009

Employers in relation to the management of Mumbai

Port Trust

The Chairman

Mumbai Port Trust

Port Bhavan

S. V. Marg

Ballard Estate

Mumbai 400 001.

AND

Their Workmen

The Secretary

Mb.P.T. Dock & General Employees Union

Port Trust Kamgar Sadan

Nawab Tank Road

Mazgaon

Mumbai 400 010.

APPEARANCES :

For the Employer

Mr. Umesh Nabar, Advocate

For the Workmen

Mr. J. H. Sawant, Advocate

Mumbai, dated the 21st October, 2013

AWARD

The Government of India, Ministry of Labour&

Employment by its Order No.L-31011/11/2008-IR (B-II),

dated 05.02.2009 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 Mumbai

Port Trust for not giving promotional effect &

consequential benefits w.e.f. 11/01/2005 to

Shri Sandesh Kushte is justified? What relief the

union is entitled to?”

2. After receipt of the reference, notices were issued

to both the parties. In response to the notice, second party

union filed its statement of claim at Ex-7. According to the

union Shri Sandesh W. Kushte and 30 other workmen were

working in Telecom and Electronic Section of the Chief

Mechanical Engineer’s Department of the first party. They

were transferred from the Chief Mechanical Engineer

Department to the Director Planning and Research Deptt

of the first party w.e.f 1/5/2002 by way of re organisation

of Planning and Research Deptt. They were transferred to

the said Deptt with continuity in services, seniority,

promotional opportunities and other service conditions.

It is a condition of service that Jr, Electronic Assistant

(now re-designated as Jr. Engineer (Electronics) Grade-III)

are promoted to the post of Sr. Electronic Assistant [now

re-designated as Jr Engineer (Electronics) Grade-I] against

the vacancies. Against two vacancies in the post of

Sr. Electronic Assistant arising out of the promotion of

two incumbents i.e. Smt. Akhilandeshwari & Shri N.K.

Pathare two employees in the post of Jr. Electronic

Assistant i.e. Shri R.D.Jadhav & Shri P.S.Choughule were

promoted to the post of Sr. Electronic Assistant w.e.f.

6/9/2003 & 28/6/2004 respectively. The next vacancy in

the post of Sr. Electronic Assistant arose on 10/01/2005 on

account of resignation/retirement of Shri Pramod M. Pai,

Sr. Electronic Assistant. Shri Sandesh W. Kushte was

entitled to be promoted to the post of Sr. Electronic

Assistant w.e.f. 11/1/2005 with all consequential benefits

against the said vacancy as per the statutory terms of his

employment. The Departmental Promotion Committee held

on 23/6/2004 had already declared the second party

workman fit for promotion to the said post. Inspite of

repeated requests the first party did not give promotion to

the second party workman to the post of Sr. Electronic

Assistant w.e.f. 11/01/2005 with all consequential benefits.

The management ignored the legitimate demand of the

union under one pretext or another. According to the

union the typographical/clerical error while preparing the

note preceding Trustees, Resolution no.81 of 2001 has

created the whole problem. Instead of correcting the record

and giving consequential benefits to the second party

workman, the first party management tried to resolve the

1462

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

anomaly by granting promotion the second party workman

w.e.f. 05/02/2008 by another arrangement instead of

promotion w.e.f. 11/01/2005. The second party has

accepted the promotion without prejudice to his claim of

promotion from the earlier date. The union therefore prays

for declaration that the second party was entitled to the

promotion to the post of Jr. Engineer (Electronics) Grade-I

w.e.f. 11/01/2005 with all consequential benefits against

the then existing vacancy as per the Statutory terms of his

employment. They also pray for direction to pay the

difference since 11/01/2005 and all consequential benefits

and cost and compensation.

3. The first party resisted the statement of claim

vide its written statement at Ex-8. According to them the

claim of the union is false and not tenable in law. They

denied all the contents in the statement of claim. According

to them contents in the statement of claim are

misconceived, malafied and not maintainable. According

to them on 11/01/2005 the post was not vacant. Therefore

question of promotion to the second party does not arise.

In case the promotion is given to the workman, it would

amount to injustice to Shri P.S. Choughule performing his

duties on his post whose seniority and service conditions

would be adversely affected without getting him an

opportunity of hearing.

4. According to the first party Shri P.M. Pai who

resigned on 10/01/2005 on whose place workman is claiming

promotion was on foreign assignment. Mr. Pai at the time

of his resignation was performing his duty on foreign

assignment and his post was held by Shri P.S. Chougule

who is senior to the workman on officiating basis.

Resignation of Mr. Pai was accepted on 03/05/2005 and

Mr. Chougule was regularly appointed on the said post

w.e.f. 23/08/2005. It cannot be said that the promotional

post was vacant due to resignation of Mr. Pai. They further

contended that Mr. Kushte the concerned workman had

not completed the qualifying service of 5 years in the post

at the time. The contention of the union that there were

three posts of S.E.A. is not correct. On the other hand

only two posts of S.E.A. were sanctioned under T.R. no.

81 on 8/5/2001. According to them the union has totally

ignored that there is re-organisation of the posts of S.E.A

and the strength is maintained at two only. Under the T.R.

the workman concerned had to wait till the vacancy arose.

He was promoted on 16/2/2009 on regular basis when the

regular vacancy arose in the post of S.E.A. In the

circumstances the first party denied that the workman was

entitled to the promotion to the post of Jr. Engineer

(Electronics) in Grade-I w.e.f. 11/1/2005 with all

consequential benefits. Therefore according to the first

party the reference being devoid of merit deserves to be

rejected. Thus they pray that the reference be rejected

with cost.

5. The second party union denied the contents in

the written statement vide their rejoinder at Ex-9.

According to them there were three sanctioned posts of

Sr. Electronic Assistant now re-designated as Jr. Engineer

(Electronics) Grade-I. They denied the contents in the

written statement and reiterated their claim in the statement

of claim.

6. Following are the issues for my determination. I

record my findings thereon for the reasons to follow:

Sr.

Issues

Findings

No.

Whether the action of the

management of Mumbai Port

Trust in not giving promotional

effect and consequential benefit

w.e.f. 11/1/2005 to Shri Sandesh

Kushte is legal and proper?

If not, whether the workman is

Yes

entitled to the promotional effect

and consequential benefits and

other reliefs?

What order?

As per final

order

REASONS

Issue no. 1 :

7. In this case it is the contention of the first party

that there were only two posts of Jr. Engineer (Electronics)

Grade-I. Therefore according to them after resignation of

Mr. Pai, Mr. Chougule was promoted and before that

Mr. R.D.Jadhav was also promoted. According to the first

party as there were only two promotional posts available

the workman Mr. Khuste could not be promoted. In this

respect it was pointed out by the Ld. Adv. for the second

party that as per the letter dt. 12/4/2002 (Ex-18) and annexure

thereto, it is revealed that there were three posts of

Sr. Electronic Assistant. The witness of the first party

Mr. P.K. Gopi has also admitted in his cross at Ex-32 that

as per the letter dt. 12/4/2002 there were 3 sanctioned posts

of Sr. Electronic Assistants in the Electronic Section in the

Chief Mechanical Engineering Department. He has also

admitted in his cross that the staff of Electronic Section of

Chief Electronic Engineers’ Department was transferred

to the Department of Planning and Research. In the light

of this admission of management witness and the letter dt.

12/4/2002 it is clear that there were three posts of

Jr. Engineer (Electronic). Mr. R.D. Jadhav and Chougule

were already promoted to the post of Sr. Electronic

Assistant [now re-designated as Junior Engineer

(Electronics) Grade-I. It supports the version of the second

party that there was some typographical/clerical mistake

while putting the note before the committee and instead

of three posts of Jr. Engineer (Electronics) Grade-I it is

mentioned only two posts and therefore the workman was

not given promotion till 2008. The first party has wrongly

contended in their written statement that there were only

two promotional posts of Jr. Engineer (Electronic) Grade-I.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1463

Infact from the evidence on record it is revealed that there

were three posts of Jr. Engineer (Electronic) Grade-I as

seen from the above evidence. Therefore though

Mr. Ranjith Jadhav and P.S.Chougule are senior to the

workman, immediately after their promotion as the third

post was vacant, the workman was entitled to get the said

promotion after Mr. Chougule. As per the version of the

first party Mr. Chougule was appointed on the promotional

post on regular basis from 23/8/2005. Thus I hold that the

workman is entitled to the promotion from 24/8/2005.

Accordingly I hold that not giving promotion to the

workman since 24/8/2005 is unjust and improper.

Accordingly I decide this issue no.1 in the negative and

hold that the workman is entitled to get the difference in

wages since 24/08/2005 and consequential benefits

thereafter. Thus I partly allow the reference and proceed

to pass the following order

ORDER

(i)

The reference is partly allowed with no order as

to cost.

(ii)

The action of management in not giving timely

promotion to the workman is hereby declared as

unjust and improper.

(iii)

The management is directed to treat the

promotion of the workman w.e.f. 24/08/2005 and

to pay him the difference in pay, allowances and

all other consequential benefits as if he was

promoted from the above referred date.

Date: 21.10.2013

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 29 tuojh] 2014

dk-vk- 511-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc ,.M

¯l/ cSad ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds

chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky;] y[kumQ ds iapkV (lanHkZ la[;k 34@2013)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&12011@71@2012&vkbZ vkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 29th January , 2014

S.O. 511.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 34/2013)

of the Central Government Industrial Tribunal-cum-Labour

Court, Lucknow as shown in the Annexure in the Industrial

Dispute between the Management of Punjab and Sind

Bank and their workmen, received by the Central

Government on 29-1-2014.

[No. L-12011/71/2012-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESENT : Dr. MANJU NIGAM, Presiding Officer

I.D. No. 34/2013

Ref. No. L-12011/71/2012-IR( B-II) dated : 08.03.2013

BETWEEN :

Organizing Secretary

UP Bank Employees Union

Awadh Trade Centre

Balmiki Marg, Lalbagh

Lucknow.

(Espousing cause of Shri J.S. Bhatia & 08 others)

AND

Chief Manager

Punjab & Sind Bank

21, Rajinder Place,

New Delhi

Sr. Manager

Punjab & Sind Bank

Hazratganj Branch,

Lucknow

AWARD

1. By order No. L-12011/71/2012-IR( B-II) dated:

08.03.2013 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 industrial dispute between Organizing Secretary, UP

Bank Employees Union, Awadh Trade Centre Balmiki Marg,

Lalbagh, Lucknow and Chief Manager, Punjab & Sind

Bank, 21, Rajinder Place, New Delhi & Sr. Manager, Punjab

& Sind Bank, Hazratganj, Branch, Lucknow for

adjudication.

2. The reference under adjudication is:

“WHETHER THE ACTION OF THE

MANAGEMENT OF PUNJAB & SIND BANK

IN TRANSFERRING THE WORKMAN SHRI J.S.

BHATIA AND 08 OTHERS BY TRANSFER

ORDER, IS LEGHAL AND JUSTIFIED? WHAT

RELIEF THE WORKMEN CONCERNS ARE

ENTITLED?”

3. The order of reference was endorsed to the

Organizing Secretary, UP Bank Employees Union, Awadh

Trade Centre, Balmiki Marg, Lalbagh, Lucknow with

direction to the party raising the dispute to filed the

statement of claim along with relevant documents, list of

reliance and witnesses with the Tribunal within fifteen

days of the receipt of the order of reference and also

1464

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

forward a copy of such a statement to each one of the

opposite parties involved in this dispute under rule 10 (B)

of the Industrial Disputes (Central), Rules, 1957.

4. The order of reference was registered in this

Tribunal on 22.04.2013 and the office was directed to issue

registered notice to the workman’s union for filing the

statement of claim with list of reliance & list of witnesses

on 07.06.2013; but no statement of claim together with

documents etc. was filed either on 07.06.2013 or on the

next date fixed i.e. on 29.07.2013. The workman’s union

kept itself absent on the following dates i.e. on 26.09.2013,

10.10.2013 and even today. The union did not move any

application or adjournment seeking time to file the

statement of claim. More than half a year’s time has passed

and the woman’s union has neither put up its appearance

nor has filed its statement of claim, therefore, the case was

reserved for award, keeping in view the reluctance of the

workman’s union to contest the case.

6. In the above circumstances, it appears that the

workman’s union does not want to pursue its claim on the

basis of which it has raised the present industrial dispute;

therefore, the present reference order is decided as if there

is no grievance left with the workmen’s union. Resultantly

no relief is required to be given to the workmen concerned.

The reference under adjudication is answered accordingly.

8. Award as above.

LUCKNOW

22^nd November, 2013.

Dr. MANJU NIGAM, Presiding Officer

ubZ fnYyh] 29 tuojh] 2014

dk-vk- 512-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ

bafM;k ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/dj.k@Je U;k;ky; ua- 2] eqacbZ ds iapkV (lanHkZ la[;k 35@2008)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29&1&2014 dks izkIr

gqvk Fkk A

¹la- ,y&12011@22@2008&vkbZ vkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 29th January , 2014

S.O. 512.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 35/2008)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Mumbai 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 29-1-2014.

[No. L-12011/22/2008-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT :

K. B. KATAKE, B.A., L.L.M.,

Presiding Officer

REFERENCE NO. CGIT-2/35 of 2008

Employers in relation to the management of

Bank of India

The Dy. General Manager

Bank of India

Mumbai South Zone, IR Deptt.

70-80, Bank of India Building, 2^nd floor

M.G. Road, Fort

Mumbai 400 001.

AND

THEIR WORKMEN

The General Secretary

Bank of India Staff Union

Bank of India Building

70-80, M.G. Road, Fort

Mumbai 400 023.

APPEARANCES :

For the Employer

Mr. Lancy D’Souza,

Representative

For the Workman

Mr. J. H. Sawant, Advocate

Mumbai, dated the 20th September 2013

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-12011/22/2008-IR (B-II),

dated 05.06.2008 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 Bank of

India, Mumbai South Zone, Mumbai by awarding

the compulsory retirement to Shri Prakash V. Patil

from the Bank services is justified? If not, what

relief the workman, Shri Prakash V. Patil is entitled

to?”

