626 GI/2014
(1867)
dkfeZd] yksd f'kdk;r rFkk isa'ku ea=ky;
¼dkfeZd vkSj izf'k{k.k foHkkx½
ubZ fnYyh] 5 flrEcj] 2013
dkñvkñ 696.—dsanzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]
1973 ¼1974 dk vf/kfu;e lañ 2½ dh /kkjk 24 dh mi/kkjk ¼8½
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, fjV ;kfpdk ¼vkijkf/kd½ lañ
120@2012 esa ,oa blh laO;ogkj esa rFkk blls lEc) vU; ekeyksa esa
lhchvkbZ dh vksj ls Hkkjr ds loksZPp U;k;ky;] ubZ fnYyh esa mifLFkr
gksus ds fy, loZJh vejsanz 'kju] vfer vkuan frokjh vkSj 'kafpr
xq#] odhyksa dks fo'ks"k yksd vfHk;kstd ds :i esa fu;qDr djrh gSA
[Qkñ lañ 225@51@2013&,ohMh&II]
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS
(DEPARTMENT OF PERSONNEL AND TRAINING)
New Delhi, the 5th September, 2013
S.O. 696.—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 Amarendra Sharan, Amit Anand
Tiwari and Shanchit Guru, Advocates as Special Public
Prosecutor for appearing on behalf of CBI in Writ Petition
(Criminal No. 120/2012 in the Supreme Court of India, New
Delhi and other matter connected therewith or incidental
thereto.
[F.No. 225/51/2013-AVD-II]
RAJIV JAIN, Under Secy.
jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 9]
ubZ fnYyh, iQjojh 23—ekpZ 1] 2014] 'kfuokj@iQkYxqu 4—iQkYxqu 10] 1935
No. 9]
NEW DELHI, FEBRUARY 23—MARCH 1, 2014, SATURDAY/PHALGUNA 4—PHALGUNA 10, 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)
1868
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
miHkksDrk ekeys] [kk| ,oa lkoZtfud forj.k ea=ky;]
¼miHkksDrk ekeys foHkkx½
Hkkjrh; ekud C;wjks
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 697.—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7
ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~}kjk vf/klwfpr djrk gS fd uhps vuqlwph esa fn;s x;s ekud
¼dks½ esa la'kks/ku fd;k x;k@fd;s x;s gSa%—
vuqlwph
Øe
la'kksf/kr Hkkjrh; ekud dh
la'kks/ku dh
la'kks/ku ykxw
la-
la[;k] o"kZ vkSj 'kh"kZd
la[;k vkSj
gksus dh frfFk
frfFk
¼1½
¼2½
¼3½
¼4½
1-
vkbZ ,l 15546%2005 Lopy
la'kks/ku la[;k
rRdky izHkko
okgu& lhVsa muds fLFkzjdsa rFkk
1] flracj] 2013
ls
Js.kh ,e 1 ds fy, 'kh"kZ
fjLVªsUV&fof'kf"V
2-
vkbZ ,l 10939%2000 Lopy
la'kks/ku la[;k
rRdky izHkko
okguksa ds Vk;j V~;wc okYoksa ds
2] vDrwcj] 2013
ls
fy, inuke iz.kkyh ¼igyk
iqujh{k.k½
la'kks/ku dh izfr;ka Hkkjrh; ekud C;wjks ekud Hkou 9 cgknqj
'kkg tQjekxZ ubZ fnYyh&110002] {ks=h; dk;kZy;ksa ubZ fnYyh]
dksydkrk] p.Mhx<+] psUubZ] eqEcbZ rFkk 'kk[kk dk;kZy;ksa vgenkckn]
caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn] t;iqj]
dkuiqj] iVuk] iw.ks] ijok.kq] nsgjknwu rFkk fr:ouUrkiqje esa fcØh
gsrq miyC/k gSaA
[lanHkZ Vh bZ Mh@th&16]
ih- lh- tks'kh] oSKkfud ^,Q* ,oa izeq[k ¼Vh bZ Mh½
MINISTRY OF CONSUMER AFFAIRS, FOOD AND
PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
BUREAU OF INDIAN STANDARDS
New Delhi, the 3rd December, 2013
S.O. 697.—In pursuance of clause (b) of Sub-rule
(1) of Rules (1) of Rule 7 of the Bureau of Indian Standards
Rules, 1987, the Bureau of Indian Standards hereby notifies
that amendments to the Indian Standards, particulars of
which are given in the Schedule hereto annexed have been
issued:—
SCHEDULE
Sl.
No. year & title of the
No. and year of
Date from
No.
Indian Standards
the amendment
which
the
amendment
shall
have
effect
(1)
(2)
(3)
(4)
1
15546:2005 Automotive vehicles-
Amendment No.
With imme-
Seats, their anchorages and head
1 Sept, 2013
diate effect
restraints for category M1-
Specification
2
10939:2000 Designation system
Amendment No.
With imme-
for tyre tube valves for automotive
2 Oct, 2013
diate effect
vehicles (First Revision)
Copy of this Standard is available for sale with the
Bureau of Indian Standards, Manak Bhavan, 9 Bahadur
Shah Zafar Marg, New Delhi- 110 002 and Regional Offices:
New Delhi, Kolkatta, Chandigarh, Chennai, Mumbai and
also Branch Offices: Ahmedabad, Bangalore, Bhopal,
Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur,
Kanpur, Nagpur, Patna, Pune, Parwanoo, Dehradun,
Thiruvanathapuram.
[Ref. TED/G-16]
P.C. JOSHI, Scientist & Head (Transport Engg.)
dk;kZy; eq[; vk;dj vk;qDr] t;iqj
t;iqj] 10 Qjojh] 2014
lañ 14@2013&14
dkñvkñ 698.—vk;dj fu;e]1962 ds fu;e 2 lh , ds
lkFk iBuh; vk;dj vf/kfu;e] 1961 ¼1961 dk 43 oka½ dh /kkjk
10 ds [k.M ¼23 lh½ dh mi/kkjk (vi) ds }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq, eq[; vk;dj vk;qDr] t;iqj ,rn~}kjk fu/kkZj.k o"kZ
2013&14 ,oa vkxs ds fy;s dfFkr /kkjk ds mís'; ls Jh x.ks'k QkmaMs'ku
QkWj ,tqds'ku ,aM fjlpZ] t;iqj dks Lohd`fr nsrs gSaA
2- c'krsZ fd lfefr vk;dj fu;e 1962 ds fu;e 2 lh , ds
lkFk iBuh; vk;dj vf/kfu;e] 1961 dh /kkjk 10 ds mi[kam ¼23lh½
dh mi/kkjk (vi) ds izko/kkuksa ds vuq:i dk;Z djsA
[Ø- % eqvkvk@vvkvk@¼eq½@t;@10¼23lh½¼vi½@13&14@7320]
vrqys'k ftany] eq[; vk;dj vk;qDr
OFFICE OF THE CHIEF COMMISSIONER OF
INCOME TAX, JAIPUR
Jaipur, the 10th February, 2014
No. 14/2013-14
S.O. 698.—In exercise of the powers conferred by
Sub-clause (vi) of clause (23C) of Section 10 of the Income-
tax Act, 1961 (43 of 1961) read with rule 2CA of the Income-
tax Rules 1962, the Chief Commissioner of Income-tax,
Jaipur hereby approves "M/s. Shri Ganesh Foundation for
Education & Research Jaipur" for the purpose of said
section for the A.Y. 2013-14 onwards, provided that the
society conforms to and complies with the provisions of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1869
Sub-clause(vi) of clause (23C) of section 10 of the Income-
tax Act, 1961 read with rule 2CA of the Income-tax Rules,
1962.
[No. CCIT/JPR/ITO(Tech.)/10(23C)(vi)/2013-14/7320]
ATULESH JINDAL, Chief Commissioner of Income tax
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 29 tuojh] 2014
dkñvkñ 699.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]
ikjcrh gkbMªksbysfDVªd izkstsDV] us'kuy gkbMªksbysfDVªd ikWoj dkjiksjs'ku]
eaMh ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa
Je U;k;ky;&2 paMhx<+ ds iapkV ¼lanHkZ la[;k 239@2012½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 24@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@151@2011&vkbZvkj ¼Mh;w½]
ih-ds- os.kqxksiky] vuqHkkx vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 29th January, 2014
S.O. 699.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 239/2012)
of the Central Government Industrial Tribunal/Labour Court
No. II, Chandigarh now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of the General Manager, Parbati HE Project,
NHPC, Mandi & Ors. and their workman, which was
received by the Central Government on 24/01/2014.
[No. L-42012/151/2011-IR (DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH.
PRESENT: SRI KEWAL KRISHAN, Presiding Officer.
Case No. I.D. No. 239/2012
Registered on 10.4.2012
Sh. Khem Chand, S/o Late Sh. Kuldeep Chand, Village
Chakgohar, PO-Bhangrotu, Tehsil Sadar, District Mandi,
Mandi (HP).
...Petitioner
Versus
1. The General Manager, Parbati HE Project, NHPC, 2nd
Stage, VPO Nagwain, Sub-Tehsil, Aut, District-Mandi (HP).
2. The Director, Himachal Joint Venture, Parbati HE Project
Lot PB-2, Thela (Bhunter) Tehsil and District Kullu, Kullu
(HP).
...Respondents
APPEARANCES
For the workman
None.
For the Management
Sh. V.K. Gupta for
respondent No. 1.
None for respondent No. 2
AWARD
Passed on 25.10.2013
Central Government vide Notification No. L-42012/
151/2011 [IR (B-U)] Dated 14/03/2012, by exercising its
powers under Section 10 Sub section (1) Clause (d) and
Sub section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Act') has referred the following
Industrial dispute for adjudication to this Tribunal:—
"Whether the demand of Sh. Khem Chand S/o Late
Sh. Kuldeep Chand Mandi (HP) against the
management of Himachal Pradesh Joint Parbati HE
Project, Thela District Kullu (HP) in retrenching the
services w.e.f. 18/10/2010 is legal and justified? What
relief the workman is entitled to?"
After receiving the referene the notices were issued
to the parties. The workman did not appear despite notice
sent through registered cover and consequently did not
file any statement of claim. Thus, a 'No Dispute' award is
passed in the case. Let hard and soft copy of the Award be
sent to Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 29 tuojh] 2014
dkñvkñ 700.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]
Hkkjr lapkj fuxe fyfeVsM] djuky ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] paMhx<+&2
ds iapkV ¼lanHkZ la[;k 1312@2007½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 24@01@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@8@2007&vkbZvkj ¼Mh;w½]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 29th January, 2014
S.O. 700.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 1312/
2007) of the Central Government Industrial Tribunal/Labour
Court No. II, Chandigarh now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of The General Manager, Bharat Sanchar
Nigam Limited, Karnal and their workman, which was
received by the Central Government on 24/01/2014.
[No. L-40012/8/2007-IR (DU)]
P.K. VENUGOPAL, Section Officer
1870
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: SRI KEWAL KRISHAN, Presiding Officer.
Case No. I.D. No. 1312/2007
Registered on 4.7.2007
Sh. Narinder Rathi, C/o Sh. M.L. Chandana, 38A, Pritam
Nagar, Karnal, Haryana
Also at:- Sh. Narinder Rathi, S/o Ved Prakash R/o Village
Ganjbar, Tehsil and District Panipat, Haryana.
Petitioner
Versus
The General Manager, Bharat Sanchar Nigam Limited,
Sector 8, Urban Estate, Karnal.
Respondents
APPEARANCES:
For the workman
Sh. Ankur Malik Advocate.
For the Management
Sh. Anish Babbar Advocate.
AWARD
Passed on 30.10.2013
Central Government vide Notification No. L-40012/
8/2007 [IR(DU)] Dated 7.5.2007, by exercising its powers
under Section 10 Sub section (1) Clause (d) and Sub section
(2-A) of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'Act') has referred the following Industrial
dispute for adjudication to this Tribunal:—
"Whether the action of the management of General
Manager, BSNL, Karnal in terminating the services
of their workman Sh. Narinder Rathi, w.e.f. 22.9.2005
is legal and justified? If not, to what relief the workman
is entitled to?"
In response to the notice workman appeared and
submitted his statement of claim pleading that he was
employed by the management w.e.f. 20.9.1995 on the post
of Helper. He met with an accident on 2.1.2005 when he fell
from the telephone pole while discharging his duties and
this was also reported in newspapers. That the petitioner
went to join after recovering but he was not allowed to do
so and his services were terminated on 22.9.2005 without
any retrenchment compensation and serving any notice
and as such his termination is illegal.
Management filed written reply denying that the
workman was ever employed by it and pleaded that the
workman was assigned the work on contract basis and
when he was found misappropriating the telephone sets of
different subscribers, he was confronted with the complaints
and he stopped performing job w.e.f. 22.9.2005. He is not an
employee of the management.
In support of the case workman appeared in the
witness box and filed his affidavit reiterating his case as
stated in the claim statement. He also examined Ramesh
Chander who has deposed that the claimant worked as an
employee of the management at Panipat along with him.
On the other hand management examined S.L. Bajaj,
AGM (Legal) who filed his affidavit reiterating the case as
stated in the written statement.
I have heard Sh. Ankur Malik counsel for the
workman and Sh. Anish Babbar counsel for the management
and perused the file.
It was contended by the learned counsel for the
workman that workman continuously worked for the
management from 20.9.1995 and it was possible only he
was regular employee of the management and management
cannot deny the relationship. Since his services were
terminated arbitraily, he is entitled to be reinstated with all
the consequential benefits. I have considered the
contention of the learned counsel.
It is the definite case of the workman that he was
employed by the management from 20.9.1995. On the other
hand the management has pleaded that the workman was
working on contractual basis and has stopped performing
the job w.e.f. 22.9.2005. It was for the workman to prove
that he was employed by the management but he neither
filed any appointment letter nor summoned any record from
the management to prove the fact that he ever served the
management as an employee. According to him he was
employed at a regular post of Helper. If he was appointed
on regular post, then he must have been given some
appointment letter by the competent authority and he must
have been appointed by following some procedure. But in
the absence of any appointment letter and the proof that
he was selected by following due procedure, it cannot be
said that he was ever employed by the management. The
workman while appearing in the witness box has admitted
in his Cross-examination that there was no post of helper.
When it was so, how the workman can claim that he was
ever employed by the management as a helper? In the
circumstances it is to be taken that he was working with
the management only on contract basis and when he
stopped performing the job, his contract came to an end
and he was not entitled to any retrenchment compensation
or notice etc.
Since workman was not in the service of the
management, it cannot be said that his services were
terminated and he is not entitled to any relief. The reference
is decided accordingly against the workman.
KEWAL KRISHAN, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1871
ubZ fnYyh] 29 tuojh] 2014
dkñvkñ 701.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj
¼izkstsDV~l½] vQdkWUl baizQkLVªpj fyfeVsM] tEew ,aM vnlZ ds izcaèra=
ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;&2] paMhx<+ ds iapkV ¼lanHkZ la[;k 252@2013½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 24@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42011@06@2013&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 29th January, 2014
S.O. 701.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 252/2013)
of the Central Government Industrial Tribunal/Labour Court
No. II, Chandigarh now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The General Manager (Projects), Afcons
Infrastructure Limited, Jammu & Ors. and their workman,
which was received by the Central Government on
24/01/2014.
[No. L-42011/06/2013-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 252/2013
Registered on 9.5.2013
The Working President, Center of Indian Trade
Unions, State Committee, Head Office, Gandhi Nagar,
A/27, Jammu - 180004.
...Petitioner
Versus
1.
The General Manager, M/s. Afcons Infrastructure,
Ltd., Jammu-Udhampur, NHIA Road Project,
Bye Pass Road, AT & PO Panjgran, PS Nagrota,
Jammu-180004.
2.
The Project Manager, National Highway Authority
of India, House No. 7, Sector 5, Trikuta Nagar, Jammu.
...Respondents
APPEARANCES
For the Workman
Sh. Sobat Ali, President Union
For the Management
Sh. Deep Chander, Assistant
Manager for respondent No. 1
AWARD
Passed on 31.10.2013
Central Government vide Notification No. L-42011/
06/2013-IR(DU) Dated 22.4.2013, by exercising its powers
under Section 10 Sub-section (1) Clause (d) and Sub-
section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal:—
“Whether the action of the management of M/s.
Afcons Infrastructure Limited, Jammu &Udhampur,
NHIA Road Project in not accepting the demands of
union is justified? To what relief the workmen are
entitled to and from which date?”
Today, Sh. Sobat Ali, President of the Union and
Deep Chander representative of the respondent No. 1
appeared and stated that the matter has been resolved
between the parties and the workers’ Union do not want to
file any statement of claim. In view of this statement of the
parties a ‘No Dispute’ award is passed. Let hard and soft
copy of the award be sent to the Central Government for
further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 29 tuojh] 2014
dkñvkñ 702.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mk;jsDVj tujy]
lsaVªy ikWoj fjlpZ bafLVV~;wV] c®xyksj ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufn"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] c®xyksj ds
iapkV ¼lanHkZ la[;k 01@2012½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 24@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@03@2014&vkbZvkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 29th January, 2014.
S.O. 702.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 01/2012)
of the Central Government Industrial Tribunal/Labour
Court, Bangalore, now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of The Director General, Central Power
Research Institute, Bangalore and their workman, which
was received by the Central Government on 24/01/2014.
[No. L-42012/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
1872
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
15th July 2013
Present
:
Shri S. N. NAVALGUND,
Presiding Officer
Complaint No. 01/2012
Complainant
Respondent
The General Secretary,
The Director General, Central
Central Power Research Institute
Power Research Institute,
Employees Union, No. 822,
Prof. Sir C V Raman Road,
1st Main Road, Yeshwantapura,
Sadashivnagar, P.B. No. 8066,
Bangalore-560 022.
Bangalore-560 080.
Complaint No. 02/2012
Complainant
Respondent
1. Sh. N. K. Ousef, No. 4, GEO
The Chief Administrative
House, 1st A Cross, Nagaraj
Officer, Central Power
Layout, Kavalbyrasandra,
Research Institute,
R T Nagar, Bangalore-32.
Prof. Sir C. V. Raman Road,
Sadashivnagar, P. B. No. 8066,
Bangalore-560 080.
2. Sh. Govinda Raju H V,
S/o Late Mr. Venkatappa, No. 82,
Vinayakanagara, Hesarghatta,
Bangalore-560 088.
Complaint No. 03/2012
Complainant
Respondent
1. Sh. K. Channaiah, Qrt. No. 8,
The Additional Director &
Type II, CPRI Colony,
Disciplinary Authority, Central
New BEL Road, Bangalore-12.
Power Research Institute,
Prof. Sir C V Raman Road,
Sadashivnagar, P B No. 8066,
2. Sh. K John, Qrt. No. 10,
Bangalore-560 080.
Type II, CPRI Colony,
New BEL Road, Bangalore-12.
Appearances:
I Party
:
Shri T Anantharam
Authorised Representative
II Party
:
Shri M R C Ravi
Advocate
COMMON ORDER ON APPLICATION OF
RESPONDENT FILED UNDER
SECTION 11 OF I D ACT
DATED 05.06.2013
1. In these complaints filed by the employees and
members of CPRI Employees Union under Section 33A of
the Industrial Disputes Act for change in their Service
Conditions without approval of this Tribunal as required
under Section 33(2) (b) wherein the reference raised by the
CPRI Employees Union for adjudication on their demands
was pending in C R 54/2007 on the file of this tribunal, the
present applications are filed by the Respondent under
Section 11 of the ID Act to dismiss the complaints as not
maintainable and also to recall and set aside the interim
orders passed in respective complaints since they have
become void-abintio in view of this tribunal rejecting the
Reference in C R No. 54/2007 by Award dated 25.02.2013
(notification dated 11.03.2013) holding that Respondent is
not an Industry as defined under Section 2(j) of ID Act to
come under the purview of the ID Act and the jurisdiction
of this tribunal/Court. In all these applications it is stated
that on the specific contention of the Respondent in the
reference that it is not an industry as defined under Section
2(j) of ID Act, this tribunal while upholding the said
contention rejected the reference by award dated 25.02.2013
holding that it is not an industry and thereby this tribunal
has no jurisdiction to adjudicate on the demands covered
in the reference, these complaints do not survive/not
maintainable and all the interim orders passed have become
void-abintio and non-est in the eyes of law.
2. These applications are opposed by the complaints
contending that at the time of change in their service
conditions the valid reference made by the Central
Government for adjudication on the demands was being
pending before this tribunal/Court, it was mandatory on
the part of the Respondent to seek permission of this
tribunal under Section 33(3) as far as the complainants in
Complaint No. 01/2012 and 02/2012 and under Section 33(4)
as far as Complainants in Complaint No. 03/2012 who were
declared as protected workmen by the competent authority
and as admittedly no such applications were filed before
this tribunal/court seeking permission they having
approached with these complaints they have to be
adjudicated upon as if they were a dispute referred to this
tribunal in accordance with the provisions of the act and
submit the award to the appropriate government and cannot
dismiss on such applications filed by the Respondent.
3. I have heard the arguments addressed by the
Authorised Representative of the Complainants and learned
advocate appearing for the Respondents and carefully gone
through all the citations referred to by them. The learned
authorised representative of the complainants urged that
admittedly when the impugned actions touching the service
conditions of the complainants in the respective complaints
were effected during the pendency of the reference made
by the Central Government for adjudication on the demands
of the Employees of the Respondent on a dispute raised
by its Employees union in C R 54/2007 on the file of this
tribunal/court it was mandatory on the part of Respondent
as contemplated Under Section 33(3) in respect of
Complainants in Complaint No. 01/2012 and 02/2012 and
Section 33(4) in respect of Commplainants in Complaint
No. 03/2012 who were declared as protected workmen by
the competent authority and when this court passed interim
orders in the respective complaints they cannot be said to
¹Hkkx II—[k.M 3(ii)º
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1873
be void-abintio (without jurisdiction) and the court has to
pass an award treating the complaints as if they are reference
by the competent authority under section 10 of the ID Act
and cannot dismiss on such applications filed by the
Respondents. In support of his contention/arguments he
cited the following decisions:
1. The Bhavnagar Municipality Vs. Alibhai Karimbhai
and others reported in 1977 scc (L&S) 264 (SC).
2. Order dated 28th Day of May 2010 of Hon'ble High
Court of Karnataka in W P No. 8576/2008 in the case of M/s
Madhura Coats Pvt. Ltd. Vs. The workmen of Madura
Coats.
3. Gujarat Agricultural University Vs. All Gujarat
Kamdar Karmachari Union, reported in 2009 (IV) LLJ 38L
(SC).
4. Jaipur Jilla Sahakara Bhoomis. Vikas Bank Ltd.,
reported in 2202 (1) LLJ 834 (SC).
5. Container Corporation of India Ltd. Vs. Sanjeev
Kumar, reported in 2012 (II) LLJ 629 (Delhi).
6. Yellapa B. vs. Steel Authority of India Ltd., reported
in 2203 (III) LLJ 1056 (Calcutta).
7. Statesman Ltd vs. First Industrial Tribunal West
Bengal reported in 2012 (II) LLJ 577 (Calcutta) DB.
8. Top SecurityVs. Subhash Chandra reported in 2012
(IV) LLJ. 542 Delhi (DB).
9. Order dated 12th day of March 2013 passed by
Hon'ble High Court of Karnataka Division bench in the
case of The Chief Traffic Manager Vs. M. Narayana Reddy
BMTC in Writ Appeal No. 5738/2012 (L).
10. Arasu Virivu Pokkuvara Thu Cozhiyar Sangam
Vs. State Express Transport Corporation Ltd., Chennai and
others reported in 2006 (III) LLJ 245 (Madras) DB.
11. Bharatiya Employees Mazdor Sangha
Vs.Industrial Tribunal, Chennai Reported in 2012 (II) LLJ
716 (Madras).
12. BPL Ltd., Vs.R Sudhakar reported in 2004 (II) LLJ
834 (SC).
13. Karnataka State Road Transport Vs. Asgar Pasha,
reported in 1998 (II) LLJ. 61 (Karnataka).
14. Ranger Breweries Vs. State of Himachal Pradesh
reported in 1998 (III) LLJ (Supp) 321 (HP) DB.
15. Portected Workmen: For full year from date of
decision Batra Hospital & Medical Research Centre Vs.
Batra Hospital Employees Union reported in 2013 (II) LLJ
132 (Delhi).
16. Grindlays Bank Ltd.Vs. CGIT 1981 SCC (L&S) 309
SC.
4. Interalia, the learned advocate appearing for the
Respondent urged that the Interim orders in the respective
complaints were passed by this tribunal to maintain status
quo on the ground that whether CPRI is an Industry is yet
to be adjudicated in C R 54/2007 and now this tribunal
having passed an award holding that the CPRI/Respondent
is not an industry and consequently does not come under
the perview of the ID Act and jurisdiction of this tribunal
the very reference made by the Central Government being
held as had the present complaints do not survive and are
liable to be rejected in limine. He also urged that in Writ
Petition No. 14313/2012 (L-RES) in which the Order of
Assistant labour Commissioner dated 18.04.2012 declaring
the complainants in Complaint No. 03/2012 and others as
protected workmen the Hon'ble High Court having
disposed off that Writ Petition observing the said order
being subject to the outcome of the proceedings before
this tribunal in the pending reference i.e.. CR 54/2007 in
view of this court holding in C R 54/2007 respondent being
not an industry and rejecting the reference that order
passed by the Assistant Labour Commissioner also do not
come to the help of the complainant in Complaint No. 03/
2012 and urged to allow his applications and to dismiss the
complaints.
5. There cannot be any dispute that pending a valid
reference the management in order to effect any change in
the Service Condition of the workmen covered in such
reference has to seek permission of the tribunal where the
reference is pending and there cannot also be a dispute as
to the decisions relied upon by the learned authorised
representative of the complainants that the complaints filed
under Section 33 A have to be treated as reference under
Section 10 of the ID Act and conclude the same with Award.
But only on receipt of a reference for adjudication it cannot
be said it is a valid reference and it is left open to the
adjudicating forum to decide having regard to the
contention taken by the parties to decide whether it is a
valid reference. In the instant case the mother dispute
covered in C R 54/2007 is rejected coming to a conclusion
that the Respondent is not an industry and do not come
under the perview of the industrial dispute act and
jurisdiction of this tribunal/court upholding the contention
of the Respondent in the Reference that it is not an industry
and fall under the perview of the industrial dispute act it is
a determination that the reference is not valid as such there
is no meaning in proceeding with these complaints on
merits as urged by the learned advocate appearing for the
Respondent. It is seen from the Order passed by the Hon'ble
High Court of Karnataka in W P No. 2604-2605/2013 (L-
TER) wherein the interim order passed by this tribunal in
Complaint No. 03/2012 under which direction was given to
the Respondent to pay the complainants wages @ last
payment made to them before the impugned order of
termination from service from the date of complainant i.e.
25.06.2012 till the final adjudication of the complaint and
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
also to allow the complainants to stay in the quarters in
their occupation while holding that the tribunal which is
yet to decide its jurisdiction in the matter ought not to
have passed such a interim order directing the Respondent
to pay the last wages drawn is wholly inappropriate and so
far as the interim order directing the complainants is
concerned is to be sustained makes its clear that the
maintainability of these complaints depends upon the
determination by this tribunal regarding jurisdiction to try
or adjudicate the demands raised in C R 54/2007. Therefore,
now in view of this tribunal's/court's determination that
CPRI/Respondent is not an Industry and consequentially
does not fall under the perview of the ID Act and jurisdiction
of this tribunal/court these complainants cannot get
adjudicated their grievances raised in these complaints
under the hands of this tribunal/court. Under the
circumstances, as rightly urged on behalf of the
Respondents in my considered view all the three complaints
deserves to be dismissed. In view of the catena of decisions
relied upon by the Authorised Representative of the
Complainants such an application under Section 33 A has
to be ended with Award this very Order can be treated as
Award in the respective complaints and has to be sent for
publication to the Government which made the reference
in C R 54/2007. In the result, I pass the following:
ORDER
The three separate applications filed by the
Respondent in Complaint Nos. 01/2012, 02/2012 and
03/2012 dated 05.06.2013 are Allowed and consequently in
view of the Award passed in C R 54/2007 holding that CPRI/
Respondent is not an Industry coming under the preview
of the ID Act and the jurisdiction of this tribunal/court the
complaints are Dismissed and the interim orders passed in
the respective complaints are vacated. This Order shall be
treated as an Award in complaint No. 01/2012, 02/2012 and
03/2012 and will come into effect from the date of notification
from the Ministry and shall be sent to Ministry of Labour
and Employment for publication in the gazette. No order as
to cost under the circumstances.
(Dictated to U D C, transcribed by him, corrected and signed
by me on 15th July 2013)
S.N. NAVALGUND, Presiding Officer
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New Delhi, the 3rd February, 2014
S.O. 703.—In Pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 82/
1997) of the Central Government Industrial Tribunal/Labour
Court-II, Delhi now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of Archaeological Survey of India and
their workman, which was received by the Central
Government on 28/1/2014.
[No. L-42011/9/96-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II
PRESENT: SHRI HARBANSH KUMAR SAXENA
ID No. 82/97
Sh. Putti Lal And Ors.
Versus
Archaeological Survey of India.
Ex-Parte Award
The Central Government in the Ministry of Labour
vide notification No. L-42011/9/96/-IR (DU) dated 24/6/97
referred the following industrial Dispute to this tribunal
for the adjudication:—
"Whether the termination of the Management of
Archaeolgical Survey of India in not granting
permanent status/regularization to S/Sh. Putti Lal,
Babu Lal, Satya Dev, Hare Ram, Ravinder, Smt. Phool
Kali and Khedan Pradsad is legal and justified ? If
not, what relief the workman is entitled for?"
On 16.07.97 reference was received in this tribunal.
Which was register as I.D. No. 82/97 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 workmem/claimant filed
claim statement on 2, September, 1997.
On the basis of grounds mentioned in claim
Statement Claimant/Workmen prayed as follows:—
(a) Award grant of permanent status/regularization to
S/Shri Putti Lal, Babu Lal, Satya Dev, Hare Ram,
Ravinder, Smt. Phool Kali and Khedan Prasad in the
pay scale of Rs. 750-940.
(b) Any other award /order which this Hon'ble Tribunal
may deem fit and proper to meet the end of justice.
¹Hkkx II—[k.M 3(ii)º
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Against aforesaid claim statement management
filed Written Statement.
On the basis of grounds mentioned in Written
Statement management prayed as follows:—
In the light of facts mentioned above the present
petition of devoid of any merit, having no basis for any
direction, as prayed by the applicants, the Tribunal may
like to dismiss the same. It is so prayed, accordingly.
Workmen is reply to Written Statement filed
Rejoinder. Wherein they denied the allegations of Written
Statement filed by management and reaffirmed an
averments made in their claim statement.
In Support of its case claimant/workmen filed
Affidavit of Witnesses Shri Putti Lal, Babu Lal, Satya Dev,
Hare Ram Ravinder, Smt. Phool Kali and Khedan Prasad in
their evidence.
In Support of its case management filed affidavit of
Witness namely H.B. Singh in its Evidence.
Thereafter my Ld. Predecessor heard argument of
the Ld. A/R's of the parties and passed Award on 13.5.2008.
Wherein he passed following operative portion of the
Award.
"The Action of the management of Archeological
Survey of India in not granting permanent status/
regularization of S/Shri Putti Lal, Babu Lal, Satya
Dev, Hare Ram, Ravinder, Smt. Phool Kali and Khedan
Prasad is neither legal nor justified. The management
should reinstate the workmen alongwith 25% back
wages within two months from the date of Publication
of the Award.
That the another reference of the same workers was
referred by the appropriate Government for
adjudication vide order no. L 42011/2297/IR(DU) dated
27.09.1987 with the following terms:—
"Whether the termination of the Management of
Archaeological Survey of India in not granting
permanent status/regularization to S/Shri Putti Lal,
Babu Lal, Satya Dev, Hare Ram, Ravinder, Smt. Phool
Kali and Khedan Prasad is legal and justified? If
not, what relief the workman is entitled for?"
4. The above reference is dealt in I.D. No. 156/1997
and the Hon'ble Tribunal vide its Award dated 20.04.2004
awarded as under:—
"The Action of the management of Archeological
Survey of India in not granting permanent status/
regularization to S/Shri Putti Lal, Babu Lal, Satya Dev,
Hare Ram, Ravinder, Smt. Phool Kali and Khedan
Prasad is neither legal nor justified. The Workmen
are entitled to be reinstated at their previous post
with 25% back wages and no junior to them should
be regularized. They should be regularized as and
when vacancies arise and the Horticulture
Department is directed to create vacancies for
regularization as they have worked for 8 to 14 years
in their department.
That the Management has filed the writ petition ©
No. 7707 /2007 against the award dated 13.5.2008 dealt in
I.D. No. 82/1997, and the Management also challenged the
Award on 27.09.1997 in Writ Petition 16887/2004 against
I.D. No. 156/1997. The workmen also challenged the
same set of workmen being aggrieved by the part and the
same award whereby only 25% back wages have been
awarded in their favour in Writ Petition © 4739/45/2005
titled Putti Lal & others vs. Archaeolgical Survey of India.
Shri Putti lal & others have not full minimum wages fixed
under Minimum wage Act 1948 w.e.f. from the date of
Award dated 20.04.2004 by the Hon'ble High Court
under Section 17B of full wages as maintenance allowance
during the pendency of the Writ Petition filed by the
Management against the Award dated 20.04.2004.
The Hon'ble High Court of Delhi through common
order dated 10.01.2013 remanded back the case to the
Industrial Tribunal. The operative paras of Judgement are
reproduced as under:—
"14. The aforesaid are aspects to be established by
record. The Industrial Adjudicator has not examined the
said issue.
15. For all the aforesaid reasons, in my view, this is
a fit case where the impugned award dated 20.04.2004
should be set aside and the matter should be remanded
back to the Labour Court for examination of the following
issues:—
(i) Whether there was breach of Section 25-G of the
Indusrial Disputes Act 1947 in the facts of the case,
and if so, to what effect?
(ii) Whether there was breach of Section 33 on the part
of the management, and if so, to what effect?
16. It is directed accordingly.
17. In view of the aforesaid position, the writ petition
preferred by the workmen being W.P. (c) No. 4739-45/2005
are withdrawn as the issue with regard to the back wages
shall also to be considered afresh in the light of the funding
that may be returned on the specific aspects in terms of
this order.
18. So far as the challenge to be award dated
13.5.2008 in W.P. (C) No. 7707/2009 is concerned, I may
note that by the said impugned award, the Industrial
Adjudicator has held that the action of the management
in not granting permanent status/regularization to the
respondent is not legal or justified. This award also cannot
be sunstained at this stage as this issue would depend
upon determination afresh to the remanded issues in
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
respect of the earlier award dated 27.09.1997. Accordingly,
the award dated 13.05.2008 is also set aside leaving in
open to the parties to urge their submissions in respect
of the reference dated 24.06.1997 bearing letter No. L-
42011/9/96-IR (DU) made by the appropriate Government.
The parties are left to bear their own costs.
19. Considering that the peresent is very old case,
disposal of this case shall be expedited by the Industrial
Adjudicator and the same shall be concluded preferably
within six months.
20. Let the parties appear before the concerned
Court/successor Court on 04.02.2013.
I have heard the argument of Ld. A/R for Workmen
as case proceeded Ex-Parte against management.
In the light of contention of Ld. A/R for the workmen
I perused the pleadings mentioned in Claim Statement,
Written Statement and Rejoinder and evidence of parties
on record including rulings cited on behalf of workmen,
settled law on the point & relevant provision of
relevant law including other material on record.
The CGIT-cum-Labour Court No. 1 decided the I.D.
No. 156/1997 vide its award dated 31.05.2013 reinstated
the workmen S/Shri Putti Lal, Babu Lal, Satya Dev,
Hare Ram, Ravinder, Smt. Phool Kali were reinstated with
20% back wages.
That now this Tribunal has to decide the I.D. No.
82/1997 of reference for grant of permanent status/
regularization to the above workmen which is remanded
by the Hon'ble High Court of Delhi vide their order dated
10.01.2003. As per para 18 this Hon'ble Tribunal will have
to decide the grant of permanent status/regularization to
the workmen. Now, the CGIT-cum-Labour Court has held
that the termination of the workmen is illegal and their
service were reinstated with 20% back wages from the
date of their termination. The full particulars of the workmen
are given as under:—
Sl. Name
Father/Husband's
Year
of
No.
Name
Engagement
S/Shri
S/Shri
1.
Putti Lal
Shukru
1982
2.
Babu Lal
Nanaku
1986
3.
Satya Dev
Alagu
1988
4.
Hare Ram
Ram Nath
1989
5.
Ravinder
Babu Lal
1989
6.
Phool Kali
Mewa Lal
1990
7.
Khedan Prasad
Mohan Shah
1990
That it is proved as per evidence that the most junior
person S/Sh. Dalbir Singh and Suresh Prasad who were
recruited only in the year 1992 as daily wages Mali are
allowed the temporary status w.e.f. 1.09.1993 with all
allowances attached with the post of Beldar in regular
category except regularization. Accordingly. Putti Lal, & 6
others were junior to them are entitled atleast temporary
status with all allowances attached with the post of Mali
as Group 'D' employees w.e.f. 1.09.1993 in the pay scale of
750-940 revised from time to time.
That the management cannot break the seniority of
the same category i.e. Mali while refusing atleast temporary
status w.e.f. 1.09.1993 in accordance with their date of initial
employment being Sh. Putti Lal & 6 others are senior to
S/Sh. Dalbir Singh & Suresh Prasad.
That non-regularization is also unfair labour practice
and even Sh. Dalbir Singh & Suresh Prasad who were
recruited in the year 1992 and were junior to the respondent
were given temporary status in the year 1994 w.e.f. 1.09.1993
in the pay scale to Rs. 750-940. The operative para 8 of
CWP No. 7707/2009 is reproduced as under:—
"8. The impugned award proceeds primarily on the
basis of Section 25-G of the Act. In this regard, the averment
of the respondents/workmen was that two persons, namely
Dalbir Singh and Surender Prasad, who were recruited in
the year 1992 and were junior to the respondent, were given
temporary status in the year 1994 w.e.f. 01.09.1993 as the
pay scale Rs. 750-940, whereas the said worker had been
left out. The Industrial Adjudicator held that Section 25(G)
& (H) were applicable to the respondent and retention of
junior, while terminating the services of the respondents
amounted to unfair labour practice under Section 25(RA)
of the Act.
That item 10 in 5th Schedule u/s 2(ra) of I.D. Act the
non-grant of permanent status and privilege of permanent
workmen is an unfair labour practice. The said Section is as
under;
10.To Employ workmen as 'Badli'casuals or
temporaries and to continue them as such for years, with
the object of depriving them of the status and privileges of
permanent workmen.’’
"That even no grant of temporary status and
regularization is a discriminatory as the Management
granted the temporary status to S/Shri Dalbir Singh
& Suresh Prasad in the year 1997 w.e.f 1.09.1993 in
the pay scale of Rs. 750-940 revised from time to time
as both the workmen were initially employed in the
year 1992 and ignored even the said status to the
workmen connected with the dispute as they as senior
to these two workmen. The date of employment of
the workman Sh. Putti Lal & others as their details
are mentioned in para 8 hereinabove.
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That the Hon'ble Supreme Court in the case of
Bal Kishan Vs. Delhi administration and another reported
in (1900) 1LLJ/61. The relevant para 10 of the said judgment
is reproduced as under:
10.In service, there could be only one norm for
confirmation or promotion of persons belonging to the
same cadre. No junior shall be confirmed or promoted
without considering the case of his senior. Any deviation
from this principle will have demoralizing effect in service
apart from being contrary to Article 16(1) of the
Constitution."
That the Division Bench of Hon'ble High Court of
Delhi in LPA 13/2008 titled the Director General (Works),
CPWD Vs. Devinder Singh has held on 12.02.2008 that the
senior persons are entitled to regularized from the date on
which the services of junior were regularized. The operative
para 4 of the said judgment is reproduced as under:
"The parties filed their written statement on the basis
of which evidence was allowed to be led. After
receiving evidence the learned industrial Adjudicator
proceeded to decide the matter on the basis of the
evidence available on record. The learned Industrial
Adjudicator passed his award on 13th June 2006
holding that the action of the appellant management
CPWD in not granting the services of the respondent
Sh. Devinder Singh, Wireman w.e.f. 31th March 1993
is neither legal nor justified and also that he is entitled
to be regularized w.e.f 31st March 1993. i.e. the date
on which the services of his junior Sh. Hari Shankar
were regularized. The learned Industrial Adjudicator
also directed that the respondent should be paid all
his arrear which accrued to him on his regularization
w.e.f 31st March 1993.
That the Division Bench of Hon'ble High Court of
Delhi in the matter "Union of India Director General Works,
CPWD Vs. Vijay Chand"W.P. (c) 5354/2006 and C.M.
No. 4355/2006 has held on 04.04.2006 that similarly situated
workers cannot be discriminated. The operative para 4 of
the said judgment is reproduced as under:
"4 . The learned counsel for the petitioner has sought
to reply on the judgeent of this Court in LPA No. 653-
93/2005 titled Smt. Vandana Singh Vs. NDMC and
particularly paragraph 6 thereof, dealing with the directions
for regularization of the temporary employees. The Tribunal
has directed for consideration of the respondent's case for
regularization in the same manner as other three persons
similarly situated. Accordigly, the judgment of the Tribunal
is distinguishable. We have also noticed the fact that the
impugned order was passed on 15th September 2005
granting the petitioner three months time to consider the
case of the respondent and the said period expired on
15th December, 2005. The writ petition has been listed and
heard today for the first time. That is another factor why
we are not inclined to give discretionary relief to the
petitioner under Article 226 of the Constitution of India.
We are also informed that the petitioner has only been
bestirred into action on the filing of the contempt petition
by the respondent. Accordingly, the writ petition is
dismissed in limine.
That the Union of India and other again filed Special
Leave to Appeal (Civil) No(s) 9200/2007 against the
judgment and order dated 4.4.2006 titled "Union of India
and others Vs. Vijay Chand". The said SLP was also
dismissed by the Hon'ble Supreme Court dated 7.01.2011
The operative para of the order dated 7.01.2011 is
reproduced as under:
"In our view, the direction given by the Tribunal for
consideration for the respondent's cases for
regulatization of service, as was done in the cases of
other three similarly situated persons, was legally
correct and justified and the High Court did not
commit any error by refusing to interfere with the
order of the Tribunal. In the facts and circumstances
of the case, we do not consider it to be a fit case for
exercise of jurisdiction by this Court under Article
136 of the Constitution. The special leave petition is
accordingly dismissed."
In the light of law declare by the Hon'ble Supreme
Court and decision of Hon'ble High Court of Delhi as
referred Supra and evidence on record. It is crystal clear
that the action of management of Archeological Survey of
India in not granting Temporary Status/Regularization to
Sh. Putti Lal, Babu Lal, Satya Dev, Hare Ram, Ravinder,
Khedan Prasad, Smt. Phool Kali is neither legal nor justified
and the action of the management is also unfair labour
practice as mentioned in Section 2(ra) I.D. Act.
The Workmen were performing the duty between
23 years to 32 years. So. there is no justification to refuse
them to give temporary status regularization.
Thus the workmen Shri. Putti Lal, Babu Lal, Satya
Dev, Hare Ram, Ravinder, Khedan Prasad, Smt. Phool Kali
are entitled to be granted temporary status in the pay scale
of Rs. 750 to 940 with pay scale and all allowances. Which
were revised from time to time w.e.f 1.09.1993 when their
juniors i.e. Shri. Dalbir Singh & Suresh Prasad Beldar were
granted temporary status. They are regularized with all
consequential benefits from the date when Shri. Dalbir
Singh & Suresh Prasad Mali were granted temporary status
w.e.f. 1.09.1993.
Reference is liable to be decided in favour of
workman and against management. which is accordingly
decided.
Ex-parte Award is accordingly passed.
Dated:- 13/01/2014
HARBANSH KUMAR SAXENA, Presiding Officer
1878
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
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dkñvkñ 704.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj oqeu ,aM fpYM
osyQs;j cksMZ ds izca/kra= ds laca) fu;kstdksa vkSj muds deZdkjksa ds
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gqvk FkkA
[lañ ,y&42012@7@2006&vkbZ vkj ¼Mh ;w½]
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New Delhi, the 3rd February, 2014
S.O. 704.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No 78/2006)
of the Central Government Industrial Tribunal/Labour
Court-II Delhi now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of Woman and Child Welfare Board and their
workman, which was received by the Central Government
on 28/01/2014
[No. L-42012/7/2006-IR (DU)]
P. K. VENUGOPAL Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, DELHI
PRESENT: SHRI HARBANSH KUMAR SAXENA
ID No. 78/2006
Smt. Rani
Versus
Woman and Child Welfare Board
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-42012/7/2006-IR(DU) dated 18/09/
2006 referred the following industrial Dispute to this tribunal
for the adjudication:—
"Whether the action of the management of Women
and Child Welfare Board, Faridabad in terminiating
the services of Smt. Rani w/o Sh. Ram Kumar, Peon-
Cum-Sweeper w.e.f. Jan 2002 is just and legal? If not,
to what relief the applicant is entitled to"
On 03/10/2006 reference was received in this tribunal.
Which was register as ID No. 78/2006 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
witneses.
After service of notice workman/claimant filed claim
statement on 12/12/2006. Wherein he stated as follow:—
1. That the appropriate Government in the Ministry
of Labour, Govt. of India, Shram Shakti Bhawan, New Delhi
referred the dispute to this Hon'ble Tribunal-cum-Labour
Court for adjudication vide order No. L-42010/7/2006 IR(DU)
dated 18/09/2006 with the following terms:
SCHEDULE
"Whether the action of the managment of Women
and Child Welfare Board, Faridabad in terminating
the services of Smt. Rani w/o Sh. Ram Kumar, Peon-
Cum-Sweeper w.e.f. Jan. 2002 is just and legal? If not,
to what relief the applicant is entitled to?"
2. That the applicant joined the respondent
Department as a Peon-cum-Sweepers in the Sub-Office at
Faridabad on 01/041991 on full time basis.
3. That the application had been drawing salary @
Rs. 2000/- per month regularly since the day of her joining.
4. That the work of the applicant has been
satisfactory and never any charge-sheet, a notice or even
a warning had been issued to her.
5. That the applicant workman has completed
240 days and as such she became a regular employ of the
respondent department and thereafter she has completed
uninterrupted regular service of 14 years.
6. That the respondent central office being agriculture
produce market committee is an industry under the I.D. Act
and hence this Hon'ble Tribunal has the jurisdiction to try
this case.
7. In the case of principal of Chief Conservator of
Forest Versus Smt. Pramjeet Kaur& others, 1995 and Baljit
Singh Versus The State of Haryana & others 1995 LLR,
page No. 504, the Punjab & Haryana High Court has clearly
given judgment.
"Forest, PWD Central works division* (B&R) of the
Punjab & Haryana and Health will be an industry U/s. 2/j of
the 947 of I.D. Act."
8. So, the question of maintainability and jurisdiction
are well answered and settled.
9. That the applicant workman had not been paid
even the minimum wages declared by the Haryana
Government. Even the leave and other legal benefits were
not accorded hence the department had been victimizing
the applicant and that tentmounts to illegal labour practice.
10.That the applicant submitted may requests though
the proper channel to the department that she may be
confirmed and given the increments and other legal benefits
prescribed by the Government the letter dated 16-06-2001
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1879
is the request letter for confirmation being annexed as
Annexure 1 similarly the letter sent on 01-06-2004 was replied
under serial No.1/CFMED/Faridabad/02-03/32 dated
04-06-2004 to the Deputy Commissioner, Faridabad for
requesting for providing the details of wages for various
categories of workers and employees in Haryana. The
Deputy Commissioner, Faridabad had sent the details of
the salary and wages but with no effects and this respect
and hence the applicant lady was constrained to file the
complaint and thereafter she was relieved of her services
without any notice, charge sheet.
11. That the service of the workman has been
dismissed illegally and arbitrarily without any notice,
charge sheet and no domestic enquiry, which was
mandatory for the dismissal was conducted. Shockingly
the applicant was not even given the legal privilege of
defending herself legally before dismissal. No dismissal
letter was issued nor any retrenchment benefit U/s 25 F
was paid to the workman on this count only the dismissal
is illegal and hence the set-aside. Even the mandatory clause
of 25N was not adhered to and thus the workman was
crucified by the whims and fancies of the arbitrary orders
of the respondents department.
On the Basis of which he prayed that workman, being
unemployed so far, may be reinstated with full back wages
and continuity of services, it is, further prayed that any
other relief the Hob'ble Court may deems fit may be granted
to the poor widow.
Against claim statement management filed following
written statement:—
Preliminary Submissions/Objections:
1.That the present application is not maintainable as
the respondent is not an 'Industry' within the meaning of
the Industrial Disputes Act, 1947. The activities carried out
by the replying respondent cannot be termed to be included
within the purview of the Industrial Disputes Act, 1947.
2.That the workman cannot claim regularization or
continuation in the services of the replying respondent as
a matter of right in absence of scheme/policy of the
Government of contrary to the recruitment rules.
3.That the claimant is not entitled to claim parity in
wages or otherwise with the regular employee under the
replying respondent in view of the settled law of the land
on the subject.
4. That the claimant had merely been working as a
part time daily wager and there has not been any sanctioned
post nor she has been appointed to any sanctioned post
including the one, referred therein the claim as well as the
reference dated 18.08.2006 and therefore the claim under
reply is not maintainable. It is submitted that it is trite that
nobody can claim regularization dehorse the rules and
particularly in absence of the sanctioned post. Moreover,
there is no scheme which gives any right to the claimant to
claim regularization. Even the scheme of 10.09.1993 issued
by DOPT for grant of temporary status is not applicable to
the part time casual workers. Reliance is made on the law
laid down by the Hon'ble Apex Court in "Secretary, State of
Karnataka Vs Uma Devi & others." Reported in 2006(4)
SCC1 and further in "Secretary, Ministry of Communication
Vs. Sakubai," reported in 1998 (9) JT 297.
5.That the reference dated 18.08.2006, referred therein
the statement of claim, is also bad inasmuch as the claimant
had quit her engagement under the replying respondent as
part time casual worker on her own accord and not
terminated as quoted in the reference dated 18.08.2006.
Besides, the claimant was never appointed as Peon-cum-
Sweeper, as quoted in the reference dated 18/08.2006.
Parawise reply:
1.That the contents of corresponding para, being
matter of record, need no reply. It is submitted that the
workman was working as casual worker on daily wages
and had quit the same on her own accord w.e.f. March,2001.