2. After service of the notices both the parties

appeared through their defence representatives. The

Second party workman has filed his Statement of claim at

Ex-7. According to the workman he was serving with the

first party as sub staff i.e. A/c Plan Operator- cum-

Electrician with effect from 1/07/1980. He served with first

party till 31/05/2005. The first party charge sheeted him

on 15/01/2005 alleging that 16 cheques issued by the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1465

workman drawn on his S.B. account No. 66522 maintained

at Kandivali branch. The cheques were presented on 29

occasions and same were dishonoured for insufficient

balance in his S.B. A/c. The enquiry was held against the

workman. He admitted before the enquiry officer that, he

had issued cheques to his friends and relatives and they

were dishonoured as he could not manage to deposit the

amount in his account. The enquiry officer therefore held

him guilty and submitted the enquiry report to the

Disciplinary authority. The disciplinary authority after

hearing the workman held him guilty and imposed

punishment of compulsory retirement. The appeal against

the order was dismissed therefore, the workman has raised

industrial dispute. As conciliation failed on the report of

ALC (C) the Labour Ministry sent the reference to this

Tribunal.

3. According to the workman his mother was

suffering from cancer and for her treatment he had

borrowed money from his friends and relatives and issued

them cheques. Due to financial strain he could not manage

to deposit the amount in his account and those cheques

were bounced. The cheques were bounced, none of his

friends or relatives has ever made any complaint to the

Bank, none of them have filed any case against him.

Therefore the Bank has no reason to initiate the enquiry

against him. He further contended that the enquiry officer

has not recorded evidence of any witnesses. He prepared

his report merely on the basis of admission of the workman.

Enquiry was completed on the same day. The enquiry

was not fair and proper. The workman has not committed

any misconduct as has been alleged. The findings of the

enquiry officer are thus perverse. Therefore he prays that

the order of compulsory retirement be set aside and he be

directed to be reinstated in the service with full back wages

and consequential benefits.

4. The first party resisted the claim vide its written

statement at Ex-8. According to them the workman had

issued 16 cheques without sufficient balance in his S. B.

A/c. Those cheques were bounced. This act of the workman

not only amount to lack of honesty, financial integrity, but

also a criminal offence U/S 138 of Negotiable instrument

Act. Therefore workman was charged for misconduct of

doing an act prejudicial to the interest of Bank under clause

5 (j) of memorandum of settlement dated 10/04/2002. Shri

M. K. Mulgaonkar was appointed as enquiry officer and

Shri V. V. Kadam was appointed as Presenting Officer.

Intimation of the same was given to the workman with list

of documents and witnesses. The workman obtained

number of dates. Finally he appeared before the enquiry

officer on 14/02/2005. He voluntarily and unconditionally

accepted the charges. The enquiry officer found the

workman guilty. Accordingly he sent the report to the

disciplinary authority. The disciplinary authority served

him with show cause notice. After giving him hearing, the

disciplinary authority imposed penalty of compulsory

retirement. The workman preferred appeal and the same

came to be dismissed by Appellate Authority. The workman

was given fair and sufficient opportunity to defend himself.

He has admitted the facts that he had issued the16 cheques

to various persons and the same were dishonoured. The

enquiry is thus fair and proper. The findings of the enquiry

officer are based on evidence and admission of guilt by

the workman. Therefore, the findings of the enquiry officer

are not perverse. The first party therefore prays that

reference be rejected with cost.

5. Following are the preliminary issues for my

determination, I record my findings thereon for the reasons

to follow.

Sr. Issues

Findings

No.

Is enquiry fair and proper?

Yes

Are findings of the enquiry

Yes

Officer perverse ?

What order?

As per final

order.

REASONS

Issue no. 1 :

6. In respect of enquiry it is contended on behalf of

the workman that, the enquiry officer neither recorded

statement of witness nor gave opportunity to the second

party to cross examine any of the witnesses. In this respect

the fact is not disputed that enquiry officer did not examine

any witness and he prepared the enquiry report on the

basis of admissions of the workman. Therefore, the learned

Adv. for the first party submitted that the enquiry report

can be based on the basis of admission of the workman. In

support of his argument the learned adv resorted to the

Bombay High Court ruling in Hindustan Spinning Mill

Mumbai V/s Hindustan Crown Mills Siddhivinayak Kamgar

Karamachari Sangharsha Sanghatana and Others 2008 I

LLJ 243 wherein. The Hon’ble Court on the point

observed that;

“The admission is a best evidence against the party

making it though, not conclusive, shifts the onus to

the maker that on principle that what the party

himself admits to be true may be reasonably

presumed to be true so that until onus is discharged

the facts admitted must be taken to be true”

7. The learned Adv. also resorted to the Apex court

ruling in Additional District Magistrate (city) Agra V/s

Prabhakar Chaturvedi and Another 1996 (72) FLR 420 SC

wherein the Hon’ble Court on the point observed that;

“In fact on account of declared admission contained

in writing given by respondent No.1 on 14/12/1984

the charge against him stood proved on admission

1466

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

and then only question that remained to be

considered was about the nature of punishment to

be imposed on him.”

8. In this respect it is pertinent to note that the

workman has never denied the fact that, he had issued the

cheques and they were dishonoured for want of sufficient

funds in his account. In these circumstances the enquiry

officer has prepared his report on the basis of facts admitted

by the workman. Till this date the workman has not denied

this fact. Furthermore I would like to point out that as no

witness was examined, hence question of making any

witness available for cross examination does not arise.

Therefore the contentions on behalf of the workman, does

not stand to reasons that, there was violation of principle

of natural justice.

9. In this respect the fact is not disputed that the

charge sheet was served on the workman. He appeared

before the enquiry officer. The enquiry officer explained

him the charges. The workman has admitted the fact that,

the cheques issued by him to various persons were

dishonoured. On the basis of his admission the enquiry

officer has prepared his report. In the light of the above

referred rulings it is clear that the report of the Enquiry

Officer can be based on the admission of the workman it is

not always necessary to examine the witnesses, therefore,

I come to the conclusion that the enquiry is fair and proper.

Accordingly I decide this issue no.1 in the affirmative.

Issue no. 2 :

10. In this case the Enquiry Officer held the workman

guilty for “doing any act prejudicial to the interest of the

Bank”. According to the workman the said finding is

perverse. The facts of the case herein are very typical.

The workman herein has not disputed that he had issued

number of cheques drawn on his S.B. A/c No. 66522 and

those cheques were dishonoured as has been alleged.

According to him, his mother was suffering from cancer

and for her treatment he had obtained money from his

friends and relatives. He had issued those cheques

towards repayment of the amounts he has borrowed. He

has also admitted that, he could not manage to deposit

sufficient amounts in his account, therefore those cheques

were dishonoured. In the light of these admissions the

Enquiry Officer has concluded the enquiry and held him

guilty. In this respect the Ld. Adv. of the first party relied

on the above referred ruling of Hon’ble Supreme Court in

Additional District Magistrate (supra) where in the Hon’ble

Court held that, on account of admission the charge is

held to be proved and only question that remains to be

considered was about the nature of punishment to be

imposed on him. The Ld. Adv. therefore submitted that in

the light of the above ruling the charge is proved on

admission. In this respect I would like to point out that, in

the above referred case charge against the workman therein

was of misappropriation of amount of more than Rs. 21,000.

In the circumstances admission therein was held admission

of guilt itself. However in the case at hand the fact is

altogether different than the facts in the above referred

case. In the case at hand, though the workman had admitted

the facts that, the cheques issued by him were dishonoured

for want of sufficient funds in his account, he has not

admitted the allegation that, he has committed any act

prejudicial to the interest of the Bank, as has been alleged

in the charge sheet. On the other hand according to him in

compelling circumstances he was required to borrow

money from his relatives and friends for the treatment of

his mother who was suffering from cancer. According to

him by way of security he had issued the cheques. Due to

the financial difficulties he could not make the repayment

in time.

11. He further contended that, he has paid the

amounts of some of his creditors and he would be paying

to the remaining. In this respect it is pertinent to note that,

none of the persons whose cheques were dishonoured

either made any complaint to the Bank nor filed any case

U/S 138 of Negotiable Instrument Act. It is contended on

behalf the first party that, the workman has committed an

offence u/s 138 of N. I. Act. However mere dishonour of

cheque, ipso facto does not amount to an offence. The

offence u/s 138 of N. I. Act is of technical in nature. Before

amendment to the N. I. Act the dishonour of the cheque

was not an offence. Even after enactment of Sec.138 mere

dishonour of the cheque is not an offence. To make it

punishable it is at the option of the aggrieved party, as to

whether to prosecute or to give more time or he may also

forego the action. In case he wants to take action he has

to give notice of a specific period to make the payment. In

case of failure the complaint has to be filed within the time

prescribed therefor. In short mere dishonour of a cheque

is not an offence unless the aggrieved party decide to file

complaint and follow the special procedure prescribed

therefor. In the case at hand neither anyone had opted to

file complaint against the workman nor workman is either

charge-sheeted or convicted under Section 138 of N.I. Act.

In the circumstances the averment of the first party does

not stand to reasons that, as the cheques were

dishonoured, and the workman has admitted the said fact,

thus he has committed offence u/s 138 of N. I. Act. Infact

in the case at hand Section 138 of N.I. Act is not at all

invoked. Therefore question of committing offence by

the workman under Section 138 of N.I. Act does not arise.

12. In this respect another point raised on behalf of

the first party is that as the workman is an employee of the

bank, mere dishonour of cheques issued by him caused

harm to the reputation of the Bank and ultimately it can

affect the business of the bank. In this respect at the outset

I would like to point out that, neither the workman herein

is holding any key post in the bank nor anybody has

made any complaint to the Bank about the dishonour of

the cheque. The workman is a sub-staff-cum-electrician

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1467

and as there was no complaint, question of causing harm

to the reputation of the bank does not arise. At the same

time it was pointed out that the workman has admitted the

charges and therefore the enquiry officer has prepared his

report on the basis of admission. In this respect I would

like to point out that the workman has not admitted the

charge, he has only admitted the fact that, he had issued

the cheques and they were dishonoured. He has also

explained the circumstances as to why he had issued those

cheques and in what circumstances they were

dishonoured. He has not admitted the charge that, he

committed an act prejudicial to the interest of the bank.

Therefore the version of the first party is not acceptable

that, the findings of the enquiry officer are based on the

admission of the workman.

13. On the point of the findings, the Ld. adv. for the

first party submitted that the Tribunal is not sitting as

Appellate Court and cannot set aside the findings of the

enquiry officer and replace its own findings. In this respect

I would like to point out that this Tribunal can very well re-

appreciate the evidence recorded in the domestic inquiry

and can reach to the just and fair conclusion. Law to that

effect is laid down by Hon’ble Apex Court in Firestone

Tyre and Rubber Co. of India Pvt. Ltd. V/s. Management

and ors. 1973 (I) SCC 813 wherein the Hon’ble Court has

observed that;

“The Labour Court has now been clothed with the

power of re-appreciating evidence in the domestic

inquiry and satisfy itself whether the said evidence

replied on by the employer establishes the

misconduct alleged against the workman.”

14. In the light of these observations of the Apex

Court I would like to re-appreciate the evidence in the

domestic inquiry. In this respect I would like to point out

that the reason to borrow huge amount by the workman is

not only genuine but it was his pious obligation to treat

his mother, who was suffering from the dreaded disease

like cancer. In the circumstances it can be said that a poor

sub staff has set an example before the members of the

staff and the society as well that, he did his best and spent

maximum amount for the treatment of his cancer ridden

mother. The Bank and employees thereof should be proud

of such an employee. For the same reason, the creditors of

the workman, seems to have not made any complaint either

to the bank or in the court of law as well. This aspect is not

at all taken into account by the enquiry officer.

15. No doubt the cheques issued by the workman

were bounced. The creditors are the real aggrieved parties

for the same. However no one of them has made any

grievance therefor. To be poor cannot be termed as a

misconduct so also the act of borrowing money for genuine

purpose and failure to repay the debt as promised also

cannot be termed as misconduct. Dishonour of cheque is

nothing but failure to repay the debt as promised for. The

dishonour of cheque is brought in the ambit of offence,

for commercial discipline and to give more sanctity to the

negotiable instruments. However it is, at the option of the

holder of the cheque. Otherwise neither it can be said an

act with guilty intention nor can be termed as offence

relating to moral turpitude as such. In this back drop it is

clear that the act of not making arrangement to deposit

amount or dishonour of cheque does not amount to

misconduct causing dis-reputation or loss to the bank. In

these days we see number of incidents in the society

wherein old parents are being neglected and they are

required to take recourse of law. The workman herein had

not borrowed the amount for his personal expenses or for

any other fancy purposes. On the other hand the workman

has set up an example how to obey the pious obligation

towards old and ill taken parent. For that purpose he was

required to borrow huge amounts which he could not repay

in time. Therefore the cheques issued by him were

bounced. Neither it would cause dis-reputation to the

Bank nor would affect its business, as reason behind

borrowing the amount was noble and to meet out the pious

obligation of a son towards his mother. The first party

Bank and the employees thereof should be proud of such

an employee who has spent exorbitant amount for the

treatment of his cancer ridden mother. The inquiry officer

has lost sight of this aspect in the admitted fact of

dishonour of cheque. In the circumstances I hold that,

neither dishonour of cheques herein amount to an offence

nor it can be said an act prejudicial to the interest of the

Bank. His admission was limited only to dishonour of

cheque and not to the charge of doing an act prejudicial to

the interest of the Bank. In this backdrop I hold that, the

findings of the inquiry officer are perverse as he held the

workman guilty of misconduct of committing an act

prejudicial to the interest of the Bank.

16. As the findings of the enquiry officer are found

perverse, infact the workman was not guilty for the

misconduct charged against him. Thus I hold that the

punishment of compulsory retirement imposed on the

workman needs to be set aside. Consequently I hold that

the workman deserves to be reinstated in the service.

17. In respect of back-wages the Ld. adv. for the

first party submitted that ‘no work no wages’ is now well

settled position of law. He further submitted that the

workman must have earned atleast to meet the two ends

of he himself and his family. Therefore he submitted that

no back wages should be awarded to the workman. In this

respect he further submitted that awarding of back wages

would be unnecessary burden on the first party and

ultimately on the state exchequer. As against this the ld.

adv. for the second party submitted that the workman is a

poor person working as a sub staff -cum- electrician. He

was made to retire compulsorily only because he was poor

1468

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

and could not arrange for the money. According to him

the act of dishonour of cheque cannot be termed as

misconduct or offence. The workman was compulsorily

retired without any fault on his part. He sustained huge

monetary loss. Therefore the Ld. adv. submitted that the

workman is entitled to full back wages.

18. Awarding full back-wages without any work

would no doubt amount to putting unnecessary burden

on the state exchequer. At the same time as findings of

enquiry officer are found to be perverse and punishment

imposed is found to be illegal. The workman is a poor

sub- staff who has spent huge amount for the treatment of

his mother. His act in question does not amount to

misconduct as has been alleged. In this backdrop not

awarding any back wages would amount to injustice to

the workman. In the circumstances to meet the end of

justice, I think it proper to award 50% back wages to the

workman. Accordingly, I partly allow the reference and

proceed to pass the following order :

ORDER

(i)

The Reference is partly allowed with no order as

to cost.

(ii)

The punishment of compulsory retirement of

the workman is hereby set aside. The first party

is directed to reinstate the workman with 50%

back wages and all consequential benefits and

continuity of service.

Date: 20.09.2013

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 29 tuojh] 2014

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dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eqacbZ iÙku

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vf/dj.k@Je U;k;ky;] eqacbZ ds iapkV (lanHkZ la[;k 48@2007)

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¹la- ,y&31011@14@2007&vkbZ vkj (ch&II)]

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New Delhi, the 29th January , 2014

S.O. 513.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 48/2007)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Mumbai as shown in the Annexure in the

Industrial Dispute between the Management of Mumbai

Port Trust and their workmen, received by the Central

Government on 29-1-2014.

[No. L-31011/14/2007-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-2/48 of 2009

Employers in relation to the management of Mumbai

Port Trust

The Chairman,

Mumbai Port Trust

Port House

Ballard Estate

Mumbai-400 038.

AND

Their Workman

Shri L.P. Churnarkar

C/o. Balkrishna Zade Patil

Shivaji Ward, Mul Road

Near Bright English Convent

Tq. Gondpipari

Gondpipari

Distt. Chandrapur-(MS)

APPEARANCES :

For the Employer

Mr. Umesh Nabar, Advocate

For the Workmen

No appearance

Mumbai, dated the 26th September, 2013

AWARD PART-I

The Government of India, Ministry of Labour and

Employment by its Order No.L-31011/14/2007-IR (B-II),

dated 04.10.2007 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 Mumbai

Port Trust in terminating the services of Shri

L.P.Chunarkar w.e.f. 11/01/1999 is justified? If not,

what relief, Shri L.P.Chunarkar is entitled to?”

2. After receipt of the reference, notices were issued

to both the parties. In response to the notice, second

party workman filed his statement of claim at Ex-13.

According to the second party he was working with first

party from 25/1/1983 till 11/1/1999. He was promoted as

Junior Assistant w.e.f. 1/8/1997 and was posted in Labour

Office of the Docks Department of the first party. The

past record of the workman was spotless and clean. Due

to ill health and due to personal problems, workman was

unable to attend his duties in the month of October/

November 1998. First party issued a show cause notice

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1469

dt.3/12/98 which was replied by workman vide his letter

dt. 11/12/98. First party initiated inquiry against the

workman and appointed inquiry officer who was a salaried

employee of the first party. Workman remained present

on the first day of inquiry however could not remain

present on the 3^rd or 4^th week of December 1998. On

11/1/99 he was given a copy of confidential memo stating

that his explanation was found unsatisfactory and also

wrongly stated that past service record of the workman

shows warnings for absence were issued. No opportunity

of hearing was given to the workman or to defend himself

through his defence representative. Workman was not

given opportunity to cross examine the management

witnesses. He was not supplied with copies of documents

relied upon by the management. On 11/1/99 the workman

was surprised when he was issued order of removal from

services without issuing final show cause notice as per

settled principals of law. No charge sheet was given to

the workman. For all these reasons workman states that

the inquiry was not fair and proper and was illegal.

Workman approached ALC (C). On the report of ALC (C),

Ministry of Labour & Employment referred the dispute to

this Tribunal. Therefore workman prays to set aside the

order of removal dt. 11/1/1999 and direct the first party to

reinstate the workman in service with full back wages and

continuity of service.

3. The first party management resisted the claim

statement vide their written statement vide Ex-15.

According to them second party workman was appointed

as B scale Clerk in the Traffic Department of first party on

25/1/1983. The workman was in the habit of frequently

remaining absent unauthorisedly. According to them

though second party was warned by memo dt. 7/2/1984

for his unauthorised absence, he did not show any

improvement in his attendance. He remained

unauthorizedly absent on 24 occasions during the period

from 25/1/1983 to 16/1/1985. Workman was imposed minor

penalty of withholding next increment without prejudice

to his future increments for a period of 2 years as per

memo dt. 20/03/1989. He again remained absent

unauthorisedly for 297 days on 79 occasions during the

period 1/1/1991 to 19/5/1994 for which again minor penalty

of withholding increment was imposed on the workman

vide memo dt. 5/9/1995. Despite the aforesaid warnings

and minor penalties, workman remained absent

unauthorisedly for 555 days on 11 occasions during the

period from 20/5/1994 to 17/6/1998. Chargesheet was

served on the workman on 18/7/1998 for his misconduct

of violating Regulations 3 (1A) (ii) and (v) of the MbPT

Employees’ (Conduct) Regulation 1976. Workman did not

reply the chargesheet and first party was constrained to

initiate a departmental inquiry against the workman. Mr.

S.S. Tijore, Assistant Manager was appointed as Inquiry

Officer and Mr. L.B. Kumbhar, Assistant Manager as

Presenting Officer. Workman did not remain present in

the inquiry proceeding inspite of receiving intimations

thereof. Therefore IO concluded the proceedings ex-parte

and submitted his report dt. 10/11/1998 holding the

workman guilty of the charges leveled against him.

Disciplinary Authority after going through the findings

issued show cause notice dt. 3/12/98. Workman replied

the show cause notice vide letter dt.14/12/1998 which was

not found satisfactory by the Disciplinary Authority and

therefore granted personal hearing to the workman. Not

being satisfied with his oral and written submission,

disciplinary authority by order dt. 11/1/1999 imposed

penalty of removal from services with immediate effect on

the workman. First party denied all the contentions in the

statement of claim of the workman and prayed to reject the

reference with costs.

4. Following are the issues framed for my

determination. I record my findings thereon for the reasons

to follow:

Sr.

Issues

Findings

No.

Whether the inquiry held against

Yes

the workman Shri L.P.Churnarkar

was legal and proper?

Whether the findings of the IO

are perverse?

REASONS

Issue no. 1 :

5. In the case at hand the workman has challenged

the inquiry stating that he was not given an opportunity

to defend himself. It is also contended that in the inquiry

proceeding he was not given an opportunity to cross

examine the witnesses examined by the management. It is

also contended that the inquiry was conducted ex -parte

and there was gross violation of principles of natural

justice. In this respect it is submitted on behalf of the

management that the charge sheet was served on the

workman. Due notice was given to him in respect of the

dates of inquiry. The workman was present on the first

date of hearing. The workman has also admitted the said

fact in his statement of claim that on the first day of hearing

before the Inquiry Officer, he was present. According to

the workman on the next date he could not attend the

hearing before the IO for his personal reasons. He has not

explained why he could not attend the inquiry proceeding

before the IO. From the statement of claim itself it is clear

that the workman remained absent inspite of notice of

further date of inquiry. Therefore the IO proceeded with

the inquiry in the absence of the workman. As workman

willfully remained absent inspite of notice, therefore, he

cannot claim for any advantage in respect of his own

mistake. Furthermore I would like to point out that the

burden was on the workman to prove what was the

compelling reason which prevented him from appearing

1470

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

before the IO. However the workman has not even led

any evidence in this reference. He has not filed his

affidavit in support of the contents in the statement of

claim. In short, the workman failed to discharge the initial

burden on him.

6. On the other hand the first party management

has proved the contents in their written statement by filing

affidavit of the concerned officer at Ex-35. The first party

has also proved all the documents on record at Ex-24 to

34. From the documents and evidence on record it is clear

that sufficient opportunity was given to the workman.

Inspite of that he remained absent. Therefore inquiry

Officer had no other alternative but to proceed with the

inquiry exparte. In the circumstances the plea of the

workman does not stand to reasons that there was violation

of principles of natural justice. In the case at hand the fact

is not disputed that the inquiry officer has explained the

charge to the workman on the first date of hearing. He

was given the next date of hearing. The workman remained

absent. Therefore IO examined the witnesses and

proceeded with the inquiry exparte. He submitted his

report to the disciplinary authority. The Disciplinary

authority sent the copy of inquiry report to the workman

with show cause notice. Workman filed his reply and after

hearing him the disciplinary authority has passed the order.

As workman willfully remained absent, therefore he cannot

raise the plea of violation of principles of natural justice.

In the circumstances I hold that the inquiry was fair and

proper. Accordingly I answer this issue no.1 in the

affirmative.

Issue no. 2 :

7. In respect of the findings of the Inquiry officer, it

is contended on behalf of the workman that the findings

of the IO are perverse. According to him as he did not get

opportunity to cross examine the witnesses and to lead

his evidence, the findings of the IO are one sided and are

thus perverse. In this respect I would like to point out

that, the inquiry was found to be fair and proper. The

workman inspite of knowledge of the date of inquiry

remained absent. Therefore no fault can be found in the

inquiry proceeding. The findings of the IO are based on

the evidence on record. In the circumstances no fault can

be found in the findings of the inquiry officer. Furthermore

the workman has not led any evidence in support of his

pleadings in the statement of claim. On the other hand the

contents in the written statement are proved by the first

party by examining their witness at Ex.35. In this back

drop conclusion can be arrived at that findings of the IO

are not perverse. Accordingly I decide this issue no. 2 in

the negative. Thus the order:

ORDER

(i)

The inquiry is held fair and proper.

(ii)

Findings of the Inquiry Officer are not perverse.

(iii)

The parties are directed to argue/lead evidence

on the point of quantum of punishment.

Date: 26.09.2013

K. B. KATAKE, Presiding Officer

ubZ fnYyh] 29 tuojh] 2014

dk-vk- 514-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ

bafM;k ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp

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gqvk Fkk A

¹la- ,y&12012@46@2011&vkbZ vkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 29th January , 2014

S.O. 514.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 58/2011)

of the Central Government Industrial Tribunal-cum-Labour

Court-2, Mumbai 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 29-1-2014.

[No. L-12012/46/2011-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-2/58 of 2011

Employers in relation to the management of

Bank of India

The Zonal Manager

Bank of India

1162/6, Shivajinagar

University Road,

Pune-411 005

AND

THEIR WORKMEN

Shri Ranjit D. Bote S/o Shri D.G. Bote

Ex-Arm Guard

Manjula Housing Society

Jagtap Mala, Behind Muktidam

Nasik Road

Mumbai.

¹Hkkx II—[k.M 3(ii)º

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1471

APPEARANCES :

For the Employer

Mr. Lancy D’Souza,

Representative

For the Workman

No appearance

Mumbai, dated the 9th October, 2013

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No.L-12012/46/2011-IR (B-II),

dated 04.11.2011 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 management of Bank of India right in

rejecting the claim of the legal heir of the deceased

workman (Late Sh. D.G. Bote, Ex-Arm Guard) for

compassionate employment/lump sum Ex-gratia

payment as per the scheme in force. What relief and

other benefits is the dependent family member of

the deceased workman entitled to?”

2. After receipt of the reference, notices were issued

to both the parties. Workman was served with notices

vide Ex-4, Ex-6, Ex-8 and Ex-10. On 15/05/2012 concerned

workman remained present but requested adjournment for

filing statement of claim. Till date, second party workman

neither appeared in the proceeding nor filed his statement

of claim. Since nobody appeared on behalf of the second

party workman and filed statement of claim, it seems he is

not interested in pursuing the matter further. Without

statement of claim award cannot be passed on merits.

Therefore I think it proper to dismiss the reference for

want of prosecution. Thus I pass the following order:

ORDER

Reference stands dismissed for want of prosecution.

No order as to cost.

Date: 09.10.2013

K. B. KATAKE, Presiding Officer

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New Delhi, the 29th January , 2014

S.O. 515.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 92/2012)

of the Central Government Industrial Tribunal-cum-Labour

Court, Delhi 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

29-1-2014.

[No. L-39025/1/2010-IR (B-II)]

RAVI KUMAR, Section Officer

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.1, KARKARDOOMA COURTS COMPLEX, DELHI

I.D. No. 92/2012

Shri S.C.Das,

R/o 28, Rampuri,

Ground Floor,

Kalkaji,

New Delhi -110019

…Workman

Versus

The Zonal Manager,

Bank of India,

Zonal Office, New Delhi Zone,

Jeevan Bharti Building, Level-5,

Tower-1, New Delhi-110058

…Management

AWARD

A computer terminal operator (in short the CTO),

working with Bank of India (in short the bank) purchased

a house at 28, Rampuri, Ground Floor, Kalkaji, New Delhi.

He came to reside there alongwith his family. His elder

brother happened to be an IAS Officer, posted with Central

Vigilance Commission, Government of India, New Delhi.

With a view to keep his upmanship with the local residents

and avail favour for a few facilities, the CTO impersonated

himself as an IAS officer, posted as Director, Central

Vigilance Commission, Government of India, New Delhi.

He boasted of his position amongst the local residents.

He wrote letters to the officers of the Municipal

Corporation of Delhi, impersonating himself as a civil

servant. He collected money from local residents for

development of a park. When his status came to light, one

of the residents made a complaint to the bank. A fact

finding enquiry was conducted. Ultimately, charge sheet

was served on the CTO. A domestic enquiry was

constituted. The Enquiry Officer recorded findings against

the CTO. The bank awarded him punishment of

‘compulsory retirement from service’. He raised a demand

for reinstatement in service, which demand was not

conceded to by the bank. He approached the Conciliation

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[PART II—SEC. 3(ii)]

Officer for redressal of his grievances. The Conciliation

Officer entered into conciliation proceedings. Since the

bank contested his claim, conciliation proceedings ended

into a failure.