It is submitted that her services were not terminated as she
was purely a casual worker and not a regular Central
Government Employees. It is also wrong to suggest that
the workwoman was terminated from service w.e.f January,
2002 as it is evidence that she was a daily wages casual
worker and had left the job in March, 2001 on her own. The
question of affording relief to her as a casual worker does
not reply. Thus, the question of affording relief to her does
not arise.
2.That in reply to the averments made in the
corresponding para, it is submitted that the workwoman
was engaged as a casual worker on daily wages basis rated
notified by the State Government w.e.f. 1.5.1991 and not as
a Peon-cum-Sweeper from 01.04.1991 as mentioned in the
statement of claim.
3.That in reply to the averments made in the
corresponding para, it is submitted that the casual worker
engaged by the Central Government on daily wages basis
are paid the wages on account of daily work done by them
and not monthly salary.
4. That in reply to the averments made in the
corresponding para, it is submitted that the workwoman
was engaged purely as a casual worker. She was not
appointed on a Group 'D' post by the Central Government.
5.That the contents of corresponding para are wrong
misleading and misconceived and hence vehemently
denied. The workwoman does not become a regular
employee of the respondent even if she has rendered
interrupted or uninterrupted service for any period of time
as a casual labourer. It is submitted that as per order of
Ministry of Finance/Ministry of Home Affairs and
Department of Personnel & Training no casual labour,
1880
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
registered with Employment Exchange should be appointed
to posts born on the regular establishment of Central
Government. It is submitted that the workwoman was not
engaged after sponsoring through Employment Exchange
and hence she is not eligible for regular appointment as
Group ‘D’ employee.
6. That the contents of corresponding para are wrong,
misleading and misconceived and hence vehemently
denied. It is submitted that the respondent is a sovereign
attached office of Ministry of Women & Child Development
(erstwhile Ministry of Human Resource Development) and
does not come under Industry category. It is further
submitted that the respondent has nothing to do with
Agriculture Produce Market Committee whatsoever and
hence I.D. Act does not apply in this matter.
7. That in reply to the averments made in the
corresponding para, it is submitted that the judgment,
referred and relied upon by the workman, is not applicable
in the facts and circumstances of the present case.
8.That the contents of the corresponding para are
wrong, misleading and misconceived and hence vehemently
denied. It is reiterated that the claim under reply is not
maintainable before this Hon' ble tribunal.
9.That the contents of corresponding para are wrong,
misleading and misconceived and hence vehemently
denied. It is submitted that prior to her engagement as
casual worker, the workman was told that she would be
paid wages decided by the HQ, New Delhi on the basis of
requirement of work. It is understandable that the workman
had no objection with regard to the payment of wages and
therefore she never raked up this issue during the period
she worked as a casual worker. It is submitted that leave
and other benefits are not admissible to casual labour
engaged on daily wages basis. Hence, the charge of
victimization and illegal labour practice is wrong, misleading
and vehemently denied.
10.That the contents of the corresponding para,
except those being matter of record, are wrong, misleading
and misconceived and hence vehemently denied. It has
been made amply clear that being purely a casual worker
unsponsored by Employment Exchange, the workwoman
is not eligible for regular appointment as Group `D' employee
nor she can avail of the benefits such as increments etc.
Which are allowed only to a regular Central Government
employee. It is submitted that he workman had quit as a
casual worker on her own accord. The question of any
notice or charge sheet is irrelevant as she was not a regular
Central Government Employee.
11 .That in reply to the averments made in the
corresponding para, it is reiterated that the workwoman
was engaged purely as casual worker without having been
sponsorship of Employment Exchange. As such, the issue
of notice, charge sheet, domestic enquiry are not pertinent
and realistic. As clarified vide para 6 & 8 hereinabove, the
I.D. Act is not applicable in the matter and the claim is liable
to be dismissed.
On the basis of contents mentioned in aforesaid
paragraphs Workwoman Prayed that the claim is devoid of
merits and deserves NIL award in the matter.
Workman filed rejoinder wherein she stated as follows:—
REPLY TO THE PRELIMINARY OBJECTIONS OF
THE MANAGEMENT
1.That the preliminary objection of the Management
that the present application is not maintainable as the
Respondent is not an 'industry' within the meaning of the
Industrial Dispute Act 1947 is wrong hence denied. It is
submitted that the work and activities of the Management
is covered under the provisions of Industrial Disputes Act
1947.
2.That the preliminary objection of the management
that the management cannot claim regularization or
continuation in service etc. is also wrong, hence denied. It
is submitted that dispute referred by the Ministry of Labour
relates to the termination of the services of the workman
and termination of individual workman is Industrial Dispute
u/s 2A of the Industrial Disputes Act.
3. That the preliminary objection of the Management
that the claimant is not entitled to claim parity in wages etc.
is also factually incorrect, hence denied. It is further
submitted that the dispute is related to the illegal termination
of the workman.
4.That the preliminary objection of the Management
that claimant had merely worked as part time daily wager
etc is wrong hence denied. It is submitted that he workman
has performed the full time job and management terminated
her services without following the procedure of law. It is
also submitted that reliance referred by the Management is
not applicable in the present case.
5.That the preliminary objection of the Management
that the claimant worked as part time casual worker on her
own accord is wrong, hence denied. It is submitted that he
Management violated all the provisions of natural justice
while terminating the services of the workman w.e.f.
January 2002.
REJOINDER ON MERIT:
1-11 That the written statements of the Management
in these para are factually incorrect, wrong, hence denied.
The respective para of statement of claim are restated and
reaffirmed.
On the basis of contents mentioned in aforesaid
written Statement of Management kindly be dismissed in
favour of the workman.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1881
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 of Women
and Child Welfare Board, Faridabad in terminating the
services of Smt. Rani W/o Sh. Ram Kumar, Peon-Cum-
Sweeper w.e.f. Jan 2002 is just and legal? If not, to what
relief the applicant is entitled to?"
Written Argument Behalf of the workman are as follows:
1.That the appropriate Govt. in the Ministry of Labour
referred the following dispute before this Hon'ble CGIT-
cum-Labour Court for the Industrial adjudication.
"Whether the action of the management of Women
and Child Welfare Board, Faridabad in terminating
the services of Smt. Rani w/o Sh. Ram Kumar, Peon-
Cum-Sweeper w.e.f. Jan 2002 is just and legal? If not,
to what relief the applicant is entitled to?"
2.The Management himself admitted that the
workman was engaged as casual worker on daily wages
basis and payment were made as per minimum wages
notified by the State Govt. w.e.f. 01-04-1991 i.e. in para 2 of
the written statement and also admitted that the workman
performing his duty w.e.f. 1-04-1991. The management did
not deny the Statement of Claim in para 5 is that the
workman performed the duty continuously and completed
12 years and performed his duty continuously of 240 days
in uninterrupted and this fact is also admitted by the
Management in his written Statement in para 5. The dispute
of the workman is only related to termination w.e.f.
January 2002 and not regularization of her services. In the
cross-examination the Management witness MW-1 said
that Smt. Rani, workman repeatedly engaged for 89 days
during this period and sometimes she was also engaged
for three months etc. which part contradict the written
statement filed by the Management in para 2,3,4,&5. The
stand of the management in his cross-examination that the
workman was given artificial break. The Management
witness MW1 admitted that the breaks were given as per
rules. Extract of the cross-examination MW-1 is as under
"It is wrong to suggest that I have no knowledge
either personal or official in this case. No notice/
notice pay and compensation was given to Smt. Rani
as no such things is given in cases like that of
Smt. Rani Breaks were given as per rules. It is wrong
to suggest that the breaks were given with a view to
deprive Smt. Rani of her chance to become a regular
employee. The entire record of engagement of
Smt. Rani is with the Department. Smt Rani never
demanded any official record and no record was given
to her. I have no knowledge if the Conciliation Officer
had demanded the record and the Department had
failed to do so there. It is correct that our department
is related to Woman and Child Welfare. It is wrong to
suggest that I have no knowledge of the case or that
I have deposed falsely.
3.That as per Section 25B of ID Act the cessation of
work which is not due to any fault on its part of the
workman is termed as continuous service. The stand
of the Management that the workman given break
after 89 days in the cross examination of MMI is
disapproved by the Hon'ble High Court of Allahabad
(1993-11 LLJ 1064) between Ram Kumar Rai Vs. State
Bank of U.P. in para 11 which is reproduced as under.
"11. The practice of giving artificial break has been
disapproved by the Supreme Court in the case of
Rabinarayan Mohapatra Vs. State of Orissa 1991-II-LLJ-
62. It was held that it was arbitrary and discriminatory. In
that case the appointment of a teacher was made on
89 days basis with one day's break. It deprived the teacher
of his salary for the period of summer vacation wholly
arbitrary and suffered from the vice of discrimination."
4.That another stand of the Management that the
workman is part-time or casual employee etc. so she is not
covered under the Industrial Disputes Act 1947. The Hon'ble
Supreme Court in the matter Devender Singh Vs. Municipal
Council, Sanaur reported in AIR 2011 Supreme Court 2532
as held that part time employee, contractual employee,
temporary or casual employee are workman. The operative
para 13 &14 of the judgment is reproduced:
"13.The source of employment the method of
recruitment, the terms and conditions of employment/
contract of service, the quantum of wages/pay and
the mode of payment are not at all relevant for
deciding whether or not a person is workman within
the meaning of Section 2(s) of the Act."
14.It is apposite to observe that the definition of the
workman also does not make any distinction between Full-
time and part-time employee or a person appointed on
contract basis. There is nothing in the plain language of
Section 2(s) from which it can be inferred that only a person
employed on regular basis or a person employed for doing
whole-time job is a workman and the one employed on
temporary, part-time or contract basis on fixed wages or as
a casual employee or for doing duty for fixed hours is not a
workman.
5. That another stand of the Management that the
Management is not an industry under the provisions of
2(j) of Industrial Dispute Act. In this connection it is
submitted that the work performed by Smt. Rani is peon-
cum-sweeper under the Management is not a sovereign
function as per the judgment of Bangalore Water. The work
of the Management is covered under the Child Development
and Health Maternity so she is a workman within the
meaning of Section 2(s) of I.D. Act 1947. This stand is
affirmed by the Division Bench of Hon'ble High Court of
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[PART II—SEC. 3(ii)]
Delhi. In LPA No.49/2008 in the matter Sunita Walian Vs.
Director. Govt of NCT of Delhi which is related to the work
of Health maternity and child welfare and the Hon'ble High
Court has held that the appellant (Sunita Baliyan) is a
workman within the meaning of 2(s) of Industrial Disputes
Act 1947. The operative para at page 18 of the said
judgment is reproduced as under:
"In her cross-examination she has denied that she
was appointed on ad hoc basis against a leave
vacancy. Ms. Hem Lata has admitted in her cross-
examination that no appointment letter was given to
the appellant and no period was indicated at the time
of her employment. She also admitted that the word
"ad hoc" was not used while appointing her in the
job. Consequently, the Labour Court has held that
the appellant is a workman within the meaning of
Section 2(s) of the Industrial Disputes Act".
In view of the above, the workman Smt. Rani is
entitled to be reinstated with full back wages w.e.f. January
2002 in the minimum wages fixed for unskilled workman
revised from time to time by the Faridabad District Authority.
Written Argument Behalf of the Management are as
follows:
1. I say that I have been authorized by the Competent
Authority to submit this Argument on behalf of the
respondent/Management.
2. I say that I am well acquainted with facts and
circumstance of the present case in my official capacity.
3. I say that I have read over the contents of the
present case and I state that the contents mentioned therein
to the extent they are inconsistent with the submission
made hereinafter in this written statement are incorrect and
denied. Unless any admitted or traversed the same may be
treated as denied.
4. I say that the present case/dispute of Smt. Rani is
not maintainable as the respondent is not industry within
the meaning of the Industrial Dispute Act 1947 U/S 2(j).
The activities carried out by the replying respondent
cannot be termed to be included within the purview of the
Industrial Dispute Act 1947.
5. I say that the workman cannot claim regularization
or continuation in the service of the replying respondent
as a matter or right I absence of Scheme/policy of the
Government or contrary to the recruitment rules.
6. I say that the claimant is not entitled to claim parity
in wages or otherwise with the regular employee under the
replying respondent in view of the settled law of the land
don the subject.
7. I say that the claimant had merely been working as
a part time daily wager as per requirement of work there has
not been appointment to any sanctioned post nor she has
been appointed to any sanctioned post including one
referred therein the claim as well as the reference dated
18.08.2006 and therefore the present dispute of workman is
not maintainable. It is submitted that it is true that no body
can claim regularization, the rules and particularly in
absence of the sanctioned post. Moreover there is no
scheme which give any right to the claimant to claim
regularization. Even the scheme of 10.09.1993 issued by
DOPT for grant of temporary status is not applicable to the
part time casual workers. Reliance is made on the Law laid
down by the Hon'ble Apex Court in Secretary, State of
Karnataka V/s Uma Devi and three ors reported in 2006 (4)
SCC 1 and further Secretary Ministry of Communication....
V/s.. Sakubai reported in1998 (9) JT 297.
8. I say the reference dated 18.08.2006 referred therein
the statement of claim is also bad in as much as the claimant
had quite her engagement under the replying respondent
as part time casual worker on her accord and not terminated
as quoted in the reference dated 18.08.2006. Besides the
claimant was never appointment as Peon-cum-Sweeper as
quoted in the reference dated 18.08.2006.
9. I say that the contents of para 1 is matter of record.
It is submitted the same on her own accord w.e.f. March
2001. It is submitted that her services were not terminated
as she was purely a casual worker and not regular Central
Government Employee. It is wrong to suggest that the
workman was terminated from service w.e.f. January 2002
as it evident that she was a daily wages casual worker and
had left the job in March 2001 on her own. The question of
affording relief to her as a casual worker does not reply.
Thus, the question of affording relief to her does not arise.
10. I say that in reply to the averments made in the
corresponding para, it is submitted the workman was
engaged as a casual worker on daily wages basis rates
notified by the State Government w.e.f. 1.04.1991 and not
as a Peon cum Sweeper from 01.04.1991 as mentioned in
the statement of claim.
11. I say that in reply to averments made in the
corresponding para, it is submitted that the casual worker
engaged by the Central Government on daily wages basis
are paid the wages on account of daily work done by them
and not monthly salary.
12. I say that in reply to the averments made in the
corresonding para 4 it is submitted that the workman was
engaged purely as a casual worker. She was not appointed
on a group D post by the Central Govt.
13. I say the contents of para 5 are wrong, misleading
and misconceived and hence vehemently denied. The
workman does not become a regular employee of the
respondent even it she has rendered interrupted or in
interrupted service for any period of time as casual labour.
It is submitted that as per order of Ministry of Finance/of
Home Affairs and Department of Personal and Training to
casual Labour registered with Employment, exchange
should be appointed to post born on regular establishment
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1883
of Central Government. It is submitted that the workman
was not engaged after sponsoring through Employment
Exchange and hence she is not eligible for regular
appointment as Group D Employee.
14. I say that the contents of para 6 are wrong and
hence vehemently denied.It is submitted that the
respondent is a sovereign attached office of Ministry of
Women Child Development (erstwhile Ministry of Human
Development) and does not come under Industry category.
It is further submitted that the respondent has nothihg to
do with agricultural produce market Committee whatsoever
and hence ID Act does not apply in this matter.
15. I say in reply to the averments made in
corresponding para no. 7 it is submitted that the judgement,
referred and relied upon by the workman, is not applicable
in the facts and circumstances of the present case.
16.-17. I say that the contents of the corresponding
are wrong and concocted one. It is reiterated that the claim
under reply is not maintainable before this Hon'ble Court.
18.I say that the contents of para 18 of the
corresponding are wrong and concocted one. It is submitted
that prior to her engagement as casual worker the workman
was told that she would be paid wages decided by the HQ
New Delhi on the basis of requirement of work. It is
understandable that the workman had no objection with
regard to the payment of wages and therefore she never
raked up this issue during the period she worked as a casual
worker. It is submitted that leave and other benefits are not
admissible to casual labour engaged on daily wages basis.
Hence the charge of victimization and illegal Labour practice
is wrong and vehemently denied.
19. I say the contents of para 10 except those being
matter of record are wrong misleading and misconceived
and hence vehemently denied. It has made amply clear that
being purely a casual worker unsponsored by Employment,
the workman is not eligible for regular appointment as Group
D Employee nor she can avail of the benefit such as
increments etc. which are allowed only to a Regular Central
Government employee. It is submitted that the workman
had quit as a casual worker on her own accord. The question
of any notice or charge sheet is irrelevant as she was not a
regular Central Government Employee.
20. I say that in reply the averments made in the
corresponding para 11 it is reiterated that the workman was
engaged reiterated that the workman was engaged purely
as casual worker without having been sponsorship of
Employment Exchange. As such, the issue of notice charge
sheet, domestic enquiry are not pertinent to realistic. As
clarified vide para 6 and 8 herein above, the ID Act is not
applicable in the matter and claim is liable to be dismissed.
21. That the claimant in the absence of the staff took
away register from the office and obtained the photo copies
of the registered and she prepared a false and baseless
forged documents and it trying and wrongly showing her
attendance.
22. I say it is submitted before this Hon'ble court that
Smt. Rani is not a workman and she is not covered under
the definition of 2(s) of the Industrial Dispute Act and
between the parties as employee are Master and Servant.
The present dispute is not maintainable as per law.
RELIED JUDGEMENTS are attached herewith for
kind perusal of this Hon'ble Court.
i) State of UP V/S Neeraj Awasthi (2006) I Supreme
Court cased 667.
ii) (2006) I Supreme Court Cases 693 Madan Singh and
Ors. V/s State of Haryana and others.
iii) AIR 1996 Supreme Court 2775 Dr. Surinder Singh
Jamwal and another V/s State of Jammu and Kashmir
and others.
iv) AIR 1996 Supreme Court 2776.
v) 1997(4) Supreme Court cases 507 B.N. Nagarajan and
others V/s State of Karnataka and others.
vi) (2005) 5. Supreme Court Cases 122 Madhyamik
Shiksha Parishad UP V/s Anil Kumar Mishara and
other.
vii) (2005) Supreme Court Cases 124 Allahabad Jal
Sansthan V/s Daya Shankar Rai and other.
viii) (2007) Supreme Court Cases 408 Indian drugs and
Pharmaceuticals Ltd. V/s Workmen Indian Drugs
Pharmaceuticals Ltd.
ix) (2006) Supreme Court cases 702 M.P. Housing Board
and another V/s Manoj Shrivastava.
x) (2007) I Supreme Court cases 533 Gangadhar Pillai
V/s Siements Ltd.
xi) State of UP V/S Neeraj Awasthi (2006).
xii) AIR 1996 SC (2275) Surinder Singh Jonwal and others
V/s State of J&K
xiii) 1979(4) SCC pages 507 B.N. Nagranjan Case.
xiv) In Anil Kumar Mishra (2005) 5 SCC Page 122.
xv) Indian Drugs and Pharmecauticals Ltd 2007 (1) SCC
Page 408.
xvi) In Manoj Srivastava 2006 (2) SCC 702
xvii) I Ganga Dhara Pillari 2007 (1) SCC 533 and others
Supreme Court citations ten attached photo copies.
On the basis of contents mentioned in aforesaid
management prayed that the claim petition of the claimant
be dismissed with heavy costs. Any other relief which this
Hon'ble Court deems fit and proper in favour of the
management and against the claimant.
1884
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
In the light of contentions and counter contentions
I perused the settled law of Hon'ble Supreme court on the
point of reinstatement and grant of back wages which
shows that reinstatement is not a necssary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be awarded.
In Assistant Engineer, Rajasthan Dev. Corporation and Anr
Vs. Gitam Singh, (2013) II LLJ 141 Hon'ble Supreme Court
has held that reinstatement of workman with continuity of
service and 25% back wages was not proper in the facts
and circumstances of the case and the compensation of
Rs.50,000 (Rs. Fifty Thousand Only) shall meet the ends
of justice. In Jagbir Singh Vs. Haryana State Agriculture
Marketing Board & Anr AIR 2009 Supreme Court 3004,
Hon'ble Supreme Court held thus ''the award of
reinstatement with full back wages in case where the
workman has completed 240 days of work in a year
preceding the date of termination particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded. In catena of Judgements,
Hon'ble Supreme Court has taken a view that reinstatement
is not automatic, merely because the termination is illegal
or in contravention of S-25-F of the Industrial Dispute Act.
In Talwara Co-operative Credit and Service Society Limited
Vs. Sushil Kumar (2008) 9 SCC 486, Hon'ble Supreme Court
held thus, "grant of relief of reinstatement, it is trite, is not
automatic. Grant of back wages is also not automatic.''
Workman of the instant case was not appointed by
following due procedure and as per rules. He had rendered
service with the respondent as a casual worker, thus.
Compensation of Rs. 50,000 (Rs. Fifty thousand only) by
way of damages as compensation to the workman/claimant
by Management after expiry of period of limitation of
available remedy against Award. That will meet the ends of
Justice.
Thus Reference is decided in favour of workman and
against Management.
Award is accordingly passed.
Dated:-01/11/2013
HARBANSH KUMAR SAXENA, Presiding Officer
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New Delhi, the 3rd February, 2014
S.O. 705.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 41/2008)
of the Central Government Industrial Tribunal/Labour
Court-II, Delhi now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of C.P.W.D. and their workman, which was
received by the Central Government on 28/01/2014.
[No. L-42011/37/2008-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, DELHI
Present:—Shri Harbansh Kumar Saxena
ID No. 41/2008
Sh. Naveen Kumar Sharma
Versus
C.P.W.D.
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-42011/37/2008-IR(DU) dated
18/07/2008 referred the following Industrial Dispute to this
tribunal for the adjudication:—
"Whether the demand of Sh. Naveen Kumar Sharma
to allow him to join the duties under the management
of CPWD is legal and justified? If yes, to what relief
the applicant is entitled to?"
On 3/10/2008 reference was received in this tribunal.
Which was register as I.D. No. 41/2008 and claimant was
called upon to file claim statement within 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 29/10/2008. Wherein he stated as follows:—
1. That the appropriate Govt., Ministry of Labour,
Government of India, New Delhi has referred the dispute
vide its order No. L-42011/37/2008-IR(DU) dated
18-07-2008 for Industrial adjudication before this Hon'ble
Tribunal and the terms of reference is reproduced as under:
"THE SCHEDULE TERMS OF REFERENCE"
"Whether the demand of Sh. Naveen Kumar Sharma
to allow him to join the duties under the management
of CPWD is legal and justified? If yes, to what relief
the applicant is entitled to?"
2. That the workman had joined as Khallasi w.e.f.
19-01-1990 in the Electrical Division C.P.W.D. "Manesar"
¹Hkkx II—[k.M 3(ii)º
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1885
(Haryana) at the National Security Guard Project of the
Management. He worked at Manesar from 19-01-1990. Copy
of the first entry in the Deptt. is annexed as Annexure-A.
3. That thereafter, the workman had been transferred
to the Office of Chief Office, C.P.W.D. at Curzon Road, New
Delhi-110001 from 19-09-1994.
4. That the workman was promoted as driver w.e.f.
01-01-1995 and thereafter he was transferred to HUDCO
sometime in 1995 vide dated 15-05-1995(copy of the order
is annexed as Annexure A-1) and then transferred to outer
Delhi zone in or about April, 1996. He worked as driver with
S.E. Headquarter while his pay was drawn from Shahdara
Office. He performed his duties till 15-06-1999 with S.E.
Headquarter outer Delhi zone.
5. That the workman was implicated in a false criminal
case and was detained on 16-09-1999 pending criminal
prosecution. For this reason the workman could not attend
to his duties for about eight months, this fact had been
known to the Management of C.P.W.D. through the brother
of the workman.
6. That there is a procedure under the establishments
of the Management that the keys of Motor Vehicle remains
in the possession of concerned driver and after entering
the vehicle in the garage situation at Curzon Road Barracks
where the office of the Chief Engineer concerned is
situated. The keys of the Ambassador Car No. DBX66 was
taken by the workman concerned as per the procedure. It is
also submitted that after arrest of Sh. Naveen Kumar Sharma
the keys of the aforesaid Ambassador vehicle was handed
over to Sh. Dinesh Kumar, Superintending Engineer (P&A)
and informed the said incident of the arrest of Sh. Naveen
Kumar Sharma by the elder brother Shri Sunil Kumar of
Workman on 16th June 1999 in the morning at about
7.00 P.M.
7. That the workman had been granted bail in the
case Crime No. 151/99 dated 29/05/1999 u/s 302/307 I.P.C.
of P.S. Khekhra, Distt. Bagpat (U.P.) and had been released
on bail on 22-02-2000.
8. That immediately after his release on bail the
workman reported for duty to his superiors especially to
the Superintendent Engineer (P&A), Sewa Bhawan, R.K.
Puram, New Delhi, since 23-02-2000 to 01-03-2000 but in
vain. Later on he again submitted his application dated
01-03-2000 in writing to the Suptd. Engineer (P&A), R.K.
Puram, New Delhi for joining duty. Copy of the intimation
of bail order dated 01-03-2000 is annexed as Annexure-B
collectively.
9. That the workman received a letter No. 10/01/595
dated 03-03-2000 from Shri C.M.K. Thakur, Section Officer
(Bahari Delhi Anchal addressed to Executive Engineer,
Shahdra Mandal & copy of the same sent to him for
necessary action. Copy of the same is annexed as
annexure-C.
10. That after the receipt of the aforesaid letter dated
1-3-2000 from Sh. C.M.K. Thakur, the workman has not
received any further information, though he has been
regularly reporting for duty. In spite of his repeated
requests, he has not been allowed duty.
11. That though the workman had reported for duty
from 23-02-2000 onwards, he has not yet been paid his
salary w.e.f. 23-02-2000.
12. That the workman is a poor man having a family
of six members and it is very difficult for him to meet out the
bare necessities of himself, his family members and as such
he & his family members have been facing starvation in
these days of crises.
13. That the workman sent the last demand legal
notice dated 13-04-2000 to the Management through his
advocate demanding duty but the Management has failed
to respondent. Copy of the said notice is annexed as
Annexure-D.
14. That the workman has raised the dispute for
employment allowing him to join his duty and also
requested to pay his salary from the date of his arrest w.e.f.
23-02-2000 onwards when he released on bail on
22-02-2000 and 50% suspension allowance from the date
his arrest i.e. 16-06-1999 to 21-02-2000 and thereafter i.e. the
date of reporting after release on bail 23-02-2000 he is entitled
full back wages as he was not allowed to join his duty.
15. That the Management neither terminated the
services till date nor allow him to join his duty on the ground
that till the said criminal proceedings are pending against
the workman he cannot be taken on duty. The action of the
management to refuse to take the workman on duty without
any charge-sheet or notice as the workman completed more
than 8 years of service at the time of his arrest/detained by
the Police on 16-06-1999 without any break. So the action
of the Management is also an unfair labour practice and
also violation of natural justice as well as the provisions of
Industrial Disputes Act 1947.
16. That the workman has also raised his dispute
before the Conciliation Officer, Assistant Labour
Commissioner (Central), New Delhi on 06-06-2000 against
the illegal action of the Management.
17. That the workman remained absent from duty as
he was detained by the Police on 16-06-1999 u/s 302/307
I.P.C. and also remained in judicial custody, so that absent
cannot be termed as "willfully absented from duty". Due to
the serious charges like murder were labeled against him
and he could not inform the office in writing due to mental
agony of arrest without any fault. So the workman is entitled
lawfully to receive 50% wages during the period he
remained on police/judicial custody w.e.f. 16/06/1999 to
21-02-2000 and released on bail on 22-02-2000, so he is
entitled to full back wages thereafter as the workman
1886
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
intimated the Management of his release but the
Management did not allow him to join his duty.
18. That the workman initially engaged as Khalasi
w.e.f. 19-01-1990 and worked upto 18-09-1994 on the same
post without any break, thereafter he was transferred to
the O/o Chief Engineer, Curzon Road, New Delhi w.e.f.
19-09-1994 and thereafter he was promoted as Motor Lorry
Driver (MLD) w.e.f. 01-01-1995 and worked continuously
without any single break as MLD upto the date of his
arrest w.e.f. 16-06-1999. The workman completed 9 years
services at the time of his arrest. Copy of promotion order
as Motor Lorry Driver is annexed as Annexure-E collectively.
19. That the workman has got his wages during the
period of his employment as unskilled labour and after
promotion on the category of MLD he got the wages fixed
for skilled workman in the minimum of time scale + all
allowances. As per the judgment of Hon'ble Supreme Court
in the matter of Surender Singh & Ors Vs. Engineers in
chief & Ors. dated 17-01-1986 all the daily rated workers are
entitled to get not only the equal pay for equal work but
also entitled to be regularized after completion of six months.
Accordingly, the workman has got equal pay for equal
work but he is entitled to be regularized after completion of
six months.
20. That the establishment of the Management is to
maintain building, office building, roads etc. so the
establishment is covered under the payment of wages act
and accordingly also covered under the provisions of
Industrial Employment (Standing Orders) Act, 1946 and
Model Standing Orders in respect of Industrial
Establishment not being Industrial Establishment not being
Industrial Establishment in Coal Mines. Accordingly, the
workman became permanent employees after completion
of 90 days and also entitled 50% wages for the period
when he remained on police/judicial custody being
suspension period and after the acquittal by the Hon'ble
Addl. Session Judge (Special) Bagpat, U.P. the workman
is entitled for full back wages for the suspension period
also.
21. That the workman also acquitted on 27-10-2005
by the Addl. Session Judge (Special) Bagpat (U.P.) in the
matter of State Vs. Jagmohan and Ors. in case No. 129/99
vide his judgment dated 27-10-2005. Copy of the intimation
of this fact was also intimated to the management of CPWD.
The workman again requested for allowing duty alongwith
the Judgment of Learned Addl. Session Judge (Special)
Bagpat, U.P. are annexed collectively as Annexure-F.
22. That the management also ignored the Judgment
of acquittal by Sh. P.K. Chaturvedi, Ld. Addl. Session Judge,
Bagpat and did not respond the request of the workman as
per annexure-F.
23. That the workman has been unemployed since
the date of his arrest i.e. 16-06-1999 as he was acquitted
and therefore entitled for full back wages w.e.f. 16-06-1999.
24. That the demand of workman Sh. Naveen Kumar
Sharma to allow him to join the duty under the Management
of CPWD is legal and justified.
On the Basis of which he prayed that this Hon'ble
Court may kindly award:
a) Full back wages w.e.f. 16-06-1999 from the date when
Sh. Naveen Kumar Sharma was detained, and after
release on bail w.e.f. 22-02-2000 reported for duty on
23-02-2000 and finally acquitted from the charges on
27-10-2005.
b) Pass any other order or orders as may be deemed fit
and proper.
Against claim statement management filed following
written statement:—
Preliminary Submissions/Objections:
1.That the statement of the worker is not maintainable
and liable to be dismissed with a ground of Suppression-
vari and Suggessio-falsi. The worker has not approached
this Hon'ble Court with clean hands.
2.That the statement of the worker is also not
maintainable and liable to be dismissed as the same is
devoid of any cause of action.
PRELIMINARY SUBMISSIONS:
I.The claimant was never on the regular strength of
the Management at any point of time. It is to be noted that
it is a normal practice in CPWD to engage locals as daily
wage casual workers on different on-going projects on
purely temporary basis and the claimant may have been
engaged occasionally during the relevant period. However,
there existed no record concerning the engagement of the
claimant as daily-wager for the reason records concerning
temporary engagement of daily wagers are not kept for
long as payments are made on petty contingent vouchers
of no permanent value to be kept on record for years
together. Engaging the claimant on occasion casual daily-
wage basis cannot vest in him any right to invoke the
provisions of the Industrial Disputes Act, 1947 (hereinafter
referred to as the Act). The claimant does not qualify to be
defined as Workman under the Act, since he was never on
the regular strength of the CPWD/Management. Thus
without appointment on regular strength question for
promoting at the post of M.L. Driver does not arise, as
Khalashi is a feeder category for promotion of M.L. Driver.
(Copy of Recruitment Rules of Khalashi as well as MLD
are attached as Annexure-R-1 & R-2 ). Therefore he has
failed to furnish any proof or record such as Appointment
letter/Promotion letter substantiating his claim in support
of his averments made in the Statement of Claim.
II. That it is pertinent to mention here that the post of
Motor Lorry Driver (in short M.L.D) is equivalent to
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1887
Group-C Post and there is already a ban on engagement of
daily wages worker w.e.f. 19.11.1985 vide D.G(W) No. 38/
11/84-EC-X dated 19/11/85 as well as a ban on engagement
of casual worker for duties of Group-C posts, as per Govt.
of India, Ministry of Finance, O.M No. 49014/16/89-Estt.
(C) dated 26.02.1990 printed at page 240 of Establishment
& Administration Book for Central Government Offices.
Copies of both are annexed collectively as Annexure
R3 & R4.
PARAWISE REPLY
1. That the contents of para-1 of the statement of claim
need no reply being matter of record.
2. That the contents of para-2 of the Statement of claim
are wrong, misleading and baseless hence
vehemently denied. The workman be put to strict
proof of the same. In reply to this Para it is respectfully
submitted that the claimant was never been appointed
as Khallashi and was never on the regular strength
of the Management at any point of time. It is to be
noted that it is a normal practice in CPWD to engage
locals as daily wage casual workers on different on-
going profects on purely temporary basis and the
claimant may have been engaged occasionally during
the relevant period. However, there existed no record
concerning the engagement of the claimant as daily-
wager for the reason records concerning temporary
engagement of daily wagers are not kept for long as
payments are made on petty contingent vouchers of
no permanent value to be kept on record for years
together. Engaging the claimant on occasion casual
daily-wage basis cannot vest in him any right to
invoke the provisions of the Industrial Disputes Act,
1947 (hereinafter referred to as he Act). The claimant
does not qualify to be defined as Workman under
the Act, since he was never on the regular strength
of the CPWD/Management. Thus without
appointment on regular strength question for
promoting at the post of M.L. Driver does not arise,
as Khalashi is a feeder category for promotion of
M.L. Driver. (Copies of Recruitments Rules of
Khalashi as well as MLD are attached as Annexure-
R1&R2). Therefore he has failed to furnish any proof
or record such as Appointment letter/Promotion letter
substantiating his claim in support of his averments
made in the Statement of Claim.
3. That the contents of para-3 of the Statement of Claim
are wrong, misleading and baseless hence
vehemently denied. The workman be put to strict
proof of the same and in reply to this para it is
respectfully submitted that whatever is stated in the
preceding para of reply is reiterated.
4. That the contents of para-4 of the Statement of Claim
are wrong, misleading and baseless hence
vehemently denied. In reply to this para it is
respectfully submitted that whatever is stated in the
preceding paras of preliminary submissions as well
as in para 2 are reiterated.
5. That the contents of para-5 of the Statement of Claim
need no reply being matter of record.
6. That in reply to the averments of para-6 of the
Statement of Claim nothing is admitted except what
has been substantiated by records.
7. That the contents of para-7 of the Statement of Claim
need no reply being matter of record.
8. That in reply to the averments of para-8 of the
Statement of claim nothing is admitted except what
has been substantiated by records. The Claimant
does not qualify to the defined as a workman under
the Act and therefore is not entitled to any of the
relief being prayed for by him, since the claimant was
never on the regular strength of the CPWD
Management.
9. That the contents of para-9 of the Statement of Claim
need no reply being matter of record.
10. That in reply to the contents of para-10 of the
Statement of Claim it is respectfully submitted that
as the workman was not on the regular strength of
CPWD and he worked only as a casual Driver for an
intermittent period and so he had no right for his re-
engaging as Driver. Therefore in the department/
Management for not re-engaging him, is in order and
cannot be termed as unjustified and unlawful.
11. That the contents of para-11 of the Statement of Claim
are wrong, misleading and baseless hence
vehemently denied. The workman has not worked
during the relevant period as stated in the para under
reply, hence he is not entitle for an payment/salary.
Therefore his claim for back wages is also not tenable
and deserves its rejection.
12. That the contents of para-12 of the Statement of Claim
need no reply, since the Management is not
concerned with the matter.
13. That the contents of para-13 of the Statement of claim
need no reply being matter of record.
14. That the contents of para-14 of the Statement of Claim
are wrong, misleading and baseless hence
vehemently denied. Since the workman was never
on the regular strength of the Management, hence
he is not entitle for any relief as sought in the para
under reply. The relief for back wages/suspension
allowance etc. is only applicable for the regular
employees of the department and not for the casual
employees.
1888
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
15. That in reply to the contents of para-15 of the
Statement of claim it is respectfully submitted that as
the workman never appointed on any post by the
department therefore he was not covered within the
Service Rules framed for the regular employees and
there was no need for issue charge sheet or any
termination letter etc. being a casual worker.
16. That the contents of para-16 of the Statement of Claim
need no reply being matter of record.
17. That in reply to the contents of para-17 of the
Statement of claim it is respectfully submitted that
whatever is stated in the preceding paras of reply is
reiterated and the workman is not entitled for any of
the relief as claimed.
18. That in reply to the contents of para-18 of the
statement of claim it is respectfully submitted that
what is stated in the para 2 & 4 of reply is reiterated.
19. That in reply to the contents of para-19 of the
Statement of claim it is respectfully submitted that
the workman was engaged as a casual worker w.e.f.
19.01.1990 in spite of a ban imposed on engagement
of temporary workman. It is further submitted that
being a casual worker he was entered in service
without following prescribed recruitment rules. It may
be treated a clear cut case of back door entry in the
Govt. Service keeping in view of the Judgment
delivered in the case of Secretary, State of Karnatka
& Others Versus Uma Devi & Others (copy annexed).
Therefore as per the judgment the workman has no
right for his regularization.
20. That in reply to the contents of para-20 of the
Statement of claim it is respectfully submitted that
whatever is stated in the preceding paras of reply is
reiterated and the workman is not entitled for any of
the relief as claimed.
21 . That the contents of para-21 of the Statement of Claim
need no reply being matter of record.
22. That in reply to the contents of para-22 of the
Statement of Claim it is respectfully submitted that
the judgment as passed by the court of Sessions
Judge, Baghpat has no concern with regard to the
question of job of the workman. Hence it is denied
that the management has ignored the judgment.
23. That in reply to the contents of para-23 of the
Statement of Claim it is respectfully submitted that
whatever is stated in the preceding paras of reply is
reiterated and the workman is not entitled for any of
the relief as claimed.
24. That the contents of para-24 of the Statement of Claim
are wrong and baseless hence vehemently denied
and whatever is stated in para-10 of the reply is
reiterated.
25. That the para under reply are the prayers made before
this Hon'ble court and is liable to be dismissed with
costs.
On 19/1/2010 My Ld. Predecessor framed following
issues:—
1. As per Reference if any.
2. Relief.
In support of his case workman filed affidavit in this
Tribunal wherein he mentioned as follows:—
1. That I joined as Khallasi w.e.f. 19.01.1990 in the
Electrical Division C.P.W.D "Manesar" (Haryana) at the
National Security Guard Project of the Management. I
worked at Manesar from 19-01-1990 to 18-09-1994. Copy of
the first entry in the Deptt. is annexed as Annexure-A with
the statement of claim and the same is exhibit WW1/1.
2. That I transferred to the Office of Chief, C.P.W.D.
at Curzon Road, New Delhi-110001 on 19-09-1994.
3. That I was promoted as driver w.e.f. 01-01-1995
and thereafter I was transferred to HUDCO sometime in
1995 vide order dated 15-05-1995 (Copy of the order is
annexed as Annexure A-I) with the statement of claim &
the same is exhibit WW1/2. I again transferred to outer
Delhi zone in April, 1996. I worked as driver with S.E.
Headquarter while I draw my pay from Shahdara Office. I
worked in S.E. Headquarter outer Delhi zone 15-06- 1999.
4. That I was implicated in a false criminal case and
detained on 16-06-1999 pending criminal prosecution. Due
to this reason I could not attend duty for about eight
months, this fact had been known to the management of
CPWD through my elder brother Sh. Sushil Kumar.
5. That there is a procedure under the establishment
of the Management that the keys of Motor Vehicle remains
in the possession of concerned driver and after entering
the vehicle in the garage situation at Curzon Road Barracks
where the office of the Chief Engineer concerned is
situated. I took the keys of Ambassador Car No. DBX66 as
per the procedure. It is also submitted that after arrest the
keys of the aforesaid Ambassador vehicle was handed over
to Sh. Dinesh Kumar, Superintending Engineer (P&A) and
informed about said incident by my elder brother Sh. Sunil
Kumar on 16th June, 1999 in the morning at about 7.00 P.M.
6. That I was granted bail in the case Crime No. 151/
99 dated 29-05-1999 u/s 302/307 I.P.C. of P.S. Khekhra, Distt.
Bagpat (U.P.) and had been released on bail on
22-02-2000.
7. That immediately after release on bail I reported
for duty to my superiors especially to the Superintendent
Engineer (P&A), Sewa Bhawan, R.K. Puram, New Delhi.
When the Management did not took me on duty I again
requested vide application dated 01-03-2000 addressed to
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1889
the Suptd. Engineer (P&A), R.K. Puram, New Delhi for
joining duty. Copy of the intimation of bail order dated
01-03-2000 is annexed as Annexure-B collectively with the
statement of claim and the same is Exhibit WW 1/3
collectively.
8. That Sh. C.M.K. Thakur, Section Officer (Bahari
Delhi Anchal) sent a letter No. 10/1/595 dated 03-03-2000
addressed to Executive Engineer, Shahdra Mandal to
enquire the matter for necessary action. Copy of the same
is annexed as annexure-C with the statement of claim and
the same is Exhibit WW 1/4.
9. That though I reported for duty on 23.02.2000
onwards but I had not yet been paid my salary w.e.f.
23.02.2000
10.That I sent legal notice for duty on 23.02.2000 to
the Management through my advocate demanding duty
but the Management did not respond. Copy of the said
notice is annexed as Annexure-D with the statement of
claim and the same is Exhibit WW1/5.
11 .That I raised the dispute for employment/allowing
me to join duty and also requested to pay my salary from
the date of arrest w.e.f. 23.02.2000 onwards when I released
on bail on 22.02.2000 and 50% suspension allowance from
the date of my arrest i.e. 16.06.1999 to 21.02.2000 and
thereafter i.e. the date of reporting after release on bail
23.02.2000 I am entitled full back wages because I remained
unemployed till date.
12.That the Management neither terminated my
services till date nor allowed me to join duty on the ground
that till the said criminal proceedings are pending against
me I cannot be taken on duty without any charge-sheet or
notice and no enquiry was conducted. I completed more
than 8 years of service at the time of arrest/detained by the
Police on 16.06.1999 without any break and completed 240
days in each of the calendar year.
13 .That I raised my dispute before the Conciliation
Officer, Assistant Labour Commissioner (Central), New Delhi
on 06.06.2000 against the illegal action of the Management.
14.That I remained absent from duty as I was detained
by the Police on 16.06.1999 u/s 302/307 I.P.C. and also
remained in judicial custody, so the absent cannot be
termed as "willfully absented from duty". Due to the serious
charges like murder were labeled against me and I could
not inform the office in writing due to mental agony of
arrest without any fault. So I am entitled lawfully to receive
50% wages during the period I remained on police/judicial
custody w.e.f. 16.06.1999 to 21.02.2000 and released on bail
on 22.02.2000 so I am entitled to full back wages thereafter
as I intimated the Management of my release but the
Management did not allow me to join duty.
15.That I was initially engaged as khalasi w.e.f.
19.01.1990 and worked upto 18.09.1994 on the same post
without any break, thereafter I was transferred to the O/o
Chief Engineeer, Curzon Road, New Delhi w.e.f. 19.09.1994
and thereafter he was promoted as Motor Lorry Driver
(MLD) upto the date of my arrest w.e.f. 16.06.1999. I
completed 9 years service at the time of arrest. Copy of
promotion order as Motor Lorry Driver is annexed as
Annexure-E collectively with the statement of claim and
the same is Exhibit WW1/6.
16.That I got wages during the period of employment
as unskilled labour and after promotion on the category of
MLD I got the wages fixed for skilled workman in the
minimum of time scale + all allowances except increment.
17.That I acquitted on 27.10.2005 by the Ld. Addl.
Session Judge (Special) Bagpat (U.P) in the matter of State
Vs. Jagmohan and Ors. in case No. 129/99 vide judgment
dated 27.10.2005. Copy of the Judgment alongwith
intimation letter are annexed collectively as Annexure-F
with the statement of claim and the same in Exhibit WW1/
7.
18.That the Management also ignored the Judgment
of acquittal by Sh. P.K. Chaturvedi, Ld. Addl. Session Judge,
Bagpat and did not respond to my request.
19.That I remained unemployed since the date of
arrest i.e. 16.06.1999 to till date.
Workman Naveen Kumar WW1 was cross-examined
by Mr. Sanjay Aggarwal A/R for the management on
25/10/2011.
Management in support of his case filed affidavit
Mr. D.B. Gupta Executive Engineer wherein he mentioned
as follows:—
1. That I say that I am working as Executive Engineer
with the management i.e. CPWD and well conversant with
the facts of the present case on the basis of record available
in the office hence competent to swear this affidavit.
2. I say that the claimant was never on the regular
strength of the Management at any point of time. It is to be
noted that it is a normal practice in CPWD to engage locals
as daily wage casual workers on different ongoing projects
on purely temporary basis and the claimant may have been
engaged occasionally during the relevant period. However,
there existed no record concerning the engagement of the
claimant as daily-wager for the reason records concerning
temporary engagement of daily wagers are not kept for
long as payments are made on petty contingent vouchers
of no permanent value to be kept on record for years
together. Engaging the claimant on occasion casual daily-
wage basis cannot vest in him any right to invoke the
provisions of the Industrial Disputes Act, 1947 (hereinafter
referred to as the Act). The claimant does not qualify to be
deemed as Workman under the Act, since he was never on
the regular strength of the CPWD/Management. Thus
without appointment on regular strength question for
1890
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
promoting at the post of M.L. Driver does not arise, as
Khallashi is feeder category for promotion of M.L. Driver.
Copy of Recruitment Rules of Khallashi and M.L. Driver
are EX-MW1/1 and EX-MW1/2 respectively.
3. I say that the post of Motor Lorry Driver (in short
M.L.D) is equivalent to Group-C post and there is already
a ban on engagement of daily wages worker w.e.f 19.11.1985
vide D.G. (W) No. 38/11/84-EC-X dated 19/11/85 as well as
a ban on engagement of casual worker for duties of Group-
C posts, as per Govt. of India Ministry of Finance, O.M.
No. 49014/16/89-Estt (C) dated 26.01.1990 printed at page
240 of Establishment & Administration Book for Central
Government Offices. Copy of DG(W) No. 38/11/84-EC-X
dated 19/11/85 and O.M. No. 49014/16/89-Estt (C) dated
26.01.1990 printed at Page 240 of Establishment &
Administration Book for Central Government Offices are
Ex-MW1/3 and Ex-MW1/4 respectively.
4. I say that the Hon'ble Principal Bench of Central
Administrative Tribunal also dismissed the claim of Shri
Vidya Sagar Prasad in the light of law laid down by the
Hon'ble Supreme Court in the Uma Devi's case vide O.A
No. 3320/2010 vide order dated 14/11/2011 (Copy of said
order is attached herewith).
5. I say that the case filed by the workman on false &
frivolous facts hence liable to be dismissed.
He was cross examined by Sh. B.K Prasad A/R for
the workman. Management also closed his evidence after
evidence of parties I have heard the argument A/R for the
parties. Ld. A/R's for the workman argued that workman
Naveen Kumar Sharma appointed Khallashi and promoted
to Driver he detained in false case of murder on 16/06/1999.
Whether of workman inform to management regarding his
detention. Workman bail out on 12/02/2000. On 1/03/2000
he requested for duty copy of application dated 1/03/2000
has been filed by workman. On which enquiry was marked
and report was called upon. No pay to workman paid, no
departmental enquiry conducted acquitted from the charge
of murder. Certified copy of Judgment filed by workman.
There is non-complines of Section 25F, 25G & 25H of
Industrial Dispute Act.
On the basis of aforesaid grounds workman prayed
to allow him to join the duty under the management of
CPWD.
In support of his case he placed reliance on following
rulings:—
1. Devender Singh v. Municipal Council, Sanaur. AIR
2011 Supreme Court 2532
2. Express Newspapers (P) Ltd.
Vs.
Michael Mark and Another
Supreme Court Reports (1963) 3 SCR -405
3. Madhabanada Jena
AND
Orissa State Electricity Board and Others in the High
Court of Orissa (1990-I-LLJ-463) (0.J.C. No. 750/1983, dated
22nd August, 1989)
3. Babu Lal, Applent
Vs.
The State of Haryana
Air 1991 Supreme Court 1310
4. Brahma Chandra Gupta
Vs.
Union of India
(1984) 2 Supreme Court Cases 433
Is reply to argument of workman management filed
written argument wherein it mentions as follows:—
Claimant Sh. Naveen Kumar Sharma was never on
the regular strength of the management at any point of
time. It is a normal practice in CPWD to engage locals as
daily wages casual workers on different on-going projects
on purely temporary basis and the claimant may have been
engaged occasionally during the relevant period. However,
there existed no record concerning the engagement of the
daily wagers are not kept for long as payments are made on
petty contingent vouchers of no permanent value to be
kept on record for years together. Engaging the claimant
on occasion caused daily-wages basis cannot vest in him
right to invoke the provisions of the Industrial Dispute
Act, 1947. The claimant does not qualify to be defined as
workman under the Act, since he was never on the regular
strength of the CPWD/Management. Thus without
appointment on regular strength there is no question for
promoting at the post of M.L. Driver. Copy of Recruitment
Rules of Khalashi and M.L. Driver are placed on record
and exhibited during the evidence of the management as
EX-MW1/1 and EX-MW 1/2.
The post of Motor Lorry Driver (in short M.L.D.) is
equivalent to Group-C post and there is already a ban on
engagement of daily wages worker w.e.f. 13/11/1985 vide
D.G. 9W no. 38/11/84-EC-X dated 19/11/1985 as well as a
ban on engagement of causal worker for duties of Group-C
posts, as per Govt. of India, Ministry of Finance, O.M. No.
49014/16/89 Estt.(C) dated 26.02.1990 printed at page 240
of Establishment & Administration Book for Central
Government Officers. Copy of D.G 9W No.38/11/84 EC-X
dated 19/11/85 and O.M. No. 49014 /16/1990 printed at page
240 of Establishment & Administration Book for Central
Government Offices are placed on record and exhibit during
the evidence of the management as EX-MW1/3 and MW1/
4 respectively.
It is submitted that claim of claimant Naveen Kumar
Sharma, that he joined as Khallasi with the management is
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1891
without any base and he failed to show any appointment
letter in his favour or salary receipt issued by the
management in his favour. So demand of Sh. Naveen Kumar
Sharma to allow him to join the duties under the management
of CPWD is illegal, unjustified and without any basis. So
he is not entitled for any relief as prayed for.