2. On expiry of 45 days from the date of making an

application before the Conciliation Officer, the CTO,

namely, Shri S.C. Das raised a dispute before this Tribunal

under provisions of sub-section (2) of section 2A of the

Industrial Disputes Act, 1947 (in short the Act). He

unfolded that his services were terminated by the bank on

25.02.2011 and an application was moved by him before

the Conciliation Officer on 16.04.2012. He asserted that a

period of 45 days stood expired from the date of making an

application before the Conciliation Officer. Since sub-

section (2) of section 2A of the Act empowers a claimant

to file a direct dispute before this Tribunal without being

referred for adjudication by the appropriate Government,

under sub-section (1) of section 10 of the Act, in case of

discharge, dismissal, retrenchment or otherwise termination

of his services and the dispute raised by the claimant was

within the time limit prescribed by sub-section (3) of section

2A of the Act, it was registered as an industrial dispute.

3. During pendancy of the dispute, referred above,

the Conciliation Officer submitted his failure report to the

appropriate Government. An opinion was formed by the

appropriate Government that an industrial dispute exists

and it referred the dispute to this Tribunal for adjudication,

vide order No.L-12012/81/2012-ID(B-II), New Delhi dated

08.03.2013, with following terms:

“Whether action of the management of Bank of India

in terminating/ compulsorily retiring Shri S.C.Dass

is legal and justified? What relief the workman is

entitled to?”

4. Dispute raised by the claimant under sub-section

(2) of section 2A of the Act encompass the very

controversy, which was referred for adjudication to this

Tribunal by the appropriate Government under sub-section

(1) of section 10 of the Act. Two disputes arose out of the

same facts between the same parties. Therefore, the above

disputes were clubbed together and the dispute registered

as ID No.92/2012 was treated as main case for all purposes.

5. Claim statement was filed by Shri S.C. Das

pleading that he was employed by the bank in October

1983 and working as CTO at its Greater Kailash Part II

branch on 25.02.2011, the date when his services were

illegally dispensed with. He presents that memorandum

dated 01.12.2009 was served on him wherein it was alleged

that he introduced himself to his neighbours as an IAS

officer working as Director with Central Vigilance

Commission, Government of India, New Delhi and thus

impersonated himself as an IAS Officer. Not only did he

introduce himself as an IAS Officer to his neighbours but

also wrote letters to the Deputy Commissioner, Municipal

Corporation of Delhi on 11.11.2003, 04.03.2004 and

10.03.2004 impersonating himself as an Officer, working as

Director, Central Vigilance Commission and residing at 28,

Rampuri, Ground Floor, Kalkaji, New Delhi. He also got

words ‘Govt. of India’ painted on number plate of his car,

bearing registration No.DL 3C AG 9712. In his version

dated 01.10.2009, he had falsely stated that the said car

was registered in the name of his real brother Shri S.K.

Das. He gave false submissions with a view to mislead the

investigation.

6. Claimant projects that memo dated 01.12.2009 was

replied by him vide his letter dated 22.12.2009. After

considering his reply, the bank served charge sheet dated

29.05.2010, after about six months. In the said charge sheet

additional charge, not mentioned in the memorandum dated

01.12.2009, was added. It was alleged therein that the

claimant had not deposited Rs.1,000.00 in the account of

Ms.Poornima Sikdar on 28.02.2009 and in fact deposited

that amount on 02.03.2009. He claimed that no document

was supplied to him either with memorandum dated

01.12.2009 or with the charge sheet to enable him to give

an effective reply. Failure to supply relevant documents

rendered the enquiry bad in law. Supply of documents

with show cause notice and charge sheet is an essential

requirement to conduct enquiry in consonance with law.

Charge No.1, mentioned in the charge sheet, is wholly

trivial. Assuming it to be correct, amount of Rs.1,000.00

was admittedly deposited in the account of Ms. Sikdar on

02.03.2009, since 01.03.2009 happened to be a Sunday. The

second charge does not even constitute to be a

misconduct, defined by Bipartite Settlement. The bank

had abused its position and authority for extraneous and

malafide reasons with a view to punish him. He denied all

allegations claiming that the said charge was fabricated

by Shri Anil Kumar Mishra, as a counter blast to a civil

suit filed by his wife against the former. The bank had not

made any complaint to the police in respect of charges of

impersonation. The bank had not tried to enquire the

facts from Municipal Corporation of Delhi in that regard.

Impersonation is an offence. Enquiry Officer never asked

Shri Mishra to produce originals of the letters, alleged to

have been written by him to the Deputy Commissioner,

Municipal Corporation of Delhi. The Enquiry Officer

recorded his findings, the basis of photocopies of those

letters. On the other hand, the Appellate Authority, shifted

onus on the claimant when following observations were

made in order dated 25.01.2012:

“Bank had given all opportunities to the appellant

to produce witness and documents in defence of

his case in the enquiry, but he failed to do so.”

7. Claimant presents that the above observations

make it apparent that the bank had shifted burden on him,

which is in contravention of settled law. The enquiry

conducted against him was illegal and motivated. The

Enquiry Officer rejected all his pleas and accepted version

of the bank. Proceedings before the Enquiry Officer

¹Hkkx II—[k.M 3(ii)º

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1473

happened to be a mock show. Report of the Enquiry Officer

is totally perverse. Punishment of compulsory retirement

is wholly unjust, excessive and disproportionate. Shri Anil

Kumar Mishra wrote to the bank on 29.04.2011 projecting

therein that he made complaint against him on being

misguided by someone. He regretted and decided to

withdraw his complaint, in the letter referred above. These

facts were not taken into account at all. The Appellate

Authority also failed to apply his mind to his submissions.

He presents that relief of reinstatement in service with

continuity and full back wages may be awarded in his

favour.

8. Claim was demurred by the bank pleading that

the charge sheet dated 29.05.2010 was served on the

claimant, wherein it was alleged that he impersonated as

an IAS Officer working as Director, Central Vigilance

Commission, Government of India, New Delhi, when he

wrote letters to the Deputy Commissioner, Municipal

Corporation of Delhi, on various occasions. It was also

alleged that he painted words ‘Govt. of India’ on number

place of the car bearing No.DL 3C AG 9712. The said car

was registered in his name by the Registering Authority,

Sheikh Sarai, New Delhi. It was also alleged that he had

not deposited Rs.1000.00 in the account of Ms.Poonam

Sikdar on 28.02.2009 and made deposit of that amount on

02.03.2009, pursuant to the said charge sheet, domestic

enquiry was constituted. Action against the claimant

was taken in accordance with provisions of Bipartite

Settlements and principles of natural justice. The Enquiry

Officer recorded his findings on 20.09.2010, wherein he

concluded that charges stood proved. The Disciplinary

Authority, vide order dated 25.02.2011, awarded

punishment of compulsory retirement with superannuation

benefits. Appeal preferred by the claimant was dismissed,

vide order dated 25.01.2012. Orders passed by the

Disciplinary Authority as well Appellate Authority are legal

and justified.

9. The bank presents that even at earlier point of

time, charge sheet was served on the claimant for acts of

gross misconduct and punishment of stoppage of two

increments with cumulative effect was awarded to him,

vide order dated 31.07.1993. Another charge sheet was

served upon him in the year 1996. After domestic enquiry,

punishment of stoppage of two increments was imposed

upon him, vide order dated 12.08.1997. Show cause notice

dated 27.09.2002 was issued to the claimant for gross

misconduct of not accounting for cash properly in books

of the bank, resulting to cash shortage of Rs.1000.00.

Punishment of withdrawal of special pay of Cash Incharge

was imposed upon him, vide order dated 09.08.2002. These

facts make it apparent that service record of the claimant

was not clean and satisfactory. Copy of daily order sheet

dated 12.06.2010 establishes that documents relied by the

bank were given to the claimant. There has been no denial

of opportunity to defend in the enquiry.

10. When an employee misrepresents his status,

image of the bank would be tarnished. Such act constitutes

misconduct within the meaning of “doing acts prejudicial

to the interest of the bank”. Punishment awarded to the

claimant commensurate to his misconduct. His claim being

not maintainable, may be dismissed, pleads the bank.

11. On pleadings of the parties, following issues

were settled:

(I)

Whether enquiry conducted by the bank

against the claimant was in violation of

principles of natural justice?

(II)

Whether punishment awarded to the

claimant commensurate to his

misconduct?

(III)

Whether claimant is entitled to relief of

reinstatement in service?

12. Issue No.I was treated as preliminary issue.

13. To discharge onus resting on it the bank

examined Shri K.P. Jatav. Claimant entered the witness box

to fend his claim.

14. After hearing the parties and on consideration

of the evidence, documentary as well as ocular facts,

preliminary issue was decided in favour of the bank and

against the claimant, vide order dated 03.06.2013.

15. Arguments on proportionality of punishment

were heard at the bar. Shri Inderjit Singh, authorized

representative, advanced arguments on behalf of the

claimant. Shri Rajat Arora, authorised representative,

raised submissions on behalf of the bank. I have given

my careful considerations to the arguments advanced at

the bar and cautiously perused the record. My findings

on issues involved in the controversy are as follows :

Issue No. 2

16. In order to assess as to whether punishment

awarded to the claimant is proportionate to his misconduct,

it is expedient to note charges levelled against him. Those

charges peep out of the charge-sheet dated 29.5.2010,

contents of which are as follows:

“Charges No.1

That on 28.02.2009, while working at cash receipt

counter, Smt. Purnima Sikdar, Staff Officer of Greater

Kailash II, branch had handed over to you across

the counter cash amounting to Rs.1000 alongwith

paying in slip for depositing the same in her O/D

account No. 603728110000005, maintained jointly

with her husband, Shri A. Sikdar. You accepted the

cash and handed over to Smt. Purnima Sikdar

counterfoil receipt duly signed by you. Instead of

accounting the cash in bank books you

misappropriated the same. When Smt.Purnima Sikdar

pointed out to you about non crediting of the cash

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[PART II—SEC. 3(ii)]

in her O/D account, you took the counterfoil receipt

from her on the plea that credit might have been

given in some other account and after some time

returned the same counterfoil receipt to her after the

date of receipt of cash was changed from 28.02.2009

to 02.03.2009 and simultaneously changing the date

in the cash receipt voucher from 28.02.2009 to

02.03.2009. The amount was actually deposited by

you only on 02.03.2009.

Your aforesaid acts of misappropriating Rs.1000 and

creating record to show that cash was received by

you only on 2.3.2009 by tampering the paying-in-

slip, if proved, would amount to gross misconduct

of “doing any act prejudicial to the interest of the

bank” within the meaning of Clause 5(j) of the

Memorandum of Settlement dated 10.4.2002.

Charge No. II

You projected yourself in your neighbourhood as

an IAS officer working as Director in Central

Vigilance Commission, Government of India, New

Delhi and sent a letter to the Deputy Commissioner,

Muncipal Corporation of Delhi under your signature

on 11.11.2003 stating therein and posing yourself as

an IAS officer working in Central Vigilance

Commission, Government of India, New Delhi. You

also wrote a letter dated 10.3.2004 addressed to

Director (Horticulture) Municipal Corporation of

Delhi, wherein you posed yourself as an IAS officer.

Both the letters are in your own handwriting and

signed by you. In a third typed letter Ref.

No.RK:SCD:CVC:101 dated 4.3.2004 addressed to

the Deputy Commissioner, Municipal Corporation

of Delhi, New Delhi duly signed by you, you again

posed yourself as an IAS officer. All the said 3 letters

bear your residential address i.e. 28, Rampuri, (GF),

Kalkaji, New Delhi-110019. To prove your position/

status, in the society as a Government of India

official, you got painted the words/letters ‘Govt. of

India’ on the Number plate of your four wheeler

vehicle i.e. car bearing Registration No.DL 3C AG

9712 registered in your name.

Your aforesaid acts of falsely projecting yourself as

an IAS officer, misrepresenting about your status/

claiming that you are a Top Executive in Central

Vigilance Commission, New Delhi, knowing fully well

that you are posted and working as Staff-Computer

Terminal Operator in Bank, if proved, would amount

to gross misconduct of “doing an act prejudicial to

the interest of the bank” within the meaning of

Clause 5(j) of the Memorandum of Settlement dated

10.4.2012.”

17. Findings, recorded by the Enquiry Officer are

also to be noted, which are extracted thus out of the report

dated 20.9.2010 :

“Analysis of evidence

Charge No. 1

The CSE received the cash of Rs.1000/-

on 28.2.2009 from Mrs.P.Sikdar for the credit of

her joint A/C No. 603728110000005 and handed

over the counter foil duly stamped & signed by

the CSE to Mrs. Purima Sikdar, but the cash was

not accounted on 28.02.2009 upon enquiry by

Mrs. Sikdar, about credit of Rs.1000/- to her A/C

Mr. S.C. Das. The CSE took the counterfoil receipt

on the plea that credit might have been given to

some other A/c and after lapse of some time, the

same was returned to Mrs.Sikdar. The date of

receipt was changed from 28.2.2009 to 2.3.2009

and voucher date was also changed from

28.2.2009 to 02.3.2009. It was not authenticated

by the account holder as per the Bank’s practice.

The CSE/ defence is countering it with timings of

the entry i.e. 9.41 AM of 2.3.2009 where as it was

about misappropriation of Rs.1000/- for 2 days. It

was not accounted on the date of the deposit i.e.

28.2.09. It was actually accounted on 02.03.2009.

The defence could not prove that the cash of

Rs.1000/- was tendered on 02.03.2009 but not on

28.02.2009 for the credit of A/c of Mrs.Sikdar.

Whereas the P.O. produced various documents

(M-1, 2, M-4, & M6) and witnesses (MW-1, &

MW-2) which prove it that the cash of Rs.1000

was tendered on 28.02.2009 for the credit of joint

A/c of Mrs. Purnima Sikdar & not on 02.03.2009.

Charge No. 2

The CSE projected himself as an IAS

Officer in his neighbourhood working as Director

in CVC, Govt. of India, New Delhi. The CSE wrote

and sent three letters dated 11.11.2003, 10.3.2004

& 04.03.2004 to Dy. Commissioner, MCD, Director

(Horticulture), MCD, Delhi and Dy. Commissioner,

MCD, Delhi respectively, signed by the CSE &

posing himself as an IAS Officer, working in CVC,

Govt. of India, New Delhi. The CSE got painted

his car number plate (Regn. Number DL 3C AG

9712) with words “Govt. of India”. The P.O.

produced various documents and witnesses (M-

7 to M-22 and MW.3 to MW.7) to prove the

charge No.2. The CSE could not produce any

document or witness in his defence. During the

enquiry proceedings, the CSE and Defence

Representative were given sufficient time and

chance to produce documents and witness for

CSE defence. The CSE could cover his defence

through brief only. The CSE instead of produce

his witness and documents for his defence

preferred to counter the management documents

and witnesses. The CSE mainly made a point not

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1475

to rely upon management witnesses on unlogical

ground i.e. (i) the I.O. acted in a partisan manager.

(ii) documents produced in the enquiry were

zeroxed copy. The CSE didn’t raise this issue when

he inspected the document. No objection was

made either by CSE or by D.R. The CSE didn’t

bring any point which lead to the partisan manner

of the I.O. MW-5 witness is also questioned by

the CSE on the ground that there was a litigation/

court case between MW-5 & the CSE’s wife. But

the CSE did not cross examine the MW-7 to that

extent which indicate their personal enmity/

grouse. As far as hand writing and style of

signature are concerned, the MW-3 (who is

having rich experience of banking) the Chief

Manager confirmed the signature and writing of

the CSE on documents No.M-9, M-10 and M-11)

MW-6 and MW-7 witness are also questioned

by the CSE because MW-6 gave his two

residential addresses and MW-7 was contacted

over telephone by the I.O. MW-6 himself

explained his position regarding two addresses

while his deposition. Likewise MW-7 also

explained his position in the enquiry proceedings.

Hence, the CSE objection cannot be considered

justified. The CSE also raised why MW-5 took 2

years to know about correct status of the CSE.

MW-5 is a business man. No business man can

afford to spare time to find out the status of his

neighbour on exclusively. In a routine and a casual

manner, such a long time may be considered a

reasonable time. Regarding painting of word

“Govt. of India” on the number plate of the CSE’s

Car, it was not painted by himself, surprised him

as somebody got it painted and got photographed

but the CSE didn’t think proper to lodge a police

complaint in this regard. He preferred to keep

mum on this issue and this cannot be believed.

Rest of the issues which are mentioned in the

brief by the CSE are not connected with the

charges.

Findings :

On the basis of the documents,

witnesses, examination in chief, cross

examination, brief by P.O. & CSE, & enquiry

proceedings I am of the considered opinion that

both the charges are correct and proved beyond

doubt. Submitted my enquiry report.”

18. Now efforts would be made to assess as to

whether punishment commensurate to misconduct

committed by the claimant. Before adverting to the exercise

it would be expedient to note the legal propositions. It is

well settled proposition of law that right of an employer to

inflict punishment of discharge or dismissal or compulsory

retirement is not unfettered. The punishment imposed must

be commensurative with gravity of the misconduct, proved

against the delinquent workman. Prior to enactment of

section 11-A of the Act, it was not open to the industrial

adjudicator to vary the order of punishment on finding

that the order of dismissal was too severe and was not

commensurative with the act of misconduct. In other

words, the industrial adjudicator could not interfere with

the punishment as it was not required to consider propriety

or adequacy of punishment or whether it was excessive or

too severe. The Apex Court, in this connection, had,

however, laid down in Bengal Bhatdee Coal Company

[1963(1) LLJ 291] that where order of punishment was

shockingly disproportionate with the act of the misconduct

which no reasonable employer would impose in like

circumstances, that itself would lead to the inference of

victimization or unfair labour practice which would vitiate

order of dismissal or discharge. But by enacting the

provisions of section 11-A of the Act, the Legislature has

transferred the discretion of the employer, in imposing

punishment, to the industrial adjudicator. It is now the

satisfaction of the industrial adjudicator to finally decide

the quantum of punishment for proved acts of misconduct,

in cases of discharge or dismissal. If the Tribunal is

satisfied that the order of discharge or dismissal is not

justified in any circumstances on the facts of a case, it has

the power not only to set aside order of punishment and

direct reinstatement with back wages, but it has also the

power to impose certain conditions as it may deem fit and

also to give relief to the workman, including award of lesser

punishment in lieu of discharge or dismissal.

19. It is established law that imposing punishment

for a proved act of misconduct is a matter for the punishing

authority to decide and normally it should not be interfered

with by the Industrial Tribunals. The Tribunal is not

required to consider the propriety or adequacy of

punishment. But where the punishment is shockingly

disproportionate, regard being had to the particular conduct

and past record, or is such as no reasonable employer

would ever impose in like circumstance, the Tribunal may

treat the imposition of such punishment as itself showing

victimization or unfair labour practice. Law to this effect

was laid by the Apex Court in Hind Construction and

Engineering Company Labour [1965 (1) LLJ 462]. Likewise

in Management of the Federation of Indian Chambers of

Commerce and Industry [1971 (II) LLJ 630] the Apex Court

ruled that the employer made a mountain out of a mole hill

and had blown a trivial matter into one involving loss of

prestige and reputation and as such punishment of

dismissal was held to be unwarranted. In Ram Kishan

[1996 (1) LLJ 982] the delinquent employee was dismissed

from service for using abusive language against a superior

officer. On the facts and in the circumstances of the case,

the Apex Court held that the punishment of dismissal was

harsh and disproportionate to the gravity of the charge

imputed to the delinquent. It was ruled therein, “when

abusive language is used by anybody against a superior,

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[PART II—SEC. 3(ii)]

it must be understood in the environment in which that

person is situated and the circumstances surrounding the

event that led to the use of abusive language. No straight-

jacket formula could be evolved in adjudicating whether

the abusive language in the given circumstances would

warrant dismissal from service. Each case has to be

considered on its own facts”.

20. In B.M.Patil [1996 (11)LLJ 536], Justice Mohan

Kumar of Karnatka High Court observed that in exercise

of discretion, the disciplinary authority should not act

like a robot and justice should be moulded with humanism

and understanding. It has assess each case on its own

merit and each set of fact should be decided with reference

to the evidence regarding the allegation, which should be

basis of the decision. The past conduct of the worker may

be a ground for assuming that he might have a propensity

to commit the misconduct and to assess the quantum of

punishment to be imposed. In that case a conductor of the

bus was dismissed from service for causing revenue loss

of 50p to the employer by irregular sale of tickets. It was

held that the punishment was too harsh and

disproportionate to the act of misconduct.

21. After insertion of section 11-A of the Act, the

jurisdiction to interfere with the punishment is there with

the Tribunal, who has to see whether punishment imposed

by the employer is commensurative with the gravity of the

act of misconduct. If it comes to the conclusion that the

misconduct is proved , it may still hold that the punishment

is not justified because misconduct alleged and proved is

such as it does not warrant punishment of discharge or

dismissal and where necessary, set aside the order of

discharge or dismissal and direct reinstatement with or

without any terms or conditions as it thinks fit or give any

other relief, including the award of lesser punishment, in

lieu of discharge or dismissal, as the circumstance of the

case may warrant. Reference can be made to a precedent

in Sanatak Singh (1984 Lab. I.C.817). The discretion to

award punishment lesser than the punishment of

discharge or dismissal has to be judiciously exercised and

the Tribunal can interfere only when it is satisfied that the

punishment imposed by the management is highly

disproportionate to the decree of the guilt of the workman.

Reference can be made to the precedent in Kachraji Motiji

Parmar [1994 (II) LLJ 332]. Thus it is evident that the

Tribunal has now jurisdiction and power of substituting

its own measure of punishment in place of the managerial

wisdom, once it is satisfied that the order of discharge of

dismissal is not justified. On facts and in the circumstances

of a case, section 11A of the Act specifically gives two

folds powers to the Industrial Tribunal, first is virtually

the power of appeal against findings of fact made by the

Enquiry Officer in his report with regard to the adequacy

of the evidence and the conclusion on facts and secondly

of foremost importance, is the power of reappraisal of

quantum of punishment.

22. Power to set aside order of discharge or

dismissal and grant relief of reinstatement or lesser

punishment is not untramaled power. This power has to

be exercised only when Tribunal is satisfied that the order

of discharge or dismissal was not justified. This

satisfaction of the Tribunal is objective satisfaction and

not subjective one. It involves application of the mind by

the Tribunal to various circumstances like nature of

delinquency committed by the workman, his past conduct,

impact of delinquency on employer’s business, besides

length of service rendered by him. Furthermore, the

Tribunal has to consider whether the decision taken by

the employer is just or not. Only after taking into

consideration these aspects, the Tribunal can upset the

punishment imposed by the employer. The quantum of

punishment cannot be interfered with without recording

specific findings on points referred above. No indulgence

is to be granted to a person, who is guilty of grave

misconduct like cheating, fraud, misappropriation of

employers fund, theft of public property etc. A reference

cannot be made to the precedent in Bhagirath Mal Rainwa

[1995 (1) LLJ 960].

23. On turning to facts it is noted that the claimant

argues that impersonation as an IAS Officer is not a

misconduct under Bipartite Settlements. This contention

is refuted on behalf of the bank. In order to narrow down

the controversy provisions of awards and settlements,

applicable to award staff of the bank, are to be scanned.

Para 521.4 of the Shastri Award defines “gross misconduct”

on the part of an employee as follows:

“521.4 By the expression “gross misconduct”

shall be meant any of the following acts and

omissions on the part of an employee;

(a)

engaging in any trade or business

outside the scope of his duties except

with the permission of the bank;

(b)

unauthorized disclosure of information

regarding the affairs of the bank or any

of its customers or any other person

connected with the business of the bank

which is confidential or the disclosure

of which is likely to be prejudicial to the

interests of the bank;

(c)

drunkenness or riotous or disorderly or

indecent behavior on the premises of

the bank;

(d)

willful damage or attempt to cause

damage to the property of the bank or

any of its customers;

(e)

willful insubordination or disobedience

of any lawful and reasonable order of

the management or of a superior;

¹Hkkx II—[k.M 3(ii)º

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1477

(f)

habitual doing of any act which amounts

to “ minor misconduct” as defined below,

“habitual” meaning a course of action

taken or persisted in notwithstanding

that at least on three previous occasions

censure or warnings have been

administered or an adverse remark has

been entered against him

(g)

willful slowing down in performance of

work;

(h)

gambling or betting on the premises of

the bank;

(i)

speculation in stocks, shares, securities

or any commodity, whether on his

account or that of any other persons;

(j)

doing any act prejudicial to the interests

of the bank, or gross negligence or

negligence involving or likely to involve

the bank in serious loss;

(k)

giving or taking a bribe or illegal

gratification from a customer or an

employee of the bank;

(l)

abetment or instigation of any of the

acts or omissions above mentioned”.

24. Catalogue of “gross misconduct” was modified

time and again and it was lastly modified by para 5 of

bipartite settlement dated 10.4.2002 as follows:

“(5) By the expression “gross misconduct” shall

be meant any of the following acts and omissions

on the part of an employee:

(a)

engaging in any trade or business

outside the scope of his duties except

with the written permission of the bank;

(b)

unauthorized disclosure of information

regarding the affairs of the bank or any

of its customers or any other person

connected with the business of the bank

which is confidential or the disclosure

of which is likely to be prejudicial to the

interests of the bank;

(c)

drunkenness or riotous or disorderly or

indecent behavior on the premises of

the bank;

(d)

willful damage or attempt to cause

damage to the property of the bank or

any of its customers;

(e)

willful insubordination or disobedience

of any lawful and reasonable order of

the management or of a superior;

(f)

habitual doing of any act which amounts

to “minor misconduct” as defined below,

“habitual” meaning a course of action

taken or persisted in, notwithstanding

that at least on three previous occasions

censure or warnings have been

administered or an adverse remark has

been entered against him;

(g)

willful slowing down in performance of

work;

(h)

gambling or betting on the premises of

the bank;

(i)

speculation in stocks, shares, securities

or any commodity whether on his

account or that of any other persons;

(j)

doing any act prejudicial to the interest

of the bank or gross negligence or

negligence involving or likely to involve

the bank in serious loss;

(k)

giving or taking a bribe or illegal

gratification from a customer or an

employee of the bank;

(l)

abetment or instigation of any of the

acts or omission above mentioned;

(m)

knowingly making a false statement in

any document pertaining to or in

connection with his employment in the

bank;

(n)

resorting to unfair practice of any nature

whatsoever in any examination

conducted by the Indian Institute of

Bankers or by or on behalf of the bank

and where the employee is caught in

the act of resorting to such unfair

practice and a report to that effect has

been received by the bank from the

concerned authority;

(o)

resorting to unfair practice of any nature

whatsoever in any examination

conducted by the Indian Institute of

Bankers or by or on behalf of the bank

in cases not covered by the above Sub-

Clause (n) and where a report to that

effect has been received by the bank

from the concerned authority and the

employee does not accept the charge;

(p)

remaining unauthorisedly absent

without intimation continuously for a

period exceeding 30 days;

(q)

misbehaviour towards customers arising

out of bank’s business;

(r)

contesting election for Parliament/

Legislative Assembly/Legislative

1478

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Council/local

bodies/municipal

corporation/panchayat, without explicit

written permission of the bank;

(s)

conviction by a criminal Court of Law

for an offence involving moral turpitude;

(t)

indulging in any act of ‘sexual

harassment’ of any woman at her

workplace;

Note: Sexual harassment shall include

such unwelcome sexually determined

behaviour (whether directly or

otherwise) as

(a)

physical contact and advances;

(b)

demand or request for sexual

favours;

(c)

sexually coloured remarks;

(d)

showing pornography; or

(e)

any other unwelcome physical,

verbal or non-verbal conduct of a

sexual nature.

(For State Bank of India)

(u)

the giving or taking or abetting the

giving or taking of dowry or demanding

directly or indirectly from the parents or

guardians of a bride or bridegroom, as

the case may be, any dowry”.