In the light of contentions and counter contentions
I perused the pleadings, Issues and evidence of parties.
Perusal of pleadings and evidence on record shows
that daily wager workman Naveen Kumar Sharma was not
permitted to join by management on the ground of his
continuous absence. Although stand of workman is that
he could not come due to his confinement in jail in false
case of murder. His absence was beyond his control. That
case ended in acquittal. He should be permitted to join
duty and direction to management in this respect be given.
Stand of management is that departmental enquiry is
pending against workman. Which was pending for decision
due to pendency of murder Trial. Now murder trial has
been decided hence departmental enquiry will proceed.
It is relevant to mention here that a judgment of a
Criminal Court acquitting an accused on the merits of a case,
would not bar disciplinary proceedings against him on the
basis of the same facts. Nor such a judgment could operate
as conclusive evidence in the disciplinary proceedings,
because a Criminal Court requires high standard of proof for
convicting an accused. However, the case must be proved
beyond reasonable doubt. The acquittal of an accused by a
Criminal Court only means that the case has not been proved
against him beyond reasonable doubt such a standard of
proof is not required for finding a person guilty in a
disciplinary proceeding. It would be enough it there is
preponderance of probability of his guilt. It is also relevant
to mention here that management has not concluded enquiry
since acquittal of workman accused on 27.10.2005. Although
boundan duty of management was to conclude enquiry of
alleged misconduct as soon as possible. So delay defeats
the justice. Due to aforesaid in ordinate delay in concluding
enquiry adverse inference is drawn against management and
it is presumed that there is no evidence against workman to
held him guilty in departmental enquiry for alleged
misconduct.
In the light of contentions and counter contentions
I perused the settled law of Hon'ble Supreme Court on the
point of reinstatement and grant of back wages which
shows that reinstatement is not a necessary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be awarded.
In Assistant Engineer, Rajasthan Dev. Corporation and Anr.
Vs. Gitam Singh, (2013)11 LLJ 141 Hon'ble Supreme Court
has held that reinstatement of workman with continuity of
service and 25% back wages was not proper in the facts
and circumstances of the case and the compensation of
Rs.50,000 (Rs. Fifty thousand only) shall meet the ends of
justice. In Jagbir Singh Vs. Haryana State Agriculture
Marketing Board & Anr. AIR 2009 Supreme Court 3004,
Hon'ble Supreme Court held thus "the award of
reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year
preceding the date of termination particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded." In catena of Judgments,
Hon'ble Supreme Court has taken a view that reinstatement
is not automatic, merely because the termination is illegal
or in contravention of S-25-F of the Industrial Dispute Act.
In Talwara Co-operative credit and service society Limited
Vs. Sushil Kumar (2008) 9 SCC 486, Hon'ble Supreme Court
held thus, "grant of relief of reinstatement, it is trite, is not
automatic. Grant of back wages is also not automatic."
Workman of the instant case was not appointed by
following due procedure and as per rules. He had rendered
service with the respondent as a casual worker, thus.
Compensation of Rs. 50,000 (Rs. Fifty thousand only) by way
of damages as compensation to the workman/claimant by
Management after expiry of period of limitation of available
remedy against Award. That will meet the ends of Justice.
Thus Reference is decided in favour of workman and
against Management. Award is accordingly passed.
Dated : 08/11/2013
HARBANS KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 706.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dk /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ ,XthD;wfVo]
uqDys;j Ý;wy dkEiysDl] gSnjkckn ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] gSnjkckn ds
iapkV ¼lanHkZ la[;k 24@2011½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[la- ,y&42011@97@2010&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th Feburary, 2014
S.O. 706.—In pursuance of Section 17 of the
Industrial Disputes Act,1947 (14 of 1947), the Central
Government hereby publishes the Award (ID No. 24/2011)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Chief Executive, Nuclear Fuel Complex,
Hyderabad and their workmen, which was received by the
Central Government on 28/01/2014.
[No. L-42011/97/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
1892
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT : Smt. M. Vijaya Lakshmi,
Presiding Officer
Dated the 27th day of May, 2013
INDUSTRIAL DISPUTE No. 24/2011
BETWEEN:
The General Secretary,
NFC Employees' Trade Union Congress (INTUC),
P.O: ECIL, Hyderabad.
....Petitioner
AND
The Chief Executive,
Nuclear Fuel Complex,
ECIL post,
Hyderabad.
....Respondent
APPEARANCES:
For the Petitioner
:
None
For the Respondent
:
None
AWARD
The Government of India, Ministry of Labour by its
Order No. L-42011/97/2010-IR(DU) dated 24.5.2011 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of Nuclear Fuel Complex and their workmen.
The reference is:
SCHEDULE
"Whether the action of the management of Nuclear
Fuel Complex, Hyderabad against the office bearers
of the NFC Trade Union Congress, as alleged by the
Union, amounts to unfair labour practice? If yes, what
relief union is entitled to?"
The reference is numbered in this Tribunal as I.D.
No. 24/2011 and notices were issued to the parties
concerned.
2. The case stands posted for filing of claim statement
and documents. Petitioner union called absent and there is
no representation since long time. In spite of giving fair
opportunity, claim statement was not filed by the Petitioner
union and the matter is coming up since the year 2011. In
the circumstances, taking that Petitioner union is not
interested in the proceedings, petition is dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gown, Personal Assistant
transcribed by her and corrected by me on this the 27th
day of May, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined
Petitioner
for the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 707.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ ,XthD;wfVo]
uqDysvj ¶;wy dkEiysDl] gSnjkckn ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] gSnjkckn ds
iapkV ¼lanHkZ la[;k 23@2011½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42011@96@2010&vkbZvkj ¼Mh;w½]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 707.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D No. 23/2011)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Chief Executive, Nuclear Fuel Complex,
Hyderabad and their workmen, which was received by the
Central Government on 28/01/2014.
[No. L-42011/96/2010 -IR(DU)]
P. K. VENUGOPAL , Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT : Smt. M. VIJAYA LAKSHMI,
Present :
Presiding Officer
Dated the 27th day of May, 2013
INDUSTRIAL DISPUTE No. 23/2011
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1893
BETWEEN:
The General Secretary,
NFC Employees' Trade Union Congress (INTUC),
P.O: ECIL, Hyderabad.
....Petitioner
AND
The Chief Executive,
Nuclear Fuel Complex,
....Respondent
Hyderabad
APPEARANCES:
For the Petitioner
: M/s. G. Ravi Mohan, Vikas Sharma
& K. Bhaskar, Advocates
For the Respondent : None
AWARD
The Government of India, Ministry of Labour by its
order No. L-42011/96/2010-IR(DU) dated 25.5.2011 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of Nuclear Fuel Complex and their workmen.
The reference is:
SCHEDULE
"Whether the action of the management of Nuclear
Fuel Complex, Hyderabad by implementing the
PRIS(G), overriding the provisions of payment of
Bonus Act, 1965 resulting in non-payment of any
financial benefit to 125 workmen is legal and justified?
What relief workmen are entitled to?"
The reference is numbered in this Tribunal as I.D.
No. 23/2011 and notices were issued to the parties
concerned.
2. The case stands posted for filing of claim statement
and documents. Petitioner union called absent and there is
no representation since long time. Inspite of giving fair
opportunity, claim statement was not filed by the Petitioner
union and the matter is coming up since the year 2011. In
the circumstances, taking that Petitioner union is not
interested in the proceedings, petition is dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gown, Personal Assistant
transcribed by her and corrected by me on this the 27th
day of May, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for
Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 708.—vkS|ksfxd fookn vf/kfu;e 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ
tujy esustj] Hkkjr lapkj fuxe fyfeVsM] gSnjkckn ds izca/kr= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 56@2006½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@19@2006@vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 708.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 56/2006)
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 the The Chief General Manager, Bharat
Sanchar Nigam Limited, Hyderabad and their workman,
which was received by the Central Government on
28/01/2014.
[No. L-40012/19/2006-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT : Smt. M. VIJAYA LAKSHMI,
Present :
Presiding Officer
Dated the 6th day of May, 2013
INDUSTRIAL DISPUTE No. 56/2006
BETWEEN:
Smt. Ch. Sharriffa,
D.No. 76-17-430,
Urmila Subba Rao Nagar,
Bhavanipuram (P.O.),
Vijayawada.
.....Petitioner
1894
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
AND
1.
The Chief General Manager,
Bharat Sanchar Nigam Ltd.,
Office of the CGM, Telecom,
A.P. Circle, Hyderabad-1.
2.
The Divisional Engineer (A/T),
Switching/QOS, Bharat Sanchar Nigam Ltd.,
A.P. Circle, 6-1-67/20A, Lakdikapul,
Saifabad, Hyderabad.
...........Respondents
APPEARANCES :
For the Petitioner
: Sri William Burra, Advocate
For the Respondent : M/s. M.C. Jacob & K. Ajay Kumar,
Advocates
AWARD
The Government of India, Ministry of Labour by its
order No. L-40012/19/2006-IR(DU) dated 9.10.2006 referred
the following dispute under section 10(1) (d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of Bharat Sanchar Nigam Ltd., and their
workwoman. The reference is:
SCHEDULE
"Whether the action of the management of Divisional
Engineer (A/T), Bharat Sanchar Nigam Ltd.,
Hyderabad in terminating the services of Smt. Ch.
Shariffa, w.e.f. July, 1997 is just and legal? If not, to
what relief the workwoman is entitled to and from
which date?"
The reference is numbered in this Tribunal as I.D.
No. 56/2006 and notices were issued to the parties
concerned.
2. Petitioner work woman has filed her claim
statement and documents. Petitioner has fileld this petition
praying to set aside the oral termination of her services
from 1.7.1997 by declaring the said termination as
ab-initio void and consequently declare the Petitioner
with continuous employment with full back wages and all
attendant benefits.
3. Respondent filed counter statement stating that the
Petitioner was given specific understanding that the
engagement is for the transmission project and her
employment would cease with the closure and winding up
of the project establishment. Accepting those terms and
conditions, Petitioners reported to duty and accordingly,
her services were disengaged with the closure of the project
establishment. The conversion of part time casual labourer
is subject to avialability of vacancies of Group D posts and
does not automatically confer any entitlement of any person
for full time conversion and subsequent regularization
without there being any necessity. Hence, the petition be
dismissed.
4. Petitioner work woman filed her chief examination
affidavit.
5. The case stands posted for cross examination of
Petitioner work woman. WW1 who is the Petitioner called
absent. Inspite of giving fair opportunity she is not turning
up. Learned Counsel for the Petitioner reported that inspite
of his efforts he could not contact her. As she has not
supplied her telephone number and also the letters
addressed to her to the known address returned unserved.
In the given circumstances, taking that Petitioner work
woman has got no interest in the proceedings, petition is
dismissed.
Award passed accordingly. Transmit.
Dicated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 6th day
of May, 2013
M. VIJAYA LAKSHMI, Presiding Officer.
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 709.—vkS|ksfxd fookn vf/kfu;e 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ
tujy esustj] Hkkjr lapkj fuxe fyfeVsM] gSnjkckn ds izca/kr= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 67@2008½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42025@03@2014@vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 709.—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/
2008) of the Central Government Industrial Tribunal/
Labour Court, Hyderabad now as shown in the Annexure
in the Industrial Dispute between the employers in relation
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1895
to the management of the The Chief General Manager,
Bharat Sanchar Nigam Limited, Hyderabad and their
workman, which was received by the Central Government
on 28/01/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
PRESENT : Smt. M. Vijaya Lakshmi,
Present :
Presiding Officer
Dated the 6th day of January, 2014
INDUSTRIAL DISPUTE L.C. No. 67/2008
BETWEEN:
Sri J.T. Appalaraju,
S/o J. Veeraraju,
R/o Ramdas Peta, Sidhartha Nagar,
Near Saiganagdhra Mitta, Rajahmundry.
C/o R. Yogender Singh, Advocate,
1-10-100, Temple Alwal,
Secunderabad.
.......Petitioner
AND
1.
The Chief General Manager,
Telecom, (B.S.N.L.)
Hyderabad.
2.
The Sub- Divisional Officer,
Telecom (B.S.N.L.)
Rajahmundry.
....Respondents
APPEARANCES :
For the Petitioner
: Sri R. Yogender Singh, Advocate
For the Respondent : Sri Karoor Mohan, Advocate
AWARD
This is a petition filed by Sri J.T. Appalaraju, the
workman seeking for setting aside the oral termination order
dated 19.3.2002 consequently directing the respondents
to regularize his service immediately after completion of
355 days of his service, with continuity of service and all
other consequential benefits.
2. The averments made in the petition in brief are as
follows:
Petitioner was engaged by the 2nd respondent as
casual mazdoor with effect from 1.5.1986. He was engaged
by the respondent till 12.8.1999 and from 19.3.2002 his
services were terminated vide oral order. He was engaged
for a period of 355 days in a year for the period commencing
from 1.5.1986 to April, 1987 which excludes the national
holidays and weekly offs. If those days are included the
total days comes to more than 403 days in a year. Petitioner
was thus engaged by the respondents for 13 years as
casual mazdoor on muster rolls. Subsequently he was
converted into a contract labour. He is entitled for
regularization as per the seniority of casual mazdoor list
instead his services were terminated with effect from
19.3.2002 even as a contract labour without assigning any
reason and without following the process contemplated
under Sec. 25F of Industrial Disputes Act, 1947. More over,
the persons who are far juniors to him are regularized by
the respondents. Petitioner filed OA No. 986/1994 and 96/
1998 before the Hon'ble Central Administrative Tribunal,
wherein respondents were directed to engage the Petitioner
whenever work is available vide orders dated 20.11.95 in
OA 986/1994 and OA No. 96/1998 was dismissed. But on
the pretext of existence of ban he was not reengaged. He
was engaged on different spells with intentional breaks to
deprive him of regularization. He filed WP No. 8192 of 2006
which was dismissed, but with observations that:
"The issues raised in this writ petition namely whether
the petition earlier worked as casually labour in the
Respondent organization and if so, whether he is
eligible for re-engagement as casual labour or not.
And whether some of the juniors and freshers are
engaged as casually labour. But denying the case of
the Petitioner are all disputed questions of fact, which
can be decided only after adducing evidence by the
parties and this court in exercise of jurisdiction U/A.
226 of the constitution of India, can not decide the
same based on the averments made in the Writ
Affidavit.
The writ petition is devoid of merit and the same
accordingly dismissed. however the Petitioner is at
liberty to approach the appropriate forum provided
under law."
In the said writ petition respondents admitted that
they are engaging contractors for the work which previously
done by engaging casual labour it is against law as laid
down in the case of Management of Silver Sand Resorts
Vs. The Workman Silver Sand Employees Union 1996 (2)
LLJ 1050 (Madras) Division Bench. Thus, it's clear that
respondents totally violated the provisions of Industrial
Disputes Act, 1947 in terminating the services of the
Petitioner. Hence, this petition.
3. Respondents filed their counter with averments in
brief as follows:
Petitioner can not claim any right of regularization as
it is in violation of rules as held in the case of Umadevi. OA
97/1998 filed by the Petitioner was dismissed by Hon'ble
Central Administrative Tribunal, Hyderabad holding that
Petitioner is not entitled for any relief. As per CGMT, HD
1896
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
letter dated 7.8.1991, seniority is to be fixed as per number
of days worked by the mazdoor in the Department but not
from the date of his initial recruitment as casual mazdoor.
Petitioner has rendered service of more than 240 days in
two years only. Particulars of the days he worked in the
Department since his engagement are furnished below:—
Year 86- 87- 88- 89- 90- 91- 92- 93- 94- 95- 96-
87
88
89
90
91
92
93
94
95
96
97
No.
328 30
37 160 146 293
--
58
31
--
29
of
days
As per the Departmental rules, the casual mazdoors
who have rendered 240 days of service in a year having
less than one year break in service are eligible for the grant
of temporary status. But the Petitioner has rendered 240
days in two years only. He has break in service for more
than one year for two spells, i.e., 1.5.1987 to 14.2.1989 and
1.11.1996 to 21.1.1998. Thus, he is not eligible for grant of
temporary status. As there was no work he could not be
reengaged in the Department. No freshers and no juniors
to the Petitioner is engaged in the SSA. The directions of
Hon'ble Central Administrative Tribunal, Hyderabad are
being implemented strictly. As per the DOT/ND letter dated
25.6.1993 mazdoors who are engaged for laying coaxial cable
in project circles and dismantling/erection of lines in
Railway electrification circuits can be granted temporary
status if they are recruited on or before 22.6.1988. The
TSMs, mentioned by the Petitioner were recruited I CCP/
Rly.Ele.Project before 22.6.1988. As per DOT/ND letter dated
12.2.1999 the powers of all DOT officers to engage casual
mazdoors either daily or monthly wages direct or through
contractors are withdrawn. Hence no casual mazdoor can
be engaged for the work mentioned by the Petitioner. Thus,
there, are no merits in the case of the Petitioner.The orders
passed by the respondent is legal as per the constitutional
provisions. The Petitioner can not be reinstated into service
as per rules, petition is liable to be dismissed with costs.
4. To substantiate the contentions of the Petitioner
he examined himself as WW1 and Ex. W1 to W6 were
marked. On behalf of the respondent MW1 was examined
and no documentary evidence was adduced.
5. Heard either party. Written arguments for Petitioner
were filed and the same are received and considered.
6. The points for determination are:
1. Whether the impugned oral termination order is
liable to be set aside. If so on what grounds?
2. To what relief Petitioner is entitled to?
7. Point No (1) :
The Petitioner who claimed in his petition that his
services were terminated with effect from 19.3.2002, has
claimed while deposing as WW1 that it was stated so, due
to a typographical mistake and that his services were
terminated on 12.8.1999 by an oral order and without
following due process of law. Regarding this aspect WW1
is not cross examined. Thus, it is not a disputed fact. Thus,
it is the claim of the Petitioner that his services have been
terminated by the respondents with effect from 12.8.1999.
8. As can be gathered from the material on record, it
is the claim of the respondents that the contention of the
Petitioner that his services were orally terminated by the
respondent is not at all correct. MW1, the only witness
who was examined for the Management, also claimed that
there was no oral termination of services of the Petitioner.
But the fact remains that Petitioner could not attend to the
work of the respondent Management subsequent to
12.8.1999. Ex. W1 is the copy of the muster roll book
pertaining to the Petitioner which indicates that he could
work for the respondent upto 12.8.1999 only. The reason
for the same is being claimed by the Petitioner as
termination of his services on the part of the respondent,
whereas respondent has not chosen to assign any reason
at all for the same. Further, the material on record is
disclosing that Petitioner was constrained to approach the
Central Administrative Tribunal and the High Court of
Andhra Pradesh, questioning the correctness of
disengagement of his service on the part of the respondent
since 12.8.1999, which means, that he has been complaining
all along that his services were orally terminated by the
respondent since 12.8.1999. Thus, it is to be taken that his
services were so terminated.
9. Whether such termination of services is legal and
valid is a question now to be considered.
10. Petitioner as WW1 has categorically claimed that
while terminating services of any workman respondent has
to follow the elaborate procedure as laid down in Ex.W5
the letter of dept of telecommunication dated 17.6.1983. In
clause No. V of the said letter elaborate procedure has
been laid down for retrenchment of the workers. This
procedure is in adherence to the provisions of the Industrial
Disputes Act, 1947. The Junior most casual mazdoor is to
be terminated, but not the seniors. Seniority list is to be
pasted on the notice board, in a conspicuous place in the
premises of the industrial establishment. One month's notice
is to be given or in lieu of the said notice one month's
wages have to be paid to the workman. The notice shall
contain reasons for retrenchment and it shall be notified to
the Ministry of Labour. There are some other such
conditions which are also to be complied with as per this
letter. Evidently, the said procedure has not been followed
and the conditions mentioned there in were not complied
while the Petitioner was disengaged/removed from service.
Respondent is not denying the liability to follow all these
conditions while disengaging a casual mazdoor. It is an
admitted fact that Petitioner has been working as casual
mazdoor for the respondent.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1897
11. In view of the foregone discussion, the
termination of services of the Petitioner is certainly neither
legal nor valid and therefore, it is liable to be set aside.
This point is answered accordingly.
12. Point No. II:
Consequent to the finding in Point No.I above,
Petitioner is to be reinstated into service. Further, as can be
gathered from the evidence of MW1 Petitioner has worked
for 293 days in the year 1991-92. MW1 stated that the
scheme of grant of temporary status and regularization has
been introduced with effect from 1.10.1989 as per DOT/ND
letter No.269-10-89 TN dated 7.11.89 and that as per this all
casual mazdoor who are currently employed and have
rendered minimum of 240 days in a year are eligible for
grant of temporary status. But, he claimed that after
introduction of this scheme, Petitioner has not rendered
minimum of 240 days in a year. This is a wrong statement.
This can be said so since even as per the averments in the
counter of Respondent/Management Petitioner has worked
for 293 days in the year 1991-92. Thus, long ago services of
the Petitioner ought to have been regularized and he ought
to have been granted temporary status. As can be seen
from the particulars of the work of the Petitioner given in
the counter filed by the management there was no break
period of more than one year prior to the year 1991-92 or
subsequently. But he denied his right of regularization and
grant of temporary status. For the same, no reasons are
assigned. It is the categorical claim of the Petitioner that
his juniors like, one Chitti Babu and others who have put in
less working days than that of him, have been granted
temporary status and were regularized in service. He further
claimed that in case of said Chitti Babu the break period of
more than one year was also condoned. Even though
Petitioner as WW1 has categorically made all these claims,
Respondent has not chosen to contradict the same in any
manner by producing relevant records. The respondent/
Management being custodian of all the service records of
their employees they will be in a position to disprove the
contentions of the Petitioner by producing relevant records.
Failure on their part to do so certainly give rise to an adverse
inference that they failed to produce records because, the
said records, if produced, would render support to the
contentions of the Petitioner, only.
13. As can be gathered from the contentions put
forth for the respondent, it is their claim that by virtue of an
order passed by the Central Administrative Tribunal,
Hyderabad Petitioner is not entitled for any of the reliefs
sought for. But, no such order is placed before this Tribunal
by the respondent. On the other hand they are blaming the
Petitioner for not placing such order before the Tribunal.
Respondent who is taking shelter under the said order, is
the person who is to produce the said order before this
Tribunal to invite attention of the Tribunal to the said order.
But they have not done so. Therefore, their contentions
with this regard, can not be accepted. Moreover, the Central
Administrative Tribunal got no jurisdiction to try the
industrial disputes. Therefore, any order passed by the
said forum touching the industrial dispute will be an order
passed without jurisdiction.
14. It is the other contention of the respondent that
as per the verdict of Hon'ble the Apex Court in the case of
Umadevi, the popular verdict on service law, Petitioner's
services can not be regularized. This contention is also is
not an acceptable contention for the reason that in the
case of Umadevi, the civil service and civil appointments
were considered but not any industrial disputes. Industrial
law is totally different from civil law. The industrial
appointments and regularization of the services of workmen
under the industrial laws, rules and regulations is totally
different from that in the civil law/administrative law. It's
already distinguished and it is held that the principles laid
down in the case of Umadevi are not applicable in the
industrial disputes.
15. As can be gathered from the material on record,
the Petitioner, who is a casual mazdoor working for the
respondent has been arbitrarily dealt with by the
respondent. He has been entrusted with work for some
days and has not been entrusted with the same for some
days, discriminating him and with a view to deny
regularization to him, as per the contentions of the Petitioner.
For this there is no specific and acceptable answer from
the respondent. Further more, as already discussed above,
though eligibility and right have been accrued to the
Petitioner as early as in the year 1991-92 for grant of
temporary status and for regularization of his services, the
same was denied to him. Thus, he is entitled for
regularization of services. He is entitled for consequential
reliefs also. But, considering the magnitude of financial
implications if back wages are ordered, which may adversely
affect the Respondent organization, same is to be denied
to the Petitioner.
16. By way of summing up the reliefs to be given, the
following is being stated:
Consequent to the finding given in point No.I
respondent is to be directed to reengage the Petitioner into
service as casual mazdoor and further to regularize his
services considering his service of 293 days in the year
1991-92 and giving effect to the said service. His seniority
is to be fixed with retrospective effect. But as to the payment
of wages are concerned the same shall be for the days
during which he put in the work only but not any back
wages. Consequent to the grant of temporary status and
regularization of service mentioned supra, Petitioner shall
be entitled for all consequential service benefits, like
promotions and increments.
This point is answered accordingly.
1898
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
17. Result:
In the result, petition is allowed. The impugned order
oral termination order dated 12.8.1999 is hereby set aside.
Petitioner shall be reinstated into service as casual mazdoor
forthwith. Further he shall be granted temporary status
and his services shall be regularized with retrospective
effect considering 293 days of work he put in, in the year
1991-92. His seniority also shall be fixed with retrospective
effect consequent to his regularization. He is entitled for all
other service benefits like grant of increments and
promotions consequent to regularization also with
retrospective effect except for any financial benefit. The
financial benefit shall be extended to him as per the post in
which he is to be regularised at present and since he starts
to work in that capacity, only. He is not entitled for any
back wages.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 6th day
of January, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for
Petitioner
the Respondent
WW1: Sri J.T. Appala Raju
MW1: Sri A. Veera Bhadra
Rao
Documents marked for the Petitioner
Ex. W1
Photostat Copy of muster roll
Ex. W2
Photostat Copy of orders passed in WP No.8192/
2006
Ex. W3
Photostat Copy of list of juniors of 91 candidates
Ex. W4
Photostat Copy of particulars of junior employee
of WW1 i.e., K. Chitti Babu
Ex. W5
Photostat Copy of departmental order of M/o
Telecommunication
Ex. W6
Photostat Copy of seniority list of casual
mazdoors dt.31.12.1996
Documents marked for the Respondent
NIL
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 710.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj phQ tujy
esustj] Hkkjr lapkj fuxe fyfeVsM] gSnjkckn ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
gSnjkckn ds iapkV ¼lanHkZ la[;k 68@2008½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42025@03@2014&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 710.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 68/2008)
of the Central Government Industrial Tribunal/Labour
Court, Hyderabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Chief General Manager, Bharat Sanchar
Nigam Limited, Hyderabad and their workman, which was
received by the Central Government on 28/01/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi,
Present : Presiding Officer
Dated the 13th day of January, 2014
INDUSTRIAL DISPUTE L.C. No. 68/2008
Between :
Sri A. Jayaramulu,
S/o A. Ramaiah,
R/o Sudduguaripalli,
Prabalveedu (P.O.)
Badwel(T), Kadapa District.
....Petitioner
AND
1.
The General Manager,
Telecom District,
Kadapa — 516001.
2.
The Sub-Divisional Officer,
Telecom, Rajampet,
....Respondents
Kadapa.
Appearances:
For the Petitioner
:
Sri R. Yogender Singh, Advocate
For the Respondent :
Sri Karoor Mohan, Advocate
AWARD
This is a petition filed by Sri A. Jayaramulu, the
workman seeking for setting aside the oral termination order
dated 1.2.2007, consequently directing the respondents to
regularize his services if not from the date of completion of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1899
240 days, i.e., from May, 1982, or atleast from the date of
regularization of his juniors i.e., Subbaiah and Pratap Reddy
and pass orders as deem fit in the circumstances of the
case.
2. The averments made in the petition in brief are as
follows:
Petitioner was engaged by the 2nd respondent as
casual mazdoor with effect from May, 1982 to December,
1989 for a period of 697 days without any break. He was
engaged for a period of 210 days as per muster rolls which
exclude holidays and national holidays. If they are included
it comes to 270 days. In support of this contention, mazdoor
card/certificate issued by the 2nd respondent is filed.
Further, Petitioner was engaged on August, 17th on voucher
basis at various places under the jurisdiction of 2nd
respondent which was subsequently merged in Bharat
Sanchar Nigam Limited. He was asked to work under
various contractors. Because of his illiteracy he could not
know his position as per law and he continued to work
upto January, 2007. His services were terminated by the
respondents by directing the concerned contractors not
to engage him from 1.2.2007 orally. Aggrieved by this he
made a representation for which 1st respondent issued
proceedings dated 25.7.2007 stating that as per present
status in Bharat Sanchar Nigam Limited no casual mazdoor
be engaged/employed. In fact 2nd respondent is engaging
many casual mazdoors and to the knowledge of the
Petitioner, Subbaiah and Pratap Reddy are still working in
that capacity and they are far juniors to the Petitioner.
Respondent thus, violated the provision of Sec.25F of
Industrial Disputes Act, 1947 by terminated the service of
the Petitioner and further continuing the services of his
juniors. Hence, the petition.
3. Respondents filed their counter with averments in
brief as follows:
Previously Petitioner has worked as causal mazdoor
for some period. He was disengaged due to lack of work
in the Department. His contention that he was removed
though several juniors were continued in service is false.
Petitioner filed OA 1420 of 1995 before Hon'ble Central
Administrative Tribunal, Hyderabad while dismissing the
same, respondents were directed to consider the case of
the Petitioner as and when they decides to engage casual
labour for the work to be executed by the casual mazdoors.
There is an absolute ban on engagement of casual labour
as per the policy at the Department except in special
circumstances restricted to a period of 100 days vide
letters dated 30.3.1985, 22.6.1988, and 15.6.1999. Thus,
there is no scope for engagement of the Petitioner. No
cable work was carried out by engaging juniors and
freshers as casual labour as alleged by the Petitioner.
Cable laying work is being carried out by contractors on
approved tenders by GMTD, Rajahmundry. Hence, the
petition is liable to be dismissed.
4. To substantiate the contentions of the Petitioner
he examined himself as WW1 and got marked Ex. W1 to
W2. On behalf of the respondent MW1 was examined and
no documentary evidence was adduced.
5. Heard either party.
6. The points for determination are:
1. Whether the impugned oral termination order
dated 1.2.2007 is liable to be set aside. If so on
what grounds?
2. To what relief Petitioner is entitled to?
7. Point No. 1:
It is the contention of the Petitioner that his services
have been terminated by the respondent with effect from
1.2.2007 whereas respondent is categorically denying the
truth of his contention. Whereas while deposing as WW1
Petitioner has claimed that he worked as casual mazdoor
for the respondent from May, 1982 to December, 1989 only.
He further claimed while he was under cross examination
that he did not work after December, 1989 due to his ill
health and that he did not receive any notice from
respondent in January, 2007. Thus, it is clear that the
contention of the Petitioner that respondent terminated
his services on 1.2.2007 is not at all correct. He himself
voluntarily failed to attend to his duties after December,
1989. Thus, the question of respondent terminating his
services either legally or illegally does not arise and thus,
the question of reinstatement the Petitioner into service
also does not arise.
This point is answered accordingly.
8. Point No.2:
No doubt, as can be seen from the evidence of MW
1, as per the scheme of grant of temporary status and
regularization, introduced as per DOT/ND letter No.269-
10-89 TN dated 7.11.89 the casual mazdoors who were
curfently employed and put in minimum of 240 days of
work in an year are eligible for grant of temporary status.
This scheme has been introduced with effect from 1.10.1989.
After introduction of the scheme, to gain benefit from the
scheme the workman has to put in 240 days of work in an
year but as can be gathered from the material record which
has been discussed above, while deciding Point No.1,
Petitioner ceased to work for the respondent voluntarily
since December, 1989. Therefore, the question of his putting
in 240 days of work subsequent to the introduction of the
scheme will not arise and therefore he can not reap any
benefit from the scheme. Further, in view of the finding
given in Point No.1, Petitioner is not entitled for
reinstatement into service.
9. In view of the fore gone discussion, it can be held
that Petitioner is not entitled for any of the reliefs sought
for.
1900
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
This point is answered accordingly.
10. Result:
In the result Petition is dismissed.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 13th
day of January, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
WW1: Sri A. Jayaramulu
MW1: Sri A. Satya
Narayana Murthy
Documents marked for the Petitioner
Ex. W1:
Photostat copy of mazdoor
card
Ex. W2:
Photostat
copy
of
lr.No.E.52/TSMs/Corrs.
Vol-III/99-2000/47td
dt. 25.7.2007
Documents marked for the Respondent
NIL
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 711.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj phQ tujy
esustj] Hkkjr lapkj fuxe fyfeVsM] gSnjkckn ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;
gSnjkckn ds iapkV ¼lanHkZ la[;k 69@2008½ dks izdkf'kr djrh gS
tks dsUnzh; ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lñ ,y&42025@03@2014&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 711.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 69/2008)
of the Cent. Govt. Indus. Tribunal/Labour Court, Hyderabad
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
The Chief General Manager, Bharat Sanchar Nigam Limited,
Hyderabad and their workman, which was received by the
Central Government on 28/01/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi,
Present : Presiding Officer
Dated the 13th day of January, 2014
INDUSTRIAL DISPUTE L.C.No. 69/2008
Between:
Sri N. Satyanarayana,
S/o Nukaraju,
R/o Ramdas Peta,
Sidhartha Nagar,
Near Saiganagdhara Mitta,
Rajahmundry.
......... Petitioner
AND
1.
The Chief General Manager,
Telecom, (B.S.N.L.)
Hyderabad.
2.
The Sub-Divisional Officer,
Telecom (B.S.N.L.)
Rajahmundry.
.........Respondents
Appearances:
For the Petitioner
: Sri R. Yogender Singh, Advocate
For the Respondent
: Sri Karoor Mohan, Advocate
AWARD
This is a petition filed by Sri N. Satyanarayana, the
workman seeking for setting aside the oral termination order
dated 19.3.2002 consequently directing the respondents
to regularize his service immediately after completion of
240 days of his service, with continuity of service all other
attendant benefits.
2. The averments made in the petition in brief are as
follows:
Petitioner was engaged by the 2nd respondent as
casual mazdoor with effect from 1.10.1986. He was engaged
by the respondent till 18.3.2002 and from 19.3.2002 his
services were terminated vide oral order. he was engaged
for a period of 204 days in an year for the period commencing
from 1.10.1986 to April, 1987 which excludes the national
holidays and weekly offs. If those days are included the
total days comes to more than 242 days in an year. Petitioner
was thus engaged by the respondents for six years as
casual mazdoor on muster rolls. Subsequently he was
converted into a contract labour. He is entitled for
regularization as per the seniority of casual mazdoor list
insted his services were terminated with effect from 19.3.2002
even as a contract labour without assigning any reason
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1901
and without following the process contemplated under Sec.
25F of Industrial Disputes Act, 1947. More over, the persons
who are far juniors to him are regularized by the
respondents. Petitioner filed OA No. 1420/1995 before the
Hon'ble Central Administrative Tribunal, Hyderabad
wherein respondents were directed to engage the Petitioner
whenever work is available. But on the pretext of existence
of 'ban' he was not re-engaged. He was engaged on
different spells with intentional breaks to deprive him of
regularization. He filed WP No. 8195 of 2006 which was
dismissed, but with observations that."
"The issue raised in this writ petition namely whether
the petition earlier worked as causally labour in the
Respondent organization and if so, whether he is
eligible for re-engagement as casual labour or not.
And whether some of the juniors and freshers are
engaged as casually labour. But denying the case of
the Petitioner are all disputed question so fact, which
can be decided only after adducing evidence by the
parties and this Court in exercise of jurisdiction U/A.
226 of the Constitution of India, can not decide the
same based on the averments made in the Writ
Affidavit.
The writ petition is devoid of merit and the same
accordingly dismissed. However the Petitioner is at
liberty to approach the appropriate forum provided
under law."
In the said writ petition respondents admitted that
they are engaging contractors for the work which previously
done by engaging casual labour it is against law as laid
down in the case of Management of Silver Sand Resorts
vs. The Workman Silver Sand Employees Union 1996 (2)
LLJ 1050 (Madras Division bench). Thus, its clear that
respondents totally violated the provisions of Industrial
Disputes Act, 1947 in terminating the services of the
Petitioner. Hence, the petition.
3. Respondents filed their counter with averments
in brief as follows:
Petitioner previously worked as casual worker for
some period and thereafter he was disengaged from service
as there was no work in the department. His contention
that he was removed though several juniors were continued
in service is false. Petitioner filed OA 1420 of 1995 before
Hon'ble Central Administrative Tribunal, Hyderabad while
dismissing the same, respondents were directed to consider
the case of the Petitioner as and when they decides to
engage casual labour for the work to be executed by the
casual mazdoors. There is an absolute ban on engagement
of casual labour as per the policy at the dept. except in
special circumstances restricted to a period of 100 days
vide letters dated 30.3.1985, 22.6.1988 and 15.6.1999. Thus,
there is no scope for engagement of the Petitioner. No
cable work was carried out by engaging juniors and freshers
as casual labour as alleged by the Petitioner. Cable laying
work is being carried out by contractors on approved
tenders by GMTD, Rajahmundry. Hence, the petition is
liable to be dismissed.
4. To substantiate the contentions of the Petitioner
he examined himself as WW1 and got marked Ex. W1 to
W6. On behalf of the respondents MW1 was examined
and no documentary evidence was adduced.
5. Written arguments for Petitioner were filed and the
same are received and considered. Heard either party.
6. The points for determination:
1. Whether the impugned oral order dated 19.3.2002
is liable to be set aside. If so on what grounds?
2. To what relief Petitioner is entitled to?
7. Point No. (1):
It is an admitted fact that Petitioner worked as casual
mazdoor for the respondent previously. It is his contention
that his services were orally terminated by the respondent
with effect from 19.3.2002 whereas, as can be gathered from
the material on record, it is the claim of the respondents
that the contention of the Petitioner that his services were
orally terminated by the respondent is not at all correct.
8. MW1, the only witness who was examined for the
Management, also claimed that there was no oral
termination of services of the Petitioner. But the fact remains
that Petitioner could not attend to the work of the
respondent Management subsequent to 18.3.2002 Ex. W1
is the copy of the muster roll book pertaining to the
Petitioner which indicates that he could work for the
respondent upto 18.3.2002 only. The reasons for the same
is being claimed by the Petitioner as termination of his
serivces on the part of the respondent, whereas respondent
has not chosen to assign any reason at all for the same.
Further, the material on record is disclosing that Petitioner
was constrained to apparoach the Central Administrative
Tribunal and the High Court of Andhra Pradesh,
questioning the correctness of disengagement of his service
on the part of the respondent since 18.3.2002, which means,
that he has been complaining all along that his services
were orally terminated by the respondent since 19.3.2002.
Thus, it is to be taken that his services were so terminated.
9. Whether such termination of services is legal and
valid is a question now to be considered.
10. Petitioner as WW1 has categorically claimed that
while terminating services of any workman respondent has
to follow the eleborate procedure as laid down in Ex. W5
the letter of Department of telecommunication dated
17.6.1993. In caluse No. V of the said letter eleborate
procedure has been laid down for retrenchment of the
workers. This procedure is in adherence to the provisions
of the Industrial Disputes Act, 1947. The Junior most casual
1902
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
mazdoor is to be terminated, but not the seniors. Seniority
list is to be pasted on the notice board, in a conspicuous
place in the premises of the industrial establishment. One
month's notice is to be given or in lieu of the said notice
one month's wages have to be paid to the workman. The
notice shall contain reasons for retrenchment and it shall
be notified to the Ministry of Labour. There are some other
such conditions which are also to be complied with as per
this letter. Evidently, the said procedure has not been
followed and the conditions mentioned there in were not
complied while the Petitioner was disengaged/removed
from service. Respondent is not denying the liability to
follow all these conditions while disengaging a casual
mazdoor and it is an admitted fact that petitioner has been
working as casual mazdoor for the respondent.
11. In view of the foregone discussion, it can safely
be held that the termination of services of the Petitioner is
certainly neither legal nor valid and therefore, it is liable to
be set aside.
This point is answered accordingly.
12. Point No. II:
Consequent to the finding in point No. I above,
Petitioner is to be reinstated into service. As can be gathered
from the muster roll of the Petitioner, which is marked as
Ex. W1 Petitioner has put in more than 240 days of work in
a span of one year. MW1 stated that the scheme of grant of
temporary status and regularization has been introduced
with effect from 1.10.1989 as per DOT/ND letter No. 269-10-
89 TN dated 7.11.89 and that as per this all casual mazdoor
who are currently employed and have rendered minimum
of 240 days in a year are eligible for grant of temporary
status. But, he claimed that after introduction of this
scheme, Petitioner has not rendered minimum of 240 days
in a year. This is a wrong statement. This can be said so
since even as per the averments in the counter of
respondent/Management Petitioner has worked for 240
days. Thus, services of the Petitioner ought to have been
regularized and he ought to have been granted temporary
status. As can be seen from the particulars of the work of
the Petitioner given in the counter filed by the management
there was no break period of more than one year prior to
the year 1991-92 or subsequently. But he denied his right
of regularization and grant of temporary status. For the
same, no reasons are assigned. It is the categorical claim of
the Petitioner that his juniors like, one Chitti Babu and
others who have put in less working days than that of him,
have been granted temporary status and were regularized
in service. He further calaimed that in case of said Chitti
Babu the break period of more than one year was also
condoned. Even though Peitioner as WW1 has
categorically made all these claims, respondent has not
chosen to contradict the same in any manner by producing
relevant records. The espondent/Management being
custodian of all the service records of thier employees they
will be in a position to disprove the contentions of the
Petitioner by producing relevant records. Failure on their
part to do so, certainly give rise to an adverse infrerence
that they failed to produce records because, the said
records, if produced, would render support to the
contentions of the Petitioner, only.
13. As can be gathered from the contentions put
forth for the respondent, it is their claim that by virtue of an
order passed by the Central Administrative Tribunal,
Hyderabad Petitioner is not entitled for any of the reliefs
sought for. But, no such order is placed before this Tribunal
by the respondent. On the other hand they are blaming the
Petitioner for not placing such order before the Tribunal.
Respondent who is taking shelter under the said order, is
the person who is to produce the said order before this
Tribunal to invite attention of this Tribunal to the said
order. But they have not done so. Therefore, their
contentions with this regard. can not be accepted.
Moreover, the Central Administrative Tribunal got no
jurisdiction to try the industrial disputes. Therefore, any
order passed by the said forum touching the industrial
dispute will be an order passed without jurisdiction.
14. It is the other contention of the respondent that
as per the verdict of Hon'ble the Apex Court in the case of
Umadevi, the popular verdict on service law, Petitioner's
services can not be regularized. This contention is also is
not an acceptable contention for the reason that in the
case of Umadevi, the civil services and civil appointments
were considered but not any industrial disputes. Industrial
law is totally different from civil law. The industrial
appointments and regularization of the services of workmen
under the industrial laws, rules and regulations is totally
different from that in the civil law/administrative law. Thus.
both are already distinguished and it is held that the
principles laid down in the case of Umadevi are not
applicable to the industrial dispute.
15. As can be gathered from the material on record, the
Petitioner, who is a casual mazdoor working for the respondent
has been arbitrarily dealt with by the respondent. He has been
entrusted with work for some days and has not been entrusted
with the same for some days, discriminating him and with a
view to deny regularization to him, as per the contentions of
the Petitioner. For this there is no specific and acceptable
answer from the respondent. Further more, as already
discussed above, though eligibility and right have been
accrued to the Petitioner long ago for grant of temporary status
and for regularization of his services, the same was denied to
him. Thus, he is entitled for regularization of services. He is
entitled for consequential reliefs also. But, considering the
financial implications if back wages are ordered, which may
adversely affect the Respondent organization same is to be
denied to the Petitioner.
¹Hkkx II—[k.M 3(ii)º
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1903
16. By way of summing up the reliefs to be given the
following is being stated:
Consequent to the finding give in point No. I
respondent is to be directed to re-engage the Petitioner
into service as casual mazdoor and further to regularize his
services considering his service of 240 days put in long
ago and giving effect to the said services. His seniority is
to be fixed with retrospective effect. But as to the payment
of wages are concerned the same shall be for the days
during which he put in the work only but not any back
wages. Consequent to the grant of temporary status and
regularization of service mentioned supra, Petitioner shall
be entitled for all consequential service benefits, like
promotions and increments.
This point is answered accordingly.
17. Result :
In the result, petitions is allowed. The impugned oral
termination order dated 19.3.2002 is hereby set aside.
Petitioner shall be reinstated into service as casual mazdoor
forthwith. Further he shall be granted temporary status
and his services shall be regularized with retrospective
effect considering 240 days of work he put in, long ago.
His seniority also shall be fixed with retrospective effect
consequent to his regularization. He is entitled for all other
service benefits like grant of increments and promotions
consequent to regularization also with retrospective effect
except for any financial benefit. The financial benefit shall
be extended to him as per the post in which he is to be
regularised at present and since he starts to work in that
capacity only. He is not entitled for any back wages.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant, and corrected by me on this the 13th
day of January, 2014.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
WW1: Sri N. Satyanarayana
MW1 Sri A. Veera Bhadra
Rao
Documents marked for the Petitioner
Ex. W1:
Photostat Copy of muster roll
Ex. W2:
Photostat Copy of orders passed in WP No.
8192/2006
Ex. W3:
Photostat Copy of list of juniors of 91 candidates
Ex. W4:
Photostat Copy of particulars of junior employee
of WW1 i.e., K. Chittibabu
Ex. W5:
Photostat Copy of departmental order of M/o
Telecommunication
Ex. W6:
Photostat Copy of seniority list of casual
mazdoors dt. 31.12.1996
Documents marked for the Respondent
NIL
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New Delhi, the 4th February, 2014
S.O. 712.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 279/
2011) of the Central Government Industrial Tribunal/Labour
Court-I, Delhi now as shown in the Anexure in the Industrial
Dispute between the employers in relation to the
management of The Commissioner, Municipal Corporation
of Delhi, New Delhi and their workman, which was received
by the Central Government on 28/01/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
No.1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No. 279/2011
Shri Rajan Lal through
Hospital Employees Union.,
Agarwal Bhawan, G.T Road,
Tis Hazari, Delhi-110054.
....Workman
Versus
The Commissioner,
Municipal Corporation of Delhi,
Dr. S.P.Mukherjee Civic Centre,
J.L.Nehru Marg,
New Delhi-110002.
....Management
AWARD
Daily wagers working in various hospitals and
dispensaries under Health Department of Municipal
Corporation of Delhi (in short the Corporation) were to be
regularized in service pursuant to policy framed in that
1904
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
regard on the strength of Resolution No. 273 dated 27.06.1988,
passed by the Corporation. Services of various daily wagers
were regularized by the Administrative Officer (Health) and
on being regularized, those daily wagers were put on
probation for a period of two years. When audit was
conducted, it came to light that the daily wagers, whose
services were regularized pursuant to policy framed in
compliance of Resolution No.273 dated 27.06.1988, obtained
their appointment on fake/forged documents. Likewise, it
was noted by the Health Department of the Corporation
that one Shri Rajan Lal produced fabricated order
purporting to his services having been transferred from
SDN Hospital, Shahdara, to Ayurveda Panchkarma
Hospital, Prashant Vihar, New Delhi. Shri Lal joined his
services on the said forged transfer order dated 04.08.2004
and worked with the Corporation till his services were
dispensed with. Show cause notice was served upon him
on 30.08.2008, to which notice he submitted a reply. Since
he obtained service on the basis of fabricated transfer
order, his services were terminated on 01.08.2008. Shri Lal
raised a demand for reinstatement in service, which demand
was not conceded to. Aggrieved by that act, he raised an
industrial dispute before the Conciliation Officer, who
entered into conciliation proceedings on 10.02.2009.
Conciliation proceedings lasted for more than two years,
but no settlement could arrive at. Shri Lal raised an
industrial dispute before this Tribunal under the provisions
of sub-section (2) of section 2A of the Industrial Disputes
Act, 1947 (in short the Act) without being referred by the
appropriate Government for adjudication under sub-section
(1) of section 10 of the Act. Since he raised the dispute
within the period of limitation provided under sub-section
(3) and complied all requirements of sub-section (2) of
section 2A of the Act, the dispute was registered as an
industrial dispute.
2. In his claim statement, Shri Rajan Lal pleads that
he joined services with the Corporation as a chowkidar on
04.08.2004. He was treated as daily rated/casual/muster roll
worker and paid minimum wages fixed and notified from
time to time. His counterparts, who were regular employees
of the Corporation, were being paid their wages in proper
scale of pay and allowances. Facilities like uniform, earned
leave, casual leave, gazetted leaves etc. were denied to
him. His services were dispensed with vide termination
letter dated 01.08.2008, handed over to him on 12.08.2008.
Action of the Corporation in terminating his services is
illegal, unjust and malafide for the following, amongst other
reasons:
(i) Job against which he was working is of regular
and permanent nature, which is still continuing
with the Corporation,
(ii) Action of the Corporation in terminating his
services amounts to unfair labour practice, as
provided under section 2(ra) read with item No.5
of Fifth Schedule appended to the Act,
(iii) Action of the Corporation is violative of Article
21 of the Constitution of India,
(iv) He is innocent and had not committed any
misconduct. No memo or charge sheet was served
upon him, not to talk of conducting any domestic
enquiry.
(v) No seniority list was displayed, as required in
case of retrenchment. No notice or pay in lieu
thereof and retrenchment compensation was paid
to him.
(vi) Show cause notice dated 30.01.2008 was given,
which was duly replied by him,
(vii) He has completed more than 240 days continuous
service in every calendar year, as contemplated
by section 25B of the Act and could not be thrown
out of the job in an illegal manner.
(viii) He has been meted out with hostile discrimination,
since juniors to him have been retained in service
Even otherwise, fresh hands have been taken in
employment after terminating his services,
(ix) Action of termination of his services is violative
of provisions of section 25F, 25G and 25H of the
Act, read with rules 76, 77 and 78 of the Industrial
Disputes (Central) Rules, 1957.
3. Claimant projects that he is unemployed since the
date of termination of his services. Notice of demand was
served on the Corporation by registered post on 05.09.2008.
He raised a dispute before the Conciliation Officer on
10.02.2009 and conciliation proceedings lasted till
05.07.2011. Since the appropriate Government had not
referred the dispute for adjudication, he approached this
Tribunal with a direct dispute. Claimant seeks an award in
his favour with a command to the Corporation to reinstate
his service with continuity and full back wages, besides
cost of litigation.