25. Bipartite settlement dated 10^th April, 2002, was

entered into between the management of 52 ‘A’ class banks

as represented by the Indian Bank’s Association and their

workmen as represented by the All India Bank Employee

Association, National Confederation of Bank Employees

and Indian National Bank employees Federation. The short

recital of the settlement provides that the agreement is to

detail procedure for talking disciplinary action against

workmen in the bank, who were parties to the agreement.

Para 2 of the settlement defines the expression “offence”

to mean any offence involving moral turpitude for which

an employee is liable to conviction and sentence under

any provisions of law. Para 3 of the settlement details the

procedure under which disciplinary action may be initiated

against an employee, in case of his acquittal of the offence

by a court of law. For sake of convenience, the provision

of para 3 of the settlement are reproduced as follows :

“3. (a)

When in the opinion of the management

an employee has committed an offence,

unless he be otherwise prosecuted, the

bank may take steps to prosecute him

or get him prosecuted and in such a case

he may also be suspended.

(b)

If he be convicted, he may be dismissed

with effect from the date of his

conviction or may be given any lesser

form of punishment as mentioned in

Clause 6 below.

(c)

If he be acquitted, it shall be open to the

management to proceed against him

under the provisions set out below in

Clauses 11 and 12 infra relating to

discharges. However, in the event of the

management deciding after enquiry not

to continue him in service, he shall be

liable only termination of service with

three months’ pay and allowances in lieu

of notice. And he shall be deemed to

have been on duty during the period of

suspension, if any, and shall be entitled

to the full pay and allowance minus such

subsistence allowance as he has drawn

and to all other privileges for the period

of suspension provided that if he be

acquitted by being given the benefit of

doubt he may be paid such portion of

such pay and allowances as the

management may deem proper, the

period of his absence shall not be

treated as a period spent on duty unless

the management so directs.

(d)

If he prefers an appeal or revision

application against his conviction and

is acquitted, in case he had already been

dealt with as above and he applies to

the management for reconsideration of

his case, the management shall review

his case and may either reinstate him or

proceed against him under the

provisions set out below in Clauses 11

and 12 infra relating to discharge, and

the provision set out above as to pay,

allowances and the period of suspension

will apply, the period up-to-date for

which full pay and allowances have not

been drawn being treated as one of

suspension. In the event of the

management deciding, after enquiry not

to continue him in service, the employee

shall be liable only for termination with

three months’ pay and allowances in lieu

of notice, as directed above”.

26. Out of the provision of para 2, 3, 11 and 12 of

the settlement, it emerges that an enquiry may be

conducted against an employee of the bank if he allegedly

comments an offence involving moral turpitude. It is a

matter of common knowledge that every offence

punishable under law would not amount to an offence

involving moral turpitude. To term an offence involving

moral turpitude, the act must be vile or harmful to society

¹Hkkx II—[k.M 3(ii)º

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1479

in general or contrary to excepted rules or rights and duties

between man and man. The test for whether an offence

involves moral turpitude are as follows: (1) whether the

act leading to conviction was such as could shock the

moral conscience of society in general? (2) whether the

motive which led to the act was a base one? (3) whether

on account of the act having been committed the

perpetrator could be considered to be of a depraved

character or a person who was to be looked down upon

by the society?

27. As to whether a person has committed an

offence involving moral turpitude, there are two ways of

looking at the matter – one of considering the nature of

the act done and the other of considering the nature of the

offence punished under the statutory provisions. As noted

above the claimant impersonated himself as an IAS Officer

to the local residents as well as to the municipal authorities.

He also got words “Govt. of India” painted on number

plate of his car to give support to his acts of impersonation.

Evidently above acts were done outside his duty hours

and in the colony where he was residing. The rule of law is

that where a person has entered into the position of

servant, if he does anything incompatible with the due or

faithful discharge of his duty to his master, the latter has a

right to dismiss him. The relation of master and servant

implies necessarily that the servant shall be in a position

to perform his duty duly and faithfully, and if by his own

act he prevents himself from doing so, the master may

dismiss him.

28. What circumstances will put a servant in to the

position of not being to perform in a due manner his duties,

or of not being able to perform his duties in a faithful

manner, is impossible to enumerate. Innumerable

circumstances have actually occurred which fell within

the proposition, and innumberable other circumstances

which never had yet occurred will occur, which also will

fall within the proposition. But if a servant is guilty of

such a crime outside his service as to make it unsafe for

master to keep him in his employ, the servant may be

dismissed by his master, and if the servant’s conduct is so

grossly immoral that all reasonable men would say that he

cannot be trusted, the master may dismiss him. See

precedent in Pearce (1886 QBD 536).

29. If a servant conducts himself in any way

inconsistent with the faithful discharge of his duty in the

service, it is a misconduct which justifies immediate

dismissal. That misconduct need not be misconduct in

the carrying on of the service or the business. It is sufficient

if it is a conduct which is prejudicial or is likely to be

prejudicial to the interest or to the reputation of the master.

The hour and place of the incident are not very relevant

matters in deciding the question as to whether a particular

act of an employee is or is not within the ambit of the

disciplinary jurisdiction of the employer and it is the nature

of the act alone which is really material. See Diwan Badridas

[1962 (1) LLJ 526]. From above precedents it is evident

that in case of moral turpitude the management will have

jurisdiction to initiate disciplinary action against an

employee, even if act of indiscipline takes place away from

the premises when he is employed and beyond his duty

norms. Same proposition has been enshrined in the

provisions of para 2, 3, 11 & 12 of the aforesaid

memorandum of settlement.

30. With the above aspects, collected from other

parts of the settlement referred above, acts committed by

the claimant are to be appreciated to note as to whether it

amount to an offence that too falling within the ambit of

moral turpitude. As noted above, the claimant

impersonated himself as an IAS Officer to the local

residents as well as to the municipal authorities. He got

words “Govt. of India” painted on number plate of his car.

He wrote letters to the Deputy Commissioner, Municipal

Corporation of Delhi boasting of his position. He collected

funds from local residents for development of a park, but

wrote letters to municipal authorities to get that work done.

These facts make it clear that the misconduct committed

by the claimant shocks moral conscience of the society in

general. The claimant is such type of person who would

be looked down upon by the society. Hence his acts are

such which fall within the ambit of moral turpitude to give

jurisdiction to the bank to punish him. Even otherwise

such acts are prejudicial to the interest of the bank, hence

are gross misconduct within clause 5(j) of Bipartite

Settlement dated 10.4.2002.

31. As far as charge No.1 is concerned, forgery in

cash receipt is a serious act. The claimant changed the

date from 28.2.2009 to 2.3.2009 in the cash receipt voucher

after obtaining it from Smt.Poornima Sikdar, when she made

a complaint of non deposit of a sum of Rs.1000 in their O/

D account. Forgery in cash receipt voucher is an offence

involving moral turpitude. Such offence is also prejudicial

to the interest of the bank, as coined by clause 5(j) of

Bipartite Settlement dated 10.4.2002.

32. Now it would be considered as to whether

punishment awarded to the claimant is harsh. The claimant

was awarded punishment of compulsory retirement, with

superannuation benefits. The acts of misconducts

committed by the claimant tantamount to tarnish the image

of the bank and are prejudicial to the interest of the bank.

Therefore I am of the considered opinion that no case is

made out to show that punishment awarded to the claimant

was disproportionate to acts of his misconducts,

warranting an interference by the Tribunal. I am of the

considered opinion that punishment awarded to the

claimant commensurate to his misconducts. Issue is,

therefore, answered in favour of the bank and against the

claimant.

1480

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Issue No. III

33. Not even an iota of evidence was brought over

the record by the claimant to question legality of

punishment awarded to him. When there is vacuum of

evidence, it cannot be said that punishment awarded to

the claimant was not justified. There cannot be any reason

to inter-meddle with the punishment of compulsory

retirement with superannuation benefits awarded to the

claimant. Consequently it is announced that punishment

of compulsory retirement with superannuation benefits

awarded to the claimant vide order dated 25.02.2011

commensurate to his misconduct and withstands

standards of legality as well as justifiability. No interference

is called for in the punishment by this Tribunal. Claim put

forward by Shri Das is liable to be brushed aside.

Accordingly, his claim is dismissed. An award is passed in

favour of the bank and against the claimant. It be sent to

the appropriate Government for publication.

Dated: 25.11.2013

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 29th January , 2014

S.O. 516.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 59/2012)

of the Central Government Industrial Tribunal-cum-Labour

Court, Chennai as shown in the Annexure in the Industrial

Dispute between the Management of Indian Bank and

their workmen, received by the Central Government on

29-1-2014.

[No. L-12012/02/2012-IR (B-II)]

RAVI KUMAR, Section Officer

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. 59/2012

(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 Indian Bank and their

workman).

BETWEEN :

Sri K. Sampath

1^st Party/Petitioner

AND

The General Manager

2^nd Party/Respondent

Indian Bank Zonal Office

359, Dr. Nanjappa Road

Coimbatore-18

Appearance:

For the 1^st Party/Petitioner

Sri J. Thomas

Jeyaprabhakaran,

Authorized

Representative

For the 1^st Party/Respondent

M/s T.S. Gopalan &

Co., Advocates

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-12012/2/2012-IR(B-II)

dated 31.08.2012 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Indian

Bank, Coimbatore in imposing the punishment of

compulsory retirement on Sri K. Sampath, Ex-Sub Staff is

legal and justified?

2. On receipt of the Industrial Dispute this Tribunal

has numbered it as ID 59/2012 and issued notice to both

sides. The petitioner has appeared through his

representative and the Respondent through its counsel

and had filed their claim, counter and rejoinder statement

respectively.

3. The averment in the Claim Statement filed by the

petitioner in brief are these:

The petitioner was employed as Sub-Staff in the

Respondent Bank and was working at Perianaickenpalayam

branch. The petitioner was issued with a Show Cause

Notice dated 29.08.2009 alleging that he failed to bring to

the notice of the higher authorities of the Respondent

misappropriation committed by the then Branch Manager

by debiting GL Parking Account involving more than

Rs. 1.00 lakh, that he influenced the Branch Manager

misusing the position in getting loans to close relatives

and that no activities were undertaken by those relatives

who borrowed amount, that the petitioner misused his

position and took illegal gratification, influenced one

Sundaralingam to get loan documents and withdrawal slips

under retail trade facility for Rs. 50,000/- in his name and

¹Hkkx II—[k.M 3(ii)º

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1481

appropriated the amount. Without accepting the

explanation given by the petitioner, the Respondent

ordered an enquiry. It was found in the enquiry that the

first charge against the petitioner is partially proved and

the second charge is fully proved. The third charge is

found not established. On the basis of the enquiry

report, the Respondent imposed the punishment of

Compulsory Retirement on the petitioner. Though, the

petitioner preferred an appeal against this order, the same

was dismissed. The Industrial Dispute is raised

accordingly. The petitioner has not committed any of the

misconduct alleged against him. The punishment imposed

on the petitioner is without any justification. The petitioner

is entitled to be reinstated in service with continuity of

service, back wages and other attendant benefits.

4. The Respondent has filed Counter Statement

contending as follows:

The petitioner was working as Sub-Staff in

Perianaickenpalayam branch of the Respondent Bank

situated near Coimbatore. During inspection of the branch

in August 2009, various irregularities and deviation in the

sanction of loans came into surface. An investigation was

ordered on account of this. On investigation it was revealed

that the Branch Manager had misused his position and

had sanctioned loans to various parties including the

petitioner and members of his family. On enquiry it was

revealed that some of the borrowers had not actually

availed loans but the loans were taken by the Branch

Manager and the Manager agreed to sanction loans on

recommendation of the petitioner. Overdraft facility against

security was seen granted to the petitioner’s wife,

Vijayalakshmi in her capacity as the proprietress of

Vijayalakshmi Stores. The property of the petitioner was

offered as security for this loan. The Manager had

sanctioned loans exceeding his powers. On sanctioning

loan to one Murugesan, the property of petitioner’s wife

Vijayalakshmi was given as collateral security. This loan

was meant for the petitioner. It could not have been

sanctioned without understanding between the petitioner

and the Manager. The son of the petitioner had availed

education loan of Rs. 3.57 lakhs. This was sanctioned

without the knowledge of the Zonal Office. The petitioner’s

wife was given loan as a retail trader without reference to

the Zonal Office though she was not doing any business.

Loan were also sanctioned to petitioner’s brother

Krishnamurthy, Mohan and Ramamurthy and also Girija

and Jyothi, Sisters-in-Law of the petitioner. All these loans

were sanctioned on the basis of understanding between

the petitioner and the Branch Manager. A Charge Sheet

was issued to the petitioner for the misconduct committed

by the petitioner. An enquiry was conducted. Charges 1

and 2 were found established. Accordingly, the petitioner

was given the punishment of Compulsory Retirement with

superannuation benefits. The petitioner has received his

gratuity and provident fund dues. The petitioner is not

entitled to any relief.

5. The petitioner has filed a rejoinder denying the

allegations made against him in the Counter Statement.

6. The evidence in the case consists of the oral

evidence of WW1 and documents marked as Exs.W1 to

Ex.W22 and Exs.M1 to Ex.M7.

7. The Points for consideration are :

(i)

Whether the punishment of Compulsory

Retirement imposed by the Respondent on the

petitioner is legal and justified?

(ii)

What is the relief to which the petitioner is

entitled?

The Points

8. The petitioner was admittedly working as Sub-

Staff in Perianaickenpalayam branch of the Respondent

Bank. The Respondent has alleged that the petitioner has

committed irregularities amounting to misconduct while

he worked in Perianaickenpalayam branch. The allegation

is that the petitioner had influenced the then Manager of

the branch and had availed several loans in the name of

his wife, son and other close relatives. It is also alleged

that even though the petitioner was aware of the several

irregularities conducted by the Branch Manager on his

own, he did not inform the same to the higher authorities

under the Whistle Blower Policy adopted by the bank.

There is also an allegation that by exercising influence on

one Sundaralingam, the petitioner had obtained loan

documents and withdrawal slips signed by him for availing

loan and thus obtained Rs. 50,000.