4. Claim was demurred by the Corporation projecting
that there was no employer-employee relationship between
the parties. Claimant gained employment with the
Corporation on the basis of forged and fabricated order of
transfer dated 28.07 2004. He presented that fabricated office
order, on the basis of which order he was allowed to join
his services with Ayurveda Panchkarma Hospital, Prashant
Vihar, New Delhi. During the course of audit, complete
service record was got verified and it revealed that the
claimant never worked with SDN Hospital Shahdara, from
where he was allegedly transferred. Transfer order,
presented by him, was a forged document. On verification
of the record, hospital authorities confirmed that the
claimant never worked with the said hospital and the transfer
order was forged and fabricated one. Show cause notice
dated 30.01.2008 was served, to which the claimant filed
his reply. Facts detailed by him in the reply were absolutely
¹Hkkx II—[k.M 3(ii)º
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1905
false, frivolous and untenable. No document was submitted
by the claimant in support of his contentions raised in the
reply. After considering his reply, his services were
dispensed with on 01.08.2008. Operative portion of the said
order runs as under:
"In response to the above show cause notice, he
has submitted his reply stating therein that all the
documents are available with the department and
the transfer order is available with the applicant. He
has not submitted any documents related to his initial
engagement. This shows that he was never engaged
on daily wage basis by the Municipal Corporation of
Delhi. However, he managed to work in Ayurvedic
Panchkarma Hospital, Prashant Vihar on the basis of
forged transfer order, as mentioned above. In view
of the above, the fraudulent engagement of Shri Rajan
Lal S/o Shri Om Prakash. Daily Wager, chowkidar, is
hereby, terminated with immediate effect."
5. The Corporation projects that termination of
services of the claimant does not amount to retrenchment,
as defined under section 2(oo) of the Act. The Apex Court
ruled in Mandivikar (2005 Lab 1C 4164) that services of an
appointee seeking appointment by furnishing false caste
certificate is liable to be terminated. Claimant is a wrong
doer and cannot claim equity from this Tribunal. No notice
or pay in lieu thereof and retrenchment compensation were
liable to be paid. He has no claim, muchless the claim for
reinstatement in service with continuity and full back
wages.
6. On perusal of pleadings, following issues were
settled:
(i) Whether the claimant submitted his joining report
in Ayurveda Panchkarma Hospital, on the basis
of forged documents? If yes, its effects.
(ii) Whether the claimant had not acquired any legal
rights on rendering services from August, 2004
till 01.08.2008 in view of the facts stated in issue
No. 1?
(iii) Whether termination order dated 01.08.2008 falls
within the ambit of retrenchment, as defined in
section 2(oo) of the Industrial Disputes Act, 1947?
(iv) Whether the claimant is entitled to the relief
claimed, in his claim statement?
7. To discharge onus resting on him, claimant has
examined himself. To rebut facts testified by the claimant,
Dr Manju Verma was examined by the Corporation. No
other witness was produced by either of the parties.
8. Arguments were heard at the bar. Shri Surender
Bhardwaj, authorized representative, advanced arguments
on behalf of the claimant. Shri Vishwajit Mangla, authorised
representative, raised submissions on behalf of the
Corporation. Written submissions were also filed by the
parties. 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
9. In his affidavit Ex.WWI/A, tendered as evidence,
claimant unfolds that he joined employment with the
Corporation as chowkidar on 04.08.2004. He was treated
as daily rated/casual/muster roll worker and paid minimum
wages as notified from time to time. He rendered continuous
service of 240 days in every calendar year. Show cause
notice was served upon him on 30.01.2008, which was duly
replied. His services were terminated vide letter dated
01.08.2008. However, during the course of his cross
examination, he concedes that he was engaged for the first
time by the Corporation on 04 08.2004. Prior to that date, he
never worked with the Corporation. He admits that in tetter
Ex.WW1/M1, it has been mentioned that he was an
employee of SDN Hospital, Shahdara. He concedes that he
never worked in the said hospital. He further admits that
letter Ex.WW1/M1 and Ex.WW1/M2 are forged documents.
According to him, these documents were given to him by
one Hari Om Sharma, who was working in Town Hall,
New Delhi.
10. In affidavit Ex.MW1/A, tendered as evidence,
Ms. Manju Verma, declares that the claimant gained
employment with the Corporation on the basis of forged
and fabricated transfer letter dated 28 07.2004. He presented
the said transfer order to Ayurveda Panchkarma Hospital,
Prashant Vihar, New Delhi. On the basis of the said transfer
order, he was allowed to join in Ayurveda Panchkarma
Hospital, Prashant Vihar, New Delhi. During the course of
audit, it came to light that the said transfer order was a
fabricated document. Thereafter, show cause notice was
served on Shri Rajan Lal on 30.01.2008. On consideration
of reply to the show cause notice, his services were
terminated vide order dated 01.08.2008. During the course
of her cross examination, she concedes that no charge
sheet was served on the claimant. No enquiry was
conducted against him. No evidence was recorded against
the claimant. She further concedes that no authority has
recorded findings in respect of office order dated 24.08.2004,
proved as Ex.WW1/11, to the effect that the said order was
a fabricated one. Ex.WW1/11 is the office order issued on
24.08.2004 on the strength of which claimant was allowed
to join his duties at Ayurveda Panchkarma Hospital,
Prashant Vihar, New Delhi, on being transferred from SDN
Hospital. Shahdara.
11. Out of facts detailed by Ms.Manju Verma and
conceded by the claimant, it came to light that the claimant
never served SDN Hospital, Shahdara. Claimant joined his
duties at Ayurveda Panchkarma Hospital, Prashant Vihar,
New Delhi, on the basis of the forged transfer order
1906
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Ex.WW1/M1. From facts projected by Ms.Verma and
conceded by the claimant, it is crystal clear that the claimant
joined his duties with Ayurveda Panchkarma Hospital,
Prashant Vihar, New Delhi, on the basis of forged document,
purporting to be his transfer order from SDN Hospital,
Shahdara.
12. As noted above, claimant used fake order,
purporting to be his transfer order from SDN Hospital,
Shahdara, to Ayurveda Panchkarma Hospital, Prashant
Vihar, New Delhi, and joined his services with the
Corporation. As conceded by him, he never served SDN
Hospital, Shahdara. Thus, facts recorded in the transfer
order Ex.WW1/M1 are blatant lie. His act of joining services
with the Corporation, on the strength of Ex.WW1/11,
nowhere creates any right on the post in his favour. Person,
who enters service by producing fake transfer order and
obtains appointment on posts with the Corporation, does
not deserve any sympathy or indulgence by this Tribunal.
13. Fraud is anathema to all equitable principles and
any affair tainted with fraud cannot be perpetrated or saved
by application of any equitable doctrine. It is a matter of
common knowledge that appointment on a post can be
obtained in consonance with the recruitment rules. One
had to move an application against an advertisement and
thereafter he had to compete with all eligible incumbents,
in order to show his right for appointment to the post. In
case any incumbent obtains appointment by playing fraud
on the authorities, he does not acquire any right to the
post. An employee, who plays fraud on public authority in
getting his appointment on a post, also commits fraud with
the society and the Constitution. He does not have any
right to the post on which appointment was obtained by
playing fraud. These reasons persuade me to comment
that by way of joining services with Ayurveda Panchkarma
Hospital, Prashant Vihar, New Delhi, the claimant had not
acquired any right to the post. Issue is, therefore, answered
in favour of the Corporation and against the claimant.
Issue No. 2 and 3
14. Admittedly the claimant joined services with
Ayurveda Panchkarma Hospital, Prashant Vihar, New Delhi
on the basis of forged document. However, it is also not
disputed fact that he rendered service with the Corporation
from 04.08.2004 till 01.08.2008. No dispute was raised by
the Corporation to the effect that continuous service of
240 days, as contemplated by provisions of section 25B of
the Act, was rendered by the Claimant, in preceding 12
months from the date of termination of his services.
Question for consideration would be as to whether action
of the Corporation in terminating services of the claimant,
vide order dated 01.08.2008, amounts to retrenchment? For
an answer to this proposition, definition of the term
retrenchment is to be construed. 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".
15.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].
16. 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.
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(v) The notice is also given to the appropriate
Government.
17. 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.
18. In Ramakrishna Ramnath [1970 (2) LU 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."
19. 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
20. 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
Corporation. The Corporation 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], Adirshwar 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.
21. Claimant deposed that his services were
terminated by the Corporation on 01.08.2008 without any
notice or pay in lieu thereof. Out of facts unfolded by the
claimant, it stands crystallized that neither notice nor pay
in lieu thereof and retrenchment compensation was paid to
him by the Corporation. Therefore, his retrenchment is
violative of the provisions of section 25-F of the Act. Issues
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[PART II—SEC. 3(ii)]
are, accordingly, answered in favour of the claimant and
against the Corporation.
Issue No.4
22. As testified by the claimant and reaffirmed by
Ms. Verma, Show cause notice dated 30.01.2008 was served
on him. He submitted reply to the said show cause notice
which was found not to be satisfactory. However, no
charge sheet was served on the claimant. No domestic
enquiry was conducted against him. His services were
dispensed with on the misconduct of entering service of
the Corporation on the basis of a forged transfer order.
When there is alleged misconduct, in that situation,
domestic enquiry was need of the hour, as laid down by
High Court of Delhi in Satish Chand Gupta (MANU/DE/
8209/2007), Soran Singh [2009(1) LLJ 700] and Pushpa Rani
(LPA No. 935 of 2011 decided on 13.07.2012). Law on the
same lines has been laid by the Apex Court in Lila Singh
[2007(2) LLJ 215] and Pravin Kumar Jain [1996(2) LLJ 674].
23. Evidently, it was a case of no enquiry. Service of
the claimant was dispensed with without conducting
domestic enquiry against him. Four standards were
delineated by the Labour Appellate Tribunal in Buckingham
& Carnatic Company Limited (1952 L.A.C. 490) 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 &
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 adjudication 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.
24. Enunciation (1) and (2), referred above, are
addressed to the bonafides 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 bona-fide in
initiating disciplinary action as well as in inflicting the
punishment. In initiating the action, ine 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.
25. 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 m 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 (II) 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].
26. In Delhi Cloth and General Mills Company [1972
(1) LLJ 180], the 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
¹Hkkx II—[k.M 3(ii)º
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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 before 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 Tribunal
holds that the enquiry proceedings have not been properly
held, then 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.
(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 finding 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 pendancy of the
proceedings to adduce such evidence, the duty of the
Tribunal is only to consider the validity of the domestic
enquiry as well as 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 Industrial Disputes Act, 1947.
26. 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. 15th 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,
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[PART II—SEC. 3(ii)]
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 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......"
27. 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, an 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.,"
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28. In Mahatta [(2012 (133) FLR 418)], the High
Court of Delhi dealt with a series of decision on the topic
and ruled that an industrial adjudicator, upon completion
of pleadings, is required to proceed with the adjudication
in the following manner:
(a) To examine whether the domestic enquiry
preceding the punishment is pleaded to have been
held and documents in support thereof filed.
(b) If the domestic enquiry is pleaded and the
documents in support thereof filed, and the
workman has challenged the validity of the said
domestic enquiry, to determine whether such
challenge is on any factual or purely legal grounds
and frame issues on the same.
(c) However, if domestic enquiry is not pleaded or if
pleaded but no documents in support thereof filed,
the question of framing any issue as to domestic
inquiry does not arise
(d) If an issue as aforesaid to the domestic inquiry
has been framed and the employer has also
sought opportunity in the alternative to establish
misconduct before the Industrial Adjudicator, to
frame issue thereon also, simultaneously with
framing issues on validity of inquiry.
(e) To, after hearing the parties consider whether in
the facts of the present case any prejudice (other
than as above) is likely to be caused to either of
the parties if evidence on both sets of issues is
led together. Only on finding, by a reasoned order,
a case of such prejudice or any other reason, the
trial is to be bifurcated into two stages. Else, the
parties to be directed to lead evidence on both
sets of issues together.
(f) To, if the evidence on both sets of issues has
been recorded together, first consider the
evidence only on the aspect of validity of the
inquiry and without being influenced in any
manner whatsoever by the depositions of the
witnesses on the merits of the dispute, i.e
misconduct with which the workman was charged
with. If the enquiry is found to be vitiated and a
finding in that regard is returned, the Industrial
Adjudicator may then proceed to adjudicate on
the basis of evidence in that respect, whether
misconduct has been established or not.
(g) The Industrial Adjudicator to, on case to case
basis, decide whether the arguments on both
aspects are to be heard together or at different
stages. However, as aforesaid an endeavor is to
be made to record the evidence of the witnesses
on both issues in one go only.
29. In the light of above law it is held that when no
domestic enquiry is conducted, the Corporation has a right
to prove misconduct before this Tribunal. In order to
establish misconduct of the claimant, Ms.Verma,
Administrative Officer, unfolded facts. She details that the
claimant gained employment with the Corporation on the
basis of a forged and fabricated transfer order dated
28.07.2004. He presented that order to Ayurveda
Panchkarma Hospital, Prashant Vihar, New Delhi. On the
basis of the said order, he was allowed to join duties in
Ayurveda Panchkarma Hospital, Prashant Vihar, New Delhi,
where he served till the fraud came to light. Show cause
notice dated 30.01.2008 was served and after consideration
of his reply, his services were dispensed with. Claimant
could not rebut facts unfolded by Ms.Verma. On the other
hand, he concedes that he never worked with the
Corporation prior to 04.08.2004. He made a bold admission
to the effect that he never served SDN Hospital, Shahdara.
He admits that order Ex. WW1/M1 and Ex. WW1/M2 are
fabricated. Therefore, it stands crystallized that the claimant
presented fabricated transfer order, on the basis of which
he was allowed to join his duties with Ayurveda Panchkarma
Hospital, Prashant Vihar, New Delhi. Order Ex.WW1/11 was
issued to allow him to join his duties, which was a clear
result of misrepresentation caused through letters
EX.WW1/M1 and ExWW1/M2. Corporation has been able
to establish misconduct of the claimant over the record.
30. Claimant committed forgery and fraud on the
Corporation. By his fraudulent acts, he joined services
with the Corporation at Ayurveda Panchkarma Hospital,
Prashant Vihar, New Delhi. His fraud does not vest him
with a right on the post. Such a person cannot claim any
right to continue on the post though fraud remained in the
dark for a period of more than four years.
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 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
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
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 satisfication 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.
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 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 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.l.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 degree 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
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1913
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.
36. 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].
37. Forgery and fraud are serious misconducts, which
entail loss of confidence in an employee. Such an employee
does not have right of retention in service. As held above,
the claimant presented a forged document, purporting to
be his transfer order from S.D.N. Hospital, Shahdara, to
Ayurveda Panchkarma HospitaL Prashant Vihar, New Delhi.
On that forged document he joined at Ayurveda
Panchkarma Hospital, Prashant Vihar, New Delhi. The
claimant had not acquired any right to the post, on which
he was allowed to join. Taking into account all these
aspects, I am of the considered opinion that termination/
discharge from service is the appropriate punishment for
an employee, who joins service on the basis of a forged
document.
38. 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.
39. Termination of service 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 termination of service
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.
40. No evidence worth name has been highlighted to
show that the claimant has been victimized or the
Corporation had malafide intention or followed unfair
labour practice. Whether the penalty of termination of
service would relate back to the date of order passed by
the Corporation? 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 banafide 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.
41. In Phulbari Tea Estate [1960 (1) 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
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
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.
42. In PH 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
"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".
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 untill 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 action of termination of service 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 at the action of termination of
service 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 termination of service would relate back to the date of
the order. Claimant could not bring it to light that the order
of termination of 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 termination of
service awarded to the claimant, is legal, fair and justified.
Claimant could not show any illegality in the order of
termination of service passed by the Corporation against
him. The issue is, therefore, answered in favour of the
Corporation and against the claimant.
¹Hkkx II—[k.M 3(ii)º
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54. In view of above discussion, I am of the
considered opinion that the claimant is not a person on
whom the Corporation can depend upon. Therefore action
of termination of his service is not to be interfered 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 Corporation in terminating
services of the claimant is legal and justified. Claim statement
is brushed aside. An award is passed in favour of the
Corporation and against the claimant. It be sent to
appropriate Govt. for publication.
Dated: 15.01 2014
Dr. R.K.YADAV, Presiding Officer
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New Delhi, the 4th February, 2014
S.O. 713.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 116/
2013) of the Cent. Govt. Indus. Tribunal/Labour Court-1,
Delhi now as shown in the Annexure, in the Industrial
Dispute between the employers in relation to the
management of M/s Garrison Egineers (P) Central, Delhi
and their workman, which was received by the Central
Govenrment on 28/01/2014.
[No. L-42025/03/2014-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 116/2013
Sh. Jayvir Singh
S/o Sh.Raghubansh Singh,
Through All Delhi Karmachari Union (Regd.)
52-C, Okhla Estate, Phase-3,
New Delhi-110020
…..Workman
Versus
M/s Garrison Engineers (P) Central,
434, Vest Cantt, Delhi Cantt -110010.
M/s K.Tech Engineers Builders Co. Pvt. Ltd.,
C-2488, Sushant Lok, Phase-1,
Gurgaon (Haryana)-122002.
…..Managements
AWARD
Shri Jayvir Singh was engaged by M/s K. Tech
Engineers Builders Co. Pvt. Ltd. (in short the contractor)
and sent to work in the premises of M/s Garrison Engineers
(P) Central (principal employer), where he served from June
1997 till June 2011. His services were dispensed with on
01.07.2011. He served a notice of demand on the contractor
seeking reinstatement in service with continuity and full
back wages. His demand was not conceded to by the
contractor. Constrained by these circumstances, he raised
a dispute before the Conciliation Officer, Since his claim
was contested by contractor, conciliation proceedings
ended into a failure. Since 45 days from the date of moving
an application before the Conciliation Officer expired,
Shri Jayvir opted to file his dispute before the Tribunal
using provisions of sub-section (2) of section 2A of the
Industrial Disputes Act, 1947 (in short the Act), without
being referred for adjudication by the appropriate
Government under section 10(1)(d) of the Act .
2. In claim statement, Shri Jayvir Singh pleads that
he joined services of the contractor/principal employer in
June 1997 as mechanic. He worked to the entire satisfaction
of his superiors. He rendered continuous service till
01.07.2011. Neither appointment letter was issued to him,
nor attendance card, pay slip, gazetted holidays, ESI
facilities, gratuity, minimum wages, as applicable under
labour laws, were provided to him. Despite several visits,
the contractor has failed to pay him his wages/bonus etc.
No notice for termination of his service was given to him.
Neither any charge sheet was served nor departmental
enquiry was held against him. Action of termination of his
services is illegal and uncalled for.
He is unemployed since the date of termination of
his service. He seeks reinstatement in service with
continuity and full back wages.
3. Arguments were heard at the bar, on maintainability
of the claim. Shri Rajesh Khanna, authorized representative,
advanced arguments 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:—
4. Shri Rajesh Khanna, authorised representative of
the claimant, submits that he is an employee of M/s
K.Tech. Engineers Builders Co. Pvt. Ltd. According to
him, the contractor engaged the claimant and sent him to
the premises of Garrison Engineers (P) Central, Delhi Cantt.,
Delhi, where he served from June 1997 till June 2011. When
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
claim statement is perused, it came to light that except in
the arrays of parties, where name of Garrison Engineers (P)
Central has been mentioned, nothing is there in the claim
statement to the effect that Garrison Engineers (P) Central
is the principal employer. Claim statement nowhere projects
that the claimant worked as contract employee with Garrison
Engineers (P) Central, Delhi Cantt., Delhi, Claim statement
merely presents that the claimant is an employee ot M/s K.
Tech. Engineers Builders Co. Pvt. Ltd.
5. Clause (a) of section 2 of the Act defines
appropriate Government. It would be expedient to know
the definition of phrase 'appropriate Government'.
Consequently, definition of the phrase is extracted thus:
"2(a) "appropriate Government" means—
(i) in relation to any industrial dispute concerning
any industry carried on by or under the authority
of the Central Government or by a railway
company or concerning any such controlled
industry as may be specified in this behalf by the
Central Government or in relation to an industrial
dispute concerning a Dock Labour Board
established under section 5A of the Dock Workers
(Regulation of Employment)Act. 1948(9 of 1948),
or the Industrial Finance Corporation of India
Limited formed and registered under the
Companies Act, 1956 (1 of 1956) or the Employees
State Insurance Corporation established under
section 3 of the Employees' State Insurance Act,
1948 (34 of 1948), or the Board of Trustees and
the State Board of Trustees section 5A and
section 5B, respectively, of the Employees'
Provident Fund and Miscellaneous Provisions
Act, 1952 (19 of 1952), or the Life Insurance
Corporation of India established under section 3
of the Life Insurance Corporation Act, 1956 (3l of
1956), or the Oil and Natural Gas Corporation
Limited registered under the Companies Act, 1956
(1 of 1956), or the Deposit Insurance and Credit
Guarantee Corporation established under section
3 of the Deposit Insurance and Credit Guarantee
Corporation Act, 1961(47 of 1961), or the Central
Warehousing Corporation established under
section 3 of the Warehousing Corporations Act,
1962 (58 of 1962), or the Unit Trust of India
established under section 3 of the Unit Trust of
India Act, 1963 (52 of 1963), or the Food
Corporation of India established under section 3,
or a Board of Management established for two or
more contiguous States under section 16, of the
Food Corporations Act, 1964 (37 of 1964), or the
Airports Authority of India constituted under
section 3 of the Airports Authority of India Act,
1994 (55 of 1994), or a Regional Rural Bank
established under section 3 of the Regional Rural
Banks Act, 1976 (21 of 1976), or the Export Credit
and Guarantee Corporation Limited or the
Industrial Reconstruction Corporation of India
Limited, the National Housing Bank established
under section 3 of the National Housing Bank
Act, 1987 (53 of 1987) or the Banking Service
Commission Act 1975 or an air transport service,
or a banking or an insurance company, a mine, an
oil field, a Cantonment Board, or a major port, an
company in which not less than fifty one percent
of the paid up share capital is held by the Central
Government, or any Corporation, not being a
Corporation referred to in this clause, established
by or under any law made by Parliament, or the
Central public sector undertaking, subsidiary
companies set up by the principal undertaking
and autonomous bodies owned or controlled by
the Central Government, the Central Government,
and
(ii) in relation to any other industrial dispute, the State
public sector undertaking, subsidiary companies
set up by the principal undertaking and
autonomous bodies owned or controlled by the
State Government, the State Government;
Provided that in case of a dispute between a
contractor and the contract labour employed through
the contractor in any industrial establishment where
such dispute first arose, the appropriate Government shall
be the Central Government or the Stated Government, as
the case may be, which has control over such industrial
establishment;
6. In relation to an industrial dispute, appropriate
Government can either mean the Central Government or
the State Government. The Central Government has
been defined under section 3(8) and the State Government
under section 3(60) of the General Clauses Act, 1897. In
relation to an industrial dispute concerning :—
1. an industry carried on or under the authority of
the Central Government, or a railway company or
2. an such controlled industry as may be specified
in this behalf by the Central Government, or
3. a Dock Labour Board established under section
5A of the Dock Workers (Regulation of
Employment) Act. 1948 (9 of 1948), or
4. the Industrial Finance Corporation of India Limited
formed and registered under the companies Act,
1956, or
5. the Employees' State Insurance Corporation
established under section 3 of the Employees' State
Insurance Act, 1948 (34 of 1948), or
6. the Board of Trustees constituted under section
3A of the Coal Mines Provident Fund and
¹Hkkx II—[k.M 3(ii)º
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1917
Miscellaneous Provisions Act, 1948( 46 of 1948),
or
7. the Central Board of Trustees and the State Boards
of Trustees constituted under section 5A and
section 5B. respectively, of the Employees'
Provident Fund and Miscellaneous Provisions
Act, 1952 (19 of 1952), or
8. the Life Insurance Corporation of India
established under section 3 of the Life Insurance
Corporation Act, 1956 (31 of 1956), or
9. the Oil and Natural Gas Corporation Limited
registered under the Companies Act, 1956, or
10. the Deposit Insurance and Credit Guarantee
Corporation established under section 3 of the
Deposit Insurance and Credit Guarantee
Corporation Act. 1961 (47 of 1961), or
11. the Central Warehousing Corporation established
under section 3 of the Warehousing Corporations
Act, 1962 (58 of 1962), or
12. the Unit Trust of India established under section
3 of the Unit Trust of India Act, 1963 (52 of 1963),
or
13. the Food Corporation of India established under
section 3 of the Food Corporation Act, 1964 (37 of
1964), or
14. a Board of Management established for two or
more contiguous States under section 16 of the
Food Corporations Act, 1964 (37 of 1964), or
15. the Airports Authority of India constituted under
section 3 of the Airports Authority of India Act,
1994 (55 of 1994), or
16. a Regional Rural Bank established under section
3 of the Regional Rural Banks Act. 1976 (21 1976),
or
17. the Export Credit and Guarantee Corporation
Limited, or
18. the Industrial Reconstruction Bank of India
Limited, or
19. the National Housing Bank established under
section 3 of the National Housing Bank Act. 1987
(53 of 1987), or
20. an air Transport service or
21. a banking company, or
22. an insurance company, or
23. a mine, or
24. an oil-field, or
25. a Cantonment Board, or
26. a "major port, or
27. any company in which not less than fity-one per
cent of the paid-up share capital is held by the
Central Government, or
28. any corporation, not being a corporation referred
to in this clause, established by or under any law
made by Parliament, or
29. the Central public sector undertaking, or
30. subsidiary companies set up by the principal
undertaking and autonomous bodies owned or
controlled by the Central Government, the
appropriate Government would mean the Central
Government".
7. In relation to any industrial dispute, other than
those specified in sub clause (i) of clause (a) of section 2 of
the Act, appropriate Government would be State
Government. In other words, all industrial disputes which
are outside the purview of sub-clause (i) are concern of the
State Government under sub-clause (ii) of clause (a) of
Section 2 of the Act. Thus, the general rule is that an
industrial dispute raised between employer and his
employee would be referred for adjudication by the State
Government, except in cases falling under section 2(a)(i) of
the Act. Consequently, where industrial dispute which does
not fall within the ambit of section 2(a)(i) of the Act,
appropriate Government cannot be the Central Government.
8. Who shall be the appropriate Government for the
present dispute? Answer has been provided in clause (a)(ii)
of Section 2 of the Act, which contemplates that in relation
to any other industrial dispute the State Government is the
appropriate Government. However, this Tribunal is not
oblivious of the proposition that union territory of Delhi
enjoins a special status under the Constitution. Delhi is a
Union Territory having some special provisions with
respect to its administration. Article 239 of the Constitution
speaks that every union territory shall be administered by
the President acting, to such extent as he thinks fit, through
an administrator to be appointed by him with such
designation as he may specify. Article 239 AA makes special
provisions with respect to Delhi, detailing therein that the
union territory of Delhi shall be called the National Capital
Territory of Delhi and the administrator thereof appointed
in article 239 shall be designated as the Lieutenant Governor.
There shall be Legislative Assembly, and provisions of
article 324 to 327 and 329 shall apply in relation the
Legislative Assembly of the National Capital Territory of
Delhi as they apply in relation to a State. The Legislative
Assembly shall have power to make laws for the whole or
any part of the National Capital Territory with respect to
the matters enumerated in the State List or the Concurrent
List except the matters with respect to entires 1, 2 and 18 of
1918
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
the State List and entries 64, 65 and 66 of that list, in so for
they relate to the said entries 1, 2 and 18. The Council of
Ministers shall be headed by the Chief Minister to aid and
advise the Lt. Governor in exercise of his functions in
relation of the matters with respect to which the Legislative
Assembly has power to make laws. In case difference of
opinion between Lt. Governor and his ministers on any
matter, the Lt. Governor shall refer it to the President for
decision and act according to the decision given thereon
by the President and pending such decision the Ld.
Governor is competent to take action in urgent matters.
The Chief Minister shall be appointed by the President
and Ministers shall be appointed by the President on the
advise of the Chief Minister. Therefore, it is evident that
though a Legislative Assembly is there in National Capital
Territory of Delhi, yet it is a union territory administered by
the President through the Administrator appointed by him.
In case of difference of opinion between the Administrator
and the Ministers, it is the decision of the President that
prevails. Consequently the State Government merges with
the Centre when Lt. Governor administer the Union
Territory or in case of difference of opinion the President
decides the issue.
9. State Government has been defined in clause (60)
of section 3 of the General Clauses Act, 1897, in respect of
anything done or to be done after commencement of the
Constitution (7th Amendment) Act, 1956 in case of State,
the Governor and in a Union Territory, the Central
Government. Therefore, it is evident that for a Union
Territory, no distinction has been made between the State
and the Central Government. The President administers
the Union Territory, through an Administrator appointed
by him. In case of National Capital Territory, of Delhi, it is
being administered by the President though the Lieutenant
Governor. Though there is a Legislative Assembly and
Council of Ministers, yet in case of difference of opinion
between the Lieutenant Governor and Council of Ministers,
the decision of the President shall prevail, which fact make
it clear that for the purpose of administration of the union
territory, the Central and the State Government merges over
certain matter.
10. High Court of Delhi was confronted with such a
proposition in M.K. Jain (1981 Lab. I.C. 62) wherein it was
laid as follows:
"The award was sought to be voided, inter alia, on
the ground that by virtue of the constitution and
composition of the Corporation, Central Government
was the only authority competent to make a reference
of the dispute to the Industrial Court and that the
reference by the Lieutenant Governor of Delhi was,
therefore, in excess of powers. Even otherwise no
exception could be taken to the order of reference,
even if it be assumed that Central Government was
the appropriate Government, in as much as the
distinction between the Central and the State
Government in relation to the Union Territory in our
constitutional framework is rendered illusory, Union
Territory is administered by the President of India
under Article 239 of the Constitution of India, acting
to such extent as he thinks fit. Therefore the
Administrator, to be appointed by him, in the case of
Union territory, there is an amalgamation of the
constitutional classification of legsialtive and
executive powers between the Centre and the States.
According to section 3(60) of the General Clauses
Act, the "Central Government "in relation to the
administration of Union Territory means the
Administrator acting within the scope of authority
given to him under article 239 of the Constitution of
India and in terms of section 3(60) of the General
Clauses Act, "State Government" as respects
anything done or to be done in the Union Territory
means the Central Government. In the case of Union
Territory, therefore, the Central and State
Governments merge and it is immaterial whether an
order of reference is made by one or the other. This
contention must, therefore, fail".
11. Again in Mahavir [97 (2002) DLT 922] the High
Court was confronted with the same proposition. Relying
the precedent in M.K. Jain (supra) with profit it was ruled
that reference made by the Government of NCT of Delhi
was not bad despite the fact that appropriate Government
was the Central Government. Difference of State
Government and Central Government goes to the brink of
abolition when State Government has been defined as the
Central Government by clause (60) of section 3 of the
General Clauses Act and Delhi is being administered by
the President through the Administrator appointed by him.
Therefore, the aforesaid precedents make it clear that a
status of union territory of Delhi can be termed as Central
Government in certain matters.
12. Whether the Central Government can be termed
as State Government for any purpose? Article 53 of the
Constitution provides that the executive power of the Union
shall vest in the President and shall be exercised by him
either directly or through officers subordinate to him in
accordance with the Constitution. Article 73 defines extent
of executive power of the Centre, that is, on matters which
shall be controlled and administered by the Central
executive. It has been detailed therein that the executive
power of the union shall extend—(a) to the matters with
respect to which Parliament has power to make laws and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue of
any treaty or agreement. The extent of the State's executive
power is set out in article 161 of the Constitution.
Administrative relations between the union and the states
is to be dealt in accordance with the provisions of Article
256, 257, 258, 258A, 260 and 261 of the Constitution. Article
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1919
258A was added by 7th Amendment Act, 1956 to make a
matching provision to clause (1) of Article 258 of the
Constitution. While exercising powers contained in clause
(1) of Article 258, the President is empowered to entrust
union functions to a State Government or its officers. There
was no provisions enabling the Governor of a State to entrust
state functions to the Central Government or its officers.
That lacuna was found to be of practicable difficulty and
provisions of Article 258 A were inserted in the Constitution.
Thus it is evident that arena of union executive powers and
the state executive powers are well defined.
13. Clause (8) of section 3 of the General Clauses Act
defines the Central Government in relation to administration
of Union Territory, the Administrator thereof acting within
the scope of authority given to him under Article 239 of the
Constitution. Therefore, it is evident that Administrator of
Government of N.C.T. of Delhi has been defined to mean as
Central Government to administer the Union Territory of
Delhi. Hence for the limited purposes, provided in the
Constitution, executive functions of the Central
Government can be entrusted to Government of a State or
its Officers. The Central Government would not be termed
as the State Government, when those functions are being
executed by the State Government or its officers. So
executive power of the Union can be exercised, in certain
matters by the State Government or its officers but in that
situation too the Central Government would not be termed
as the State Government. The special provisions referred
above would not grant jurisdiction to this Tribunal to
entertain the dispute under sub-section (2) of section 2-A
of the Act.
14. There is other facet of the coin. This Tribunal
was constituted vide notification No. A-11020/33/75-CLT
dated 30.9.76. It was provided in the notification that the
Tribunal has been constituted under the powers provided
in sub-section (1) of Section 7-A of the Act, with its head-
quarter at New Delhi. Another notification was issued on
that very date empowering the Tribunal to adjudicate
applications moved in sub-section (2) of section 33-C of
the Act, in relation to the workman employed in any
'industry' in the Union Territory of Delhi, in respect of which
the Central Government is the appropriate Government.
Therefore, the Tribunal has been empowered to adjudicate
industrial disputes, in respect of which Central Government
is the appropriate Government.
15. In view of the findings recorded above, it is
concluded that the appropriate Government for M/s K.
Tech Engineers Builders Co. Pvt. Ltd. is not the Central
Government. Claimant cannot approach this Tribunal for
adjudication of his dispute, under sub-section (2) of section
2-A of the Act. Resultantly, claim is brushed aside. An
award is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dated: 13.08.2013
Dr. R.K. YADAV, Presiding Officer
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New Delhi, the 4th February, 2014
S.O. 714.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 92/2005)
of the Cent. Govt. Indus. Tribunal/Labour Court, Jaipur
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
Post Master, Jaipur and their workman, which was received
by the Central Government on 28/01/2014.
[No. L-40012/160/2002-IR (DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, JAIPUR
Sh. N.K. Purohit, Presiding Officer
I.D. 92/2005
Reference No. L-40012/160/2002-IR(DU) dated: 8.8.2005
Sh. Dharamveer
S/o Shri Mohanlal Sharma
R/o Village & Post Khajuwala
Society Road, Disit: Bikaner,
Bikaner-334023.
V/s
1.
The Post Master
Post Office, Khajuwala,
Bikaner.
2.
Superintendent Post Office
Rani Bazar, Bikaner.
PRESENT:
For the Applicant
: Sh. Ashok Joshi.
For the Non-Applicants : Sh. Brahmanand Sandhu.
AWARD
25.3.2013
1. The Central Government in exercise of the powers
conferred under clause (d) of Sub-section 1 & 2(A) of
1920
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Section 10 of the Industrial Disputes Act, 1947 has referred
the following Industrial Dispute to this tribunal for
adjudication:—
"Whether the action of the management of the Post
Master, P&T Department, Khajuwala, Bikaner in
terminating the services of Shri Dharamveer S/o
Shri Mohanlal Sharma w.e.f. 23.09.1993 is just & legal?
If not, to what relief the workman is entitled?"
2. The workman in his statement of claim has pleaded
that he was employed as Extra Departmental Dak Agent
(EDDA) on 8.3.91 by the postmaster, Khajuwala, Bikaner
but he was removed from service after four month.
Thereafter, he was again employed on 8.12.91 as EDDA.
He has further pleaded that despite he had worked
continuously during period 8.12.91 to 23.9.93 as EDDA,
non-applicant terminated his services on 23.9.93 without
any notice or pay in lieu of notice in violation of provisions
of section 25-F of the I.D. Act, & no seniority list was
prepared as per Rules 77 & 78. Thus, the workman has
prayed that his termination order dated 23.9.93 be set aside
& has also prayed for his reinstatement with back wages &
continuity of service.
3. In reply, the non-applicant has submitted that the
non-applicant is not an industry' within the purview of
section 2(j) of the I.D. Act in the light of decisions of Hon'ble
Apex Court rendered in S.L.P. no. 587-878/92 & 3385-86/96,
therefore, claim is not maintainable.
4. The non-applicant has also submitted that
Sh. Jagdish Prasad who was working as EDA at post office
Khajuwala, Bikaner was 'put off duty' vide order dated 8.3.91
of the Inspector, Post Office (North) sub-division Bikaner,
therefore, the applicant was engaged by the Sub Post
Master, Khajuwala as substitute provisional during period
8.3.91 to 7/91. Thereafter, the applicant had himself left the
service. During period 9.7.91 to 31.7.91 & from 1.8.91 to
5.12.91 Sh. Narayan Harsh & Sh. Ramavatar Swami had
worked as substitute/provisional. Thereafter, from 8.12.91
to 23.9.93 the applicant had worked as substitute/
provisional under EDA (Conduct & Service) Rules, 1964.
On 24.9.93 Sh. Jagdish Prasad has joined his duties;
therefore, the above stop gap arrangement automatically
came to end.
5. The non-applicant has denied this fact that
workman was engaged as EDDA. It has been submitted
that under Rules 1964 there is no provision for preparing
seniority list for substitute/provisional & in case of
substitute/provisional no notice or notice pay was to be
given to the applicant. Therefore, the provisions of section
25-F of the I.D. Act are not attracted.
6. The applicant has submitted his affidavit &
documents Ex-W-1 to W-22 in support of his claim whereas
the non-applicant has filed the counter affidavit of
Sh. Kishori Lal Saini, Superintendent, post office, Bikaner.
7. Heard the Ld. Representatives on behalf of both
the parties & perused the relevant record.
8. In view of the pleadings of the parties following
questions crop-up for consideration:—
i. Whether non-applicant establishment is an
Industry' u/s 2(j) of the I.D. Act?
ii. Whether the applicant has worked as EDDA
during period 8.12.91 to 23.9.93 in the post office
at Khajuwala & whose services were terminated
on 23.9.93 in violation of provisions of section
25-F of the I.D. Act.
iii. What relief the applicant is entitled to?
Point No. I
9. The Ld. Representative on behalf of the non-
applicant submits that P&T Department is not an industry,
within the meaning of industry u/s 2(j) of the I.D. Act. In
this regard he has relied on decisions of the Hon'ble
Supreme Court rendered in SLP 3385-86/96 & 5877-878/92.
10. Per contra, Ld. Representative for the applicants
contends that in view of the legal propositions laid down
in decision rendered in 1 LLJ 1998 256 (S.C.) the non-
applicant establishments is also an 'industry' u/s 2(j) of the
I.D. Act.
11. In I LLJ 1998 255 G.M. Telecom V/s Srinivasa Rao
& Others, the question which was placed specially before
the Bench of Hon'ble three Judges of the Hon'ble Apex
Court was whether the Telecom department of the Union
of India was not an industry within the meaning of section
2(j) of the I.D. Act. The Hon'ble Bench decided that it was
an 'industry'. In the said decision Hon'ble Apex Court has
observed as under:—
"A two-judge Bench of this Court in Theyyam
Joseph's case (supra) held that the functions of the
Postal Department are part of the sovereign functions
of the State and it is, therefore, no an 'industry' within
the definition of Section 2(j) of the Industrial Disputes
Act, 1947. Incidentally, this decision was rendered
without any reference to the seven-Judge Bench
decision in Bangalore Water Supply (supra). In a
later two-Judge Bench decision in Bombay Telephone
Canteen 'Employees' Association case (supra), this
decision was followed for taking the view that the
Telephone Nigam is not an 'industry'. Reliance was
placed in Theyyam Joseph's case (supra) for that
view. However, in Bombay Telephone Canteen
Employees' Association case (i.e. the latter decision),
we find a reference to the Bangalore Water Supply
case. After referring to the decision in Bangalore
Water Supply case (supra), it was observed that if
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1921
the doctrine enunciated in Bangalore Water Supply
case is strictly applied, the consequence is
'catastrophic. With respect, we are unable to
subscribe to this view for the obvious reason that it
is in direct conflict with the Seven-Judges Bench
decision in Bangalore Water Supply case (supra) by
which we are bound. It is needless to add that it is
not permissible for us, or for that matter any Bench
of lesser strength, to take a view contrary to that in
Bangalore Water Supply case (supra) or to bypass
that decision so long as it holds the field. Moreover,
that decision was rendered long back-nearly two
decades earlier and we find to reason to think
otherwise. Judicial discipline requires us to follow
the decision in Bangalore Water Supply case (supra).
We must, therefore, add that the decision in Theyyam
Joseph case (supra) and Bombay Telephone Canteen
Employees' Association case (supra) cannot be
treated as laying down the correct law. This being
the only point for decision in this appeal, it must
fail."
12. The Ld. Representative on behalf of the non-
applicant has not submitted the copies of the SLPs referred
to by him in support of his contention but the decisions
referred to by him has been considered in the decision
supra. In Theyyam Josheph Case Hon'ble Apex Court held
that the function of the postal department are part of the
sovereign function of the state & Postal Department is not
an 'industry' within the definition of section 2(j) of the I.D.
Act. After considering earlier decisions in Theyyam Josheph
Case and Bombay Telephone Canteen Employees'
Association case, Hon'ble Apex Court has held that said
decisions cannot be treated as laying down the correct
law. Thus, in view of the legal proposition laid down by
Hon'ble Apex Court in 1 LLJ 1998 255, the contention of
the non-applicant that Postal Department is not an 'industry'
is not sustainable.
Point No. II
13. The Ld. Representative for the applicant submits
that applicant had worked as EDDA in the post office at
Khajuwala during period 8.12.91 to 7/91 & 8.12.91 to 23.9.93.
Despite, he had worked continuously for more than two
years his services have been terminated on 24.9.93 without
any notice or notice pay in violation of section 25-F of the
I.D. Act. He further submits that the I.D. Act is a special
Act & the Rules 1964 cannot override the mandatory
provisions of section 25-F of the said act. The case of the
applicant stands proved on the basis of his affidavit fit
Acquittance Rolls Ex-W-1 to Ex-W-22, therefore, the
applicant is entitled for his reinstatement with back wages.
14. Countering these submissions, the Ld.
Representative on behalf of the non-applicants contends
that the applicant was working as substitute/provisional
during 'put off duty' period of Sh. Jagdish Prasad, EDA
under the provisions of Rules, 1964. He was never
appointed on the post of EDDA. Neither any appointment
letter was not issued nor was any termination order passed
in the matter of applicant. Since, Service Rules, 1964 were
applicable on the applicant, compliance of provisions of
the section 25-F of the I.D. Act was not required.
15. I have given my thoughtful consideration to the
above rival submissions.
16. The applicant Sh. Dharamveer has stated that he
had worked continuously during period 8.12.91 to 23.9.93
as EDDA on monthly basis salary but his services have
been terminated by the non-applicant on 23.9.93 without
any notice or notice pay in lieu of notice. The applicant has
also submitted Acquittance Rolls Ex-W-1 to W-22 in support
of his claim.
17. In rebuttal, the non-applicant's witness
Sh. Kishori Lal Saini has stated that the applicant was not
appointed as EDDA. The applicant has worked as
substitute of Sh. Jagdish Prasad who was 'put off duty' &
the above stop gap arrangement was done under the Rules,
1964. In cross examination he has admitted that the
applicant had worked continuously during period 8.12.91
to 23.9.93 & monthly salary was paid to him during said
period. He has also admitted that applicant was paid
through Acquittance Rolls Ex-W-1 to W-22. He has also
admitted that when 'put off duty' of Sh. Jagdish Prasad was
revoked on 24.9.93, while removing the applicant no notice,
notice pay or compensation was given to him.
18. Thus, the case of the applicant is that he had
worked as EDDA during period 8.12.91 to 7/91 & 8.12.91 to
23.9.93 whereas non-applicant has contended that EDDA
Sh. Jagdish Prasad was 'put off duty' on account of criminal
proceedings against him and the applicant had worked as
his substitute & this stop gap arrangement was done by
Sub Post Master at local level & when Sh. Jagdish Prasad,
EDA joined his duty, the applicant was removed from the
service.
19. On perusal of the Acquittance Rolls Ex-W-4 to
Ex-W-22, it reveals that they are pertaining to period Dec.,
91 to Sep., 93. The non-applicant's witness Sh. Kishori Lal
Saini has admitted that payment to the applicant was made
through above Acquittance Rolls. In the said Acquittance
Rolls the applicant has been shown as EDDA.
20. It is not in dispute that the applicant had
continuously worked in post office at Khajuwala during
period 8.12.91 to 23.9.93. Admittedly, when 'put off duty'
of Sh. Jagdish Prasad was revoked on 24.9.93, the
applicant was removed from the job. It is also not in dispute
that prior to 23.9.93 the workman had worked under the
non-applicant for more than 240 days during preceding
12 months from the said date. Admittedly, no notice or
notice pay in lieu of notice was given to the applicant on
23.9.93.
1922
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
21. This legal position is not in dispute that if a
workman had worked for more than 240 days in preceding
12 months from the date of his alleged termination, his
services cannot be terminated without complying with the
mandatory provisions of section 25-F of the I.D.Act.
22. Section 25(j) of the I.D. Act says that the
provisions of Chapter V-A shall have effect not
withstanding anything inconsistence therewith contend
in any other law, therefore, even if the applicant had worked
as substitute or provisional for more than 240 days during
'put off duty' of Sh. Jagdish Prasad, EDA under provisions
of Rules, 1964 during preceding 12 months from the date of
alleged termination i.e. 23.9.93, the provisions of section
25-F are attracted, therefore, the act of the non-applicant in
terminating the services of the applicant on 23.9.93 without
any notice, notice pay or compensation was in violation of
section 25-F of the I.D. Act.
Point No. III
23. The learned representative on behalf of the
applicant has submitted that termination of the workman is
in violation of the section 25-F of the I.D. Act therefore, the
workman be reinstated with all consequential benefits.
24. This legal position is not in dispute that in case
of non-compliance of section 25-F the workman can be
reinstated with other consequential reliefs.
25. Earlier in cases of termination in violation of
section 25-F reinstatement of the workman with full back
wages used to be automatically granted, but keeping in
view several other factors, a change in the said trend is
now found in the recent decisions of the Hon'ble Supreme
Court. In a large number of decisions in the matter of grant
of relief of the kind, Hon'ble Apex Court has distinguished
between a workman who does not hold a post and a
permanent employee.
26. In recent decision (2010) 1 SCC (L&S) 545 Jagbir
Singh V/s Haryana State Agriculture Mktg. Board after
considering the earlier decisions referred to therein on the
point should an order of reinstatement automatically follows
in a case of violation of section 25-F of the I.D. Act, Hon'ble
Apex Court has observed that:—
"It would be, thus seen that by a catena of decisions
in recent time, this Court has clearly laid down that
an order of retrenchment passed in violation of
Section 25-F although may be set aside but an award
of reinstatement should not, however, be
automatically passed."
27. Continuing this line of approach in decision (2010)
2 SCC (L&S) 376 Hon'ble Apex Court has observed as
under:—
"While the earlier view of the Court was that if an
order of termination was found to be illegal, normally
the relief to be granted would be reinstatement with
full back wages. However, with the passage of time it
came to be realized that an industry should not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all. The relief to be granted is discretionary
and not automatic. A person is not entitled to get
something only because it would be lawful to do so.
The changes brought out by the subsequent
decisions of the Supreme Court probably having
regard to the changes in the policy decisions of the
Government in the wake of prevailing market
economy, globalization, privatization and
outsourcing was evident. Hence now there is no such
principle that for an illegal termination of service the
normal rule is reinstatement with back wages, and
instead the Labour court can award compensation."
"There has been a shift in the legal position laid
down by the Supreme Court and now there is no
hard-and-fast principle that on the termination of
service being found to be illegal reinstatement with
back wages is to be awarded. Compensation can be
awarded instead, at the discretion of the Labour
Court, depending on the facts and circumstances of
the case."
28. In present matter, the applicant was orally
engaged during 'put off duty' period of regular EDA. He
was not given regular appointment. Further, his services
were terminated 20 years ago & his dispute was referred in
the year 2005. The applicant has not given any reason for
inordinate delay in raising the dispute. Therefore, keeping
in view the nature of employment & having regard to the
entire facts & circumstances of the case, instead of
reinstating him the interest of justice will be sub served by
paying compensation to the workman instead & in lieu of
relief of reinstatement in service.
29. Accordingly, the reference is answered in favour
of the workman & it is held that the action of the non-
applicant Department in terminating the services of the
workman being in violation of section 25-F of the Act, is
illegal & unjustified. Therefore, the non-applicant is directed
to pay compensation to the workman worth Rs. 30000
(Thirty Thousand Only) instead & in lieu of his
reinstatement of service. The payment shall be made within
eight weeks from the publication of the award failing which
it shall carry interest @ 9% per annum.
30. Award as above.
N.K. PUROHIT, Presiding Officer
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 715.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ iksLV ekLVj
tujy] t;iqj ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1923
ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k ,oa Je U;k;ky;] t;iqj ds iapkV ¼lanHkZ la[;k 32@2011½
dks izdkf'kr djrh gS]tks dsUnzh; ljdkj dks 28@01@2014 dks izkIr
gqvk FkkA
[lañ ,y&40011@09@2011&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxkiky] vuqHkkx vfèdkjh
New Delhi, the 4th February, 2014
S.O. 715.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 32/2011)
of the Central Government Industrial Tribunal/Labour
Court, Jaipur now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Chief Post Master General, Jaipur and their
workman, which was received by the Central Government
on 28/01/2014.
[No. L-40011/09/2011-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, JAIPUR
PRESENT:
N.K. Purohit, Presiding Officer
I.D. 32/2011
Reference No. L-40011/9/2011-IR(DU)
dated 3.10.2011
Smt. Kaushalya Bai
Jawahar Colony
Jhalawar (Raj.)
V/s.
Chief Post Master General
Rajasthan Circle, Deptt. of Posts
Jaipur-302001.
AWARD
25.3.2013
1. The Central Government in exercise of the powers
conferred under clause (d) of Sub-section 1 & 2(A) of
Section 10 of the Industrial Disputes Act 1947 has referred
the following Industrial dispute to this tribunal for
adjudication:—
"Whether the action of the Management of Chief
Post Master General Rajasthan Division, Jaipur
in treating the workman Smt. Kaushalya Bai as a
'Part Time Contingent Labour' and accordingly
paying her only Rs. 1863 is legal & justified? what
relief the workman is entitled to and from which
date?"
2. Pursuant to the receipt of reference order registered
notices were issued to both the parties.
3. The authority letters on behalf of the both the
parties were filed on 21.12.11. The applicant sought
adjournments on 21.12.11, 23.2.12, 30.4.12 & 2.7.12 for
filing the claim statement. On 12.9.12 none appeared on
behalf of the non-applicant, therefore, order to proceed
ex-party was passed against the non-applicant & on said
date one more opportunity for filing the claim statement
was given to the applicant. On next date also the
applicant did not file her claim statement. The
representative on behalf of the applicant submitted that
he could not contact the applicant and sought one more
adjournment for filing claim statement but on subsequent
date 24.2.13 neither applicant nor her representative
appeared to file statement of claim. Thus, despite several
opportunities provided to the applicant, she has failed
to file her statement of claim.
4. In above factual backdrop, there is no material on
record to adjudicate the reference under consideration on
merits. It appears that applicant is not interested to contest
the case further. Therefore, "No Claim Award" is passed in
this matter. The reference under adjudication is answered
accordingly.
5. Award as above.
N.K. PUROHIT, Presiding Officer
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 716.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj dfe'uj] fnYyh
E;qfufliy dkjiksjs'ku] ubZ fnYyh ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1] fnYyh ds
iapkV ¼lanHkZ la[;k 303@2011½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42011@45@2011&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 716.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D No. 303/
2011) of the Central Government Industrial Tribunal/
Labour Court-I, 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, New Delhi and their workman,
which was received by the Central Government on
28/01/2014.
[No. L-42011/45/2011-IR(DU)]
P. K.VENUGOPAL, Section Officer
1924
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No.303/2011
Shri Azad Singh, S/o Shri Meer Singh, through
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
A daily wager safai karamchari was engaged by
Municipal Corporation of Delhi (in short the Corporation)
in the year 1968. His services were regularized by the
Corporation with effect from 19.04.1974. At the time of
regularization of his services, the daily wager safai
karamchari projected his date of birth as 10.04.1947. The
date of birth, so projected by the safai karamchari, was
recorded in his service records. On the basis of date of
birth recorded in his service record, the said safai karamchari
superannuated from service on 30.04.2007. After
superannuation of his service, he approached the Municipal
Employees Union (in short the union) claiming that he was
wrongly retired from service. According to him, he had
submitted an affidavit To the Corporation in April 1974,
wherein he claimed his date of birth as 10.04.1951. The
union sent a notice of demand on his behalf pleading
therein that he may be reinstated in service with continuity
and full back wages, which demand was not conceded to
by the Corporation. Ultimately, a dispute was raised before
the Conciliation Officer. Since the dispute was contested
by the Corporation, conciliation proceedings ended into a
failure. On consideration of failure report, submitted by the
Conciliation Officer, appropriate Government referred the
dispute to this Tribunal for adjudication vide Order No.
L-42011/45/2011-IRDU), New Delhi dated 12.08.011 with
following terms:
"Whether the action of the management of Municipal
Corporation of Delhi in terminating the services of
Shri Azad Singh ex-Safai Karamchari on the basis of
date of birth of Medical Board of Municipal
Corporation of Delhi, i.e. 10.04.1947 instead of
verifying the corrections of School Leaving
Certificate, issued by Principal, Govt. Boys Secondary
School, Chirag Delhi, New Delhi, giving date of birth
as 10.10.1951 without any retirement benefits etc. is
legal and justified? What relief/benefits the workman
is entitled to and from which date?"
2. Claim statement was filed by the safai karamchari,
namely, Shri Azad Singh pleading therein that he was
employed by the Corporation as a daily wager in the year
1968. He was paid minimum wages notified from time to
time under the Minimum Wages Act, 1946. He rendered
continuous service to entire satisfaction of his superiors.
As such, his services were regularized with effect from
19.04.1974. At the time of regularization of his service, the
Corporation asked him to submit some proof regarding
date of his birth. Since he was not well educated and no
document was traceable at that time, he submitted an
affidavit to the Corporation in the year 1974, wherein date
of birth was detailed as 10.04.1951, as disclosed by elders
in the family. Subsequently, he was medically examined
and as per medical records, his date of birth was shown as
10.04.1947. On the basis of his medical examination, he was
retired from service on 30.04.2007. Subsequently, he got
school leaving certificate from the Government Boys
Secondary School, Chirag Delhi. New Delhi, where he
studied upto the 5th standard, in school leaving certificate,
his date of birth is mentioned as 10.10.1951. He submitted
copy of school leaving certificate to the Corporation, but
his services were terminated with effect from 30.04.2007, in
the guise of attaining age of superannuation. The action of
terminating his services is totally illegal, mala fide,
unjustified for the following, amongst other reasons:
(i) Because his correct date of birth is 10.10.1951 as
per school leaving Certificate issued by the
Principal, Govt. Boys Secondary School,
Chirag Delhi, New Delhi, which is conclusive proof
about his date of birth and as per his date of birth,
the date of his superannuation will be 2011.
(ii) Because as per affidavit submitted by him to the
Corporation, his date of birth is 1951 and even as
per that date, he would have retired only in 2011.
(iii) Because the Corporation has not paid any
amount to him at the time of alleged retirement,
consisting of all retiral benefits, viz. gratuity,
computation of pension amount, leave
encashment, insurance amount, general provident
fund etc.
(iv) Because the Corporation has forced non-
employment on him in the guise of attaining age
of superannuation.
(v) That in the case of retrenchment, no seniority list
was displayed, no notice was given, nor any notice
pay was either offered or paid to him. No service
compensation was either offered or paid to him.
(vi) He has not committed misconduct of any kind
whatsoever. He has not been served with any
charge sheet. No domestic enquiry was conducted
against him and he was not afforded any
opportunity of being heard.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1925
(vii) That even otherwise, the impugned termination
of service is violative of Section 25F, G and H of
the Industrial Disputes Act, 1947 read with Rules
76, 77 and 78 of the Industrial Disputes (Central)
Rules, 1957.
(viii) That juniors to him have been retained in service
while he was thrown out of job.
(ix) That the action of the Corporation is violative of
Article 14, 16 and 21 of the Constitution of India.
3. The claimant projects that a notice of demand was
sent to the Corporation on 17.09.2008. He is unemployed
since the date of his forced non-employment, that is from
30.04,2007. He claims that an award may be passed declaring
action of the Corporation in terminating his services on the
basis of date of birth recorded as per findings of medical
board instead of verifying correctness of date of birth from
school leaving certificate and he may be reinstated in service
with continuity and full back wages, besides costs of
litigation.
4. Claim was demurred by the Corporation pleading
that the claimant superannuated from service on 30.04.2007,
since his date of birth was disclosed by him as 10.04.1947
at the time of his medical examination conducted at the
time of regularization of his services. At the time of
preparation of his service book and filling of nomination
form for his provident fund, he gave his date of birth as
10.04.1947. Since he gave his date of birth as 10.04.1947, it
was recorded in his service records. On the basis of the
said date of birth, he was superannuated from service on
30.04 2007. The Corporation disputes that date of birth of
the claimant is 10.10.1951. It has been projected that action
of superannuating him on 30.04.2007 is in accordance with
law. The claimant projects a wrong claim. He is not entitled
for any relief, not to talk of relief of reinstatement in service
with continuity and full back wages. His claim may be
dismissed, pleads the Corporation.
5. On perusal of pleadings, following issues were
settled:—
(i) Whether date of birth of the claimants 10 04.1947?
If so, its effects.
(ii) As in terms of reference.
(iii) Relief.
6. To discharge onus resting on him, claimant entered
the witness box to testify fact. No witness was examined
by the Corporation.
7. Arguments were heard at the bar Shri Pradeep
Kaushik, authorized representative, advanced arguments
on behalf of the claimant. 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
8. In affidavit Ex.WW1/A, tendered as evidence, the
claimant unfolds that his date of birth is 10.10.1951, as per
school leaving certificate issued by Government Boys
Secondary School, Chirag Delhi, New Delhi. His date of
birth has been wrongly shown as 10.04.1947 by the
Corporation in his service records. The said date of birth
was recorded on the basis of his medical examination,
conducted at the time of regularization of his services.
During course of cross examination, he projects that he is
a school drop out from 6th standard. When he was engaged
by the Corporation for the first time, he was aged about
20-21 years. He joined services of the Corporation for the
first time in 1968. Ex. WW/M1 bears thumb impression as
well as his signatures at points A and B respectively. School
leaving certificate Ex. WW1/6 was obtained by him about
20-22 years ago. He never submitted copy of school leaving
certificate to the Corporation.
9. When facts unfolded by the claimant are
appreciate, it came to light that he wants to rely on copy of
school leaving certificate to project that his date of birth is
10.10.1951. Corporation claims it to be a forged document.
When Ex.WW1/6 is scanned, it came to light that this
document has been created with the help of a photocopier
machine. Reasons for this conclusion are that from column
where name of the student is to be mentioned, two halves
of a page were kept together to obtain a photocopy. From
that column till the end, where reference relating to students
granted stipend is mentioned, two halves are kept together
to project a complete document. Thus, it is apparent that
this document has been obtained through a mechanical
process to project it to be facsimile of a school leaving
certificate issued by Government Boys Secondary School,
Chirag Delhi. New Delhi. Furthermore, this document speaks
that the claimant got admission in that school on 04.05.1967
and left on 21.10.1967. Document purports to have been
issued on 15.07.1983 by the Vice Principal, Government
Boys Secondary School, Chirag Delhi, New Delhi. However
at the top of the document, year 1988 has been mentioned
Discrepancy in date of issue and year to which this
document purports speak volumes about its genuineness.
The fact that two halves were put together to obtain a
photocopy also casts aspersions on authenticity of the
document in question. Furthermore, claimant had opted
not to produce certificate in original for consideration of
this Tribunal. These reasons constrain me to conclude that
this document cannot be held to be a genuine one.
10. Photocopy of affidavit purported to have been
sworn on 10.04.1974 has been proved by the claimant as
Ex. WW1/7. This document projects date of birth of the
claimant as 10.04.1951 Ex.WW1/M1, on which thumb
impression and signatures are admitted by the claimant to
1926
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
be his own, project date of birth of the claimant as
10.04.1947. Ex.WW1/M1 was signed by the claimant when
he was to be medically examined, at the time of regularization
of his service with the Corporation. Besides the above
documents, a nomination form, signed by the claimant at
point A in favour of Smt. Omwati, his wife, declaring her as
nominee for provident fund, is also placed over the record.
In the same manner, an application, signed by the claimant
authorizing the Corporation to deduct subscription of
provident fund out of his wages bear his signatures at
point B Signatures of the claimant on nomination form
and application, authorizing the Corporation to deduct
subscription of provident fund out of his wages, are
compared with his signatures appearing on Ex. WW1/M1,
statement of claimant recorded on 25.05.2012, his affidavit
dated 18.02.2012, claim statement dated 22.09.2011 as well
as authority letter authorizing Shri Surender Bhardwaj to
conduct the matter, singed on 22.09.2011. On perusal of
these signatures, I am of the considered opinion that
signatures on nomination form and application, submitted
to the Corporation to deduct subscription of provident
fund out of his wages, are of the claimant. In Ex. WW1/M1
and application, given for deduction of provident fund,
date of birth of the claimant has been mentioned as
10.04.1947. Ex. WW1/M1 was signed by the claimant, when
he was medically examined at the time of regularization of
his service while application form authorizing deduction of
provident fund was signed by the claimant on 12.09.1977.
Therefore, when the above documents were signed and
acted upon, stand of the claimant has been that his date of
birth was 10.04.1947.
11. Surprisingly, in affidavit Ex.WW1/7, the claimant
had not appended his signatures Ex.WW1/7 purports to
have been sworn on 10.04.1974, wherein he gives his date
of birth as 10.04.1951. Thus, three dates of birth have
emerged over the record, one as 10.04.1947, the second as
10.04.1991 and the third as 10 10.1951. For none of these
dates of birth, the claimant brought evidence over the record
to establish it to be correct one. He opted not to examine
an officer of the Corporation who recorded an entry as to
his date of birth in Register of Birth and Deaths, someone
from Government Boys Secondary School to project that
Ex. WW1/6 is copy of school leaving certificate issued by
the said school nor he had examined anyone from his family
to prove his correct date of birth. Contra to it, he projected
his date of birth as 10.04.1947 to the Corporation at the time
of regularization of his services and even two years
thereafter Date of birth as 10.04.1947 was projected by the
claimant and acted upon by him, while in service of the
Corporation. Under these circumstances, it can be said
that date of birth of the claimant is 10.04.1947. This fact
gets reaffirmation from events unfolded by the claimant
when he testified that he joined services with the
Corporation for the first time in 1968 and at that time he was
aged about 20-21 years. In view of these reasons, it is
conceded that date of birth of the claimant is 10.04.1947.
Issue is, therefore, answered in favour of the Corporation
and against the claimant.
Issue No. 2
12. As projected above, claimant got recorded his
date of birth as 10.04.1947 with the Corporation at the time
of regularization of his service. A Government servant
who has declared his age at initial stage of his employment
is, of course, not precluded from making a request later on
for correction of his age. It is open to a civil servant to
claim correction of his date of birth, if he is in possession
of irrefutable proof relating to his date of birth as different
from the one earlier recorded. For seeking correction of
date of birth, the Government servant must move the
authorities at the earliest, without any unreasonable delay.
13. Normally, in public service, with entering into the
service, even the date of exit which is said as date of
superannuation or retirement, is also fixed. That is why the
date of birth is recorded in the relevant register or service
book, relating to the individual concerned. This is the
practice prevalent in all service, because every service has
fixed the age of retirement, and it is necessary to maintain
the date of birth in the service records. But, of late a trend
can be noticed, that many public servants, on the eve of
their retirement waking up from their supine slumber raise a
dispute about their service records, by either invoking the
jurisdiction of the High Court under Article 226 of the
Constitution of India or by filing applications before the
concerned Administrative Tribunals, or even filing suits
for adjudication as to whether the dates of birth recorded
were correct or not.
14. Most of the States have framed statutory rules or
in absence thereof issued administrative instructions as to
how a claim made by a public servant in respect of
correction of his date of birth in the service record is to be
dealt with and what procedure is to be followed. In many
such rules, a period has been prescribed within which if
any public servant makes any grievance in respect of error
in the recording of his date of birth, the application for that
purpose can be entertained. The sole object of such rules
being that any such claim regarding correction of the date
of birth should not be made or entertained after decades,
especially on the eve of superannuation of such public
servant.
15. In Daksha Prasad Deka [1970 (3) SCC 624], the
Apex Court ruled date of the compulsory retirement "must
in our judgment, be determined on the basis of the service
record and not on what the respondent claimed to be his
date of birth, unless the service record is first corrected
consistently with the appropriate procedure."
16. In Rangadhar Mallik [1993 Supp.(1) SCC 763],
Rule 65 of the Orissa General Finance Rules, was examined
which provides that representation made for correction of
date of birth near about the time of superannuation shall
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1927
not be entertained. The respondent in that case was
appointed on November 16, 1968. On September 9, 1986,
for the first time, he made a representation for changing his
date of birth in his service register. The Tribunal issued a
direction as sought for by the respondent. The Apex Court
set aside the order of the Tribunal saying that the claim of
the respondent that his date of birth was November 27,
1938 instead of November 27, 1928 should not have been
accepted on basis of the documents produced in support
of the said claim, because the date of birth was recorded as
per document produced by the said respondent at the time
of his appointment and he had also put his signature in the
service roll accepting his date of birth as November 27,
1928. The said respondent did not take any step nor made
any representation for correcting his date of birth till
September 9, 1966.
17. In Harnam Singh [1993(2) SCC 162] above
proposition of law was again re-iterated and it was observed:
"A Government servant who has declared his age at
the initial stage of the employment is, of course, not
precluded from making a request later on for
correcting his age. It is open to a civil servant to
claim correct from of his date of birth, if he is in
possession of irrefutable proof relating to his date of
birth as different from the one earlier recorded and
even if there is no period of limitation prescribed for
seeking correction of date of birth, the Government
servant must do so without any unreasonable delay."
18. An application for correction of date of birth
should not be dealt with by the Courts, Tribunal or the
High Court keeping in view only the public servant
concerned. Unless a clear case on the basis of clinching
materials, which can be held to be conclusive in nature, is
made out by the claimant and that too within a reasonable
time as provided in the rules governing the service, the
Court or the Tribunal should not issue a direction or make
a declaration on the basis of materials which make such
claim only plausible. Before any such connection is issued
or declaration made, the Court or the Tribunal must be fully
satisfied that there has been real injustice to the person
concerned and his claim for correction of date of birth has
been made in accordance with the procedure prescribed,
and within the time fixed by any rule or order. If no rule or
order has been framed or made, prescribing the period within
which such application has to be filed, then such application
must be within at least a reasonable time The applicant has
to produce the evidence in support of such claim, which
may amount to irrefutable proof relating to his date of birth.
19. Whenever any such question arises, the onus is
on the applicant, to prove about the wrong recording of
his date of birth, in his service book. In many cases it is a
part of the strategy on the part of such public servants to
approach the Court or the Tribunal on the eve of their
retirement, questioning the correctness of the entries in
respect of their date of birth in the service books. The
Court or the Tribunal must, therefore, be slow in granting
an interim relief or continuation in service, unless prima
facie evidence of unimpeachable character is produced
because if the public servant succeeds, he can always be
compensated, but if he fails, he would have enjoyed
undeserved benefit of extended service and thereby caused
injustice to his immediate junior.
20. Procedure for correction of date of birth is detailed
in Fundamental Rules which governs service conditions
of Government employees. Fundamental Rules have been
adopted by the Corporation, hence those rules apply to
the claimant. Note 6 appended to Fundamental Rules 56
speaks of alteration of date of birth of Government servants.
For sake of convenience, provisions of Note 6 are extracted
thus:
"F.R.56. 1(a) Except as otherwise provided in this
rule, every Government servant shall retire from
service on the afternoon of the last day of the month
in which he attains the age of sixty years.
...........................................................................................
...........................................................................................
Note 6 : The date on which a Government servant
attains the age of fifty-eight years or sixty years, as
the case may be, shall be determined with reference
to the date of birth declared by the Government
servant at the time of appointment and accepted by
the Appropriate Authority on production, as far as
possible, of confirmatory documentary evidence
such as High School or Higher Secondary or
Secondary School Certificate or extracts from Birth
Register. The date of birth so declared by the
Government servant and accepted by the Appropriate
Authority shall not be subject to any alteration except
as specified in this note. An alteration of date of
birth of a Government servant can be made, with the
sanction of a Ministry or Department of the Central
Government, or the Comptroller and Auditor- General
in regard to persons serving in the Indian Audit and
Accounts Department, or an Administrator of a
Union Territory under which the Government servant
is serving, if—(a) a request in this regard is made
within five years of his entry into Government
service:—(b) it is clearly established that a genuine
bone fide mistake has occurred; and (c) the date of
birth so altered would not make him ineligible to
appear in any School or University or Union Public
Service Commission examination in which he had
appeared, or for entry into Government service on
the date on which he first appeared at such
examination or on the date on which he entered
Government service."
1928
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
21. As projected above, the claimant never applied
to the Corporation for correction of his date of birth. He
claims to have obtained his school leaving certificate about
20 years ago but opted not to submit it to the Corporation
for correction of his date of birth. In entire claim statement,
he nowhere speaks that he moved the Corporation for
correction of his date of birth. Therefore, it is emerging
over the record that the claimant had not made any
application to the Corporation for correction of his date of
birth till the date of his superannuation. Now, by way of
present dispute, he wants correction of his date of birth.
Admittedly, period of limitation for moving such an
application has run down. Claimant cannot be allowed to
move an application for correction of his date of birth by
way of raising an industrial dispute, after his
superannuation.
22. There is other facet of the coin. Claimant has
been superannuated on reaching age of 60 years. Question
may creep up whether act of superannuating the claimant
amounts to retrenchment. For an answer to this proposition,
definition of the term retrenchment is to be construed.
Clause (oo) of section 2 of the Act defines retrenchment. For
sake of convenience, the said definition is extracted thus:
"2(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".
23. As enacted by the Act, act of the Corporation in
superannuating the claimant on reaching age of
superannuation does not amount to retrenchment.
Judgements of Sukhdeo Chokd Waghmare & Trustees of
Bombay Port Trust [2004 (1) PLJR 289(SC)] and Sahim Ram
[1995 Supp. (1) SCC18] are relied by the claimant. Facts on
which the aforesaid judgements were handed down are
distinct and different than the facts of the present
controversy. In view of these circumstances, aforesaid
precedents do not provide accolade to the claimant. The
issue is, therefore, answered in favour of the Corporation
and against the claimant.
Relief
24. The claimant could not project a case for
correction of his date of birth. His date of birth is 10.04.1947.
He has been rightly superannuated on 30.04.2007. In view
of the above reasons, it is evident that the action of the
Corporation in terminating the claimant on attaining the
age of superannuation 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.
Dated: January 29, 2014
DR. R. K. YADAV, Presiding Officer
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ljdkj dks 28@01@2014 dks izkIr gqvk FkkA
[lañ ,y-42011/204/2011- vkbZvkj (Mh;w)]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 717.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 53/
2012) of the Central Government Industrial Tribunal/
Labour Court-I, Delhi now as shown in the Annexure
in the Industrial Dispute between the employers in
relation to the management of the Director, Kalawati
Saran Children's Hospital, New Delhi and their
workmen, which was received by the Central
Government on 28.01.2014.
[No. L-42011/204/2011-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R. K YADAV, PRESIDING OFFICER,
CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. I,
DELHI
I.D.No.53/2012
The General Secretary,
Kalawati Saran Children's Hospital
Employees Association (Regd.)
112/2 LHMC Staff Quarters,
Panchkula Road,
New Delhi-110001.
........Workmen
¹Hkkx II—[k.M 3(ii)º
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1929
Versus
The Director,
Kalawati Saran Children's Hospital,
Room No. 146, New Building,
Bangla Sahib Road,
New Delhi- 110001.
........Management
AWARD
A society, registered under the Societies Registration
Act, 1860, raised an issue before High Court of Delhi by
way of a writ petition alleging therein that an illegal course
with the name of "In Service Training Course for Medical
Lab Technology" was being run by Safdarjung Hospital. It
was claimed that the course being run by Safdarjung
Hospital was not approved by All India Council for
Technical Education, under the provisions of All India
Council for Technical Education Act, 1987. The course was
also not recognized by the Department of Technical
Education, Ministry for Human Resources Development,
Government of India, New Delhi Laboratory personnel are
appointed by various hospitals from amongst the persons
who undergo the course referred above. Such personnel
are not well qualified to help health care system. Directions
were sought from the High Court to issue a command to
the concerned authorities to immediately close down such
unrecognized and illegal courses, being run in the aforesaid
hospital. Director General of Health Services, Ministry of
Health & Family Welfare, Government of India, New Delhi,
filed an affidavit through the Chief Medical Officer (Hospital
Administration) before the High Court, wherein it was
sworn that suitable amendment to recruitment rules of Lab.
Assistant would be recommended to the Ministry of Health
and Family Welfare. It was further detailed therein that
Medical Laboratory Technology course of one year
duration has been discontinued. Separate syllabus for two
year Medical Laboratory Technology diploma course has
been drawn after amendment of the recruitment rules.
Candidates who are qualified in Medical Laboratory
Technology Diploma from recognized institutions,
approved by All India Council for Technical Education,
would be considered for appointment to the post of
Laboratory Assistant.
2. Affidavit of the Chief Medical (Officer Hospital
Administration), office of the Director General of Health
Services, Ministry of Health & Family Welfare, Government
of India, New Delhi, was taken over the record by the High
Court. The High Court believed that recruitment rules for
Laboratory Assistant would be amended and candidates
qualified in Medical Laboratory Technology diploma from
recognized institutions, approved by All India Council for
Technical Education, would be appointed as Laboratory
Assistant. Accepting the said affidavit as assurance for
amendment of the recruitment rules for the post of
Laboratory Assistant, the writ petition was disposed off
by the High Court, vide order dated 08.01.2002.
3. Pursuant to the above orders, Director General
(Health Services), Ministry of Health & Family Welfare,
Government of India, New Delhi, issued instructions to the
Medical Superintendent, Kalawati Saran Children's
Hospital, New Delhi, to amend recruitment rules for the
post of Lab. Assistant. It was emphasized that qualification
for the post of Lab. Assistant be kept as 10+2 examination
certificate in Science stream from recognized Board or
University or equivalent, besides diploma in medical
Laboratory Technology, recognized by All India Council
for Technical Education or any other authority authorized
by the Government. It was made clear that qualification
proposed for direct recruitment shall apply in the case of
promotes also, especially when recruitment rules for feeder
post of Lab. Attendant do not specify any qualification.
Medical Superintendent was called upon by the Office of
the Directorate General to send amended recruitment rules
for the post of Lab. Assistant at the earliest. Despite the
above exercise, recruitment rules are yet to be amended.
4. Shri Roop Singh, joined services of Kalawati Saran
Children's Hospital (hereinafter referred to as the Hospital)
as Hospital Aid on 01.02.1979. He was promoted as Lab.
Attendant on 24.09.2004. On 16.10.1999, he was again
promoted to the post of Lab. Assistant, on
recommendations of Departmental Promotion Committee.
Vide Order dated 01.07.2010, the Hospital felt conscious of
the fact that his promotion may amount to contempt of
court, hence Shri Roop Singh was reverted to the post of
Lab. Attendant Order dated 16.10.2009, on the strength of
which Shri Roop Singh was promoted as Lab. Assistant,
was cancelled. Aggrieved by that act, Shri Roop Singh
approached the Kalawati Saran Children's Hospital
Employees' Association (hereinafter referred as the
Association) for redressal of his grievance. The
Association took up his case as their own. A demand was
raised before the Hospital for withdrawal of the order dated
01.07.2010, which demand was not conceded to Ultimately,
the Association raised a dispute before the Conciliation
Officer. Since the Hospital 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-42011/204/2011-IR(DU).
New Delhi dated 24.02.2012 with following terms:
"Whether action of the management of Kalawati
Saran Children's Hospital, New Delhi in withdrawing
the promotion given to the workman, Shri Roop
Singh, S/o late Shri Ramji Lal from the post of Lab.
Assistant to Lab. Attendant with effect from
01.07 2010 is legal and justified? What relief the
workman is entitled to?"
5. Claim statement was filed by Shri Roop Smgh
pleading that he joined the post of Hospital Aid on
01.02.1979 with an initial salary of Rs. 349.00. Thereafter, he
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
was granted grade scale of Rs. 3050.00, since he became a
matriculate. On recommendations of the Departmental
Promotion Committee, the Hospital promoted the claimant
to the post of Lab. Assistant vide office order No. ASCH/
R/R/2009-10/4031 dated 16.10.2009. He was drawing a salary
of Rs. 16795.00 per month, with grade pay of Rs. 2000.00.
His promotion, pay and allowances and other facilities were
withdrawn office order No. KSCH/R/R/CELL/2010-11/2444
dated 01.07.2010. The claimant is presently working as Lab.
Assistant and drawing salary of Rs. 24,077.00. It is prayed
that an award may be passed directing the Hospital to
withdraw order of reversion of the claimant from the post
of Lab. Assistant to Lab, Attendant nullifying the order
dated 1.7.2010.
6. Claim was demurred by the Hospital stating that
the claimant was appointed on 01.02.1979 to the post of
Hospital Aid/Lab. Attendant, in the scale of
Rs. 196-3-220-EB-2-232. The services of the claimant were
also taken as LDC against leave vacancy in the scale of
pay of Rs. 260-6-290-EB-8-390-10-400 on purely ad-hoc
basis with effect from 21.07.1984 to 18.10.1984, which was
extended from time to time from 19.10.1984 to 29.02.1985,
04.03.1985 to 17.04.1985, 18.04.1985 to 26.04.1985 and
20.04.1989 to 26.04.1989. He was reverted back to the post
of Hospital Aid/Lab Attendant. The claimant was
promoted to the post of Lab. Attendant with effect from
24.09.2004 in the scale of pay of Rs. 2610-4000 and again
he was promoted to the post of Lab. Assistant with effect
from 16.10.2009. At the time of his promotion from Lab.
Attendant to Lab. Assistant, notified recruitment rule of
Kalawati Saran Children's Hospital projected qualification
as matriculate, with three years regular service as Lab.
Attendant. In pursuance of High Court's direction in CM
9849 of 2001 and CW 3018 of 2000, titled Common Cause
vs. UOI and others, dated 08.01.2002, Ministry of Health
& Family Welfare and Directorate General Health Services,
vide their letter No. A-12018/20/99-RR dated 06.11.2003,
instructed that it may be ensured that only qualified
candidates, having educational qualification of 10+2 with
Medical Lab. Technology Diploma from a recognized
institution approved by All India Council of Technical
Education, are appointed to the post of Lab. Assistant.
Since the claimant did not fulfil requisite criteria, he was
reverted to the post of Lab. Attendant with effect from
01.07.2010, after serving notice, with due approval of the
competent authority. The claimant is not entitled to any
kind of relief since the Hospital had acted on the directions
of High Court of Delhi. His claim it may be dismissed,
pleads the Hospital.
7. On pleadings of the parties, following issues were
framed:
(1) Whether amendment in recruitments rules by the
management was retrospective?
(2) As in terms of reference.
8. Claimant has examined himself, besides
Shri Shambu Nath Jaiswal to substantiate his claim. Shri
Hukam Chand, Administrative Officer, entered the witness
box to establish the case of the Hospital. No other witness
was examined by either of the parties.
9. Arguments were heard at the bar. Shri N.A.
Sebastian, authorized representative, advanced arguments
on behalf of the claimant. Shri P.K. Verma, authorized
representative, raised submissions on behalf of the Hospital.
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
10. Kalawati Saran Children's Hospital (Lab. Assistant
Recruitment) Rules, 1918 (hereinafter referred to as
recruitment rules) were framed by the Government in
exercise of powers conferred by proviso to Article 309 of
the Constitution of India. These recruitment rules specify
method of recruitment, age limit, qualification and other
matters relating to the post of Lab. Assistant which are
specified in Column 5 to 14 of the Schedule attached to the
rules. Schedule appended to the rules provides that
recruitment to the post of Lab. Assistant shall be made by
way of selection Educational qualification for the post are;
(i) Matriculation or its equivalent from a recognized Board,
(ii) diploma in Medical Lab. Technology. 66-2/3% posts are
to be filled by direct recruitment and 33-1/3% of the posts
are to be filled by way of promotion. For promotion from
the past of Lab. Attendant, the incumbent should be (i)
matriculate, and (ii) having three years regular service as
Lab. Attendant.
11. In order to have validly made recruitment rules
under proviso to Article 309 of the Constitution, the
President or such person, as he may direct, must first of all
exercise powers vested in him under the said Article and
make rule regulating recruitment etc. to the services and
then publish the same in the official gazette or in any other
prescribed manner for the purpose of informing the public
at large. Amendment of recruitment rules must also be duly
published. Mere unpublished decision of the Government
to make rule or to amend the old rule will not by itself
become a rule and bind a Government employee. President
can make rules to validate retrospectively invalid
administrative actions, hence such rules may have
retrospective operations. When recruitments rules are
given retrospective effect, it takes away a vested right. An
employee cannot claim that rights vested in him prior to
coming into force of rules, should be allowed to be enjoyed
in spite of valid retrospective operation of rules.
12. Rules framed under proviso to Article 309 with
retrospective operation does not violate Article 16 of the
Constitution, Public weal cannot be irrelevant consideration
¹Hkkx II—[k.M 3(ii)º
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1931
for amendment of recruitment rules. When the President or
such person, as he may direct, makes rules under proviso
to Article 309 of the Constitution, he does not act in his
executive capacity but exercises legislative power conferred
on him by the Constitution itself. Legislative measures
cannot be attacked on the ground that it is malafide though
it could be challenged on the grounds of incompetence of
the legislative measure being in contravention to the
provisions relating to fundamental rights or any other
provisions of the Constitution. It is open to rule making
authority to change the rules from time to time and in doing
so, it is empowered to change the method of selection,
according to exigencies of service. Modification of
recruitment rules made by the President cannot be held to
be bad merely because it does not mention the power under
which it was made. However, when recruitment rules are
silent on any particular point, Government can fill the gaps
and supplement the rules Administrative instructions can
supplement the rules framed under proviso to Article 309
of the Constitution but cannot supplant them. Where there
is no rule or recruitment rules. are silent, the Government
can full up gaps and supplement rules by issuance of
administrative instructions, not inconsistent with the rules
already framed. In peculiar situations where statutory
recruitment rules could not be operated being unworkable,
Government can exercise its executive powers and issue
instructions in that regard. For executive instructions, its
publication in official gazette is not sine qua non to validity
of action taken under them.
13. Now facts are to be noted. Shri Hukam Chand
swears in his affidavit Ex.WW1/A that the claimant was
appointed to the post of Hospital Aid on 01.02.1979. He
was promoted to the post of Lab. Attendant with effect
from 24.09.2004. He was again promoted to the post of Lab.
Assistant with effect from 15.10.2009 on recommendations
of Departmental Promotion Committee. He lays emphasis
that at the time of his promotion to the post of Lab.
Assistant, essential qualification for promotion were; (i)
Matriculate, and (ii) Lab. Attendant with three years regular
service in the grade. High Court of Delhi, in its decision
dated 08.01.2002, which is Ex. MW1/2, emphasized to ensure
that only qualified candidates having essential qualification:
(1) 10+2 pass, and (ii) diploma in Medical Laboratory
Technology from a recognized institution, approved by All
India Institute of Technical Education, are to be considered
for appointment to the post of Lab. Assistant. To follow
these instructions, coupled with instructions contained in
letter No. A-12018/20/99-RR dated 06.11.2003, issued by
Ministry of Health & Family Welfare, claimant was reverted
to the post of Lab. Assistant with effect from 01.07.2010
since he was not fulfilling minimum educational
qualification prescribed in office order No. KSCH/R/R/Cell/
2010-11/2444 dated 01.07.2010.
14. In order dated 08.01.2002 proved as Ex. MW1/2,
High Court took note of additional affidavit filed by
Dr. A.H. Sinha, Chief Medical Officer (Hospital
Administration), Department of Directorate General of
Health Services, Ministry of Health & Family Welfare,
Government of India, New Delhi, wherein he swore that in
meeting held on 10.04.2001, decision has been taken to
update knowledge of laboratory personnel, and to conduct
Medical Laboratory Technology diploma course as per
guidelines of All India Council of Technical Education. He
also assured the court that suitable amendments to the
recruitment rules of Lab. Assistants would be recommended
to the Ministry of Health & Family Welfare. The court was
informed that Medical Laboratory Technology course of
one year duration has been discontinued and a separate
syllabus and prospectus to conduct two year Medical
Laboratory Technology course in Safdarjung Hospital has
been prepared. The proposal for approval/ recognition of
two year Medical Laboratory Technology course has been
submitted to All India Council for Technical Education.
Proposal to amend recruitment rules so that only qualified
candidates in Medical Laboratory Technology from
recognized institutions approved by All India Council of
Technical Education are considered for appointment to the
post of Lab. Assistant, has been submitted to Director
General of Health Services. Facts stated in the affidavit,
referred above, were believed by the High Court.
15. In compliance of order dated 08.01.2002, passed
by High Court of Delhi. Directorate General of Health
Services wrote letter dated 13.09.2004 to the Hospital. It was
specified therein that essential qualification for direct recruits,
viz. (i) 10+2 examination certificate in science subject from
recognized Board/University or equivalent, and (ii) diploma
in Medical Laboratory Technology, recognized by All India
Council of Technical Education or any other authority
authorised by the Government, shall apply in the case of
promotees also, specially when recruitment rules of the feeder
post of Lab. Attendant do not specify any qualification.
Medical Superintendent was required to make available
hierarchy chart of the division as well as recruitment rules of
the feeder post so that mode of recruitment and percentage
to be prescribed for the two categories are decided. Prior to
letter dated 13.09.2004, letter dated 06.01.2003 was written to
the Medical Superintendent, Lady Harding Medical College
and Sucheta Kripalani Hospital, calling upon him to make
proposal, for amendment of recruitment rules of Lab.
Assistant in the said Hospital and its associate Hospitals, to
the Directorate within two weeks so that necessary
administrative action may be taken to ensure compliance of
directions issued by High Court of Delhi. In that letter,
reference to the meeting held on 10.04.2001, under the
chairmanship of Additional Director General, Health Services,
Ministry of Health & Family Welfare, Government of India,
New Delhi, was made. In that meeting, following
recommendations were made:
(i) Due to advancement in technology and
requirement for upgradation of knowledge of
1932
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
laboratory personnel, Safdarjung Hospital would
continue to impart medical laboratory training
course in accordance with the requirement of All
India Council of Technical Education (AICTE) and
get it duly recognized.
(ii) Safdarjung Hospital should take appropriate steps
to get the course recognized by AICTE.
(iii) Suitable amendment to the recruitment rules of
Lab. Assistant may be recommended to the
Ministry of Health and Family Welfare so trial
only candidates qualified in Medical Laboratory
Technology diploma from recognized institutions
approved by AICTE are considered for
appointment to the post of Lab. Assistant."
16. The above document highlights that when order
Ex. MW 1/2 was passed by High Court of Delhi, Directorate
General, Health Services came into action and steps were
taken to get Medical Laboratory Training Course,
conducted by Safdarjung Hospital, recognized from AICTE
and amend the recruitment rules for the post of Lab.
Assistant. Essential qualification for direct recruits were
provided as (i) 10+2 examination certificate in science
subject from recognized Board/University or equivalent,
and (ii) diploma in Medical Laboratory Technology,
recognized by All India Council of Technical Education or
any other authority authorised by the Government. It was
also noted that since no qualification has been specified
for recruitment to feeder post of Lab. Attendant qualification
proposed for direct recruits were to apply in case of
promotees also. Thus, It is evident that a decision was
taken to the effect that for promotion to the post of Lab.
Assistant an incumbent should also possess essential
qualification required for direct recruitment to the post.
17. Though efforts were made to amend the
recruitment rules, yet the Government has not come out
with the actual amendment of rules. As admitted by Shri
Hukam Chand, fresh recruitment rules has not yet been
notified. It has been brought to the notice of the Tribunal
that on 16/18.06.2011, Medical Superintendent wrote to
the Deputy Director (Admn.), Directorate General of Health
Services, Ministry of Health & Family Welfare, Government
of India. New Delhi, transmitting to him the proposed
recruitment rules for the post of Lab. Assistant. In that
proposal, education Qualification for the post of Lab.
Assistant has been specified as: (i) 10+2 examination
certificate with science subject from recognized Board/
University, and (ii) minimum 2 year diploma in Medical
Laboratory Technology, recognized by Government or any
other statutory body. Desirable qualification was specified
as B.Sc. in Medical Laboratory Technology. Method of
recruitment was proposed to be made by direct recruitment
only. This proposal had not been formulated into an action.
Government had not amended the rules under proviso to
Article 309 of the Constitution, not to talk of its publication
in the official gazette. As conceded by Shri Hukam Chand,
amended rules are yet to be formulated and notified. When
rules have not been amended till date, it cannot be said
that proposed amendment would take retrospective effect.
Issue is. therefore, answered in favour of the claimant and
against the Hospital.
Issue No.2
18. Appointment of the claimant to the post of Lab.
Assistant with effect from 15.10.2009 is not disputed by
Shri Hukam Chand. The said order has been proved as
Ex.WW1/5. For sake of convenience, contents of the said
order are reproduced thus:
"On the recommendations of Departmental
Promotion Committee. Director is pleased to promote
the following Lab. Attendant to the post of Lab.
Assistant in the pay scale of Rs. 5200-20200 and
grade pay of Rs. 2000 with effect from 15.10.2009 on
following terms and conditions:
1. Shri Roop Singh
(i) He has to submit his joining report within a week
from the date of issuance of the office order.
(ii) His pay will be fixed in the higher grade as per
rule."
19. Admittedly, recruitments rules stipulate that for
promotion to the post of Lab. Assistant, an incumbent
should be: (i) matriculate, and (ii) having three years regular
service in the grade as Lab. Attendant. Claimant fulfilled
requisite qualification. However, it cannot be lost of sight
of that on 08.01.2002 order Ex. MW1/2 is passed by the
High Court. In pursuance of the said order, Directorate
General of Health Services took steps for amendment of
the recruitment rules for the post of Lab. Assistant. Letter
dated 13.09.2004, written to the Hospital, makes it apparent
that for recruitment to the post of Lab. Assistant,
qualification are to be kept as: (i) 10+2 examination certificate
in science subject from recognized Board/University or
equivalent, and (ii) diploma in Medical Laboratory
Technology, recognized by All India Council of Technical
Education or any other authority, authorised by the
Government. It was specified therein that qualification
proposed for direct recruitment shall apply in the case of
promotees also specially when recruitment rules for the
post of Lab. Attendant do not specify any qualification.
Thus, it is evident that in September 2004, Medical
Superintendent of the Hospital was well apprised of the
order passed by the High Court and steps being taken by
the Government for amendment of recruitment rules for the
post of Lab. Assistant, ignoring steps taken by the
Government as well as order Ex. MW1/2 passed by High
Court of Delhi, the Hospital promoted the claimant to the
post of Lab. Assistant. Though his promotion was in
consonance with the recruitment rules, yet violative of the
undertaking given by the Directorate General of Health
¹Hkkx II—[k.M 3(ii)º
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1933
Services, Ministry of Health & Family Welfare, Government
of India, New Delhi to the High Court. Undertaking given
by the Government to court of law binds it. The Medical
Superintendent of the Hospital works under supervision
and control of Directorate General of Health Services,
Ministry of Health & Family Welfare. Government of India,
New Delhi, hence cannot evade the undertaking given by
the latter. It is evident that promotion of the claimant, though
in consonance to the rules, yet was not bonafide, since it
tends to stigmatize the Government. Furthermore, process
for amendment of the recruitment rules was put in motion
for weal of the society so that well qualified health support
care staff may be employed. Admittedly, the claimant was
neither senior secondary pass nor having diploma in
Medical Laboratory Technology. Thus, his promotion,
though within the framework of the rules, yet raised issues
of propriety and dignity of judicial system. When Hospital
came out of its slumber, order dated 01.07.2010 was passed
by it. Said order reads as follows:
"in the order of Hon'ble Court dated 08.01.2002,
submitted the proposal to Directorate General of
Health Services for amendment of recruitment rules
so that only such candidates who qualified in the
Medical Laboratory Technology Diploma from
recognized institutions approved by All India Council
for Technical Education are considered for
appointment to the post of Laboratory Assistant,
Directorate General of Health Services has also stated
in their letter vide No. A. 11018/5/2004-RR dated
13.09.2004 that no distinction in this regard can be
made with regard to appointment by the method of
promotion and direct recruitment. Hence the
qualification proposed for direct recruitments shall
apply in the case of promotees also especially when
the recruitment rules of feeder post of Laboratory
Attendant do not specify any qualification. The
minimum academic qualification for the post of
Laboratory Assistant is to be kept by DGHS is as:
Essential
(i) 10+2 Science subject from recognized Board/
University or equivalent.
(ii) Diploma in Medical Laboratory Technology
recognized by the AICTE or any other authority
authorized by the Government. Since the above
qualification would be applicable for promotion
also, the relevant provision under Column 9 would
be:
Age : No
Educational qualification Should possess a
recognized diploma in Medical Laboratory
Technology.
To regard and void contempt of Hon'ble Court, Shri
Roop Singh is hereby reverted from Lab. Assistant
to Lab. Attendant and order No. ASCH/RR/2009-10/
4301 dated 16.10.2009 stands hereby cancelled with
immediate effect.
This issues with the approval of Director".
20. Question to be addressed is as to whether
reversion of the claimant to the post of Lab. Attendant
amounts to reduction in rank as contemplated by provisions
of Article 311(2) of the Constitution? Those provisions are
reproduced thus:
"Article 311 : Dismissal, removal or reduction in rank
of persons employed in civil capacities under the
Union or a State.— (1) No person who is a member of
a civil service of the Union or an all-India service or
a civil service of a State or holds a civil post under
the Union or a State shall be dismissed or removed
by an authority subordinate to that by which he was
appointed. (2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except after
an inquiry in which he has been informed of the
charges against him and given a reasonable
opportunity of being heard in respect of those
charges.
..............................................................................."
21. In order to determine whether a particular order
of reversion amounts to reduction in rank, it is not only the
form or wording of a particular order which is to be treated
as conclusive but its substance of the matter which has to
be determined after consideration of totality of the
circumstances. If the real intention is found to be to penalize
or punish the official then notwithstanding the form of me
order reversion would be held to amount to reduction in
rank. Normally, an order of reversion would be by way of
punishment when following circumstances are found to
exist: (i) if it is expressed to be so, (ii) if evil consequences
ensue from the order as direct result thereof, and (iii) if
stigma is caused on the official by order of reversion
beyond mere findings of the officer being not suitable for
holding higher post. Two fold test for holding the reversion
to be punitive is: (i) Whether servant had right to the post
or rank, or (ii) Whether he has been visited with evil
consequences.
22. As order dated 01.07.2010 spells, the Hospital
projects that the High Court of Delhi passed order of 08 01
2002 wherein proposal submitted by Directorate General of
Health Services for amendment of recruitment rules was
taken into consideration, besides assurances given by the
Director General to the effect that only qualified persons in
Medical Laboratory Technology diploma, from recognized
institution, would be considered to the post of Lab.
Assistant. The said order further highlights that in its order
dated 13.09.2004, Director General emphasized that no
distinction in regard to qualification would be made in the
matter of direct recruitment and promotion to the post of
Lab. Assistant. Therefore it was stressed that a promotee
1934
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
should possess a recognized diploma in Medical
Laboratory Technology. The Hospital makes it apparent
that to comply and avoid contempt of the Court, claimant
was reverted to the post of Lab. Assistant. This reversion
order makes it apparent that that the claimant was not having
diploma in Medical Laboratory Technology hence not
qualified to be promoted to the post of Lab. Assistant, in
accordance with the qualification which were assured to
the put forth for the post. Obviously, reversion order makes
it apparent that the claimant was reverted to his substantive
post not as a matter of punishment. Neither order of
reversion cast any stigma nor evil consequences ensued
therefrom.
23. Whether the claimant was entitled to the post of
Lab. Assistant? Admittedly, claimant fulfilled qualifications
prescribed in the recruitment rules for promotion to the
post. But amendment of the recruitment rules was on cards,
in persuance of undertaking given by the Directorate
General, Health Services to the High Court. The Hospital
was well aware of such an undertaking and steps being
taken for amendment of the recruitment rules. Claimant was
not having diploma in Medical Laboratory Technology,
not to talk of it being recognized by AICTE or Government
institution or any other statutory body. Thus, it is apparent
that recruitment rules were to be modified to upgrade
qualifications for recruitment to the post of Lab. Assistant.
It was so being done for betterment of the society and to
carry out commands given by the High Court. Claimant
was promoted in violation of undertaking given by the
Directorate General to the Court. Thus, it is apparent that
his promotion, being malafide, could not vest him with any
right to the post Resultantly, it is concluded that when the
claimant was not having any right to the post, his reversion
to the post of Lab. Assistant cannot be termed either as
punishment or reduction in rank, requiring enquiry in the
matter.
24. Claimant was promoted to the post of Lab.
Assistant and his pay was fixed in Pay Band I in the scale
of Rs. 5200-20200. with grade pay of Rs. 2000. Post of Lab.
Attendant and Lab. Assistant are in on Pay Band I in the
scale of Rs. 5200-20200. However, grade pay for the post of
Lab. Assistant is Rs.1800 and for the post of Lab. Assistant
it is Rs. 2000. Claimant admits that in the year 2004, 3rd
MACP was given to him and his grade pay was enhanced
from Rs. 2000 to Rs. 2400. He further admits that he was
getting grade pay of Rs. 2400 with effect from 01.09.2008.
Thus, it is emerging over the record that though the
claimant has been reverted to the post of Lab. Attendant
yet he is not put to any financial loss.
25. In view of the above reasons, I find legality in
reversion order passed by the Hospital. Justification to
grant indulgence in favour of the claimant has also not
emerged since reversion order is neither punitive not puts
him to financial loss. Claimant is not entitled to assail the
reversion, since his promotion, made by the .Hospital, was
in violation to the undertaking given by the Directorate
General of Health Services to High Court. In view of these
reasons, it is crystal clear that the claimant is not entitled to
any relief. His claim statement is, accordingly, discarded.
An award is passed in favour of the Hospital. It be sent to
the appropriate Government for publication.
Dated: 10.07.2013
DR. R.K.YADAV, Presiding Officer
ubZ fnYyh] 4 Qjojh] 2014
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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dfe'uj ¼lkmFk½]
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[lañ ,y-42011/136/2012- vkbZvkj (Mh;w)]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 4th February, 2014
S.O. 718.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No.10/
2013) of the Central Government Industrial Tribunal/
Labour Court-I, Delhi now as shown in the Annexure
in the Industrial Dispute between the employers in
relation to the management of the Commissioner (South),
South Delhi Municipal Corporation, New Delhi and their
workmen, which was received by the Central
Government on 28.01.2014.
[No. L-42011/136/2012-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR.R.K.YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO.1, DELHI
I. D. No. 10/2013
The President
MCD General Mazdoor Union,
Room No.95, Barrack No.1/10,
Jam Nagar House, Shahjahan Road,
New Delhi-110001.
... .Workman
Versus
The Commissioner (South),
South Delhi Municipal Corporation,
9th Floor, Civic Centre,
Minto Road, New Delhi.
...Management
AWARD
Post of carpenter and senior carpenter in Municipal
Corporation of Delhi (in short the Corporation) were treated
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1935
as semi skilled and skilled posts. An incumbent could join
as carpenter at initial level and on promotion, he was to get
post of senior carpenter. Post of carpenter carried pay scale
of Rs.210-270 while post of senior carpenter was in the pay
scale of Rs.260-350. Vide office order No.VIII/(l23)/EC/IV/
AC(Engg.)/82/213/2052 dated 12.07.1982 pay scale for the
post of senior carpenter was revised to Rs.260-400 with
effect from 01.01.1973 The Corporation, by way of
resolution No.902 dated 05 03.2007, merged post of carpenter
and senior carpenter into a post of carpenter in the pay
scale of Rs.260-400 (revised to Rs.3050-4590) with effect
from 01.01 1996.
2. Shri Abdul Gani joined services of the Corporation
as carpenter on muster roll in 1969. His services were
regularized as carpenter with effect from 01.04.1976. His
pay was fixed by the Corporation in the scale of Rs 210-
270, which was revised to Rs 2550-3200. Abdul Gani
superannuated on 30.06.1998. After his superannuation,
he raised a demand for fixation of his pay in the scale of
Rs.260-400, revised to Rs. 3050-4590 with effect from
01.01.1996 His demand was not conceded to by the
Corporation. He approached the MCD General Mazdoor
Union (in short the union), which union took up his cause
for redressal. The union raised a dispute before the
Conciliation Officer. Since the Corporation contested the
claim, the 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-42011/136/20l2/lR(DU), New Delhi, dated 17.12.2013,
with following terms:
"Whether the action of the management of Municipal
Corporation of Delhi in not reclassifying Shri Gani
Khan, Carpenter as skilled workman and accordingly
granting him pay scale, ACP and Pensionery benefits
is legal and justified? If not, to what relief the
concerned workmen is entitled to?"