9. The first charge against the petitioner in the

enquiry proceedings is extracted below :

“That you failed to bring to the notice of your higher

authorities under Whistle Blower Policy misappropriation

committed by the then Branch Manager, T.R. Ajay Khosh

to the debit of GL Parking Account (Recovery Charges

etc. debited to various loan accounts on various dates

transferred to GL parking accounts and from this GL

Parking Loan, cash was withdrawn) on 34 occasions from

19.01.2008 to 01.07.2009 involving a total amount of

Rs. 1050.10. The Enquiry Officer has found that this charge

against the petitioner is partially proved. The Enquiry

Officer has found that the Sub-Staff members of the branch

did not have adequate knowledge of the various circulars

issued by the higher authorities. The Enquiry Officer has

felt that no proof has been given to the effect that the

branch followed the practice of reading and explaining the

contents of the circulars in staff meetings. To expect the

Sub-Staff who stitches the vouchers to go through the

contents and find out the heads to which they are related

is unreasonable, the Enquiry Officer has felt. In spite of

this reasoning, the Enquiry Officer has stated that all the

staff of the branch including the petitioner were in the

knowhow of the irregularities committed by the Manager

and has not bothered to report to the Circle Office. It was

1482

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

on the basis of this, the Enquiry Officer has found that the

charge has been partially proved. Certainly, the reasoning

of the Enquiry Officer that a Sub-Staff of the bank who is

having minimum education only and is not expected to go

through the contents of the documents, if any, put to them

could not be expected to go through them or to make out

whether any irregularities were being done by their superior

officers is sound. The charge against the petitioner was

that he failed to bring to the notice of the higher authorities

about the irregularities or the misappropriation committed

by the Branch Manager under the Whistle Blower policy.

The question is not whether the petitioner was also aware

of the misappropriation, if any, conducted by the Branch

Manager but whether he was aware of the fact that there

was a duty cast on him under the Whistle Blower Policy

to report to the higher authorities. True, in the normal

course, any deviation from the normal procedure is a matter

which is to be resisted by the others. However, as pointed

out by the Enquiry Officer there were several other Officers

in the branch, all higher in rank to the petitioner who were

more competent to make any such report to the higher

authorities. So such a charge against the petitioner has no

basis. Even the finding that the charge is partially proved

could not be accepted.

10.The second charge against the petitioner is this :

That you have influenced the Branch Manager by

misusing your position in getting the loans as detailed

below to the close relatives and known persons. These

loan were sanctioned though no activities were undertaken

by the borrowers :

MEX Facility

Name of the

Limit

Date of

No.

Party

in Lacs

Sanction

SOD

Sri Vijayalakshmi

4.00

14.08.2009

Stores

Education S. Kishore

3.57

10.09.2008

Loan

R.T.

Vijayalakshmi

0.50

19.07.2006

R.T.

K. Krishnamurthy

0.48

12.07.2007

R.T.

K. Mohan

0.50

09.08.2006

R.T.

R. Girija

0.50

14.03.2007

R.T.

K. Ramamurthy

0.60

01.03.2007

R.T.

S. Jothi

0.40

13.02.2007

R. Murugesan

0.50

26.10.2007

10.

SOD

K.S. Bakery

6.50

20.11.2008

11. Admittedly, most of the persons detailed above

in whose names loans were sanctioned are close relatives

of the petitioner. Vijayalakshmi is the wife of the petitioner.

A loan is sanctioned in her name for the purpose of running

a store by name Vijayalakshmi Stores. The petitioner has

given his property as security for this loan having limit

of Rs. 4.00 lakhs. Even prior to this, another loan for

Rs. 50,000 seems to have been sanctioned in her name.

Education loan to the limit of Rs. 3,57,000 was sanctioned

in the name of Kishore, the son of the petitioner. Loan is

also sanctioned in the name of the three brothers of the

petitioner and also in the names of two Sisters-in Law of

the petitioner. There is also a loan in the name of one

Murugesan. Though this Murugesan is not related to the

petitioner, it is Vijayalakshmi who is the wife of the petitioner

who has offered security for this loan.

12. One argument that has been advanced by the

counsel for the Respondent is that though the Branch

Manager was expected to get approval from his superior

officer for sanction of the loans, the loan were sanctioned

without obtaining any approval. The Authorized

Representative of the petitioner has pointed out that it is

not the duty of the petitioner to obtain approval from the

higher authorities and he could not be found fault with if

the Manager has not obtained approval before sanctioning

loans to his relatives referred to. Certainly, it is not the

responsibility of the petitioner and for this very reason

there is no basis for the argument advanced in this respect,

while dealing with the case of the petitioner.

13. The real charge against the petitioner is that the

petitioner had managed to obtain loans in the names of all

his close relatives by influencing the then Manager. The

case is that the Manager who himself was committing

several misappropriations has been doing this with the

help of the petitioner and he has been obliging to the

request of the petitioner to grant loans in the name of all

these persons. It has been argued by the Authorized

Representative of the petitioner that all these loans are in

perfect order except for the fact that approval was not

obtained from the superior officer in respect of certain of

the loans. He has pointed out that all the loans are

well secured. According to him, security was taken in

respect of even the educational loan granted in the name

of his son, Kishore, though security is not required for

such loans.

14. It is not the fact that loans were granted to all

these persons by the Manager, but that so many loans

were granted in the names of so many close relatives of

the petitioner that matters. All these loans are during the

period from August 2006 to November 2008.

15. It could be seen that loans were obtained for

certain activities but no such activities are seen done by

the loanees. The counsel for the Respondent has referred

to the report given by the Enquiry Officer on detection of

the irregularities. This was marked in the enquiry

proceedings (Page-319 of petitioner’s typed set of

documents). This states that though the Manager had

sanctioned a secured overdraft limit of Rs. 4.00 lakhs as

¹Hkkx II—[k.M 3(ii)º

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1483

working capital for M/s Sree Lakshmi Stores for

proprietress Vijayalakshmi for provision shop in Building

No. 2/236, the sanction was done without inspection of

the unit. The sanction was given without obtaining copy

of the license from the local authority to run the business.

The Officer has visited the unit and has found that Room

No. 2/236 is vacant. Apart from this is the fact that this

room was found to be owned by some other person in the

area. Even while the loan of Rs. 50,000 was subsisting

fresh OD limit of Rs. 6.50 lakhs was sanctioned. It is stated

in the report that on visiting the unit at the given address

a shop was found there but it was in the name of some

other person. The Enquiry Officer has reported that loan

has been granted for a non-existent concern. There is

another report which was also marked in the enquiry

proceedings (Page-339 of the typed set of documents of

the petitioner). Regarding loan to Sundaralingam, it is

stated in the report that on enquiry he has denied to have

received any loan amount and has stated that he has

signed documents at the instance of the petitioner. In this

respect, the counsel for the Respondent has referred to

Ex.M7, the letter written by the petitioner to the Assistant

General Manager of the Circle Office. What he has stated

is that one day while going out of the branch, the Manager

had told him to fill up the relevant forms and obtain the

signature of the party and he had carried out the

instructions. This of course, is not a transaction directly

involving the petitioner. However, the admission would

show that he is the one who had obtained the signature of

Sundaralingam in the relevant documents. The statement

of Sundaralingam is also seen marked in the enquiry

proceedings. The evidence shows the complicity of the

petitioner with the then Branch Manager.

16. Regarding the two loans granted to Murugesan,

one in the name of himself and one in the name of K.S.

Bakery said to have been run by him. The argument

advanced by the Authorized Representative is that the

very case of the Respondent is that these were obtained

for the benefit of the Branch Manager. As already stated,

the security for one loan in the name of Murugesan was

offered by the wife of the petitioner. According to the

petitioner, his brother and Murugesan were having joint

business activities and it was at the request of his brother,

the property has been offered as security. When the

circumstances are taking into account this explanation of

the petitioner could not be accepted. One after another,

almost all the relatives of the petitioner, his wife, his son,

his three brothers, his two Sisters-in Law, all were

sanctioned loans by the Branch Manager. Though, all of

them had availed loans purportedly for undertaking some

business, no business is seen done by any of them. The

Manager has not found it necessary to obtain the

documents pertaining to the business before advancing

loans. The common link in respect of all these loans is

certainly the petitioner. So the petitioner could not absolve

himself from responsibility. The Manager seems to have

been assisting the petitioner liberally and the petitioner

seems to have been accepting his assistance. There could

be no doubt that it was under the influence of the

petitioner, all these loans were granted by the Manager.

Probably, the Manager had found an accomplice in the

petitioner for all his unlawful activities and it was in return

of the assistance rendered by the petitioner that the loans

were sanctioned in the name of the relatives of the

petitioner. There is every justification for the finding by

the Enquiry Officer that the second charge against the

petitioner is proved.

17. So far as the third charge that the petitioner has

obtained illegal gratification from one of the customers is

concerned, the Enquiry Officer has found that this charge

is not established. This finding has become final also.

18. The petitioner was given the punishment of

Compulsory Retirement by the Disciplinary Authority and

this has been upheld by the Appellate Authority. It could

be seen from the facts of the case that the petitioner is a

person who will go to any extent for his own benefit and

has managed to make benefit even influencing the Branch

Manager who is the prime officer of the branch. A staff of

the bank who is dealing with the money of the people, in

whatever capacity is expected to keep his integrity, be

sincere and honest in all his dealings. The petitioner has

deviated from this. The punishment that is imposed seems

to be in proportion to the gravity of the misconduct on the

irregularity committed. It will be embarrassing for the

Respondent Bank to retain the petitioner in service even

after detection of so much irregularities involving him. It

was only proper that the punishment of Compulsory

retirement was imposed on the petitioner. The petitioner is

not entitled to any relief.

19. The reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 13^th December, 2013).

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined :

For the 1^st Party/Petitioner

: WW1, Sri K. Sampath

For the 2^nd Party/Management : None

Documents Marked :

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

04.02.2010

Charge Sheet ref. CO:CBE:

VG:CS:459:2009-10

Ex.W2

15.02.2010

Reply to the above charge

sheet

Ex.W3

18.03.2010

Proceedings of the departmental

25.03.2010

enquiry

16.04.2010

1484

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Ex.W4

Management and defence

exhibits produced in the

departmental enquiry

Ex.W5

06.05.2010

Written brief of the Presenting

Officer

Ex.W6

17.05.2010

Defense summing up

Ex.W7

12.06.2010

Findings of the Enquiry Officer

Ex.W8

29.06.2010

Employees’ comments on the

Enquiry Officer’s findings

Ex.W9

12.08.2010

Second Show Cause Notice

issued to the employee

Ex.W10 31.08.2010

Reply to the second show

cause notice

Ex.W11 04.09.2010

Order of the Disciplinary

Authority imposing the

punishment

Ex.W12 14.10.2010

Appeal preferred by the

employee

Appellate

Authority

Ex.W13 17.02.2011

Orders of the Appellate

Authority confirming the

punishment imposed upon the

employee

Ex.W14 24.05.2011

Petition under Section-2A of ID

Act to Assistant Labour

Commissioner

Ex.W15 21.06.2011

Reply by the management to

the petition of the employee

Ex.W16 20.07.2011

Rejoinder to the management’s

Ex.W17 20.08.2011

Comments on the management

to the rejoinder of the

employee

Ex.W18 09.09.2011

Comments of the employee to

the management’s second

Ex.W19 13.09.2011

Comments of the management

to the employee’s reply

Ex.W20 06.04.2009

Indian

Bank

HO/Risk

Management Department

Circular No. 2/2009-10 on

Whistle Blower Policy 2009-10

Ex.W21 08.06.2009

Indian bank HO/Inspection

Department Circular No. 22/

2009-10 on Whistle Blower

Policy reiteration

Ex.W22 30.04.2009

Indian

Bank

HO/Risk

Management Department

Circular No. 12/2009-10 on

Whistle

Blower

Policy

reiteration

On the management’s side

Ex.No.

Date

Description

Ex.M1

29.03.2007

Application for credit to

Business Enterprises for

Rs. 50,000 to T. Sundaralingam

and other loan documents

Ex.M2

12.08.2010

Order of punishment issued to

the Branch Manager Ajaya

Gosh

Ex.M3

03.09.2010

Proceedings of personal

hearing before the Disciplinary

Authority

Ex.M4

29.08.2009

Memo issued to the petitioner

by the respondent – u/r –

reference Co. CBE – V.G. 224,

2009-10

Ex.M5

10.10.2009

Explanation of the petitioner

for the memo dated 29.08.2009

Ex.M6

02.11.2009

Memo issued to the petitioner

by the Respondent

Ex.M7

27.11.2009

Explanation of the petitioner to

the memo dated 02.11.2009.

ubZ fnYyh] 29 tuojh] 2014

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vf/dj.k@Je U;k;ky;] pSUubZ ds iapkV (lanHkZ la[;k 102@2005)

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¹la- ,y&33015@1@2005&vkbZ vkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 29th January , 2014

S.O. 517.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 102/

2005) of the Central Government Industrial Tribunal-cum-

Labour Court, Chennai as shown in the Annexure in the

Industrial Dispute between the Management of Madras

Port Trust and their workmen, received by the Central

Government on 29-1-2014.

[No. L-33015/1/2005-IR (B-II)]

RAVI KUMAR, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1485

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT,

CHENNAI

Wednesday, the 30th October, 2013

Present : K. P. PRASANNA KUMARI, Presiding Officer

Industrial Dispute No. 102/2005

(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 Madras Port Trust and their

workman).

BETWEEN :

Sri G. Narayansamy

1^st Party/Petitioner

AND

The Chairman

2^nd Party/Respondent

Madras Port Trust

Rajaji Road

Chennai-600001

Appearance :

For the 1^st Party/

M/s D. Sankaran & S.

Petitioner

Bhuvaneswaran, Advocates

For the 2^nd Party/

Sri M.R. Dharanichander,

Management

Advocate

AWARD

The Central Government, Ministry of Labour &

Employment vide its Order No. L-33015/1/2005-IR(B-II)

dated 14.09.2005 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is :

“Whether the action of the management of Madras

Port Trust in reverting Sri G. Narayanasamy from the

post of Master Grade-II to the post of Peon and

fixation of pay in the lower scale is legal and justified?

If not, what relief is the disputant concerned entitled

to?”