3. Claim statement was fifed by Shri Abdul Gani
pleading therein that he was initially employed as carpenter
on muster roll by the Corporation in 1969. His services
were regularized with effect from 01.01.1976. Post of
carpenter has been classified as of skilled workman by the
Central Pay Commission and categorized as such after
implementation of the award given by the Board of
Arbitration (JCM). Pay scale of skilled workmen has been
revised from 260-350 to Rs.260-400 with effect from
01.01.1973 Corporation issued circular in that regard on
12.07.1982. Despite issuance of said circular, he was paid
wages of semi skilled category instead of skilled category.
Action of the Corporation is illegal and uncalled for. He
was entitled to pay in the pay scale of Rs. 260-400 revised
to Rs. 3050-4590 with all consequential benefits. He claims
that an award may be passed directing the Corporation to
pay his wages in the scale of Rs. 260-400 (revised to
Rs. 3050-4590), financial upgradation on rendering 12 years
under Assured Career Progression Scheme and pensionery
benefits.
4. In the counter, the Corporation projects that at
entry level, the claimant joined post of carpenter. In 1976,
there were posts of carpenter and senior carpenter and a
carpenter could become senior carpenter only on
promotion. Post of carpenter carried scale of Rs. 210-270,
while post of senior carpenter was in the scale of Rs. 260-
400. Vide resolution No.902 dated 05.03.2007, the
Corporation merged post of carpenter and senior carpenter
in the category of carpenter in the pay scale Rs.260-400
(revised to Rs. 3050-4590) with effect from 01.01.1996. Pay
of the claimant has been revised in accordance with the
aforesaid resolution. He will be given benefit of difference
of upgradation of pay, under Assured Career Progression
scheme. His arrears would be paid, as per rules.
5. Since the Corporation conceded to the claim
presented by Shri Abdul Gani and the latter felt satisfied
with grant of pay scale and financial upgradation by
Corporation, no evidence was adduced by the parties.
6. Arguments were heard at the bar. Shri B. K. Prasad,
authorized representative, advanced arguments on behalf
of the claimant Shri Umesh Gupta, authorised
representative, raised submissions on behalf of 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:—
7. In the reference order, the claimant has been named
as Gani Khan while in the claim statement, claimant presents
his name as Shri Abdul Gani. In written statement the
Corporation mentions his name as Abdul Gani. Therefore,
out of facts pleaded by the parties, it emerged that name of
the claimant is Shri Abdul Gani, who has been wrongly
projected as Gani Khan in the reference order. Question for
consideration would be as to whether this Tribunal can
rectify this mistake. To answer this proposition, scheme of
the Industrial Disputes Act, 1947 (in short the Act) is to be
taken into account. As emerge out of the scheme of the
Act, for referring an industrial dispute for adjudication
the appropriate Government should satisfy itself, on the
facts and circumstances brought to its notice, in its
subjective opinion that an industrial dispute exists
or is apprehended. The factual existence of a dispute or
its apprehension and expediency of making a reference
are matters entirely for the Government to decide. An order
making a reference is an administrative act and the fact
that the Government has to form an opinion as to the factual
1936
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
existence of an industrial dispute as a preliminary step to
the discharge of its function does not make it any the less
administrative in character. The adequacy or sufficiency of
material on which opinion was formed is beyond The pale
of judicial scrutiny.
8. The scope of a reference is a matter of considerable
importance. Although it is open to an industrial adjudicator
to devise his own procedure, but he has to confine his
adjudication to the points of dispute specified in the order
of reference and to matters incidental thereto. Before
embarking on adjudication, therefore, the adjudicator has
to determine the scope of the order of reference. Hence,
the question of the scope and construction of the order of
reference becomes relevant. The construction of the order
of reference will, in all probability, be easy or difficult,
according as the document has been skillfully or carelessly
drawn. In India Paper Pulp Company Limited [1949 (I)
LLJ.258] the Federal Court was concerned with a
proposition as to whether the order of reference can be
construed by an adjudicator. Chief Justice Kania, speaking
for the Court, said that not infrequently, the orders of
reference are "far from satisfactory and are not carefully
drafted". It is, therefore, desirable that the appropriate
Government should frame such orders carefully and the
questions, which are intended to be tried by the adjudicator,
should be so worded as to leave no scope for ambiguity or
controversy. Same proposition of law was laid by Apex
Court in Delhi Cloth and General Mills Limited [1967 (I) LLJ
423]. Inaccuracy of language employed in the order of
reference, however, does not always make any difference
to the jurisdiction of the Tribunal to proceed with the
reference and adjudicate upon it, as the Tribunal can
interpret and find out the real meaning of the order of
reference, as it stands . A duty is cast upon the Tribunal to
make an attempt to construe order of reference to find out
as to what was the real dispute which was referred to it and
to decide it and not to throw it out on a mere technicality.
Law to this effect was laid by the Apex court in Express
Newspaper Limited [1962 (II) LLJ 227]. Reference can also
be made to the precedent in Management of Barpukhurie
Tea Estate [1976 (I) LLJ 558] and Minimax Limited [1968 (I)
LLJ 369].
9. When phraseology of order of reference is
inelegant, the Tribunal should look to the substance rather
than to the form of the order of reference. In construing
terms of the order of reference and determining the scope
and nature of the points referred, the Tribunal has to look
into the order of reference itself. Therefore, it is clear that
where the order of reference is vague or cryptic, the tribunal
may cull out the real question by construing its
phraseology. In C.P. Sarathy [1953(1)LLJ 174] the Apex
Court ruled that when order of reference is not clear the
Tribunal may crystalise the terms of reference from the
statements of the respective cases of the parties. In Delhi
Cloth and General Mills Limited (supra) the Apex Court
candidly laid that "the Tribunal must, in any event, look to
the pleadings of the parties to find the exact nature of the
dispute, because in most cases the order of reference is so
cryptic that it is impossible to cull out there from the various
points about which the parties were at variance, leading to
the trouble". From above proposition of law laid it is evident
that the Tribunal is competent to construe the terms of
reference, when it is vaguely worded and can ascertain the
real dispute between the parties even from its pleadings.
10. As detailed above, in the order of reference,
claimant has been named as 'Gani Khan' while in the claim
statement as well as in the written statement filed by the
Corporation, his name has been projected as 'Abdul Gani'.
Obviously, claimant has been wrongly named in the order
of reference made by the appropriate Government. To reach
to the real name of the claimant, Tribunal may look at the
pleadings of the parties. As pointed out above, the Tribunal
can find out the exact nature of the dispute by making
reference to the pleadings of the parties when order of
reference is vague or cryptical. Here in the case, order of
reference gives wrong name of the claimant, while parties
make it apparent that the name of the claimant as 'Abdul
Gani'. Taking into consideration law referred above, the
Tribunal is of the considered view that it can read real
name of the claimant out of pleadings of the parties.
Therefore, it is ordered that the reference order is construed
out of facts pleaded by the parties and the Tribunal
concludes that the dispute referred for adjudication is
between Shri Abdul Gani and the Corporation.
11. Claimant presents in hrs claim statement that he
joined services of the Corporation as a carpenter on muster
roll in 1969. He continuously served the Corporation and
his services were regularized as carpenter on 01.04.1976.
These facts are not at all deputed by the Corporation. Thus,
it is crystal clear that the claimant has rendered service as
carpenter on muster roll for a period of 6 years. His services
on muster roll was followed by his regularization in the
service of the Corporation. Therefore, claimant is to count
50% service rendered on muster roll, which was followed
by his regularization in service, for the purpose of retiral
benefits, in view of Government of India instructions No.
45-95/87-SPVI dated 12.04.1991. His service rendered as
carpenter on muster roll, followed by regularization, for the
purpose of retiral benefits comes to 3 years.
12. Corporation presents in its written statement that
the claimant was initially engaged in the pay scale of Rs.
210-270, which scale was converted into scale of Rs. 260-
400 (revised to scale of Rs. 3050-4590 with effect from
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1937
01.01.1996) when post of carpenter and senior carpenter
were merged into post of carpenter on the strength of
resolution No. 902 dated 05.03 2007. It has further been
projected by the Corporation that the claimant would be
given difference of Assured Career Progression Scheme
after revision of his pay scale. In the light of these admitted
facts, financial and retiral benefits of the claimant would be
ascertained.
13. Fifth Central Pay Commission recommended
introduction of Assured Career Progression Scheme for
grant of two financial upgradation to an employee in a
service span of 24 years. These recommendations were
accepted by the Government and Assured Career
Progression Scheme (in short the Scheme) was introduced
with effect from 09.08.1999. The Scheme projects that on
completion of 12 years of regular service, an employee
would be given financial upgradation. Second financial
upgradation would be admissible after 12 years of regular
service from the date of first financial upgradation. In cases
where employee has already completed 24 years of regular
service, with or without a promotion, the second
upgradation, under the Scheme, shall be granted directly.
In other words in respect of employees who have already
rendered 24 years of regular service on or before 09 08.1999,
and not received any promotion, two upgradations would
be given to them on 09. 08.1999. The Scheme has only
prospective application, it is not permissible to allow
notional benefit with retrospective effect.
14. Claimant, Shri Abdul Gani, superannuated on
30.09.1999, after rendering more than 22 years of regular
service. On the date of his superannuation, the Scheme
was not in operation. Since the Scheme has no retrospective
operation, notional benefit of the Scheme cannot be granted
to him with retrospective effect. Resultantly, it is concluded
that benefit of the Scheme for grant of financial upgradation
cannot be accorded to the claimant.
15. Corporation projects that posts of carpenter and
senior carpenter were merged with the post of carpenter in
the pay scale of Rs. 260-400 (revised to Rs. 3050-4590 with
effect from 01.01.1996) vide resolution No. 902 dated
05.03 2007, with effect from 01 01.1996. In the light of this
proposition, it is evident that claimant is entitled for grant
of his pay in the pay scale of Rs. 3050-4590 with effect from
01.01.1996 As emerged out of copy of his service book,
was at Rs. 1110.00 on 01.04.1996. On that date, claimant is
entitled to basic pay of Rs. 3440 in the pay scale of Rs.
3050-4590. His basic pay would reach to Rs. 3650.00 on
01.07.1998. The Corporation is, therefore, commanded to
refix his pay accordingly and release arrears at the earliest.
16. For pensionery benefits, claimant has rendered
qualifying service of 22 years, besides 3 years (50% of
service rendered as muster roll employee) service prior to
his regularization. Thus, his qualifying service for the
purpose of pension comes to 25 years. Calculating his
pension, the Tribunal concludes that he is entitled to
pension of Rs.1383 per month. The Corporation shall fix
his pension accordingly and release arrears to him.
17. For death-cum-retirement gratuity, he has
rendered 25 years of service. Calculating his gratuity on
that standard, it is apparent that the claimant is entitled to
gratuity of Rs. 55,663.00. The Corporation shall accordingly
release gratuity in his favour and grant difference of gratuity
amount to him.
18. In view of the above reasons, claimant is entitled
for re-fixation of his pay, release of pension at revised rate
and grant of difference of death-cum-retirement gratuity,
as calculated above. The Corporation shall release arrears
of wages, difference of pension as well as gratuity amount
within 30 days from the date this award becomes operative.
An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Date: 11.10.2013
R. K. YADAV, Presiding Officer
ubZ fnYyh] 4 Qjojh] 2014
dkñvkñ 719.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
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[lañ ,y&40012@76@2009&vkbZ vkj ¼Mh;w½]
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New Delhi, the 4th February, 2014
S.O. 719.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 37/2009)
of the Central Government Industrial Tribunal/Labour
Court, Jaipur now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Bharat Sanchar Nigam Limited, Sawai
Madhopur and their workman, which was received by the
Central Government on 28/01/2014.
[No. L-40012/76/2009-IR(DU)]
P. K. VENUGOPAL, Section Officer
1938
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXRUE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LAB OUR COURT, JAIPUR
N.K. PUROHIT, Presiding Officer
I.D. 37/2009
Reference No. L-40012/76/2009-IR(DU)
Dated: 4.11.2009
Smt. Uganti
W/o Shir Hazari Raigar,
Village Mirzapur, Tehsil-Gangapur City,
Sawai Madhopur (Rajasthan)
V/s.
The Sub-Divisional Engineer (Telephone)
M/s. Bharat Sanchar Nigam Limited,
Gangapur City, Sawai Madhopur (Raj.)
PRESENT:
For the applicant
: Sh. M. F. Beig.
For the non-applicant : Sh. B. L. Ahir.
AWARD
Dated: 23.5.2013
1. The Central Government in exercise of the powers
conferred under clause (d) of Sub-section 1 & 2(A) of
Section 10 of the Industrial Disputes Act, 1947 has referred
the following Industrial dispute to this tribunal for
adjudication:—
"Whether the action of the management of Sub-
Divisional Engineer (Telephone), BSNL, in
terminating the services of Smt. Uganti w.e.f. 31/8/
2000 is legal & justified? If not, what relief the
workman is entitled to?"
2. The workman has pleaded in her statement of
claim that she was employed by the non-applicant as daily
wager class IV safai karamchari on 1.9.99 but her services
were terminated on 31.8.2000 without assigning any reason.
She has further pleaded that she had worked for more than
240 days during preceding 12 months from the date of
termination, therefore, her termination without any notice,
notice pay or compensation was in violation of section
25-F of the I.D. Act. She has alleged that no seniority list
was prepared before terminating her services & non-
applicant has also violated the provisions of section 25-G
of the ID. Act. The workman has also pleaded that the non-
applicant did not pay the salary for the period September,
1999 to Aug. 2000. The Authority under Payment of Wages
Act directed the non-applicant to pay the due salary &
compensation to the workman. The appeal against the said
order filed by the non-applicant was rejected. Thus, the
workman has prayed for her reinstatement with back wages
& other consequential benefits.
3. In reply, the non-applicant has denied the claim of
the workman. It has been averred that the applicant was
never employed as daily wager class IV employee. She had
not worked under the employment of the non- applicant;
therefore, question does not arise for violation of provisions
of section 25-F & 25-G. It has also been averred that the
Authority under Payment of Wages has not considered
the documents produced by the non-applicant & appeal
against the order of Authority under Payment of Wages
Act has been filed by the non-applicant.
4. In rejoinder, the applicant has stated that order
passed by the Authority under Payment of Wages Act has
attained the finality.
5. In evidence, the workman has filed her affidavit. In
rebuttal, the non-applicant has filed the affidavits of
Sh. B. K. Sharma MW1, Sh. Ramswaroop Mali MW2,
Smt. Mangi Bai MW3, Sh. Sumrat Lal Meena MW4 & Sh.
Suresh Chand Gupta MW5. Affidavit of Sh. Nanak Chand
Goyal was also filed but he has not appeared for cross-
examination, therefore, his affidavit cannot be considered
in evidence.
6. I have considered the written submission submitted
on behalf of both the parties & have gone through the
record.
7. The workman has filed documents Ex. W-1 &
Ex. W-2 whereas the non-applicant has produced
documents Ex. R-1 to R-5.
8. In view of the rival pleadings of the parties, the
questions crop-up for consideration are as below:—
I. Whether the workman has worked as daily wager
safai karamchari for more than 240 days during
period 1.9.99 to 30.8.2000 whose services were
terminated on 31.8.2000 in violation of section 25-F
of the l.D. Act?
II. Whether non-applicant terminated the services of
the applicant in violation of the section 25-G of
the I.D. Act?
III. Relief.
Point No. I
9. The initial burden was on the workman to prove
that he had remained under the employment of the non-
applicant as a workman for a continuous period of at least
one year as envisaged u/s 25-F of the I.D. Act, therefore,
his termination without notice or compensation in lieu of
notice was in violation of the said section.
10. The workman has stated that she was appointed
by the non-applicant as daily wager safai karamchari on
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1939
1.9.99. She has further stated that despite she had worked
for more than 240 days, her services were terminated on
31.8.2000 without any notice, notice pay or compensation.
In support of her statement she has filed documents
Ex. W-1 & Ex. W-2.
11. In rebuttal, Sh. B.K. Sharma, D.E., MW2,
Sh. Sumrat Lal Meena, S.D.E. MW4 & Sh. Suresh Chand
Gupta, Cash Counter, MW5 have stated that the workman
was not employed by the non-applicant & she had not
worked as daily wager safai karamchari. They have also
stated that the work of cleaning was being performed by
Smt. Mangi Bai & the work of filling & serving water was
being done by Sh. Ramswaroop Mali.
12. Sh. Ramswaroop Mali has stated that he had
performed the work of filling water & serving water for
about 25 years in the non-applicant Department at Gangapur
City. Smt. Mangi Bai MW3 has also stated that the job of
safai was being performed by her. Both the witnesses have
stated that the workman had not worked under the non-
applicant as safai karamchari during period Sep. 99 to Aug.
2000.
13. The Id. Representative for the workman submits
that the statement of the workman that she had worked as
daily wager safai karamchari for more than 240 days finds
corroboration from the documents Ex-w-1 & Ex-w-2. The
order dated 25.7.2001 Ex-w-1 & decision dated 2.12.2008
Ex-w-2 have attained the finality & above decision are
binding on the parties. He further submits that since the
workman had worked for more than 240 days during
preceding 12 months from the date of her termination, her
termination without complying with the provisions of
section 25-F of the l.D. Act, is illegal.
14. Per contra, the Id. Representative for the
non-applicant submits that the documents of the non-
applicants were not considered in order Ex-w-1 & it
has not attained finality. He further submits that from
statement of the management witnesses & documentary
evidence adduced by the non-applicant it is proved that
the workman had not worked under the employment of
the non-applicant. He also submits that it was for the
workman to prove that she had actually worked for more
than 240 days during preceding 12 months from the date
of alleged termination but she has failed to prove above
facts, therefore, provisions of section 25-F of the I.D. Act
are not attracted.
15. I have given my thoughtful consideration to
the rival submissions of the parties.
16. It is not in dispute that a claim PWA 21/2000 was
filed by the applicant before the Authority under Payment
of Wages Act, Sawai Madhopur for her due wages for the
period Sep. 1999 to Aug. 2000 & compensation for the non-
payment of the wages for the said period. Admittedly, vide
order dated 25.7.2001 Ex-w-2, directions were given to the
non-applicant for payment of due wages of the workman
for the said period. It is also not in dispute that appeal
against the said order was dismissed vide decision dated
2.12.2008 Ex-w-1. The management witness Sh. Sumrat Lal
Meena has admitted that the appeal no. 1909/09 against
the decision of the ADJ, Fast Track, Sawai Madhopur, was
also dismissed.
17. The management has produced documents Ex-
R-1 to R-5. Ex-R-1/1 to 8 are payment bills of the part time
worker. Ex-R-2 is a letter dated 25.8.2000 regarding
conversion of part time casual labourers working for less
than four hours per day into full time casual labourers. Ex-
R-3 is the copy of notification regarding change of
telephone numbers, Ex-R-5 is notification published in
newspaper dated 30.3.2000.
18. Document Ex-R-2 to Ex-R-5 are not relevant for
the point under consideration. Ex-R-1/1 to Ex-R-1/8 are
payment bills of part time workers which show that
management witnesses Sh. Ramswaroop Mali & Smt. Mangi
Bai were working as part time Paniwala & Safaiwala
respectively during period Sep, 1999 to Aug, 2000.
19. The workman has stated that she had worked as
daily wager safai karamchari from Sep, 1999 to Aug, 2000 &
her services were terminated on 31.8.2000 without any
notice or notice pay or compensation. Ex-w-2 order
dated 25.7.2001 reveals that a claim for payment of wages
for the period Sep. 1999 to Aug. 2000 was filed before the
Authority under Payment of Wages Act, Sawai Madhopur
& while allowing her claim directions were given to the
non-applicant to pay an amount of Rs,15600/- as due wages
for the said period & an amount of Rs.15600/- as
compensation. As per order total amount Rs.31200/-
was to be paid to the workman within 30 days from the date
of order. Ex-w-1 reveals that the Civil Misc. appeal
no. 58/2008 against the order of the Authority under
Payment of Wages Act was dismissed by the court of ADJ
(F.T.), Sawai Madhopur vide decision dated 2.12.2008. From
the statement of the management witness Sh. S.L. Meena it
further reveals that an appeal against the decision Ex-w-1
dated 2.12.2008 filed before the Hon'ble High Court was
also dismissed. The management witness has stated that
against the said order of the Single Bench an appeal was
filed but he was unable to state whether that appeal was
disposed of or pending. The management has not filed any
document in this regard. Upon perusal of the record it also
reveals that the workman has submitted an application
along with photo state copy of the cheque for an amount
of Rs.31200/- issued in his favour by the non-applicant.
Under these circumstances, the contention of the Id.
Representative for the non-applicant that order of the
Authority under Payment of Wages Act has not attained
finality is not sustainable. Since, the order of the Authority
1940
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
under Payment of Wages Act has attained finality the
contention of the Id. Representative for the non-applicant
that the Authority under Payment of Wages Act has not
considered the documents produced by the non-applicant
is also not tenable.
20. The order Ex. w-2 of the Authority under
Payment of Wages Act has been upheld by the court of
ADJ(F.T.), Sawai Madhopur vide decision Exw-1. The
management witness Sh. S.L.Meena has admitted this
fact that appeal no. 1909/09 against the decision Exw-1
has also been rejected by Hon'ble High Court. Thus, it
is evident that claim of the workman for a due wages for
the period Sep. 1999 to Aug. 2000 has been allowed in
the aforesaid decisions & findings in the decisions supra
substantiate the statement of the workman that she had
worked under the employment of the non-applicant
during said period. In view of the order of the Authority
under Payment of Wages Act which have been confirmed
in appeal & has attained finality, the statements of the
management witnesses that the workman had never
worked under the employment of the non-applicant is
not acceptable,
21. Since, the workman has established that she had
worked as daily wager for more than 240 days during
preceding 12 months from the date of her termination i.e.
31.8.2000 & admittedly, the non-applicant has not given
any notice, notice pay or compensation to the workman,
the termination of the workman was in violation of section
25-F of the l.D. Act, Accordingly, this point is decided in
favour of the workman.
Point No. II
22. The workman has alleged that her termination
was in violation of section 25-G of the I.D. Act but in this
regard neither there is any pleadings nor any evidence that
while terminating her services any junior person to her was
retained in the job. Thus, the workman has failed to prove
any violation of section 25-G of the I.D. Act. This point is
decided against the workman.
Point No. IlI
23. Since, Point no. I has been decided in favour of
the workman, therefore, it is to be considered what relief
should be given to the workman.
24. This legal position is not in dispute that in case
of non compliance of section 25-F the workman can be
reinstated with other consequential reliefs. In case law
referred to by the learned representative the question as to
whether in case of violation of section 25-F an award of
reinstatement should be automatically passed was not
under consideration.
25. Earlier in cases of termination in violation of
section 25-F reinstatement of the workman with full back
wages used to be automatically granted, but keeping in
view several other factors, a change in the said trend is
now found in the recent decisions of the Hon'ble Supreme
Court. In a large number of decisions in the matter of grant
of relief of the kind, Hon'ble Apex Court has distinguished
between a daily wager who does not hold a post and a
permanent employee.
26. In recent decision (2010) 1 SCC (L&S) 545 Jagbir
Singh V/s Haryana State Agriculture Mktg. Board after
considering the earlier decisions referred to therein on the
point should an order of reinstatement automatically follows
in a case of violation of section 25-F of the I.D. Act Hon'ble
Apex Court has observed that:—
"It would be, thus seen that by a catena of
decisions in recent time, this Court has clearly laid
down that an order of retrenchment passed in
violation of Section 25-F although may be set aside
but an award of reinstatement should not, however,
be automatically passed. The award of re-
instatement with full back wages in a case where
the workman has completed 240 days of work in a
year preceding the date of termination, particularly,
daily wagers has not been found to be proper by
this Court and instead compensation has been
awarded. This court has distinguished between a
daily wager who does not hold a post and a
permanent employee."
27. Continuing this line of approach in decision (2010)
2 SCC (L&S) 376 Hon'ble Apex Court has observed as
under:—
"While the earlier view of the Court was that if an
order of termination was found to be illegal, normally
the relief to be granted would be reinstatement with
full back wages. However, with the passage of time
it came to be realized that an industry should not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all. The relief to be granted is
discretionary and not automatic. A person is not
entitled to get something only because it would be
lawful to do so. The changes brought out by the
subsequent decisions of the Supreme court
probably having regard to the changes in the policy
decisions of the Government in the wake of
prevailing market economy, globalization,
privatization and outsourcing was evident. Hence
now there is no such principle that for an illegal
termination of service the normal rule is
reinstatement with back wages, and instead the
Labour court can award compensation."
"There has been a shift in the legal position laid down
by the Supreme Court and now there is no hard-and-
fast principle that on the termination or service being
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1941
found to be illegal reinstatement with back wages is to
be awarded. Compensation can be awarded instead,
at the discretion of the Labour Court, depending on
the facts and circumstances of the case."
28. In present matter, the workman has worked as
daily wager safai karamchari. She was not holding any
regular post. Keeping in view the nature of job & nature of
employment, the inordinate delay in raising the dispute,
the laps of time after termination of the services, the total
length of service rendered by the claimant & having regard
the entire facts & circumstances of the case, instead of
reinstating the interest of justice will be sub served by
paying compensation of Rs. 20,000/- only to the workman
instead & in lieu of relief of reinstatement in service.
29. Accordingly, the reference is answered in favour
of the workman & it is held that the action of the management
in termination of the services of the workman being in violation
of section 25-F of the Act is illegal & unjustified. Therefore,
the non-applicant is directed to pay compensation to the
workman worth Rs.20,000/- (Twenty Thousand Only) instead
and in lieu of his reinstatement of service. The payment shall
be made within eight weeks from the publication of the award
failing which it shall carry interest @ 9% per annum.
30.Award as above.
N.K. PUROHIT, Presiding Officer
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New Delhi, the 5th February, 2014
S.O. 720.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No 69/2004)
of the Central Government Industrial Tribunal/Labour
Court, Jaipur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Station Commander, Vayu Sena &
Others, Jodhpur and their workman, which was received
by the Central Government on 31/01/2014
[No. L-14011/02/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, JAIPUR
Sh. N.K.PUROHIT, Presiding Officer,
I.D.69/2004
Reference No.L-14011/2/2004 [(IR(DU)]
dated: 8.11.2004
Shri Sohan Lal
S/o Sh. Shyam Lal
House No.143, Opp. Petrol Pump,
Navdurga Nagar, Jhalamand, Pali Road, Jodhpur.
V/s
1.
The Station Commander 32 Wing, Vayu Sena, Jodhpur.
2.
The Senior Education Officer Air Force Station, Jodhpur.
AWARD
26.6.2013
1. The Central Government in exercise of the powers
conferred under clause (d) of Sub Section 1 and 2(A) of
Section 10 of the Industrial Disputes Act 1947 has referred
the following Industrial dispute to this tribunal for
adjudication:—
"Whether the action of the management of Sr.
Education Officer, Air Force Station, Jodhpur under
Station Commandant, 32 Wing, Air Force, Jodhpur in
dismissing the workman Sh. Sohan Lal S/o Sh. Shyam
Lal, School Bus Assistant w.e.f. 18.12.97 and not
giving the benefits on completion of service is just
& legal? If not, to what relief the workman is entitled
to ?"
2. The workman has pleaded in his statement of claim
that he was engaged by the non-applicant as School Bus
Assistant on 25.6.1991 and he had worked as such during
period 25.6.91 to 18.12.97 but despite he had worked
continuously during said period, his services were orally
terminated on 18.12.97 without complying with the
provisions of section 25-F of the I.D.Act. He has further
pleaded that while terminating his services junior to him
was retained in the job in violation of section 25-G of the
I.D.Act and after terminating his services, new hand was
given recruitment without complying with the provisions
of the section 25-H of the I.D.Act. Thus, the workman has
prayed for his reinstatement with back wages and other
consequential benefits.
3. The non-applicant in its reply has denied the
claim of the workman. It has been averred that the Govt.
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Of India vide Air Force instructions has made provisions
of service transport for the school going children of
defence personnel. There is no provision in the said A.F.I.
for engaging bus conductor/attendant out of public fund.
On request of the parents of the school going children to
engage bus attendant for safety of their wards bus
conductor/attendant have been engaged as contingent
worker. Their duties are part time and only on school
working days.
4. The non-applicants have averred that the
workman started working as bus attendant w.e.f. 21.6.91
and his services were for two hours in the morning and
two hours in the afternoon except for holidays/ school
vacation period. The non-applicants have further stated
that on 18.12.97 the workman came and threw his
temporary pass issued to him and went away refusing to
do duties as bus attendant.
5. It has further been averred that the workman was
engaged as contingent worker for a fixed amount; that he
was not selected through any due process of selection
under the Government Rules and Regulations; that the
service of the workman was not terminated, he had left the
job at his own; that he was a casual labour paid out of the
money collected from the parents of the school going
children using bus service and no government budget for
the purpose was allocated.
6. In evidence, the workman has filed his affidavit
and documents Exw-1 to Exw-3. In rebuttal, the non-
applicants have filed the counter affidavit of Sh. S.A.
Srivalsan, Wing Commander and has also filed copy of Air
Force Instructions (A.F.I.) and copy of record of payment
paid to the workman.
7. Heard the arguments advanced by the I.D.
Representatives on behalf of both the parties and perused
the record.
8. Following points crop-up for consideration:
(i) Whether the workman has worked continuously
during period 25.6.91 to 18.12.97 whose services
were terminated on 18.12.97 in violation of section
25-F of the I.D.Act?
(ii) Whether at the time of terminating the serives of
the workman, junior to him was retained in
violation of section 25-G of the I.D.Act?
(iii) Whether after terminating the services of the
workman, new hand was given recruitment in
violation of the section 25-H of the I.D.Act?
(iv) To what relief the workman is entitled to.
Point No. I
9. To attract the provision of section 25-F of I.D.Act
one of the conditions required is that the workman is
employed in any industry for a continuous period which
would not be less than one year.
10. The expression "continuous period" occur in
section 25-F has been defined in section 25-B of the I.D.Act.
Under sub-section (1) of the section 25-B, if a workman has
put in uninterrupted service of establishment including
the service which may interrupted on account of sickness,
authorize leave, accident, a strike which is not illegal, a lock
out or secession of work that is not due to any fault on the
part of the workman shall be said to be continuous service
for one year i.e. 12 months in respect of number of days he
has actually worked with interrupted service permissible
under sub-section (1) of section 25-B.
11. Sub-section 2 of section 25-B of the I.D. Act says
that even if a workman has not been in continuous service
for a period of one year as envisaged under sub-section (1)
of 25-B of I.D.Act, he shall be deemed to have been in such
continuous service for a period of one year if he has actually
worked under the employer for 240 days in preceding period
of twelve months from the date of his termination. The said
sub-section provides for a fiction to treat a workman in
continuous service for a period of one year despite the fact
that he has not rendered uninterrupted service for a period
of one year.
12. In the background of the legal provisions set
forth above, factual scenario in the present case is to be
examined.
13. The initial burden was on the workman to prove
that he had remained under the employment of the non-
applicant as a workman for a continuous period of at least
one year as envisaged u/s 25-F of the I.D.Act therefore, his
termination without notice or compensation in lieu of notice
was in violation of the said section.
14. The workman has stated that he was engaged as
school bus assistant on 1.7.88 and he had worked as school
bus assistant during period 1.7.88 to 24.6.98 but despite he
had worked for more than 240 days in a calendar year, his
services were orally terminated on 24.6.98 without
complying with the provisions of the 25-F of the I.D.Act.
15. The workman has submitted documents Exw-1 to
Exw-3 in support of his statement. Exw-1 is copy of
temporary pass issued to the workman. Exw-2 and Exw-3
are certificates given by Officer In-charge Civil
Administration and Warrant Officer respectively.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1943
16. The management witness Wing Commander Sh.
S.A. Srivalsan has admitted in his cross examination that
temporary pass Exw-1 was issued for entry in the technical
area which was to be renewed monthly. He has also admitted
that certificate Exw-2 and Exw-3 were issued by the officers
of the department but he has stated that they were not
authorised to issue such certificates.
17. The non-applicant has produced the statement
ExM-1 regarding payment of wages to the workman. Upon
perusal of the record produced by the non-applicants in
this regard, it reveals that the record pertaining to year
1991 to 1996 has not been produced & it has been stated
that the record for the said period has been destroyed as
per policy of I.A.F. 3503. However. the record pertaining to
year 1997 has been produced according to which details of
payment to the workman are as below:—
Month
Amount
Payment On
Jan., 97
650/-
31.1.97
Feb., 97
650/-
20.2.97
March, 97
650/-
31.3.97
April, 97
650/-
3.5.97
May, 97
-
wages not paid due
June, 97
-
to summer vacation.
July, 97
800/-
5.8.97
Aug., 97
800/-
29.8.97
Sep., 97
800/-
30.9.97
Oct., 97
800/-
29.10.97
Nov., 97
533/-
18.12.97
18. The management witness has stated in his
statement that on 18.12.97 the workman absented himself
from the job. Thus, impliedly he has admitted that till 18.12.97
the the workman was working as school bus attendant.
19. It is not in dispute that the workman had worked
as school bus attendant during period 25.6.91 to 18.12.97.
As per the record produced by the non-applicants for the
period Jan., 97 to Dec., 97 the workman had worked as
school bus assistant during said period except the period
of two months of summer vacation. Thus, the statement of
the workman finds support from the evidence of the
management that during preceding 12 months from the
date of his termination i.e. 18.12.97, he had worked for more
than 240 days.
20. The I.D. Representative for the workman
contends that since, the workman had worked for more
than 240 days during preceding 12 months from the date of
termination, his termination without complying with the
mandatory provisions of section 25-F of the I.D. Act is
illegal & unjustified. He further contends that part time
workers also fall within the ambit of definition of the
'workman' u/s 2-(s) of the I.D. Act. He also contends that
the workman was engaged by the non-applicant to work as
school bus attendant & wages were paid to him by the
non-applicants, therefore, the workman was an employee
of the non-applicants.
21. Per contra, the I.D. Representative for the non-
applicants submits that on the request of the parents of
the school going children, who agreed to contribute towards
payment of wages, school bus attendant were engaged.
He also submits that there is no provision in this regard in
the Air Force Instructions (A.F.I.) & there was no budget
allocation for this purpose. He also submits that the
workman was not an employee of the non-applicant & his
services were not terminated. The workman had left the job
at his own, therefore, provisions of section 25-F are not
attracts.
22. I have considered the submissions made by the
I.D. Representatives for both the sides.
23. Admittedly, the workman was working as school
bus attendant. Even, if the contentions of the non-
applicants is accepted that his services were for two hours
in the morning & for two hours in the afternoon, he was
workman within the definition of workman u/s 2-(s) of the
I.D. Act. It is not the case of the non-applicants that the
workman was directly paid by the parents of the school
going children for safety of their wards. The workman was
engaged by the non-applicants & as per record payment
was being made by the non-applicants. It is immaterial
whether the payment was made by the non-applicants from
public fund or non-public fund.
24. The workman has stated that his services were
orally terminated on 18.12.97. In his statement he had denied
that he had left the job at his own. Admittedly, the workman
was working as school bus attendant since 1991 & he was
on the job till 18.12.97. After raising the dispute regarding
his alleged termination on 18.12.97, he is still contesting
the case. Under these circumstances, the version of the
non-applicants that the workman had left the job at his
own accord is not believable.
25. In view of aforesaid discussions, the workman
has succeeded in establishing that he had worked for more
than 240 days during preceding 12 months from the date of
his termination on 18.12.97. Amittedly, no notice or
compensation in lieu of notice was paid to the workman,
therefore, the termination of the workman was in violation
of section 25-F of the I.D. Act. Accordingly, this point is
decided in favour of the workman.
Point No. II
26. The workman has stated in his claim statement
that at the time of termination his services, junior to him
was retained in the job but no such name has neither been
1944
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
disclosed by him in his claim statement nor in his affidavit.
He has not produced any documentary evidence in support
of his statement in this regard. Therefore, neither he could
be able to adduce the sufficient evidence on this point to
corroborate his testimony nor his own testimony is definite
on this point as such he has failed to discharge to the onus
of this point, which is decided against him.
Point No. III
27. The workman nowhere narrated in his claim
statement the name of the person who was given
recruitment after termination of his services. Except his
own statement that after terminating his services new hand
was given recruitment, nothing has been brought on record
to substantiate his statement in this regard. As such, except
his bald statement, there is no evidence on this point & in
absence thereof, it is decided against the workman.
Relief
28. The learned representative on behalf of the
workman has submitted that termination of the workman is
in violation of the section 25-F of the I.D. Act therefore, the
workman be reinstated with all consequential benefits.
29. This legal position is not in dispute that in case
of non compliance of section 25-F, the workman can be
reinstated with other consequential reliefs.
30. Earlier, in cases of termination in violation of
section 25-F reinstatement of the workman with full back
wages used to be automatically granted, but keeping in
view several other factors, a change in the said trend is
now found in the recent decisions of the Hon'ble Supreme
Court. In a large number of decisions in the matter of grant
of relief of the kind, Hon'ble Apex Court has distinguished
between a daily wager who does not hold a post and a
permanent employee.
31. In recent decision (2010) 1 SCC (L&S) 545 Jagbir
Singh V/s. Haryana State Agriculture Mktg. Board after
considering the earlier decisions referred to therein on the
point should an order of reinstatement automatically follows
in a case of violation of section 25-F of the I.D. Act Hon'ble
Apex Court has observed that:—
"It would be, thus seen that by a catena of decisions
in recent time, this Court has clearly laid down that
an order of retrenchment passed in violation of
Section 25-F although may be set aside but an award
of reinstatement should not, however, be
automatically passed. The award of reinstatement
with full back wage in a case where the workman has
completed 240 days of work in a year preceding the
date of termination, particularly, daily wages has not
been found to be proper by this Court and instead
compensation has been awarded. This court has
distinguished between a daily wager who does not
hold a post and a permanent employee."
32. Continuing this line of approach in decision (2010)
2 SCC (L&S) 376 Hon'ble Apex Court has observed as
under:—
"While the earlier view of the Court was that if an
order of termination was found to be illegal, normally
the relief to be granted would be reinstatement with
full back wages. However, with the passage of time it
came to be realized that an industry should not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all. The relief to be granted is discretionary
and not automatic. A person is not entitled to get
something only because it would be lawful to do so.
The changes brought out by the subsequent
decisions of the Supreme court probably having
regard to the changes in the policy decisions of the
Government in the wake of prevailing market
economy, globalization, privatization and
outsourcing was evident. Hence now there is no such
principle that for an illegal termination of service the
normal rule is reinstatement with back wages, and
instead the Labour Court can award compensation."
"There has been a shift in the legal position laid
down by the Supreme Court and now there is no
hard-and-fast principle that on the termination of
service being found to be illegal reinstatement with
back wages is to be awarded. Compensation can be
awarded instead, at the discretion of the Labour
Court, depending on the facts and circumstances of
the case."
33. In present matter, the workman has worked as
school bus attendant & was getting Rs. 800/-p.m. as wages.
He was not holding any regular post. Keeping in view the
nature of job & nature of employment, the laps of time after
termination of the services, the delay in raising the dispute,
amount of wages being paid to him, the total length of
service rendered by the claimant & having regard the entire
facts & circumstances of the case, instead of reinstating
him the interest of justice will be sub served by paying
compensation to the workman instead & in lieu of relief of
reinstatement in service.
34. Accordingly, the reference is answered in favour
of the workman & it is held that the action of the
management in termination of the services of the workman
being in violation of section 25-F of the Act is illegal &
unjustified. Therefore, the non-applicant is directed to pay
compensation to the workman worth Rs. 25,000/-(Twenty
Five Thousand Only) instead & in lieu of his reinstatement
of service. The payment shall be made within eight weeks
from the publication of the award failing which it shall carry
interest @ 9% per annum.
35. Award as above.
N.K.PUROHIT, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1945
ubZ fnYyh] 5 Qjojh] 2014
dkñvkñ 721.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVs'ku dekaMj] ok;q
lsuk] ,aM vkWFklZ] tks/kiqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] t;iqj ds iapkV
¼lanHkZ la[;k 28@2006½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&14011@03@2004&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 5th February, 2014
S.O. 721.—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, Jaipur now
as shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of The Station
Commander, Vayu Sena & Others, Jodhpur and their
workman, which was received by the Central Government
on 31/01/2014
[No. L-14011/03/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, JAIPUR
SH. N.K. PUROHIT, Presiding Officer
I.D. 28/2006
Reference No.L-14011/3/2004 [IR(DU)] dated: 27.10.2004
Shri Payrelal
S/o Sh. Baldev Ram
R/o Opp. Ship House
Sargara Colony, Jodhpur.
V/s.
1.
The Station Commander
32 Wing, Vayu Sena,
Jodhpur.
2.
The Senior Education Officer
Air Force Station, Jodhpur.
AWARD
26.6.2013
1. The Central Government in exercise of the powers
conferred under clause (d) of Sub-section 1 &2(A) of
Section 10 of the Industrial Disputes Act 1947 has referred
the following Industrial dispute to this tribunal for
adjudication:—
"Whether the action of the management of Senior
Education Officer, Air Force Station, under Station
Commander, 32 Wing, Air Force, Jodhpur in dismissing
the services of Sh. Payre Lal S/o Sh. Baldev Ram. School
Bus Assistant w.e.f. 24.6.98 and not granting benefits
on completion of service is just & legal? If not, to what
relief the workman is entitled to?"
2. The workman has pleaded in his statement of claim
that he was engaged by the non-applicant as School Bus
Assistant on 1.7.1988 & he had worked as such during
period 1.7.88 to 24.6.98 but despite he had worked
continuously during said period, his service were orally
terminated on 24.6.98 without complying with the provisions
of section 25-F of the I.D.Act. He has further pleaded that
while terminating his services junior to him was retained in
the job in violation of section 25-G of the I.D. Act & after
terminating his services, new hand was given recuritment
without complying with the provisions of the section 25-H
of the I.D.Act. Thus, the workman has prayed for his
reinstatement with back wages & other consequential
benefits.
3. The non-applicant in its reply has denied the claim of
the workman. It has been averred that the Govt. of India
vide Air Force instructions has made provisions of service
transport for the school going children of defence personnel.
There is no provision in the said A.F.I. for engaging bus
conductor/attendant out of the public fund. On request of
the parents of the school going children to engaged bus
attendant for safety of their wards bus conductor/attendant
have been engaged as contingent worker. Their duties are
part time & only on school working days.
4. The non-applicants have averred that the workman
started working as bus attendant w.e.f. 1.7.1988 & his
services were for two hours in the morning & two hours in
the afternoon except for holidays/school vacation period.
The non-applicants have further stated that on 24.6.1998
the workman came & threw his temporary pass issued to
him & went away refusing to do duties as bus attendant. It
has also been averred that registered letters dated 27.10.98
& 2.11.98 were sent to the workman requesting him to join
duties but despite this he did not join his duties.
5. It has further been averred that the workman was
engaged as contingent worker for a fixed amount; that he
was not selected through any due process of selection
under the Government Rules & Regulations; that the service
of the workman was not terminated, he had left the job at
his own; that he was a casual labour paid out of the money
collected from the parents of the school going children
using bus service & no government budget for the purpose
was allocated.
6. In evidence, the workman has filed his affidavit &
documents Exw-1 to Exw-10. In rebuttal, the non-
applications have filed the counter affidavit of Sh. S.A.
Srivalsan, Wing Commander.
7. Heard the arguments advanced by the Ld.
Representatives on behalf of both the parties and perused
the record.
1946
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
8. Following points crop-up for consideration:—
(i) Whether the workman has worked continuously
during period 1.7.88 to 24.6.98 whose services were
terminated on 24.6.98 in violation of section 25-F
of the I.D. Act?
(ii) Whether at the time of terminating the services of
the workman, junior to him was retained in
violation of section 25-G of the I.D. Act?
(iii) Whether after terminating the services of the
workman, new hand was given recruitment in
violation of the section 25-H of the I.D. Act?
(iv) To what relief the workman is entitled to.
Point No. I
9. To attract the provision of section 25-F of I.D. Act
one of the conditions required is that the workman is
employed in any industry for a continuous period which
would not be less than one year.
10. The expression "continuous period" occur in section
25-F has been defined in section 25-B of the I.D. Act. Under
sub-section (1) of the section 25-B, if a workman has put in
uninterrupted service of establishment including the service
which may interrupted on account of sickness, authorize
leave, accident, a strike which is not illegal, a lock out or
secession of work that is not due to any fault on the part of
the workman shall be said to be continuous service for one
year i.e. 12 months in respect of number of days he has
actually worked with interrupted service permissible under
subsection (1) of section 25-B.
11. Sub-section 2 of section 25-B of the I.D. Act says
that even if a workman has not been in continuous service
for a period of one year as envisaged under sub-section (1)
of 25-B of I.D. Act, he shall be deemed to have been in such
continuous service for a period of one year if he has actually
worked under the employer for 240 days in preceding period
of twelve months from the date of his termination. The said
sub-section provides for a fiction to treat a workman in
continuous service for a period of one year despite the fact
that he has not rendered uninterrupted service for a period
of one year.
12. In the background of the legal provisions set forth
above, factual scenario in the present case is to be
examined.
13. The initial burden was on the workman to prove that
he had remained under the employment of the non-
applicant as a workman for a continuous period of at least
one year as envisaged u/s 25-F of the I.D. Act therefore,
his termination without notice or compensation in lieu of
notice was in violation of the said section.
14. The workman has stated that he was engaged as
school bus assistant on 1.7.88 and he had worked as school
bus assistant during period 1.7.88 to 24.6.98 but despite he
had worked for more than 240 days in a calendar year, his
services were orally terminated on 24.6.98 without
complying with the provisions of the 25-F of the I.D. Act.
15. The workman has submitted documents Exw-1 to Ex
w-10 in support of his statement. Ex w-1, Ex w-2 and Ex w-3
are photocopies of the certificate issued by the Warrant
Officer, Squadron Leader and Education Officer respectively
which reveals that he was working in station education
section since July, 1988. Ex w-4 is letter dated 7.5.90 of the
Wing Commander whereby workman was informed that
"school will remain closed till 24.6.90, therefore, services
are terminated w.e.f. 7.5.90 and he will be considered for
re-employment after re-opening of the school on 22.6.90."
Exw-5 is photocopy of temporary pass issued to the
workman which reveals that he had worked during years
1991 to 1998. Ex w-6 is termination letter whereby services
were terminated w.e.f. 5.5.91 due to summer vacation and it
was mentioned that "he can be re-considered for
re-employment during next academic session. Ex w-7 and
Ex w-8 are letters addressed to the workman dated 3.9.98
and 27.10.98 requesting to join duties. Ex w-9 is a letter of
the workman dated 5.11.98 regarding reporting on duty. Ex
w-10 is letter dated 2.11.98 addressed to the workman by
the Flight Lieutenant for reporting on duty.
16. The management witness Wing Commander Sh. S.A.
Srivalsan has admitted in his cross examination that
certificates Ex w-1 to Ex w-4 were issued by the officer of
the department but he has stated that they were not
authorised to issue such certificates. The certificates have
been given by them in their personal capacity. He has also
admitted that temporary pass Ex w-5 was issued to the
workman which was to be renewed monthly. He has also
admitted that Ex w-7, Ex w-8 and Ex w-10 letter were issued
to the workman but he has stated that letter Ex w-9 of the
workman was not received to the department.
17. The non-applicant has produced the statement Ex D-
3 regarding payment of wages to the workman. It has been
mentioned in the said statement that as per policy of the
I.A.F. 3503 the record pertaining to the workman for the
period 1991 to 1996 had been destroyed. The non-applicant
has mentioned the details of the amount paid to the workman
for the period Jan., 97 to April, 98. On perusal of the Ex D-3,
it reveals that due to summer vacation, working days of the
workman in the month of May 86 June were 1 to 5 May and
23 to 30 June and for that an amount of Rs. 278/- was paid
on 3.7.97. For remaining months an amount of Rs. 800/-
was paid during period Jan., 97 to April, 98.
18. The management witness has stated in his statement
that on 24.6.98 the workman absented himself from the job.
Thus, impliedly he has admitted that till 24.6.98 the workman
was working as school bus attendant.
19. It is not in dispute that the workman had worked as
school bus attendant during period 1.7.88 to 24.6.98. As
per the record produced by the non-applicants during
period Jan., 97 to April, 98, the workman had worked during
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1947
the months Jan., 97 to April, 97 and July, 97 to April, 98 and
months of May and June he had worked for 5 days and 8
days respectively. Thus, the statement of the workman
finds support from the evidence of the management that
during preceding 12 months from the date of his termination
i.e. 24.6.98, he had worked for more than 240 days.
20. The Ld. Representative for the workman contends
that since, the workman had worked for more than 240
days during preceding 12 months from the date of
termination, his termination without complying with the
mandatory provisions of section 25-F of the I.D. Act is
illegal and unjustified. He further contends that part time
workers also fall within the ambit of definition of the
'workman' u/ s 2-(s) of the I.D. Act. He also contends that
the workman was engaged by the non-applicant to work as
school bus attendant and wages were paid to him by the
non-applicants, therefore, the workman was an employee
of the non-applicants.
21. Per contra, the Ld. Representative for the non-
applicants submits that on the request of the parents of
the school going children, who agreed to contribute towards
payment of wages school bus attendant were engaged. He
also submits that there is no provision in this regard in the
Air Force Instructions (A.F.I.) and there was no budget
allocation for this purpose. He also submits that the
workman was not an employee of the non-applicant and
his services were not terminated. The workman had left the
job on his own, therefore, provisions of section 25-F are
not attracts.
22. I have considered the submissions made by the Ld.
Representatives for both the sides.
23. Admittedly, the workman was working as school
bus attendant. Even if, the contentions of the non-
applicants is accepted that his services were for two hours
in the morning and for two hours in the afternoon, he was
workman within the definition of workman u/ s 2-(s) of the
I.D. Act. It is not the case of the non-applicants that the
workman was directly paid by the parents of the school
going children for safety of their wards. The workman was
engaged by the non-applicants and as per record payment
was being made by the non-applicants. It is immaterial
whether the payment was made by the non-applicants from
public fund or non-public fund.
24. The workman has stated that his services were orally
terminated on 24.6.98. In his statement he had denied that
he had left the job on his own. The management has
produced copies of letters dated 27.10.98 and 2.11.98 and it
has been contended that vide above letters request was
made to the workman to join duties. It appears that after
termination of the workman on 24.6.98 the above letters
were sent after four months just to create evidence that the
workman had left the job at his own. Therefore, the
contention of the Ld. Representative on behalf of the non-
applicants in this regard is not sustainable.
25. In view of aforesaid discussions, the workman has
succeeded in establishing that he had worked for more
than 240 days during preceding 12 months from the date of
his termination on 24.6.98. Admittedly, no notice or
compensation in lieu of notice was paid to the workman,
therefore, the termination of the workman was in violation
of section 25-F of the I.D.Act. Accordingly, this point is
decided in favour of the workman.
Point No. II
26. The workman has stated in his claim statement that
at the time of termination his services junior to him was
retained in the job but no such name has neither been
disclosed by him in his claim statement nor in his affidavit.
He has not produced any documentay evidence in support
of his statement in this regard, therefore, neither he could
be able to adduce the sufficient evidence on this point to
corroborate his testimony nor his own testimony is definite
on this point as such he has failed to discharge to the onus
of this point, which is decided against him.
Point No. III
27. The workman nowhere narrated in his claim
statement the name of the person who was given
recruitment after termination of his services. Except his
own statement that after terminating his services new hand
was given recruitment, nothing has been brought on record
to substantiate his statement in this regard. As such, except
his bald statement, there is no evidence on this point and
in absence thereof, it is decided against the workman.
Relief
28. The learned representative on behalf of the workman
has submitted that termination of the workman is in violation
of the section 25-F of the I.D. Act therefore, the workman
be reinstated with all consequential benefits.
29. This legal position is not in dispute that in case of
non-compliance of section 25-F the workman can be
reinstated with other consequential reliefs.
30. Earlier in cases of termination in violation of section
25-F reinstatement of the workman with full back wages
used to be automatically granted, but keeping in view several
other factors, a change in the said trend is now found in
the recent decisions of the Hon'ble Supreme Court. In a
large number of decisions in the matter of grant of relief of
the kind, Hon'ble Apex Court has distinguished between a
daily wager who does not hold a post and a permanent
employee.
31. In recent decision (2010) 1 SCC (L&S) 545 Jagbir
Singh V/s Haryana State Agriculture Mktg. Board after
considering the earlier decisions referred to therein on the
point should an order of reinstatement automatically follows
in a case of violation of section 25-F of the I.D. Act Hon'ble
Apex Court has observed that:—
''It would be, thus seen that by a catena of decisions
in recent time, this Court has clearly laid down that
1948
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
an order of retrenchment passed in violation of
Section 25-F although may be set aside but an award
of reinstatement should not, however, be
automatically passed. The award of reinstatement
with full back wages in a case where the workman
has completed 240 days of work in a year preceding
the date of termination, particularly, daily wagers has
not been found to be proper by this Court and instead
compensation has been awarded. This court has
distinguished between a daily wager who does not
hold a post and a permanent employee.''
32. Continuing this line of approach in decision (2010) 2
SCC (L&S) 376 Hon'ble Apex Court has observed as
under:—
''While the earlier view of the Court was that if an
order of termination was found to be illegal, normally
the relief to be granted would be reinstatement with
full back wages. However, with the passage of time it
came to be realized that an industry should not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all. The relief to be granted is discretionary
and not automatic. A person is not entitled to get
something only because it would be lawful to do so.
The changes brought out by the subsequent
decisions of the Supreme Court probably having
regard to the changes in the policy decisions of the
Government in the wake of prevailing market
economy, globalization, privatization and
outsourcing was evident. Hence now there is no such
principle that for an illegal termination of service the
normal rule is reinstatement with back wages, and
instead the Labour court can award compensation.''
''There has been a shift in the legal position laid
down by the Supreme Court and now there is no
hard-and-fast principle that on the termination of
service being found to be illegal reinstatement with
back wages is to be awarded. Compensation can be
awarded instead, at the discretion of the Labour
Court, depending on the facts and circumstances of
the case.''
33. In present matter, the workman has worked as school
bus attendant and was getting Rs. 800 p.m. as wages. He
was not holding any regular post. Keeping in view the
nature of job and nature of employment, the laps of time
after termination of the services, the delay in raising the
dispute, amount of wages being paid to him, the total length
of service rendered by the claimant and having regard the
entire facts and circumstances of the case, instead of
reinstating him the interest of justice will be sub served by
paying compensation to the workman instead and in lieu
of relief of reinstatement in service.
34. Accordingly, the reference is answered in favour of
the workman and it is held that the action of the
management in termination of the services of the workman
being in violation of section 25-F of the Act is illegal &
unjustified. Therefore, the non-applicant is directed to pay
compensation to the workman worth Rs. 25,000 (Twenty
Five Thousand only) instead and in lieu of his reinstatement
of service. The payment shall be made within eight weeks
from the publication of the award failing which it shall carry
interest @ 9% per annum.
35. Award as above.
N.K. PUROHIT, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
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14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMfotuy bathfu;j]
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paMhx<+ ds iapkV ¼lanHkZ la[;k 49@2009½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@53@2009&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 722.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 49/2009) of the Central
Government Industrial Tribunal/Labour Court No. 1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employees in relation to the
management of Divisional Engineer, Bharat Sanchar Nigam
Limited, Himachal Pradesh and their workman,
which was received by the Central Government on
31/01/2014.
[No. L-40012/53/2009-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
Case No. ID 49 of 2009, Reference No. L-40012/53/
2009/IR (DU) dated 03.09.2009
Suresh Kumar S/o
Late Sh. Rajinder Kumar
R/o VPO Barolian Kalan,
Tehsil & Distt. Una (HP).
...Workman
Versus
1. Divisional Engineer (Telephones)
Bharat Sanchar Nigam Ltd. Una (HP)
2. The Sub-Divisional Officer (Telephones),
Bharat Sanchar Nigam Ltd.,
Mehatpur, Una (HP)
...Management
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1949
APPEARANCES:
For the Workman:
Sh. Arun Batra Advocate
For the Management:
Shri K.K. Thakur Advocate
AWARD
Passed on 30.12.2013
Government of India Ministry of Labour vide notification
No. L-40012/53/2009/IR (DU) dated 03.09.2009 has referred
the following dispute to this Tribunal for adjudication:
Term of Reference:
"Whether the action of the management of Divisional
Engineer (Telephones), BSNL, Una, in terminating
the services of their workman Sh. Suresh Kumar
w.e.f. 1/10/2007 is legal and justified? If not, what
relief the workman is entitled to?"
2. The brief facts of the case accoridng to the workman
are that he was engaged as Majdoor on 1.11.2005 by SDO
(T) Mehatpur with the approval of DET, Una-I. But the
management has taken duty from his as Mazdoor as well
as Phone Mechanic. He remained continuously working
with the management upto 30.09.2007 and his services were
terminated illegally w.e.f. 1.10.2007 by SDO (T) Mehatpur.
As per the workman he has put in more than 240 days of
service but his services have been terminated in gross
violation of Section 25F of the I.D. Act, 1947. The
management also violated section 25G of the I.D. Act,
1947, as the management retained his juniors in service.
He was paid monthly salary of Rs. 2,000 per month on
ACG 17. It is further pleaded by the workman that as
Phone Mechanic, he used to repair Cable Joint and attended
the complaint of Telephone Connections. It is pleaded by
the workman that although he has performed the skill
duties of Phone Mechanic in addition to duties of Majdoor,
but he has not been paid skilled wages. It is pleaded by
the workman that the work against which he was working
is still available, but the management terminated his service
which amounts of unfair labour pratice. It is prayed by
the workman that the management may be directed to
reinstate the workman in service with continuity along
with back wages.
3. The management filed written statement, preliminary
objection has been taken, that the workman was engaged/
hired as labour on need basis for loading/unloading and
he was made payment on job basis. He was never engaged
as a regular or temporary employee. His engagement was
never dispensed with rather as no work was available
against which he was engaged. He was engaged from
time to time for sundry job and he was paid for the same.
It is further pleaded in the written statement that the
workman was engaged from time to time during broken
period from 9.7.2007 to 13.7.2007 for providing four
majdoors for five days and paid a sum of Rs. 2,000 from
9.8.2007 to 12.8.2007 for providing five majdoors for four
days and paid Rs. 2,000 from 9.9.2007 to 13.9.2007 to provide
four majdoors for five days and paid and from 13.9.2007 to
provide five majdoor for four days and paid Rs. 2,000.
During above period the applicant worked as a contractor
and never worked as a temporary employee. The applicant
during 2005-06 from November 2005 to August, 2006 worked
for 20, 18 or 5 days only in different month, numbering
about 183 days in all. Thus he never completed 240 days
as claimed by him. As the applicant was engaged casually
on need basis, therefore, he cannot seek regularization/
re-instatement in service. It is also pleaded that the
applicant was not a workman, he was never called for
any attendance and he was paid on ACG-17 form. It is
prayed by the management that the reference may be
answered against the workman. Along with the written
statement, the management also filed details of working
days from November 2005 to August 2006, in which it is
shown that the workman has worked for 183 days during
this period. The management very fairly vide application
dated 15.3.2010 admitted the fact that during the
proceedings, the management found from ACG Form 17
of May ad February 2006, that workman worked for seven
days. Thus total working days come to 190 days instead
of 183 days.
4. In evidence workman filed his affidavit. The
management also filed the affidavit of Shri L.L. Sharma,
D.E. BSNL, Una, Exbt. M 1 and also placed on record ACG
17, Exbt. M2 to M15. The management also placed on
record payment record paid to different persons during the
period in question.
5. In evidence during cross-examination the workman
admitted that he was not given any appointment letter
and he was working on wireless and for joining of the
cables. He was sent for attending the complaints of
telephone. He was not given any termination letter. The
workman denied the suggestion that he worked through
contractor and he paid wages to three or four workman
after getting the same from the department. It is admitted
by the workman that there is no dispute regarding payment
and he was getting Rs. 2,000 per month and was being
paid regularly. He also stated that he has no document to
prove that he worked for more that 240 days in the
preceding year to the date of termination. He also admitted
that mechanic works comes in group 'C' and he is not
under gone any training in the department. It is admitted
by the workman that there was no advertisement and no
interview held and he was out rightly engaged and no
application for appointment was moved by him. At present
he is not doing anything.
6. The witness of the management Sh. L.L. Sharma stated
in the cross-examination that the applicant has worked as
contractual worker and there was no contract between
the workman and the management. The workman was
directly worked with the management and payment was
made good. It is further admitted by the witness of the
management that no notice, retrenchment compensation
was given to the workman at the time of his disengagement
1950
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
and the workman worked only for 190 days. He denied any
knowledge whether Sandeep, Rajinder and Jaswinder are
still working with the department.
7. I have heard the learned counsel for the parties gone
through the evidence and record of the case.
8. It is submitted by the learned counsel for the workman
that the workman completed more than 240 days in a year
preceding to the date of termination i.e. 1.10.2007 and no
notice rerenchment, compensation and pay in lieu of notice
was given to the workman at the time of his termination.
Therefore, the management has violated section 25F of
the I.D. Act and the workman is entitled for reinstatement
in service with full back wages. The management also
violated Section 25G of I.D. Act 1947, as junior to workman
were retained in service by the management. The learned
counsel for the workman prayed that action of the
management is gross violation of the provisions of I.D.
Act 1947.
9. On the Contrary the learned counsel for the
management submitted that the workman was not working
with the management as majdoor rather he was a contrctor
who used to supply the labour for petty work for the
period for ranging from 4 to 5 days and he was paid the
charges on ACG 17 form. Moreover the workman has not
put in 240 days service proceeding to the date of termination
i.e. 1.10.2007. It is further submitted by the learned counsel
for the management that the applicant was not a workman
nor he put in mandatory service of 240 days in a calendar
year preceding to the date of termination, therefore, the
management was not under any obligation for complying
the provisions of Section 25F of the I.D. Act. It is further
submitted by the learned counsel for the management that
no junior to the workman was retained by the management
in service, therefore, the management has not also violated
Section 25G of the I.D. Act. There was no appointment
letter, no termination letter was given to the workman,
therefore, the workman is not eligible for any benefit under
the provisions of the I.D. Act and reference deserves to be
answered against the workman as management has never
terminated the service of the workman w.e.f. from 1.10.2007.
10. Now the first question for determination is whether
workman was an employee of the management or not? In
this regard the workman in his cross-examination admitted
that no appointment letter was given to him. No termination
letter was given to him. Besides this, it is admitted by the
workman that no interview was held, no application for
appointment was moved. The management pleaded that
the workman was engaged/hired as labourer occasionally
on need basis for department work and for this work, he
was paid on job basis. The workman was never engaged
as regular or temporary employee. So far documentary
evidence is concerned ACG-17 forms (Ex-M2 to M15)
reveals that the management paid to the workman some
time for four mazdoors for five days and some time five
mazdoors for four days and for different period for different
mazdoors on casual basis. In these facts and
circumstances, the workman failed to establish that he
was an employee of the management of BSNL.
11. Now the 2nd question for determination is whether
workman worked for 240 days in a calendar year preceding
to the date of termination i.e. 1.10.2007. The management
very fairly admitted that workman worked 190 days only
with the department. But the workman failed to establish
that he worked for more than 240 days in a calendar year
preceding to the date of termination i.e. 1.10.2007. It is
incumbent upon the workman to prove that he worked
with the management for more than 240 days in a calendar
year preceeding to 1.10.2007 to attract the provision of
Section 25F of the I.D. Act 1947 which the workman failed
to prove. Besides this during his cross-examination the
workman admitted that he has no document to prove that
he worked for more than 240 days with the management
preceeding to the date of termination. The case law relied
upon by the workman in the case of 1010(3) SCT page 319
Anoop Sharma Vs. Executive Engineer Public Health
Division No. 1 Panipat is of no help as the facts of the case
law are quite different to the facts of the case in hand. In
the case in hand, the workman poorly failed to prove his
working with the department for more than 240 days in a
calendar year preceding to the date of termination.
12. In view of the discussion made in the earlier pares,
in the fact and circumstances of the case, the workman
failed to prove any violation of the provisions on the part
of the management. Therefore, the workman is not entitled
to any relief what so ever. The reference is answered
against the workman. Hard Copy as well as soft copy be
sent to the Central Govt. for publication.
S.P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 723.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr lapkj fuxe
fyfeVsM] iatkc ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;&1] paMhx<+ ds iapkV ¼lanHkZ la[;k
1200@2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 31@01@2014
dks izkIr gqvk FkkA
[lañ ,y&40012@20@2005&vkbZ vkj ¼Mh;w½ ]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 723.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (I.D. No. 1200/2005) of the
Central Govertment Industrial Tribunal/Labour Court, No.
1, Chandigarh now as shown in the Annexure, in the
industiral Dispute between the employers in relation to the
management of Bharat Sanchar Nigam Limited, Punjab and
Chandigarh
30.12.2013
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1951
their workman, which was received by the Central
Govenrment on 31/01/2014.
[No. L-40012/20/2005-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-1,
CHANDIGARH.
Case No. I.D.No 1200/2005
Ram Singh S/o
Shri Milkhi SIngh,
R/o H. No. B-13, Matti Dass Nagar,
(Mahesh Nagar),
Ambala Cantt.(Haryana)
....Applicant
Versus
1. The General Manager (Telecom)
BSNL, Lila Bhawan Patiala
(Punjab) Patiala.
2. The Assistant General Manager,
Telecom Circle, BSNL,
Sector-34-A, Chandigarh.
3. The Sub Divisional Officer (Phanes-I),
Baradari Garden, Telephone Exchange,
Opposite Kali Devi Mandir, Patiala.
4. The Divisional Engineer, Telecom,
BSNL (External-I) Baradari Garden,
Telephone Exchange, Opposite
Kali Devi Mandir, Patiala.
....Respondents
Appearances:
For the Workman:
None
For the management:
Shri G.C. Babbar
AWARD
Passed on: 07.01.2014
Central Govt. vide notification No. L-40012/20/2005-IR
(DU) dated 17th August, 2005 has referred the following
dispute to this Tribunal for adjudication.
"Whether the action of the management of Bharat
Sanchar Nigam Ltd. Patiala in removing Shri Ram
Singh S/o Shri Milkhi Singh, Ex-Mazdoor w.e.f.
17.10.1988 from service retrospectively without
giving him proper opportunity to defend his case is
legal and justified? If not, to what relief the concerned
workman is entitled to and from which date?"
2. Case/reference was referred by the Ministry of Labour
to the CGIT-II, Chandigarh. Vide Notification No. L-40012/
20/2005-IR (DU) dated 17th August, 2005 which later on
tranferred to this Tribunal vide letter No. H-11026/2/2009-
IR(C-II) dated 21.4.2009. On non appearance of the workman
this Tribunal vide order dated 15.7.2010 returned the
reference to the Central Govt. without adjudication in
absence of the workman for non prosecution. Vide
notification in the Govt. of India Gazette dated 27.7.2010,
the award was published. On moving the application by
the workman for setting aside the award/order dated
15.7.2010, the reference was restored to its original number
vide order dated 28.9.2010, on assurance of the workman
that he would insure his presence on all dated fixed by this
Tribunal.
3. Strangely enough from the date 25.7.12 the workman
has not put his appearance. As many as twelve hearing
have been provided for evidence of the workman but no
one put appearance on his behalf. Finally on 3.1.2014
arguments on behalf of the management were heard.
4. The case of the workman in brief as per claim statement
is that he joined the management on 17.5.1969 as line man
and there was no complaint against him. That he had taken
two days casual leave for out station which was sanctioned,
he fell ill, he submitted his medical leave with medical
certificate for one month and he also received the salary
for this period. On 31.8.92 he submitted his joining report
to the S.D.O. who forwarded the same to TDM Patiala vide
letter dated 29.10.92 for further action but he was not taken
on duty. Due to sudden death of his father the workman
lost his mental balance and left his house for his treatment
and after getting treatment he submitted his joining report
on 30.3.2004. He was not allowed to join duty but issued a
charge sheet on 30.3.2004 with a direction to file reply to
the charge sheet within 10 days. On the charge that
workman remained absent continuously from 17.10.1988. It
is pleaded by the workman that he explained the reasons
for his absence from his duty but SDO Phones Respondent
no. 3 vide order dated 26.10.2004 passed for removal from
service w.e.f. 17.10.1988 which received by the workman
on 11.12.2004. The workman pleaded that order to removal
from service is illegal, null and void on the grounds that
charge sheet was issued without the list of witnesses and
documents, the charge sheet was issued by the SDO who
is not appointing authority or punishing authority, the order
of removal from service was passed without conducting
any domestic enquiry, he was not given full opportunity of
being heard which is against the principles of natural justice,
no show cause notice was issued and order of removal
from service was passed by imcompetent authority. It is
further pleaded that order dated 26.10.2004 of removal
from service is also illegal as the same was retrospectively
made effective w.e.f. 17.10.1988. The workman prayed that
order of removal from service may be set-aside and he may
be reinstated in service with full back wages and continuity
of service.
5. The management in written statement pleaded that
the workman never submitted application of leave including
the leave on medical ground. No medical certificate was
received by the management. The Management also denied
that the workman has received his salary for the period of
1952
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
his absence. It is pleaded by the management that workman
remained absent continuously w.e.f. 17.10.1988. He was
directed to report for duty within seven days on 2.8.2002.
The above letter received undelivered as the workman was
not residing on the address given by him to the
management. Another letter dated 15.3.2004, sent to the
workman which also received undelivered with the remark
that the workman has sold his house and proceeded to
Ambala, but the address of that place is not available.
Another letter dated 23.9.2003 was sent to SSP Patiala
regarding the where abouts of the workman and police
authorities submitted the reply that the workman resident
of village Kehri Gandian had sold the property 10-12 years
back and present address is not available. It is admitted by
the management that workman submitted joining reprot on
31.8.92 which was forwarded to SDO (Phones) Patiala.The
TDM advised the SDO to take necessary disciplinary action
against the workman for his absence from duty. Accordingly
a charge sheet under Rule 14 of CCS (CCA), Rules 1965
which was received by the workman on 31.3.2004. The
workman submitted reply dated 16.4.2004 admitted the
charges against him. The SDO who is the competent
authority passed the order of his removal from service vide
order dated 7.12.2004. Although the workman had submitted
two medical certificates one from Dr. Sat Pal Gupta and
another from Dr. R.K. Patnaik certifying that the workman
was suffering from Psychosis and was under their treatment
from 1.8.2002 to 2.8.2002 and from 3.8.2003 to 10.4.2004. It is
pleaded by the management that these certificates were
manufactured one and just to cover up the period otherwise
he would have submitted the medical certificate and
application for leave from time to time. He never applied for
leave and absence of the workman was proved. As regard
the claim of the workman about the death of his father and
loosing of mental balance it is only to cover up his absence.
As the workman did not submit any satisfactory explanation
of his absence, rather admitted the charges framed against
him as he did not wish to further continued with the
processing of enquiry therefore, the charges stand proved
and order of removal from service was passed after
considering the relevant record. It is pleaded by the
management that charges were proved by the documentary
evidence and there was not individual witness, as such no
list of witnesses was required nor any witness was produced.
It is further pleaded that disciplinary authority in the case
of line man is SDO and his Appellate Authority is DET. No
further enquiry was needed as the workman admitted the
charges. It is further pleaded that no show casuse notice
was necessary before passing the order of removal from
service. It is prayed by the management that the workman
is not entitled to any relief and the reference may be
answered against the workman.
6. Both the parties in evidence filed their respective
affidavit in which the management attached letters written
to the workman, order of removal from service, charge sheet
dated 30.3.2004 and reply dated 15th April 2004 by the
workman to the charge sheet. The management also placed
on file the medical certificate dated 2.8.2003 issued by
Dr. Sat Pal Gupta and medical certificate dated 10.4.2004
issued by Dr. R.K. Patnaik.
7. As none appeared on behalf of the workman,
arguments on behalf of the management heard. Learned
counsel for the management during arguments submitted
that the workman remained absent w.e.f. from 17.10.1988
without any application for leave and medical certificate.
From the documents i.e. number of letter written to the
workman he never reported for duty and the workman
submitted his joining report on 31.8.1992 which was
forwarded to SDO (Phones-I) Patiala. The workman was
issued charge sheet dated 30.3.2004 which was received
by him in person and in his reply dated 15.4.2004 he
admitted the charges and after taking into consideration
the facts of the case the order dated 7.12.2004 for removal
from service was passed. No further enquiry was conducted
as workman admitted the charges leveled against him in
the charge sheet. No show cause notice was given to the
workman as was not required before passing the order of
removal dated 7.12.2004. As the workman has admitted the
charges there was no necessity of holding enquiry and
order of removal was passed taking into consideration the
admission of the workman. In the circumstances the
workman is not entitled to any relief.
8. I have heard the Learned counsel for the management
and have also gone through the record of the case.
9. Management clearly stated that workman remained
absent from duty continuously w.e.f. 17.10.1988. This fact
has been admitted by the workman in his affidavit dated
9.8.2007 filed in this tribunal. In para 5 of this affidavit
workman admitted that due to the sudden death of his old
aged father on 3.1.1998, he lost his mental balance and he
left his house for the treatment. In para 6 of this affidavit
workman admitted that after getting the treatment from
various doctors, he submitted his joining report on
30.3.2004. The management in its documentary evidence
filed many documents to establish that the workman left
his house without informing his new address to the
management. Management sent regd. Letters as well as
requested to Senior Superintendent of Police, Patiala to
get his address. But as per report, neither workman
informed his new address nor the postal authorities as well
as Police authorities could found his address.
10. A charge sheet dated 30.3.2004 was issued to him
which was received by workman on 31.3.2004 containing
the following article of charges:—
Article 1
Sh Ram Singh while working as Lineman Phones
Patiala during the year 1988 was absent from duty
w.e.f. 17.10.88. He did not sent any application for
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1953
any kind of leave and he was also not available on
his permanent address given in his service book.
Thus. Sh. Ram Singh Lineman has failed to maintain
devotion to duty and acted in a manner un becoming
of a Government Servant.
Article 2
Sh. Ram Singh while working as Lineman Phones
Patiala during the year 1988 absented from duty
without any intimation w.e.f. 17.10.88. Letters were
posted on the permanent address as mentioned in
the service book and were received undelivered with
the remarks that the addressee has shifted to Ambala
without leaving address. No address has been given
so far for any correspondence. Thus Sh. Ram Singh
lineman has failed to maintain devotion to duty and
acted in a manner un becoming of a Government
Servant.
11. To this charge sheet workman submitted his reply
admitting that workman was under mental stress due to
some domestic circumstances and sometimes his system
become insane. In para 3 of this reply workman also
mentioned that workman become insane and left his
residence and remained out of his residence and city about
15 years. Thus when the workman admitted the charges
there was no need to produce any witness in the department
enquiry. Considering the facts and circumstances the
disciplinary authority passed the order dated 7.12.2004.
The relevant part of the order is as under:—
"But considering his past record and hence taking a
lenient view, I, Beant Singh, SDO (Phone-I) BSNL,
Patiala hereby order punishment of removal from
service w.e.f. 17.10.1988 which shall not be a
disqualification for future employment under the
Govt."
12. In his affidavit filed in this Tribunal on 3.9.2013, the
above Sh. Beant Singh, SDO narrated the facts and
circumstances which led to the passing of order dated
7.12.2004 which is explanatory and unrebutted. Therefore,
taking into consideration all the material on record and
documentary evidence produced by the management as
the workman remained absent from duty for a long period
and without informing the address, the workman is not
entitled to any relief.
13. The action of the management of Bharat Sanchar
Nigam Ltd. Patiala in removing Shri Ram Singh S/o Shri
Milkhi Singh Ex-Mazdoor w.e.f. 17.10.1988 from service
retrospectively is legal and justified.
14. The reference is answered accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for furter necessary action.
Chandigarh
7.1.2014 S. P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 724.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dk /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj ,aM
vkWFklZ] dksy Mse gkbbªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkiksjs'ku] fcykliqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&1] paMhx<+ ds iapkV
¼lanHkZ la[;k 33@2010½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 31@01@2014 dks izkIr gqvk FkkA
[la- ,y&42012@157@2010&vkbZ vkj ¼Mh;w½ ]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 724.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No 33/2010) of the Central
Government Industrial Tribunal/Labour Court No. 1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The General Manager & Others, Kol Dam
HEP, NTPC, Bilaspur and their workman, which was received
by the Central Government on 31/01/2014.
[No. L-42012/157/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESDING OFFICER, CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-I, CHANDIGARH.
Case No. ID 33 of 2010. Reference No. L-42012/157/2010/
IR(DU) dated 14-02-2011
Chaman Lal, S/o
Sh. Surender Ram,
Village Baroti, Tehsil-Sundernagar,
Mandi (HP).
...Applicant
Versus
1. The General Manager.
Kol Dam Hydro Electric Power Project,
NTPC, VPO Barmana, Bilaspur.
2. Proj. Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP).
3. Project Manager,
M/s. ITD Cementation India Ltd.,
Kol Dam Hydro-Electric Power Project,
Village Kayan, PO Slapper,
The Sudnernagar, Mandi (HP).
..........Respondents
APPEARANCES:
For the Workman:
Shri M.S. Gorsi advocate.
For the Management:
V.P. Singh, Hem Raj Sharma &
Neeraj Srivastava.
1954
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
AWARD
Passed on:-22-1-2004
Central Govt. vide notificaiton No.L-42012/157/2010/
IR(DU)dated 14/02/2011 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Shri Chaman
Lal S/o Shri Sunder Ram, Vill. Baroti, Tehsil
Sundernagar, Distt. Mandi (HP) by the Project
Manager M/s. ITD Cementation India Ltd., Village
Kayan, PO Slapper, Tehsil Sundernagar, Distt Mandi
vide order dated 13/08/2008 without following the
principle of last come first go is legal and justified? If
not, what relief the above workman is entitled to from
the above Employer?"
2. In claim statement the workman pleaded that he was
appointed as Junior Driller with respondent No 3 i.e. ITD
Cementation India and joined the service on 14/05/2005
and worked till 14.08.2008 when his services were
retrenched. He was earning Rs. 8,000 including overtime
duties and his work and conduct was satisfactory. It is
pleaded by the workman that the workman was retrenched
in violation of Section 25G and 25H of the I.D. Act. His
juniors have been retained in service and fresh appointment
were also made. It is further pleaded that above 7,000
workers are still working day night on the project. It is also
pleaded by the workman that the management did not obtain
the permission of the Govt. for retrenchment which is
violation of section 25N of the I.D. Act. It is prayed by the
workman that he may be reinstated in services with full
back wages and other benefits.
3. All the three respondents filed reply in which
respondent No. 1 NTPC pleaded that it is not the appointing
authority of the workman and the claim petition has been
filed just to harass the respondent No. 1. Respondent No. 2
in ITDPCL submitted that the last drawn wages of the
workman was Rs. 3175 and the workman was retrenched as
per law. Respondent No.3 i.e. ITD Cementation filed reply
standing therein the respondet No.3 engaged the workman
being Sub-contractor of respondent No.2 and as the work
came to an end retrenchments were made strictly in
accordance with the law and Section 25G and Section 25H
are not attracted. The management prayed for the dismissal
of the reference.
4. In evidence, workman filed his affidavit. All the
respondents management also filed affidavit in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman admitted
that he was paid Rs. 8375 through demand draft on
12.08.2008 on account of retrenchment compensation and
notice pay. All the three witnesses of the management were
examined and cross-examined by the learned counsel for
the workman. Shri Neeraj Srivastava deposing on behalf of
the ITD Cementation India Ltd. deposed during cross-
examination that their company started in Kol Dam in the
year 2005 and finished work in the year 2008. Shri Hem Raj
Sharma deposing on behalf of the ITDPCN deposed that
about 7/8 Sub-contractors were working at the relevant
time and all were license holder. It is further deposed by the
witness that they used to check the rules and regulations
of the Sub-contractions and Govt. agencies also used to
check and when new work was assigned to ITD
Cementation, the present reference was pending in this
Tribunal. Witness Pankaj Kumar appearing on behalf of
NTPC deposed that about 7/8 contractors working in the
management during relevant period and total work forces
was around 4,000 with different contracting agencies and
the work is about to complete.
5. I have heard the learned counsel for the parties and
gone through the evidence and record of the case.
6. Learned counsel for the workman during arguments
submitted that the management of ITDC Cementation again
started the work in the year 2010 and the workman was not
afforded opportunity to re-employment. Therefore the
management violated the provisions of Section 25G and
25H of the I.D. Act as the work is still going on. The workman
is entitled to be reinstated in service with full back waged.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contract to ITDPCN and the above ITDPCL engaged Sub-
contractor i.e. ITDC Cementation of which the employee
workman was working and the workman was legally
retrenched as per law.
8. Learned representative for the Respondent No. 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative for the Sub-contractor
respondent No.3 i.e. ITD cementation submitted that the
workman was given Rs. 8,375 through demand draft on
account of retrenchment compensaiton and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid his dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present reference
was pending in this Tribunal when the new contract was
signed and no junior was retained at the time of
retrenchment and also no name was disclosed by the
workman. At the time of retrenchment principle of last come
first go was adopted.Therefore, the workman is not entitled
to any relief and the reference deserved to be answered
against the workman.
10.The case of the workman is that he was retrenched
from service by respondent No. 3 vide order dated 13.08.2008
without following the principle of last come first go. Whereas
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1955
all the three respondent management denied the claim of
the workman. The workman in his cross-examination when
appeared as WWI admitted that he was not given any
notice for retrenchment compensation and notice pay. The
workman never pleaded nor named any junior to him was
retained in service. MW1 Neeraj Srivastava appearing on
behalf of the respondent No.3 deposed in cross-examiantion
that work of the company was started in 2005 and finished
in the year 2008 with respondent No.2. It is specifically
pleaded by the management/respondent No.3 that all the
work force was retrenched on the completion of contract/
work in 2008. The submission of the learned counsel for
the workman that the management again started work by a
new contract in 2010 and workman was not called for
employment is of no help as the term of reference relates to
retrenchment order dated 13.08.2008. As noting has been
pleaded by the workman nor any name has been provided
that during the retrenchment in the year 2008 on completion
of contract any junior to the workman has been retained
and as to how the management violated the principle of
last come first go. As the workman failed to establish that
there is any violation of any provisions of I.D. Act,
particularly when he was paid retrenchement compensation
and notice pay amounting to Rs. 8375/- through demand
draft as admitted by the workman, in his cross-examination.
Therefore, it is held that retrenchment of Shri Chaman lal
vide order dated 13.08.2008 is legal and justified and the
workman is not entitled to any relief whatsoever from the
employer.
11. The reference is answered accordingly. Central Govt.
be informed. Soft as well as hard copy be sent to the Central
Govt. for publication.
Chandigarh
22.1.2014 S.P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 725.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj ,aM
vkWFklZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku] fcykliqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&1] paMhx<+ ds iapkV
¼lanHkZ la[;k 43@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@183@2010&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 725.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (I.D. No. 43/2010) of the Central
Government Industrial Tribunal/Labour Court No. 1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The General Manager & Others, Kol Dam
HEP, NTPC, Bilaspur and their workman, which was received
by the Central Government on 31/01/2014.
[No. L-42012/183/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
Case No. ID 43 of 2010. Reference No. L-42012/183/2010/
IR(DU) dated 18.02.2011
Jitender Pal,
S/o Sh. Shankar Dass,
Village Harnora, PO Harnora,
Tehsil Sadar, Bilaspur.
..........Applicant
Versus
1. The General manager,
Kol Dam Hydro Electric Power Project,
NTPC, VPO Barmana, Bilaspur.
2. The Managing Dir.,
M/s AKS Engineers and Contractors
Kol Dam Hydra Electric Power Project,
Sanjay Sadan, Chhota Shimla-171002.
3. Project Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP)
......Respondent
APPEARANCES:
For the Workman:
Shri M.S. Gorsi, Advocate.
For the Management:
V.P. Singh, Shamsher Singh
AWARD
(Passed on: 28.01.2014)
Central Government vide notification No. L-42012/183/
2010/IR/(DU) dated 18.02.2011 has referred the following
dispute to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Shri Jitender
Pal S/o Shri Shankar Dass, Village Harnora, PO
Harnora, Tehsil Sadar, Distt. Bilaspur (HP) by the
Project Manager, M/s ITD Cementation India Ltd.,
Village Kyan, PO Slapper, Tehsil Sundernagar, Mandi
vide order dated 13.08.2008 without following the
principle of last come first go is legal and justified? if
not, what relief the above workman is entitled to?"
2. At the time of preparation of the award, it came to the
notice that in this reference Project Manager, M/s ITD
Cementation India Ltd., Village Kyan, PO Slapper, Tehsil
Sundernagar, Mandi has not been made party. Therefore,
1956
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
no notice was sent to Project Manager, M/s ITD
Cementation India Ltd., Village Kyan, PO Slapper, Tehsil
Sundernagar, Mandi. Although the relief claimed by the
workman is against the Project Manager, M/s ITD
Cementation India Ltd., Village Kyan, PO Slapper, Tehsil
Sundernagar, Mandi and has a major roll in the retrenchment
of the workman.
3. In view of the fact that no notice was sent to this
party, therefore, the reference can not be answered in the
absence of the necessary party i.e. Project Manager, M/s
ITD Cementation India Ltd., Village Kyan, PO Slapper, Tehsil
Sundernagar, Mandi.
4. The reference is disposed off accordingly. Central
Government be informed. Soft copy as well as hard copy
be sent to the Central Government for publication.
Chandigarh
28.1.2014
S.P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 726.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mk;jsDVj] i x bZ e
b j ,aM vnlZ] paMhx<+ ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&2] paMhx<+ ds iapkV
¼lanHkZ la[;k 1364@2008½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 02-02-2014 dks izkIr gqvk FkkA
[lañ ,y&42012@102@2007&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 726.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (I.D. No. 1364/2008) of the
Central Government Industrial Tribunal/Labour Court No.
II, Chandigarh now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of the The Director, PGIMER, Chandigarh and
Ors. and their workman, which was received by the Central
Government on 02.02.2014.
[No. L-42012/102/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : Sri A. K. Rastogi, Presiding Officer
Case No. I. D. 1364/2008
Registered on 11.03.2008
Smt. Santosh W/o
Sh. Rajender, H. No. 906,
Janata Colony, Sector 12,
Chandigarh.
......Petitioner
Versus
1. The Director, PGIMER,
Sector 12, Chandigarh.
2. M/s A.N. Kapoor (Janitors) Private Limited,
PGIMER Room No. 38,
Nehru Sarai, Chandigarh.
.....Respondent
APPEARANCES
For the workman
Sh. Anil Mehta, Adv.
For the Management
Sh. Madan Mohan, Advocate.
AWARD
Passed on 09.04.2013
Central Government vide Notification No. L-42012/102/
2007-IR(DU) dated 29.02.2008, by exercising its powers
under Section 10 Sub-section (1) Clause (d) and Sub-section
(2-A) of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'Act') has referred the following Industrial
dispute for adjudication to this Tribunal:—
"Whether the action of the management of M/s A.N.
Kapoor (Janitors) Private Limited a contractor of the
Nehru Hospital, PGIMER, Chandigarh in terminating
the services of their workman Smt. Santosh w.e.f.
18.11.2006 is legal and justified? If not, to what relief
the workman is entitled to?"
After receiving the reference notices were issued to the
parties. They put in their appearance but respondent No. 2
did not appear subsequently and contest the case hence
he was put ex parte vide order dated 30.03.2012.
In the claim statement workman pleaded that she was
appointed by Director PGI w.e.f. April, 2001 on monthly
salary of Rs. 2400/- and she continued to work till April,
2005 when her services were deployed to the contractor
respondent No. 2 i.e. M/s A.N. Kapoor. She continued to
work with the above mentioned contractor up to 17.11.2006
when her services were terminated by the above mentioned
respondent No. 2. It is pleaded by the workman that for all
intents and purposes she was the employee of respondent
No. 1 i.e. PGI as she was under the control of that
respondent who was the principal employer. She has
completed more than five years service with the
management and completed 240 days in preceding year. It
was also alleged that the action of the management in
terminating the services of the workman is against the
provisions of Industrial Disputes Act. That mandatory
provision of Section 25F has not been complied with as
she was not given any notice and notice pay or
retrenchment compensation at the time of termination. The
principle of "first come last go'' was also not observed by
the management and juniors to her were retained. It is
further pleaded by the workman that her termination is not
a termination simplicator but it is a punishment and the
management has not conducted any inquiry. The
termination is illegal and is liable to be set aside. According
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1957
to her she is entitled to reinstatement with full back wages
and continuity of service.
The claim was contested by the management of PIG i.e.
respondent No. 1. They filed written statement inter alia
pleading that the workman was employed by contractor
M/s. A.N. Kapoor Private Limited in accordance with the
terms and conditions settled between them without any
involvement of the answering respondent PGI. Mere
employment of contract labour does not create any
relationship as direct employee of the management of the
PGI. There was no relationship between the applicant and
the management of PGI and provisions of ID Act are not
applicable qua the respondent No. 1 i.e. PGI. Therefore the
reference be decided in favour of the management of PGI.
In support of her case the workman filed her affidavit
while on behalf of management (PGI) affidavit of Sh. C.S.
Maan, Administrative Officer (H) was filed.
However on 9.4.2013 workman Santosh appeared and
gave the statement that she is presently working with the
Contractor Gill of PGI and she has no dispute with the old
Contractor i.e. M/s. A.N. Kapoor Private Limited and she
doe's not want to pursue the present reference. It is thus
clear from the statement of workman that there is no dispute
now between the parties. Therefore a 'No Dispute' award is
passed in the case. Let two copies of the award be sent to
the Central Government for further necessary action.
ASHOK KUMAR RASTOGI, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 727.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ bathfu;j]
nhid izkstsDV lsek lqj{kk lM+d laxBu] f'keyk ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,ao
Je U;k;ky;&1] paMhx<+ ds iapkV ¼lanHkZ la[;k 24@2007½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&14011@8@2000&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 727.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D No. 24/2007) of the Central
Government Industrial Tribunal/Labour Court No.1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Chief Engineer, Deepak Project Sema
Surksha Sarak Sangham, Shimla and their workmen, which
was received by the Central Government on 31/01//2014
[No. L-14011/8/2000 -IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
Case No, ID 24 of 2007. Reference No. L-14011/8/2000/
IR(DU)dated 21.06.2000
Sema Surksha Sarak Sangthan Mazdoor Sangh.
Himachal Pardesh through its
President 92/2 Dhingo Temple Road
Near Military Gate Sanjauli.
Shimla-171006.
....Applicant
Versus
I. Chief Engineer,
Deepak Project
Sema Surksha Sarak Sangthan.
Shimla (Himachal Pradesh) 171004.
....Respondent
APPEARANCES:
For the Workman: —
Sh. B Nandan (Advocate)
For the Management: —Sh. Sandeep Bansal (Advocate)
AWARD
Passed on: 22-01-2014
Central Govt. vide notification No.L-14011/8/2000/
1R(DU)dated 21.06.2000 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether the action of the management of Border
Roads Organisation in denying the demands (List
enclosed) of Seema Suraksha Sarak Sangthan
Mazdoor Sangh is legal and justified? If not to what
relief the concerned workmen are entitled?"
2. This reference (ID No. 259/2000) was earlier disposed
off by this Tribunal vide award 08.08.2002. Aggrieved by
the award, the workmen union filed Writ Petition No. 202 of
2003 in the Hon'ble High Court of Himachal Pradesh, Shimla.
The Hon'ble Himachal Pradesh High Court vide order dated
30.05.2007 set aside dated 08.08.2002 and remanded back
the reference to this Tribunal Hon'ble High Court of H.P.
passed the following orders:—
"Needs to be remanded back as the issue of
jurisdiction of the Tribunal has not been considered
and decided in view of the ratio of the law laid down
by the apex court starting from the decision rendered
in Bangalore water supply Versus A. Rajappa reported
in AIR 1978 SC 548. In view of the aforesaid, the
award dated 08.08.2002 is set aside and the matter is
remanded back to the tribunal with a direction that
the dispute referred to the tribunal be adjudicated
upon and decided on the issue of jurisdiction and on
merits as well after affording due opportunity to the
1958
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
parties. The representative is disposed off
accordingly."
3. After remand, the reference was registered as ID
No.24/2007. The brief facts of the case according to the
workers union in the claim statement are that the workers
had been working on the road named as Dhani Basantpur
Kingal-Kinnaur in different sections and in different groups
for the purpose of maintenance and doing the work at par
with the workers employed on regular basis. But the daily
workers have been denied the benefits on the principle of
equal pay for equal work. The work performed by workers
is of permanent nature and the working condition governing
the service of the daily wages workers in the state of
Himachal Pradesh are applicable to the workers. The
workers have been denied the minimum wages fixed by the
state of Himachal Pradesh. The workers whose named have
been given in the claim statement list and whose service
were terminated in the year 1996 be reinstated in service
and those who have completed 10 years continuous service
be regularized and other benefits of promotion and all
attendant benefits be allowed to them. Workers union also
pleaded inclaim statement that union of daily wages
workman named Seema Suraksha Sarak Sangthan Mazdoor
Sangh H.P is a registered union. The workman 17 in number
whose name are given in claim statement working
continuously as labourer and mates on daily wages with
the management. Workers had been working on DGBR road
in district Shimla H.P. in different sections. Workers have
been continuously working with the management for the
maintenance repair and construction work of the roads.
Respondent management having labour, mates.
Supervisors etc. on regular basis who are required to carry
out similar type of work but the staff on regular basis are
getting higher pay scale and other service benefits.
Therefore, on the principle of equal pay for equal work the
workers are entitled to all the service benefits including
financial benefits which are permissible to the similar
situated workers. Workers raised a dispute before the
Hon'ble High Court of Himachal Pradesh 06.09.1995.
Respondent management had dismissed/terminated service
of all petitioners workman without assigning any reason
and without giving any notice. The workers have put in
the best part of their life. Now it is extremely difficult to get
employment elsewhere. The respondent management has
not framed any rules & regulations for regularizing the
service of the workers. Workers union in the claim statement,
claimed that the workers be given pay from the date of
illegal termination/dismissal service condition of daily
wages workman which are applicable in the state of H.P. All
the benefits be allowed to the workers. In claim statement
workers also requested that the workers who have
completed 10 years service be regularized and the
promotion and the recruitment rules be framed for daily
wages workman.
4. Management filed detailed reply against the claim
statement stating therein that the present claim application
is not maintenable because GREF (General Reserve Engineer
Force) is an integral part of the Arm Forces and as a result
no union is recognized in BRO (Border Rood Organisation).
So called Seema Suraksha Sarak Sangthan Mazdoor Sangh
H.P. have no locus standi to contest the case on behalf of
the applicants. CPL (casual paid labourer) has no cause of
action in view of the terms & conditions of their
engagement which are determined in terms of Govt. of India
which has Presidential sanction copy as annexure R 1
attached with the reply. These terms & conditions have
been incorporated in paras 501 and 508 of the border road
regulations (copy of annexure R2 have been filed). No CPL,
is engaged for more than 179 days of a spell and there after
their service are dispensed with. They can be discharge
any time without any notice and reason being no longer
required. GREF has been declared as integral part of armed
forces of India. Vide Govt. of India Ministry of Shipping &
Transport. BRDB. New Delhi. O.M. No.F81( I )64-Estt./
70463/DGBR/E2A( T&C) dated 14.08.1885. A cops of which
is attached to the reply as annexure R3. Members of the
forces are governed by certain provisions of Army
Act, 1950 and Army Rules, 1954. It is a disciplined force
and discharging the sovereign functions of the state. GREF
is not covered under the definition of industry within the
meaning of section 2(j) of the Industrial Disputes, Act.
1947. The question has been settled in civil writ petition
No.5130/1985. The question of regularization of service of
CPL and payment of equal pay for equal work has already
been discussed and rejected in the aforementioned
decisions. Casual paid labourer (CPL) are required on daily
wages basis to reinforce the existing regular pioneer force
for not more than 179 days at a time and therefore, service
are liable to be terminated at any time without any notice
and assigning any reason. The engagement of CPL is
treated afresh on every occasion. The work of construction
of Dhani Basantpur Kingal-Kinnaur Road has been
completed and even the maintenance work on the road has
considerably being reduced as such a large number of
CPL's have been discharged to avoid extra expenditure to
the state. CPL'S further engagement is subject to availability
of work against the sanctioned job. Since the GREF is
construction agency, no casual personnel can be engaged
on regular basis. Recruitment of regular employees in the
department is doing strictly in accordance with the
recruitment and promotion rules and they are required to
have requisite qualification and physical standard of health.
On the other hand the recruitment of CPL is merely for
179 days at a time with 8 hours of work in a day without any
code of conduct.
5. The wages of casual personnel are fixed in accordance
with the minimum wages act. Their welfare is looked after
by the GREF and these CPL'S are provided with the welfare
measures like Tyshelter, ration at subsidized rates,
Serviceable clothing, free transport to and from work site,
medical treatment in GREF medical units, compensation
bonus a days rest with wages and national holidays
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1959
observed as paid holidays. There is no question of
exploitation since they have no legitimate right either to
the employment. Their regularization or payment of equal
wages at par with the regular employees of BRO.
6. With these submissions management respondents
requested that the applicants CPL 'S claim statement may
be dismissed on the basis of primarily objection and also
been devoid of the merits.
7. Workman union filed rejoinder reiterating the same
allocations to which management also filed rejoinder reply.
8. In oral evidence the workmen Union examined
Sh. Liaq Ram as WW1 who was cross-examined by the Ld.
Counsel for the management. The workmen's union also
placed on record 98 affidavits of the different workmen.
The management also placed on record affidavit of M.L.
Aggarwal who was posted as Senior Administrative officer
of the management. The management also placed on the
record affidavit of Lt. Col. V.K. Pandey Officer Commanding.
507 SS & TC (GREF) Chandigarh on the same lines as that
of filed by Mr. M.L. Aggarwal.
9. First question to be determined in this reference is
whether respondent management i.e. Border Roads
Organization is covered within the definition of Industry
as defined under Section 2-J of the Industrial Dispute
Act 1947. It is pertinent to mention that Section 2-J has
been substituted by Industrial Disputes (Amendment) Act
1982 (46 of 1982) Section 2-J vide Act No. 46 of 1982 reads
as under:—
(1) "Industry" means any systematic activity carried on by
co-operation between an employer and his
workmen (whether such workmen are
employed by such employer directly or by or
through any agency, including a contractor)
for the production, supply or 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) ...............
(ii) ...............
(a) ...............
(b) ...............
But does not include;
(1) ...............
(2) ...............
(3) ...............
(4) ...............
(5) ...............
(6) any activity of the Government relatable
to the sovereign functions of the
Government including all the activities
carried on by the Departments of the
Central Government dealing with
defence research, atomic energy and
space: or
(7) ...............
(8) ...............
(9) ...............
10. In this context Bangalore Water Supply and
Sewerage Board 1978 LAB I.C. 467 has been cited. With
most respect to the case law cited, it is to pertinent to
mention that the above case was decided on 21.2.1978 and
7.4.1978 where as amendment of Section 2-J has been made
effective vide amendment of Act No. 46/82 in the ID Act
1947, the situtation being quite different.
11. In this context the management, referred certain
circulars photocopies of which have been filed. Annexure
R-6 is a circular letter No. L-14012/30/91-IR (DO) of Ministry
of Labour dated 30.8.91. In this letter Central Govt. did not
consider to be fit case for reference for adjudication due to
the reasons the Prime-facie. It appears that Border Road
Organisation is not coverd under the definition of Industry
with the meaning of Section 2-J of the Act. In this letter it
has also been mentioned the Punjab and Haryana High
Court in Civil Writ Petition No. 5130 of 85 dated 10the May
1990 has also given such a ruling in this regard Annexure
R-10 letter dated 7.2.2001 from the department of Legal
Affairs also mentioned that Border Roads Organisation is
not an Industry. Similarly in Annexure R-11 letter dated
28.2.2001 from Govt. of India Ministry of Surface Transport
also mentioned that Border Roads Organisation is not an
Industry. Govt. of India. Ministry of Transport &
Communication vide letter dated 31.7.1962 address to
Director General Border Roads. New Delhi conveyed the
sanction of the terms and conditions of service of casual
personnel employed for the construction of Border Roads
Project as shown in the Annexure to this letter. The
annexures to this letter has also been filed which contain
the period alongwith other benefits. In this annexure it has
also been mentioned that Casual personnel not below the
age of 16 years may be employed on daily or monthly rates
of pay. Personnel on monthly rates may be engaged for periods
up to six months at a time. Their services are liable to be
terminated at any time without notice. They will not be eligible
to any of the privileges of continued employment under
Government, irrespective of the period of their service. They
will not be entitled to any terminal benefits. Annexure R-3 is a
letter dated 14.8.1985 from the Govt. of India Ministry of
Shipping & Transport Border Roads Development Board,
Delhi address to Director General Border Roads New Delhi,
copies of which have been sent to various Ministries and
Departments and Union Territories. In this letter it has been
mentioned that matter regarding the status of General
Reserve Engineer Force has been under consideration of
1960
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
the Govt. for quite some time. This question was
considered by the Supreme Court in the writ petition case
of R. Viswan and Others Vs. Union of India and others.
After examination of all the aspects of this matter the
court came to the conclusion that "GREF" is an integral
part of Armed Forces" for the purpose of Article 33 of the
Constitution of India. Accordingly the General Reserve
Engineer Force declared as integral part of Armed Forces
of India.