2. After receipt of the Industrial Dispute this

Tribunal has numbered it as ID 102/2005 and issued notice

to both sides. The parties appeared through their

respective counsel and filed their claim and counter

statement respectively.

3. The case of the petitioner in the Claim Statement

is this:

The petitioner has joined the services of the

Respondent in 1963 as Laskar, Grade-II. He was

subsequently promoted as Deck Tindal and then Syrang.

On 16.07.1982, he was promoted to the post of Master

Grade-II with a Basic Salary of Rs. 1,090/-. As per the rules

of Chennai Port Trust the petitioner had undergone

periodical medical check-up. The Medical report dated

14.08.1985 stated that the petitioner was having the illness

of colour blindness. Consequently, he was posted in Group

“C” job as a Peon. This act of the Respondent is illegal

and is unfair labour practice. The petitioner has lost all the

benefits he would have been entitled to if he had continued

in the post of Master Grade-II. By way of difference in the

emoluments in the posts of Peon and Master Grade-II, the

petitioner is entitled to Rs. 11,79,000/- from the Respondent.

The Respondent may be directed to pay the above amount

to the petitioner.

4. The Respondent has filed Counter Statement

contending as follows :

The dispute is not maintainable. The Management

has offered alternate employment as Peon to the petitioner

in the year 1986 since he was found unfit to carry out the

duties of Master Grade-II due to his impaired vision in

both the eyes. The petitioner has accepted the post. It

would not have been possible to allow the petitioner to

continue in the post of Master Grade-II with his impaired

vision. The petitioner has voluntarily accepted the

alternate employment of a Peon offered by the

Respondent. He had worked in the said post for more than

6 years before he challenged it. The drop in wages on

account of the alternative employment was made good by

granting an amount of Rs. 336.12 per month from the

Madras Port Trust Employee’s Contributory Loss in

Wages Compensation Scheme w.e.f. 19.02.1986. The

petitioner has accepted the same till his superannuation

on 30.06.1994. The petitioner has not lost monetarily

because of the alternate employment. The petitioner cannot

challenge the same after 8 years of his retirement from

service. The petitioner is not entitled to any relief.

5. The evidence in the case consists of the oral

evidence of WW1, WW2 and MW1 and documentary

evidence consisting of Exs.W1 to Exs.W12 and Exs.M1 to

Exs.M6.

6. The points for consideration are:

(i)

Whether the action of the Madras Port Trust

in reverting the petitioner to the post of Peon

and fixation of pay in the scale of Peon is legal

and justified?

(ii)

What is the relief to which the petitioner is

entitled?

The Points

7. The petitioner had admittedly joined the services

of the Madras Port Trust, Chennai as Laskar Grade-II in

1963 and had rose to the position of Master Grade-II by

promotion in 1982. He had worked in the position of Master

Grade-II until 1986. The rules of Madras Port Trust provide

that the employees should undergo periodical medical

check-up. On one such medical check-up, the petitioner

was found to be colour blind. Ex.M1 is copy of the Medical

1486

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

Certificate signed by the Medical Officer on 14.05.1985.

The Medical Certificate states that because of the illness

the petitioner is unfit to carry out the duties of Master

Grade-II. The Management found another job for the

petitioner as Peon and he accepted this post. Ex.M2 is the

copy of the letter given by the petitioner to the

Management stating his willingness to take up the alternate

appointment of Peon. As seen from Ex.M3, the petitioner

was relieved from the post of Master Grade-II on

19.02.1986. Ex.M4 shows that he joined duty as Peon with

the Controller of Stores of Madras Port on 19.02.1986 itself.

8. Exs.W1 to Ex.W6 are the different representations

said to have been given by the petitioner to the Respondent

in 1987 requesting to put him back in the original

department. One does not know if his representations were

actually sent to the Management since the

acknowledgments for the same are not available.

9. The counsel for the petitioner has referred to

Ex.M1, the Medical Report and tried to argue that some

malpractice has been played on the petitioner by giving

such a medical report. I am not inclined to consider this

argument of the counsel for the petitioner for the very

reason that a contention challenging the medical report

has not been raised in the claim petition at all. The

petitioner has accepted the job of Peon given to him on

the basis of the medical report and had been promoted

from this post and had continued in service until his date

of superannuation. There is no meaning in contending,

now, after all these years, that the medical report on the

basis of which he was given the alternate job is based on

a malpractice. Apart from this is the fact that the petitioner

himself has admitted during his cross-examination that by

the medical examination he was found to have colour

blindness and was classified CC1. That means he was

even then aware of the illness himself and knew quite well

that he was unfit to continue in the job of Master Grade-II

which required manueoving a boat and taking pilots of

ships to and fro from the ships.

10. The argument that is mainly stressed by the

counsel for the petitioner is that even though the petitioner

was given an alternate employment with a lesser pay, he

was entitled for protection of the pay that he was receiving

as Master Grade-II. In fact the very claim in the claim

statement is for a direction to the Respondent to make

good the loss due to the difference in the pay of the two

posts.

11. The counsel for the petitioner has referred to

the decision in Rajpal Vs. Delhi Transport Corporation

reported in 2012 1 LLJ 529 in support of his argument that

the petitioner is entitled to make good the monetary loss

that ensued to him on account of his reduction to a lower

status. In the above decision the Delhi High Court relied

upon an earlier decision in DTC Vs. Rajbir Singh reported

in 2003 1 LLJ 865. The decision was rendered based on

Section-47 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation),

Act. Section-47 of the Act mandates that no establishment

shall dispense with or reduce in rank the employee who

acquires the disability during his service. Even if he is not

suitable for the post he was holding as a result of the

disability he is to be shifted to some other post with same

pay scale and service benefits. It was further held that

even when he cannot be adjusted against any other

post, he is to be kept on supernumerary post unless a

suitable post is available or he attains the age of

superannuation. In the very said case it was held that

Section-47 of the Disabilities Act would have retrospective

effect to cover the period during which the workman’s

services were terminated which was prior to the enactment

of the Disabilities Act. In the present case the services of

the petitioner was not terminated but he was put in a lower

post causing inconvenience and monetary loss to him. In

such case also Section-47 of the Disabilities Act should

have retrospective effect so that the monetary loss if any,

could be made good, as held in Rajpal’s case (referred to

above).

12. The contention that has been raised by the

counsel for the Respondent is that the petitioner has not

sustained any monetary loss on account of his having

been shifted to a lower post. In the Counter Statement

itself the Respondent has contended that the drop in wages

on account of the alternative appointment was made good

by granting a sum of Rs. 336.12 per month from the Madras

Port Trust Employee’s Contributory Loss in Wages

Compensation Scheme w.e.f. 19.02.1986. According to

the Respondent, the petitioner has accepted the same and

enjoyed it till his superannuation and therefore is not

entitled to make any claim now. During his cross-

examination, the petitioner has admitted that he was

drawing Rs. 336.12 as per the Madras Port Trust

Employee’s Contributory Loss in Wages Compensation

Scheme towards difference in the basic pay on account of

his having been shifted to the post of Peon.

13. Was the petitioner actually compensated wholly

on account of his monetary loss consequent to his having

been shifted to the post of Peon? It is clear from the decision

earlier referred to based on Section-47 of the Persons with

Disabilities (Equal Opportunities, Protection of Rights and

Full Participation), Act that the employee is entitled to

have made good whatever loss that was incurred by him

on account of having been shifted to a lower post with

lesser pay. The loss of the petitioner could not have been

compensated by paying him the difference in the Basic

Pay only. In the higher post of Master Grade-II he would

have been entitled to Dearness Allowance on the basic

pay and also periodical increments. Apart from this is the

benefits that would have due to him on account of any

promotions he would have obtained, if not for his illness

resulting in his being shifted to a lower post. Then there is

also the fact that his pension was calculated based on his

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % iQjojh 8] 2014@ek?k 19] 1935

1487

pay in the lower grade and not in the post of Master Grade-

II or the post to which he would have been promoted. It is

clear from the evidence of WW2, a colleague of the

petitioner who had been working in the post of Master

Grade-II and had retired from this post that there is vast

difference in the pension itself. As seen from the evidence

of WW2 and Ex.W12, the extract of the bank account

submitted by him, he is drawing almost Rs. 16,000/- per

month as pension itself. The amount drawn by the

petitioner seems to be around Rs. 7,500/- a month. So the

monetary loss incurred by the petitioner on account of

this having been posted to a lower post is very huge. The

Respondent is liable to make good the loss. Accordingly,

the following directions are made:

“The Respondent shall calculate the difference in

the pay scale of Master Grade-II or its promotional post

and from that of the post of Peon and find out the monetary

loss incurred by the petitioner after he has assumed charge

as Peon and pay the entire amount due to the petitioner

within a period of two months. The Respondent shall also

calculate the pension of the petitioner based on his pay

that he would have drawn in the post of Master Grade-II

or its promotional post as the case may be at the time of

his retirement and re-fix his pension and make good the

loss incurred by him in his pensionary benefits and

pension, within two months. If the above amounts are not

paid within the requisite period it would carry interest @

9% per annum from the date of the order”.

14.The reference is thus 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 30^th October, 2013).

K. P. PRASANNA KUMARI, Presiding Officer

Witnesses Examined :

For the 1^st Party/

WW1, Sri G. Narayanasamy

Petitioner Union

WW2, Sri T. Manickam

For the 2^nd Party/

MW1, Sri A.S. Ramamurugesh

Management

Documents Marked :

On the petitioner’s side

Ex.No.

Date

Description

Ex.W1

21.01.1987 Petitioner to the Respondent

Ex.W2

13.03.1987 Petitioner to the Respondent

Ex.W3

06.04.1987 Petitioner to the Respondent

Ex.W4

19.06.1987 Petitioner to the Respondent

Ex.W5

05.08.1987 Petitioner to the Respondent

Ex.W6

23.10.1987 Petitioner to the Respondent

Ex.W7

07.04.2005 Writ Petition filed through Union

Secretary W.P.No. 2929/1996-Order

Ex.W8

09.05.2012 RTI filed by the petitioner

Ex.W9

28.05.2012 Respondent to Petitioner under RTI

Ex.W10 22.06.2012 Respondent to Petitioner under RTI

Ex.W11 -

Pension Calculation Sheet of ex-

employee T. Manickam, worked as

Master Grade-II in Marine

Department

Ex.W12 -

Copy of face of IOB Pass Book and

statement sheet showing pension

drawn by Sri T.Manickam

On the Management’s side

Ex.No.

Date

Description

Ex.M1

14.05.1985 Medical Certificate issued by the

Medical Officer to the petitioner

Ex.M2

21.12.1985 Letter given by the petitioner to the

Respondent

Ex.M3

19.02.1986 Letter issued by the Respondent to

the Petitioner

Ex.M4

19.02.1986 Joining report given by the petitioner

to the Respondent

Ex.M5

24.02.1986 Scheme

announced

the

Respondent

Ex.M6

Medical Classification

ubZ fnYyh] 29 tuojh] 2014

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dks izkIr gqvk Fkk A

¹la- ,y&12012@60@2010&vkbZ vkj (ch&II)]

jfo dqekj] vuqHkkx vf/dkjh

New Delhi, the 29th January , 2014

S.O. 518.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 14/2011)

of the Central Government Industrial Tribunal-cum-Labour

Court, Ahmedabad 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 29-1-2014.

[No. L-12012/60/2010-IR (B-II)]

RAVI KUMAR, Section Officer

1488

THE GAZETTE OF INDIA : FEBRUARY 8, 2014/MAGHA 19, 1935

[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

AHMEDABAD

Present :

Binay Kumar Sinha,

Presiding Officer, CGIT-cum-Labour Court,

Ahmedabad,

Dated 13^th August, 2013

Reference : CGITA 14 of 2011

The Zonal Manger,

Bank of India

Zonal Office, Bhadra,

Ahmedabad (Gujarat)

The Branch Manager,

Bank of India,

Ellisbridge branch,

Ellisbridge, Ahmedabad

....First Party

And

Their Workman

Sh. Solanki Ashwin Shivlal

D-16, Staff Quarters, V.S. Hospital,

Ellisbridge,

Ahmedabad (Gujarat)

....Second Party

For the 1^st party

: Mrs. Meenaben Shah, Advocate

For the 2^nd party

: Shri M.L. Acharya, Advocate

AWARD

As per order No-L-12012/60/2010-IR(B-II))

New Delhi, dated 25.02.2011 , the Central Government/

Ministry of Labour, under cl. (d) of sub-section (1) and

sub-section (2A) of Section 10 of the I.D. Act,1947 referred

the dispute for adjudication in terms of reference under

the schedule :

SCHEDULE

“Whether the action of the management of Zonal

Manager, Bank of India, and Ahmedabad in not

considering the case of Shri Ashwin Shivlal Solanki

for regularization is justified and proper? What relief

the workman is entitled to?”

2. The 2^nd party submitted statement of claim (Ext.7)

that he was working as a labour worker since April 1994 at

Ellisbridge branch of Bank of India and has worked for

more than 240 days in a year from 1994 , and he worked for

15 days as sweeper-cum-peon, was getting wages on

vouchers. He represented for his regularization as he had

completed 90 days work continuously but he was not

absorbed as per Bank policy but he was stopped to do

work in the Bank branch. So prayer for his absorption as

per similar situated employees with back wages.

3. The 1^st party Bank appeared through lawyer and

the case is fixed for filing w.s.

4. In the meantime, the workman (2nd party) filed a

withdrawal pursis (Ext.8) on 05.08.2013 and it was noted

down by the 1^st party’s lawyer having no objection. Then

the withdrawal pursis was moved and pressed on this

date (13.08.2013). The 2^nd party workman on assurance of

the Bank in view of issuance of a letter on 01.08.2013 for

recruitment of peon has intended to withdraw this

reference case and mentioning not want to make contest

in this case.

5. Thus the dispute appears to have been settled

between the parties and so the concerned workman on

assurance extended from the Bank, has intended to

withdraw this reference case by filing withdrawal pursis

(Ext.8).

6. Now the dispute between the parties have been

resolved and settled as per withdrawal pursis (Ext.8). So,

there is no need to adjudicate upon the terms of reference.

So, no dispute award is passed.

B. K. SINHA, Presiding Officer

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