12. The Hon'ble Punjab and Haryana High Court in Civil
Writ Petition No. 5130 of 1958 Dalip Chand and Others Vs.
Director General Border Organisation Roads elaborately
dealt. It with the issue and held that GREF is not covered
under the definition of 'Industry' being integral part of the
Armed Forces. The Hon'ble Punjab and Haryana High Court
again in LPA No. 1010 of 1990 affirmed the findings of the
L.D. Single Bench. The Hon'ble Supreme Court in the case
of Union of India and Others Vs. Vartak Labour Union
reported in 2011-II-LLJ 295 has held that temporary or
casual workers would not get any right for absorption,
however long be their service if the orginal appointment
was not by due process of selection under relevant rules.
As mentioned above Ld. Counsel for the management
submitted during arguments that Border Roads Orginsation
being integral part of Armed Forces exercise regal and
sovereign functions, therefore, Border Roads Organisation
can not be termed as an Industry. The Ld. Counsel for the
workmen Union and cited the following case laws:—
(1) (2000) 8 Supreme Court cases 61 Agriculture
Produce Market Committee Versus Ashok Harikuni
and Anothers.
(2) (2000) 3 Supreme Court cases 192, Harjinder singh
Versus State Warehousing Corporation.
(3) (2010) 5 Supreme Court Cases 497, Anoop Sharma
Versus Executive Engineer, Public Health Division
No. 1, Panipat (Haryana)
(4) Order dated 1.10.2013 of the Hon'ble Himachal
Pradesh High Court passed in COPC No. 4089 of
2013 and Order dated 30.4.2013 in Civil Writ Petition
No. 1224 of 2013-C and order dated 2.12.2013
passed in Civil Writ Petition No. 9024 of 2013 of
Hon'ble HP High Court.
13. I have gone through the case laws cited above. The
facts and circumstances of the above case laws are quite
different and are not applicable in the facts and
circumstaces of the case in hand.
14. As stated above it is held that Border Roads
Organisation is not an Industry Under Section 2-J of the ID
Act 1947 read with ID (Amendment) Act 1982 and
consequently this Tribunal has no jurisdiction.
15. As regards merits of case are concerned the witness
produced by the wormen Union Sh. Liaq Ram WW1
admitted in the cross examination that all the workmen were
working under the organisation controlled and run by the
Army. All the workmen engaged on daily wages and were
working under the Administrative control of Seema
Suraksha Sarak Sangathan and this Organisation has the
exclusive work for construction and it has no other work.
Every workman was disengaged after every six month so
that they could not complete 240 days at a stretch. The
Hon'ble High Court in the Writ Petition No. 5130 of 1995
and in LPA No. 1010 of 1990 has settled the issue by holding
that very nature of duties required to be performed by the
two sets of personnel. Casual as against the pioneers and
their qulification, manner of recruitment etc. are different
the question of their being equated for the purpose of
payment of wages etc. does not arise nor is there any
violation of articles 14 and 16 of the constituion as the
petitioners do not fall in the category of pioneers which
form a clash by themselves. Therefore, the workmen cannot
claim that they are entitled for the equal wages as regard to
the wages paid to the regular permanent employees. It is
settled position that the workers in the case in hand have
not been appointed through regular process and their
service conditions also different from the regular
employees. As held in Union of India and Others Versus
Vartak Labour Union mentioned above, temporary or casual
workers would not get any right for absorption, however
long be their service, if the original appointment was not
by due process of selection under relevant rules. Similar
views have also been expressed by the Hon'ble Supreme
Court in the case of Secretary of State of Karnataka &
Others versus Uma Devi & Others SCT 2006 (2) page 462. It
has also been held by the Hon'ble Supreme Court that
claim for equal pay for equal work as compared to their
counterpart in regular establishment and other service
condition are not tenable since the recruitment of regular
employees in the department is done strictly in accordance
with the recruitment and promotion rules and they are
required to have requisite qualification and physical
standard of health besides other preconditions.
16. In view of the above as the services of the workmen
are not governed by any statutory rules as prescribed for
regular employees, therefore, they can not be held equal in
rank or status to the regular employees.
17. As discussed above in the forgoing paras it is held
that action of the management of Border Roads
Organisation in denying the demands of Seema Suraksha
Sarak Sangthan Mazdoor Sangh is justified and legal and
the worken/Union is not entitled to any relief. The reference
is answered accordingly.
18. Central Govt. be informed Soft copy as well as hand
copy be sent to the Central Govt. for publication.
Chandigarh
22.1.2014
S. P. SINGH, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1961
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 728.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj ,aM
vkWFklZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku] fcykliqj ds izca/kr= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1] paMhx<+ ds iapkV lanHkZ
¼la[;k 35@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@159@2010&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 728.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 35/2010) of the Central
Government Industrial Tribunal/Labour Court No. 1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The General Manager & Others, Kol Dam
HEP, NTPC, Bilaspur and their workman, which was received
by the Central Government on 31/01/2004.
[No. L-42012/159/2010-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH.
Case No. ID 35 of 2010. Reference No. L-42012/159/2010/
IR (DU) dated 18.02.2011
Chat Ram , S/o
Sh. Durga Dass,
Village Chhajwar, P.O. Mandoh,
Tehsil Sundernagar Mandi(HP).
...Applicant
Versus
1. The General Manager,
Kol Dam Hydro Electric Power Project,
NTPC, VPO Barmana, Bilaspur.
2. Proj. Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi(HP).
3. Project Manager,
M/s. ITD Cementation India Ltd.,
Kol Dam Hydro-Electric Power Project,
Village Kayan, PO Slaper,
Teh. Sundernagar, Mandi(HP).
...Respondents
APPEARANCES:
For the Workman:
Shri M.S. Gorsi advocate.
For the Management:
Mr. V.P. Singh, Hem Raj Sharma
& Neeraj Srivastava.
AWARD
(Passed on: 23-01-2014
Central Govt. vide notification No. L-42012/159/2010/
IR(DU) dated 18.02.2011 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services Chat Ram son of
Shri Durga Dass, Village Chhajwar, P.O. Mandoh
Tehsil Sundernagar, District Mandi by the Project
Manager M/s ITD Cementation India Ltd., Village
Kyan.P.O.Slapper, Tehsil Sundernagar, District Mandi
vide order dated 16/08/2008 without following the
principle of last come first go is legal and justified? If
not, what relief the concerned workman is entitled
to?
2. In claim statement the workman pleaded that he was
appointed as lab. Assistant with respondent No. 3 i.e. ITD
Cementation India and joined the service on 7.05.2005 and
worked till 17.08.2008 when his services were retrenched.
He was earning Rs. 8,000/- including overtime duties and
his work and conduct was satisfactory. It is pleaded by the
workman that the workman was retrenched in violation of
Section 25G and 25H of the I.D. Act. His juniors have been
retained in service and fresh appointments were also made.
It is further pleaded that about 7,000 workers are still working
day night on the project. It is also pleaded by the workman
that the management did not obtain the permission of the
Govt. for retrenchment which is violation of Section 25N of
the I.D. Act. It is prayed by the workman that he may be
reinstated in services with full back wages and other
benefits.
3. All the three respondents filed reply in which
respondent no. 1 NTPC pleaded that it is not the appointing
authority of the workman and the claim petition has been
filed just to harass the respondent No. 2. i.e. ITDPCL
submitted that the last drawn wages of the workman was
Rs. 3175/- and the workman was retrenched as per law.
Respondent no. 3 i.e. ITD Cementation filed reply stating
therein that respondent no. 3 engaged the workman being
Sub-contractor of respondent no. 2 and as the work came
to an end retrenchments were made strictly in accordance
with the law and Section 25G and Section 25H are not
attracted. The management prayed for the dismissal of the
reference.
4. In evidence, workman filed his affidavit. All the
respondents management also filed affidait in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman admitted
that he was paid Rs. 8375 through demand draft on
1962
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
14.08.2008 on account of retrenchment compensation and
notice pay. All the three witness of the management were
examined and cross-examined by the learned counsel for
the workman. Shri Neeraj Srivastava deposing on behalf of
the ITD Cementation India Ltd., deposed during cross-
examination that their company started in Kol Dam in the
year 2005 and finished in the year 2008. Shri Hem Raj Sharma
deposing on behalf of the ITDPCN deposed that about
7/08 Sub-contractors were working at the relevant time and
all were license holder. It is further deposed by the witness
that they used to check the rules and regulations of the
Sub-contractions and Govt. agencies also used to check
and when new work was assigned to ITD Cementation, the
present reference was pending in this Tribunal. Witness
Pankaj Kumar appearing on behlaf of NTPC deposed that
about 7/8 contractors working in the management during
relevant period and total work forces was around 4,000
with different contracting agencies and the work is about
to complete.
5. I have heard the learned counsel for the parties and
gone through the evidence and record of the case.
6. Learned counsel for the workman during arguments
submitted that the management of ITDC Cementation again
started the work in the year 2010 and the workman was not
afforded opportunity to re-employment. Therefore the
management violated the provisions of Section 25G and
25H of the I.D. Act as the work is still going on. The workman
is entitled to be reinstated in service with full back waged.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contract to ITDPCL and the above ITDPCL engaged Sub-
contractor i.e. ITDC Cementation of which the employee
workman was working and the workman was legally
retrenched as per law.
8. Learned representative for the Respondent No. 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative for the Sub-contractor
respondent No. 3 i.e. ITD cementation submitted that the
workman was given Rs. 8375/- through demand draft on
account of retrenchment compensation and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid his dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present reference
was pending in this Tribunal when the new contract was
signed and no junior was retained at the time of
retrenchment and also no name was disclosed by the
workman. At the time of retrenchment principle of last come
first go was adopted. Therefore, the workman is not entitled
to any relief and the reference deserved to be answered
against the workman.
10. The case of the workman is that he was retrenched
from service by respondent no. 3 vide order dated 16.08.2008
without following the principle of last come first go. Whereas
all the three respondent management denied the claim of
the workman. The workman in his cross-examination when
appeared as WW1 stated that he was not given any notice
for retrenchment. Workman in cross-examination admitted
that he was paid Rs. 8375/- through demand draft on
14.8.2008 on account of retrenchment compensation and
notice pay. The workman never pleaded nor named any
junior to him was retained in service. MW1 Neeraj
Srivastava appearing on behalf of the respondent no. 3
deposed in cross-examination that work of the company
was starred in 2005 and finished in the year 2008 with
respondent no. 2. It is specifically pleaded by the
management/respondent no. 3 that all the work force was
retrenched on the completion of contract in 2008. The
submission of the learned counsel for the workman that
the management again started work by a new contract in
2010 and workman was not called for employment is of no
help as the term of reference relates to retrenchment order
dated 16.08.2008. As nothing has been pleaded by the
workman nor any name has been provided that during the
retrenchment in the year 2008 on completion of contract
any junior to the workman has been retained and as to how
the management violated the principle of last come first go.
As the workman failed to establish that there is any violation
of any provisions of I.D. Act, particularly when he was
paid retrenchment compensation and notice pay amounting
to Rs. 8375/- through demand draft as admitted by the
workman, in his cross-examination. Therefore, it is held
that retrenchment of Shri Chat Ram vide order dated
16.08.2008 is legal and justified and the workman is not
entitled to any relief whatsoever from the employer. The
reference is answered accordingly.
11. The reference is answered accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for publication.
Chandigarh.
S.P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 729.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj ,aM
vkWFklZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku] fcykliqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;-1] paMhx<+ ds iapkV
¼lanHkZ la[;k 36@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@160@2010&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 729.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1963
hereby publishes the award (I.D. No. 36/2010) of the Central
Government Industrial Tribunal/Labour Court No. 1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The General Manager & Others, Kol Dam
HEP, NTPC, Bilaspur and their workman, which was received
by the Central Government on 31/01/2014.
[No. L-42012/160/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL CUM-LABOUR COURT-I,
CHANDIGARH
Case No. ID 36 of 2010. Reference No. L-42012/160/2010-
IR (DU) dated 18.02.2011
Dharam Pal S/o
Sh Budhi Ram,
Village Chaknah, P.O. Bilag,
Tehsil Sundernagar Mandi (HP).
...Applicant
Versus
1. The General Manager,
Kol Dam Hydro Electric Power Project,
NTPC, VPO Barmana, Bilaspur.
2. Proj. Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP).
3. Project Manager,
M/s ITD Cementation India Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP).
...Respondents
APPEARANCES:
For the Workman : Shri M. S. Gorsi advocate.
For the Management :
Mr. V. P. Singh, Hem Raj Sharma
& Neeraj Srivastava.
AWARD
(Passed on: 23-01-2014
Central Govt. vide notification No. L-42012/160/2010-
IR(DU) dated 18.02.2011 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Shri Dharam
Pal S/o Shri Budhi Ram, Village Chaknah, P.O. Bilag,
Tehsil Sundernagar, District Mandi by the Project
Manager M/s ITD Cementation India Ltd., Village
Kyan, P.O.Slapper, Tehsil Sundernagar, Distt. Mandi
vide order dated 16/08/2008 without following the
principle of last come first go is legal and justified? If
not, what relief the concerned workman is entitled
to?"
2. In claim statement the workman pleaded that he was
appointed as packer operator with respondent No. 3 i.e.
ITD Cementation India and joined the service on 19.5.2005
and worked till 17.08.2008 when his services were
retrenched. He was earning Rs. 7,000 including overtime
duties and his work and conduct was satisfactory. It is
pleaded by the workman that the workman was retrenched
in violation of Section 25G and 25H of the I.D. Act. His
juniors have been retained in service and fresh
appointments were also made. It is further pleaded that
about 700 workers are still working day night on the project.
It is also pleaded by the workman that the management did
not obtain the permission of the Govt. for retrenchment
which is violation of Section 25N of the I.D. Act. It is prayed
by the workman that he may be reinstated in services with
full back wages and other benefits.
3. All the three respondents filed reply in which
respondent no. 1 NTPC pleaded that it is not the appointing
authority of the workman and the claim petition has been
filed just to harass the respondent No. 1. Respondent no. 2
i.e. ITDPCL submitted that the last drawn wages of the
workman was Rs. 3175 and the workman was retrenched as
per law. Respondent no. 3 i.e. ITD Cementation filed reply
stating therein that respondent no. 3 engaged the workman
being Sub-contractor of respondent no. 2 and as the work
came to an end retrenchments were made strictly in
accordance with the law and Section 25G and Section 25H
are not attracted. The management prayed for the dismissal
of the reference.
4. In evidence, workman filed his affidavit. All the
respondents management also filed affidavit in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman admitted
that he was paid Rs. 8375 through demand draft on
14.08.2008 on account of retrenchment compensation and
notice pay. All the three witnesses of the management
were examined and cross-examined by the learned counsel
for the workman. Shri Neeraj Srivastava deposing on behalf
of the ITD Cementation India Ltd., deposed during cross-
examination that their company started in Kol Dam in the
year 2005 and finished in the year 2008. Shri Hem Raj Sharma
deposing on behalf of the ITDPCN deposed that about 7/
08 Sub-contractors were working at the relevant time and
all were license holder. It is further deposed by the witness
that they used to ckeck the rules and regulations of the
Sub-contractions and Govt. agencies also used to check
and when new work was assigned to ITD Cementation, the
present reference was pending in this Tribunal. Witness
Pankaj Kumar appearing on behlaf of NTPC deposed that
about 7/8 contractors working in the management during
relevant period and total work forces was around 4,000
with different contracting agencies and the work is about
to complete.
5. I have heard the learned counsel for the parties and
gone through the evidence and record of the case.
1964
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
6. Learned counsel for the workman during arguments
submitted that the management of ITDC Cementation again
started the work in the year 2010 and the workman was not
afforded opportunity to re-employment. Therefore the
management violated the provisions of Section 25G and
25H of the I.D. Act as the work is still going on. The workman
is entitled to be reinstated in service with full back waged.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contract to ITDPCL and the above ITDPCL engaged Sub-
contractor i.e. ITDC Cementation of which the employee
workman was working and the workman was legally
retrenched as per law.
8. Learned representative for the Respondent No. 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative for the Sub-contractor
respondent No. 3 i.e. ITD cementation submitted that the
workman was given Rs. 8375/- through demand draft on
account of retrenchment compensation and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid his dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present reference
was pending in this Tribunal when the new contract was
signed and no junior was retained at the time of
retrenchment and also no name was disclosed by the
workman. At the time retrenchment principle of last come
first go was adopted. Therefore, the workman is not entitled
to any relief and the reference deserved to be answered
against the workman.
10. The case of the workman is that he was retrenched
from service by respondent no. 3 vide order dated 16.08.2008
without following the principle of last come first go. Whereas
all the three respondent management denied the claim of
the workman. The workman in his cross-examination when
appeared as WW1 stated that he was not given any notice
for retrenchment. Workman in cross-examination admitted
that he was paid Rs. 8375 through demand draft on 14.8.2008
on account of retrenchment compensation and notice pay.
The workman never pleaded nor named any junior to him
was retained in service. MW1 Neeraj Srivastava appearing
on behalf of the respondent no. 3 deposed in cross-
examination that work of the company was stared in 2005
and finished in the year 2008 with respondent no. 2. It is
specifically pleade by the management/respondent no. 3
that all the work force was retrenched on the completion of
contract in 2008. The submission of the learned counsel
for the workman that the management again started work
by a new contract in 2010 and workman was not called for
employment is of no help as the term of reference relates to
retrenchment order dated 16.08.2008. As nothing has been
pleaded by the workman nor any name has been provided
that during the retrenchment in the year 2008 on completion
of contract any junior to the workman has been retained
and as to how the management violated the principle of
last come first go. As the workman failed to establish that
there is any violation of any provisions of I.D. Act,
particularly when he was paid retrenchment compensation
and notice pay amounting to Rs. 8375 through demand
draft as admitted by the workmman, in his cross-examination.
Therefore, it is held that retrenchment of Shri Dharam Pal
vide order dated 16.08.2008 is legal and justified and the
workman is not entitled to any relief whatsoever from the
employer. The reference is answered accordingly.
11. The reference is answered accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for publication.
Chandigarh
23.1.2014
S.P. SINGH, Presiding Officer.
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 730.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj ,aM
vkWnlZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku] fcykliqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1] paMhx<+ ds iapkV
¼lanHkZ la[;k 37@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@161@2010&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 730.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 37/2010) of the Central
Government Industrial Tribunal/Labour Court No.1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The General Manager & Others, Kol Dam
HEP, NTPC, Bilaspur and their workmen, which was received
by the Central Government on 31/01/2013.
[No. L-42012/161/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
Case No. ID-37 of 2010. Reference No. L-42012/161/2010-
IR(DU) dated 18.02.2011
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1965
Ramesh Kumar son of
Shri Mangat Ram,
VPO Slapper (Sudhan),
Tehsil Sunder Nagar, Mandi (HP)
....Applicant
Versus
1. The General Manager,
Kol Dam Hydro Electric Power Project,
NTPC, VPO Barmana, Bilaspur.
2. Proj. Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP).
3. Project Manager,
M/s ITD Cementation India Ltd.,
Kol Dam Hydro-Electric Power Project,
Village Kayan, PO Slaper,
Teh. Sundernagar, Mandi (HP).
.....Respondents
APPEARANCES:
For the Workman:
Shri M.S. Gorsi, Advocate.
For the Management:
Mr. V.P. Singh, Hem Raj Sharma
& Neeraj Srivastava.
AWARD
(Passed on: 23-01-2014)
Central Govt. vide notification No. L-42012/161/2010-
IR(DU) dated 18.02.2011 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Ramesh Kumar
son of Shri Mangat Ram, VPO Slapper (Sudhan),
Tehsil Sunder Nagar, Mandi (HP), by the Project
Manager M/s ITD Cementation India Ltd., Village
Kyan. P.O. Slapper, Tehsil Sunder Nagar, District
Mandi vide order dated 13/08/2008 without following
the principle of last come first go is legal and justified?
If not, what relief the concerned workman is entitled
to?
2. In claim statement the workman pleaded that he was
appointed as Junior Driller with respondent No. 3 i.e. ITD
Cementation India and joined the service on 4.5.2005 and
worked till 14.08.2008 when his services were retrenched.
He was earning Rs. 8,000 including overtime duties and his
work and conduct was satisfactory. It is pleaded by the
workman that the workman was retrenched in violation of
Section 25G and 25H of the I.D. Act. His juniors have been
retained in service and fresh appointments were also made.
It is further pleaded that about 7,000 workers are still working
day night on the project. It is also pleaded by the workman
that the management did not obtain the permission of the
Govt. for retrenchment which is violation of Section 25N of
the I.D. Act. It is prayed by the workman that he may be
reinstated in services with full back wages and other
benefits.
3. All the three respondents filed reply in which
respondent No. 1 NTPC pleaded that it is not the appointing
authority of the workman and the claim petition has been
filed just to harass the respondent No. 1. Respondent No.
2 i.e. ITDPCL submitted that the last drawn wages of the
workman was Rs. 3175 and the workman was retrenched as
per law. Respondent No. 3 i.e. ITD Cementation filed reply
stating therein that respondent no. 3 engaged the workman
being Sub-contractor of respondent No. 3 and as the work
came to an end retrenchments were made strictly in
accordance with the law and Section 25G and Section 25H
are not attracted. The management prayed for the dismissal
of the reference.
4. In evidence, workman filed his affidavit. All the
respondents management also filed affidavit in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman admitted
that he was paid Rs. 8375 through demand draft on
12.08.2008 on account of retrenchment compensation and
notice pay. All the three witnesses of the management were
examined and cross-examined by the learned counsel for
the workman. Shri Neeraj Srivastava deposing on behalf of
the ITD Cementation India Ltd., deposed during cross-
examination that their company started in Kol Dam in the
year 2005 and finished in the year 2008. Shri Hem Raj Sharma
deposing on behalf of the ITDPCN deposed that about
7/08 Sub-contractors were working at the relevant time and
all were license holder. It is further deposed by the witness
that they used to check the rules and regulations of the
Sub-contractions and Govt. agencies also used to check
and when new work was assigned to ITD Cementation, the
present reference was pending in this Tribunal. Witness
Pankaj Kumar appearing on behalf of NTPC deposed that
about 7/8 contractors working in the management during
relevant period and total work forces was around 4,000
with different contracting agencies and the work is about
to complete.
5. I have heared the learned counsel for the parties and
gone through the evidence and record of the case.
6. Learned counsel for the workman during arguments
submitted that the management of ITDC Cementation again
started the work in the year 2010 and the workman was not
afforded opportunity to re-employment. Therefore the
management violated the provisions of Section 25G and
25H of the I.D. Act as the work is still going on. The workman
is entitled to be reinstated in service with full back waged.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contract to ITDPCL and the above ITDPCL engaged Sub-
contractor i.e. ITDC Cementation of which the employee
workman was working and the workman was legally
retrenched as per law.
8. Learned representative for the Respondent No. 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
1966
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative for the Sub-contractor
respondent No. 3 i.e. ITD cementation submitted that the
workman was given Rs. 8375 through demand draft on
account of retrenchment compensation and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid his dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present reference
was pending in this Tribunal when the new contract was
signed and no junior was retained at the time of
retrenchment and also no name was disclosed by the
workman. At the time of retrenchment principle of last come
first go was adopted. Therefore, the workman is not entitled
to any relief and the reference deserved to be answered
against the workman.
10. The case of the workman is that he was retrenched
from service by respondent no. 3 vide order dated 13.08.2008
without following the principle of last come first go. Whereas
all the three respondent management denied the claim of
the workman. The workman in his cross-examination when
appeared as WW1 stated that that he was not given any
notice for retrenchment. Workman in cross-examination
admitted that he was paid Rs. 8375 through demand draft
on 12.8.2008 on account of retrenchment compensation
and notice pay. The workman never pleaded nor named
any junior to him was retained in service. MW1 Neeraj
Srivastava appearing on behalf of the respondent no. 3
deposed in cross-examination that work of the company
was started in 2005 and finished in the year 2008 with
respondent no. 2. It is specifically pleaded by the
management/respondent no. 3 that all the work force was
retrenched on the completion of contract in 2008. The
submission of the learned counsel for the workman that
the management again started work by a new contract in
2010 and workman was not called for employment is of no
help as the term of reference related to retrenchment order
dated 13.08.2008. As nothing has been pleaded by the
workman nor any name has been provided that during the
retrenchment in the year 2008 on completion of contract
any junior to the workman has been retained and as to how
the management violated the principle of last come first go.
As the workman failed to establish that there is any violation
of any provisions of I.D. Act, particularly when he was
paid retrenchment compensation and notice pay amounting
to Rs. 8375 through demand draft as admitted by the
workman, in his cross-examination. Therefore, it is held
that retrenchment of Shri Ramesh Kumar vide order dated
13.08.2008 is legal and justified and the workman is not
entitled to any relief whatsoever from the employer. The
reference is answered accordingly.
11. The reference is answered accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for publication.
S. P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 731.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj ,aM
vkWFklZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku] fcykliqj ds izca/k ra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] 1] paMhx<+ ds iapkV
¼lanHkZ la[;k 38@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@162@2010&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 731.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 38/2010) of the Central
Government Industrial Tribunal/Labour Court No.1,
Chandigarh now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The General Manager & Others, Kol Dam
HEP, NTPC, Bilaspur and their workmen, which was received
by the Central Government on 31/01/2014.
[No. L-42012/162/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH.
Case No. ID-38 of 2010. Reference No. L-42012/162/2010-
IR(DU) dated 18.02.2011
Shri Joginder Pal son of
Shri Khazana Ram,
Village Slapper, P.O. Slapper,
Tehsil Sunder Nagar, Mandi (HP)
....Applicant
Versus
1. The General Manager,
Kol Dam Hydro Electric Power Project,
NTPC, VPO Barmana, Bilaspur.
2. Proj. Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP).
3. Project Manager,
M/s ITD Cementation India Ltd.,
Kol Dam Hydro-Electric Power Project,
Village Kayan, PO Slapper,
Teh. Sundernagar, Mandi (HP).
.....Respondents
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1967
APPEARANCES:
For the Workman:
Shri M.S. Gorsi, Advocate.
For the Management:
Mr. V.P. Singh, Hem Raj Sharma
& Neeraj Srivastava.
AWARD
Passed on: 23-01-2014
Central Govt. vide notification No. L-42012/162/2010/
IR(DU) dated 18.02.2011 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Shri Joginder
Pal son of Shri Khazana Ram, Village Slapper, Tehsil
Sunder Nagar, Mandi (HP), by the Project Manager
M/s. ITD Cementation India Ltd., Village Kyan. P.O.
Slapper, Tehsil Sundernagar, District Mandi vide
order dated 13/08/2008 without following the principle
of last come first go is legal and justified? If not,
what relief the concerned workman is entitled to?"
2. In claim statement the workman pleaded that he was
appointed as Junior Driller with respondent No. 3 i.e. ITD
Cementation India and joined the service on 4.5.2005 and
worked till 14.08.2008 when his services were retrenched.
He was earning Rs. 8,000/- including overtime duties and
his work and conduct was satisfactory. It is pleaded by the
workman that the workman was retrenched in violation of
Section 25G and 25H of the I.D. Act. His juniors have been
retained in service and fresh appointments were also made.
It is further pleaded that about 7,000 workers are still working
day night on the project. It is also pleaded by the workman
that the management did not obtain the permission of the
Govt. for retrenchment which is violation of Section 25N of
the I.D. Act. It is prayed by the workman that he may be
reinstated in services with full back wages and other
benefits.
3. All the three respondents filed reply in which
respondent no. 1 NTPC pleaded that it is not the appointing
authority of the workman and the claim petition has been
filed just to harass the respondent No. 1. Respondent no. 2
i.e. ITDPCL submitted that the last drawn wages of the
workman was Rs. 3175 and the workman was retrenched as
per law. Respondent No. 3 i.e. ITD Cementation filed reply
stating therein that respondent No. 3 engaged the workman
being Sub-contractor of respondent No. 2 and as the work
came to an end retrenchments were made strictly in
accordance with the law and Section 25G and Section 25H
are not attracted. The management prayed for the dismissal
of the reference.
4. In evidence, workman filed his affidavit. All the
respondents management also filed affidavit in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman admitted
that he was paid Rs. 8375/- through demand draft on
12.08.2008 on account of retrenchment compensation and
notice pay. All the three witnesses of the management were
examined and cross-examined by the learned counsel for
the workman. Shri Neeraj Srivastava deposing on behalf of
the ITD Cementation India Ltd., deposed during cross-
examination that their company started in Kol Dam in the
year 2005 and finished in the year 2008. Shri Hem Raj Sharma
deposing on behalf of the ITDPCN deposed that about
7/08 Sub-contractors were working at the relevant time and
all were license holder. It is further deposed by the witness
that they used to check the rules and regulations of the
Sub-contractions and Govt. agencies also used to check
and when new work was assigned to ITD Cementation, the
present reference was pending in this Tribunal. Witness
Pankaj Kumar appearing on behalf of NTPC deposed that
about 7/8 contractors working in the management during
relevant period and total work forces was around 4,000
with different contracting agencies and the work is about
to complete.
5. I have heared the learned counsel for the parties and
gone through the evidence and record of the case.
6. Learned counsel for the workman during arguments
submitted that the management of ITDC Cementation again
started the work in the year 2010 and the workman was not
afforded opportunity to re-employment. Therefore the
management violated the provisions of Section 25G and
25H of the I.D. Act as the work is still going on. The workman
is entitled to be reinstated in service with full back wages.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contract to ITDPCL and the above ITDPCL engaged Sub-
contractor i.e. ITDC Cementation of which the employee
workman was working and the workman was legally
retrenched as per law.
8. Learned representative for the Respondent No. 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative for the Sub-contractor
respondent No. 3 i.e. ITD cementation submitted that the
workman was given Rs. 8375/- through demand draft on
account of retrenchment compensation and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid his dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present reference
was pending in this Tribunal when the new contract was
signed and no junior was retained at the time of
retrenchment and also no name was disclosed by the
workman. At the time of retrenchment principle of last come
first go was adopted. Therefore, the workman is not entitled
to any relief and the reference deserved to be answered
against the workman.
1968
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
10. The case of the workman is that he was retrenched
from service by respondent No. 3 vide order dated
13.08.2008 without following the principle of last come first
go. Whereas all the three respondent management denied
the claim of the workman. The workman in his cross-
examination when appeared as WW1 stated that, that he
was not given any notice for retrenchment. Workman in
cross-examination admitted that he was paid Rs. 8375
through demand draft on 12.8.2008 on account of
retrenchment compensation and notice pay. The workman
never pleaded nor named any junior to him was retained in
service. MW1 Neeraj Srivastava appearing on behalf of
the respondent no. 3 deposed in cross-examination that
work of the company was started in 2005 and finished in
the year 2008 with respondent no. 2. It is specifically
pleaded by the management/respondent No. 3 that all the
work force was retrenched on the completion of contract in
2008. The submission of the learned counsel for the
workman that the managemen again started work by a new
contract in 2010 and workman was not called for
employment is of no help as the term of reference relates to
retrenchment order dated 13.08.2008. As nothing has been
pleaded by the workman nor any name has been provided
that during the retrenchment in the year 2008 on completion
of contract any junior to the workman has been retained
and as to how the management violated the principle of
last come first go. As the workman failed to establish that
there is any violation of any provisions of I.D. Act,
particularly when he was paid retrenchment compensation
and notice pay amounting to Rs. 8375 through demand
draft as admitted by the workman, in his cross-examination.
Therefore, it is held that retrenchment of Shri Joginder Pal
vide order dated 13.08.2008 is legal and justified and the
workman is not entitled to any relief whatsoever from the
employer. The reference is answered accordingly.
11. The reference is answered accordingly. Central Govt.
to be informed. Soft copy as well as hard copy be sent to
the Central Govt. for publication.
Chandigarh
23.1.2014
S. P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 732.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj tujy esustj]
,.M vkWFkZlZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku fcykliqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;&1] paMhx<+ ds iapkV
¼lanHkZ la[;k 41@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 31@01@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@165@2010&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 732.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 41/2010) of the Cent.
Govt. Indus. Tribunal/Labour Court-1, Chandigarh now as
shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of The General
Manager & Others, Kol Dam HEP, NTPC, Bilaspur and
their workman, which was received by the Central
Government on 31/01/2014.
[No. L-42012/165/2010-IR(DU)]
P. K VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSDRIAL TRIBUNAL CUM-LAHOUR COURT-1,
CHANDIGARH.
Case No, ID 41. Reference No. L-42012/165/2010/IR(DU)
dated 18.02. 2011
Shri Munshi Ram son of
Shri Dhani Ram,
Village, Siriun, P.O. Mandoh,
Tehsil Sunder Nagar, Mandi (HP).
.......Applicant
Versus
1. The General Manager,
Kol Dam Hydro Electric Power Project.
NTPC, VPO Barmana. Bilaspur.
2. Project Manager,
Italian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, PO Slapper
Teh. Sundernagar Mandi (HP).
3. Project Manager,
M/S ITD Cementation India Ltd.,
Kol Dam Hydro-Electric Power Project,
Village Kayan, PO Slaper,
Teh. Sundernagar, Mandi (HP).
....Respondents
APPEARANCES:
For the Workman:
Shri M.S Gorsi advocate
For the Management:
Mr V.P. Singh. Hem Raj Sharma
& Neeraj Srivastava
AWARD
Passed on:-23-01-2014
Central Govt. vide notification No, L-42012/165/2010/
IR(DU) datad 18.02.2011 has referred the following dispute
t|o this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Shri Munshi
Ram son of Shri Dhani Ram, Village Siriun, Tehsil
Sunder Nagar, Mandi (HP) by the Project Manager
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1969
M/s ITD Cementation India Ltd., Village Kyan P.O.
Slapper, Tehsil Sundernagar, District Mandi vide
order dated 13/08/2008 without following the principle
of last come first go is legal and justified? If not,
what relief the concerned wokman is entitled to?
2. In claim statement the workman pleaded that he was
appointed as welder with respondent No 3 i.e. ITD
Cementation India and joined the service on 13-05-2005
and till 14.8.2008 when his services were retrenched. He
was earning Rs. 8,000/- including overtime duites and his
work and conduct was satisfactory. It is pleaded by the
workman that the workman was retrenched in violation of
Section 25G and 25H of the I D. Act. His juniors have been
retained in service and fresh appointment were also made.
It is further pleaded that about 7,000 workers are still working
day night on the project. It is also pleaded by the workman
that the management did not obtain the permission of the
Govt. for retrenchment which is violation of Section 25N of
the I.D. Act. It is prayed by the workman that he may be
reinstated in services with full back wages and other
benefits.
3. All the three respondents filed reply in which
respondent No. 1 NTPC pleaded that it is not the appointing
authority of the workman and the claim petition has been
filed just to harass the respondent No.l. Respondent no.2
i.e. ITDPCL submitted that the last drawn wages of the
workman was Rs. 3605 and the workman was retrenched as
per law Respondent no.3 i.e. ITD Cementation filed reply
stating therein that respondent no.3 engaged the workman
being Sub-contractor of respondent no.2 and as the work
came to an end retrenchments were made strictly in
accordance with the law and Section 25G and Section 25H
are not attracted. The management prayed far the dismissal
of the reference.
4. In evidence, workman filed his affidavit. All The
respondents management also filed affidavit in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman admitted
that he was paid Rs. 9450 through demand draft on
12.08.2008 on account of retrenchment compensation and
notice pay. All the three witnesses of the management were
examined and cross-examined by the learned counsel for
the workman. Shri Neeraj Srivastava deposing on behalf of
the ITD Cementation India Ltd. deposed during cross-
examination that their company started in Kol Dam in the
year 2005 and finished in the year 2008. Shri Hem Raj Sharma
deposing on behalf of the 1TDPCN deposed that about
7/08 Sub-contractors were working at the relevant time and
all were license holder. It is further deposed by the witness
that they used of check the rules tmd regulation of the
Sub-contractions and Govt. agencies also used to check
and when new work was assigned to ITD Cementation, the
present reference was pending in this Tribunal. Witness
Pankaj Kumar appearing on behalf of NTPC deposed that
about 7/8 contractors working in the management during
relevant period and total work forces was around 4,000
with different contracting agencies and the work is about
to complete.
5. I have heard the learned counsel for the parties and
gone through the evidence and record of the case.
6. Learned counsel for the workman during
arguments submitted that the management of ITDC
Cementation again started the work in the 2010 and the
workman was not afforded opportunity to re-employment.
Therefore the management violated the provisions of
Section 25G and 25H of the I.D Act as the work is still
going on. The workman is entitled to be reinstated in service
with full back wages.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contiact to ITDPCL and the above ITDPCL engaged Sub-
contractor i.e. ITDC Cementation of which the employee
workman was working and the workman was legally
retrenched as per law.
8. Learned representative for the Respondent No. 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative or the Sub-contractor
respondent No. 3 i.e. ITD cementation submitted that the
workman was given Rs. 9450 through demand draft on
account of retrenchment compensation and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid fiis dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present reference
was pending in this Tribunal when the new contract was
signed and no junior was retained at the time of
retrenchment and also no name was disclosed by the
workman. At the time of retrenchment principle of last come
first go was adopted. Therefore, the workman is not entitled
to any relief and the reference deserved to be answered
against the workman.
10. The case of the workman is that he was retrenched
from service by respondent no.3 vide order dated 13.08.2008
without following the principle of last come first go. Whereas
all the three respondent management denied the claim of
the workman. The workman in his cross-examination when
appeared as WWI stated that thai he was not given any
notice for retrenchment. Workman in cross-examination
admitted that he was paid Rs. 9450 through demand draft
on 12.8.2008 on account of retrenchment compensation
and notice pay. The workman never pleaded nor named
any junior to him was retained in service. MWI Neeraj
Srivastava appearing on behalf of the respondent No. 3
deposed in cross-examination that work of the company
was started in 2005 and finished in the year 2008 with
1970
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
respondent No. 2. It is specifically pleaded by the
management/respondent No. 3 that all the work force was
retrenched on the completion of contract in 2008. The
submission of the learned counsel lor the workman that
the management again started work by a new contract in
2010 and workman was not called for employment is of no
help as the term of reference relates to retrenchment order
dated 13.08.2008. As nothing has been pleaded by the
workman nor any name has been provided that during the
retrenchment in the year 2008 on completion of contract
any junior to the workman has been retrained and as to
how the management violated the principle of last come
first go. As the workman failed to establish that there is
any violation of any provisions of I.D. Act particularly
when he was paid retrenchment compensation and notice
pay amounting to Rs. 9450 through demand draft as
admitted by the workman, in his cross-examination.
Therefore, it is held that retrenchment of Shri Munshi Ram
vide order dated 13.08.2008 is legal and justified and the
workman is not entitled to any relief whatsoever from the
employer. The reference is answered accordingly,
11. The reference is answered accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for publication.
Chandigarh
23.1.2014
S.P. SINGH Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 733.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj tujy esustj]
,.M vkWFkZlZ] dksy ne gkbMªks bysfDVªd izkstsDV] us'kuy FkeZy ikWoj
dkjiksjs'ku] fcykliqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 1] paMhx<+ ds iapkV
¼lanHkZ la[;k 42@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 31@01@2014 dks izkIr gqvk FkkA
[lñ ,y&42012@168@2010&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 733.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. 42/2010) of the Cent.
Govt. Indus. Tribunal/Labour Court No. 1, Chandigarh now
as shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of The General
Manager & Others, Kol Dam HEP, NTPC Bilaspur and their
workman, which was received by the Central Government
on 31/01/2014.
[No. L-42012/168/2010-IR(DU)]
P.K VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENLRAL GOVT.
INDUSDRIAL TRIBUNAL-CUM-LABOUR COURT-1,
CHANDIGARH
Case No. I.D. 42 of 2010 Reference No. L-42012/168/
2010/IR(DU) dated 14.02. 2011.
Paras Ram, S/o
Sh. Beli Ram, Village Jandrah,
P.O. Malohm, Tehsil Sunder Nagar,
Mandi (HP).
......Applicant
Versus
1. The General Manager,
Kol Dam Hydro Elecric Power Project.
NTPC, V.P.O. Bamana. Bilaspur.
2. Project Manager,
ltalian Thai Development Co. Ltd.,
Kol Dam Hydro Electric Power Project,
Village Kayan, P.O. Slapper
Teh. Sundernagar Mandi (HP).
3. Project Manager,
M/s ITD Cemeniation India Lid.,
Kol Dam Hydro-Electric Power Project,
Village Kayan, P.O. Sppaper,
Teh. Sundernagar, Mandi (HP).
... Respondents
APPEARANCES
For the Workman:
Shri M.S. Gorsi Advocate
For the Management:
Mr V.P. Singh. Hem Raj Sharma
& Neeraj Srivastava
AWARD
Passed on:-23-01-2014
Central Govt. vide notification No. L-42012/168/2010/
IR(DU) datad 14.02.2011 has referred the following dispute
to this Tribunal for adjudication:
Term of Reference:
"Whether retrenchment of services of Shri Paras
Ram S/o of Shri Beli Ram Vill. Jandrah, P.O. Maloh,
Tehsil Sundernagar, Distt. Mandi (HP) by the Project
Manager M/s. ITD Cementation India Ltd. Mandi
vide order dated 13/08/2008 without following the
principle of the last come first go is legal and justi-
fied? If not, what relief the above workman is entitled
to from the above Employer?"
2. In claim statement the workman pleaded that he was
appointed as Junior Driller with respondent No 3 i.e. ITD
Cementation India and joined the service on 15.11.2005
and worked till 14.08.2008 when his services were
retrenched. He was earning Rs. 8,000/- including overtime
duites and his work and conduct was satisfactory. It is
pleaded by the workman that the workman was retrenched
in violation of Section 25G and 25H of the I D. Act. His
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1971
juniors have been reiained in service and fresh appoint-
ment were also made. It is further pleaded that about 7,000
workers are still working day night on the project. It is also
pleaded by the workman that the management did not
obtain the permission of the Govt. for retrenchment which
is violation of Section 25N of the I.D. Act It is prayed by
the workman that he may be reinstated m services with full
back wages and other benefits.
3. All the three respondents filed reply in which
respandent no. 1 NTPC pleaded that it is not the
appointing authority of the workman and the claim petition
has been filed just to harass the respondent No.l. Respon-
dent No.2 i.e. ITDPCL submitted that the last drawn wages
of the workman was Rs. 3175/- and the workman was re-
trenched as per law Respondent No.3 i.e. ITD Cementation
filed reply stating therein that respondent No.3 engaged
the workman being Sub-contractor of respondent No.2 and
as the work came to an end retrenchments were made strictly
in accordance with the law and Section 25G and Section
25H are not attracted. The management prayed for the
dismissal of the reference.
4. In evidence, workman filed his affidavit. All the
respondents management also filed affidavit in evidence
and documents. The workman was examined and cross-
examined. During cross-examination the workman
admitted that he was paid Rs.7938/- through demand draft
on 12.08.2008 on account of retrenchment compensation
and notice pay. All the three witnesses of the management
were examined and cross-examined by the learned counsel
for the workman. Shri Neeraj Srivastava deposing on
behalf of the ITD Cementation India Ltd., deposed during
cross-examination thai their company started in Kol Dam
in the year 2005 and finished in the year 2008. Shri Hem Raj
Sharma deposing on behalf of the ITDPCN deposed that
about 7/08 Sub-contractors were working at the relevant
time and all were license holder. It is further deposed by the
witness that they used to check the rules and regulation of
the Sub-contractions and Govt. agencies also used to check
and when new work was assigned to ITD Cementation, the
present reference was pending in this Tribunal. Witness
Pankaj Kumar appearing on behalf of NTPC deposed that
about 7/8 contractors working in the management during
relevant period and total work forces was around 4,000
with different contracting agencies and the work is about
to complete.
5. I have heard the learned counsel for the parties and
gone through the evidence and record of the case.
6. Learned counsel for the workman during
arguments submitted that the management of ITDC
Cementation again started the work in the year 2010 and
the workman was not afforded opportunity to
re-employment. Therefore the management violated the
provisions of Section 25G and 25H of the I.D Act as the
work is still going on. The workman is entitled to be
reinstated in service with full back waged.
7. On the other hand learned counsel for the NTPC
submitted during arguments that the workman was
employee of the Sub-contractor and NTPC given the
contract to ITDPCL and the above ITDPCL engaged
Sub-contractor i e. ITDC Cementation of which the
employee workman was working and the workman was
legally retrenched as per law.
8. Learned representative for the Respondent No 2 i.e.
ITDPCL submitted that contract of ITD Cementation was
for the period 2005 to 2008 and on completion of work,
workman was retrenched as per provisions of I.D. Act 1947.
9. Learned representative or the Sub-contractor
respondent No 3 i.e. ITD cementation submitted that the
workman was given Rs 7938/- through demand draft on
account of retrenchment compensation and notice pay and
as the contract come to end, therefore, the workman was
retrenched in the year 2008 and paid fiis dues. As regard
the work started in 2010, it is submitted by the learned
representative that new contract was signed in 2010 and
the work is about to complete now and the present
reference was pending in this Tribunal when the new
contract was signed and no junior was retained at the time
of retrenchment and also no name was disclosed by the
workman. At the time of retrenchment principle of last
come first go was adopted. Therefore, the workman is not
entitled to any relief and the reference deserved to be
answered against the workman.
10. The case of the workman is that he was retrenched
from service by respondent No.3 vide order dated 13.08.2008
without following the principle of last come first go. Whereas
all the three respondent management denied the claim of
the workman. The workman in his cross-examination when
appeared as WWI stated that he was not given any notice
for retrenchment. Workman in cross-examination admitted
that he was paid Rs. 7938/-through demand draft on
12.8.2008 on account of retrenchment compensation and
notice pay. The workman never pleaded nor named any
junior to him was retained in service. MWI Neeraj
Srivastava appearing on behalf of the respondent No.3
deposed in cross-examination that work of the company
was started in 2005 and finished in the year 2008 with
respondent No. 2. It is specifically pleaded by the
management/respondent No. 3 that all the work force was
retrenched on the completion of contract in 2008. The
submission of the learned counsel for the workman that
the management again started uoik by a new contract in
2010 and workman was not called for employment is of no
help as the term of reference relates to retrenchment order
dated 13.08.2008. As nothing hav been pleaded by the
workman nor any name has been provided that during the
retrenchment in the year 2008 on completion of contract
any junior to the workman has been retrained and as to
how the management violated rhe principle of last come
first go. As the workman failed to establish that there is
any violation of any provisions of I.D. Act, particularly
when he was paid retrenchment compensation and notice
1972
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
pay amounting to Rs. 7938/- through demand draft as
admitted by the workman, in his cross-examination.
Therefore, it is held that retrenchment of Shri Paras Ram
vide order dated 13.08.2008 is legal and justified and the
workman is not entitled to any relief whatsoever from the
employer. The reference is answered accordingly,
11. The reference is answered accordingly. Central Govt.
be informed. Soft copy as well as hard copy be sent to the
Central Govt. for publication.
Chandigarh.
S.P. SINGH, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 734.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVs'ku dekaMj] ok;q
lsuk] ,aM vkWFklZ] tksèiqj ds izcaèra= ds lac) fu;kstdks vkSj muds
deZdkjks ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèdj.k ,ao Je U;k;ky;] t;iqj ds iapkV
¼lanHkZ la[;k lhthvkbZVh, 133@2006½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 31@01@2014 dks izkIr gqvk FkkA
[la- ,y&40012@75@2005&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 6th February, 2014
S.O. 734.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D. No. CGITA133/2006) 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 The Superitendent of Post Office, Jamnagar
and their workman, which was received by the Central
Government on 31/01/2014
[No. L-40012/75/2005-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT: Binay Kumar Sinha,
Presiding Officer, CGIT Cum Labour Court,
Ahmedabad, Dated 25th November, 2013
Reference: (CGITA) No-133/2006
Superintendent of Post Office,
Dept. of Posts,
Jamnager Division,
Jamnagar -361001
...first Party (Management)
And
Their Workman
Shri Suresh K. Chauhan
Kantol, Tal. Kautiyana,
Porbandar
......Second Party (Workman)
For the First Party
Shri Prakashchandra M. Rami, A.G.P.
(Labour and Industrial Court)
For the Second Party:
None
AWARD
The central Government/ Ministry of Labour, New Delhi
by its Order No. 40012/75/2005 [IR(DU)] dated 01.06.2006
in exercise of the powers conferred by clause (d) of section
(1) and sub-section (2A) of section 10 of the Industrial
Dispute Act , 1947 referred the dispute for adjudication to
this Tribunal on terms of reference in the Schedule:
SCHEDULE
"Whether the action of the management of
department of post, Jamnagar division in not paying
retrenchment compensation, while terminating the
services of Shri S.K. Chauhan, ED BPM, Beraja
Bhalsan BO, is legal and justified? If not, to what
relief the workman is entitled to?"
2. The workman, 2nd Party appeared on notice filed
vakilpatra in favour of Shri Girishkumar A Prajapati,
Advocate and filed statement of claim on 12.12.2006 (Ext.5)
stating therein that he was appointed on the post of ED
BPM at Beraja Bhalsan by the 1st Party on 02.06.2000 and
he continued in employment up to 26.03.2002. He worked
for more than 240 days in each calendar year. But he was
terminated from the service in violation of section 25B of
the I.D. Act without giving notice, or one month notice pay
and retrenchment compensation. He claimed for the relief
of reinstatement with back wages and consequential
benefits.
3. The management of 1st Party also appeared, executed
Vakilpatra in favour of Shri P.M. Rami, Advocate (A.G.P.
Labour and Industrial Courts) on 15.02.2007 and filed
written statement (Ext. 12) on 03.07.2009 furnishing its copy
to the workman side. The contention of the 1st' Party is
that the reference is not maintainable, the workman was
not performing duty on permanent post on 02.06.2000 rather
temporary order of appointment was given by extra
Departmental branch post master to perform duty at Beraja
Bhalsan post office The workman S.K. Chauhan never
completed 240 days of work in calendar year. The case of
the 1st Party in that for branch post master post at Beraja
Bhalsan advertisement was given by Supt. of Post Offices,
Jamnagar and workman S.K. Chauhan and B.K, Chudasma
also applied and according to merit B.K. Chudasma secured
more marks in SSC Examination. So he was given
appointment and workman S.K Chauhan was terminated.
The reference is therefor, liable to be dismissed.
4. The case was being adjourned for leading evidence
by the workman (2nd Party) but the 2nd Party upon whom
onus was to prove his case as per claim statement, absent
on dates since pretty long time. The management of 1st
Party by filing pursis (Ext.17) on 25.11.2013 prayed to
dismiss the reference.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1973
5. The workman S.K. Chauhan by his such negligence
in not attending the case on dates and not leading evidence
in support of his case appears to have lost interest in this
case. So the claim of the workman as per statement of claim
(pleadings) without supportive evidence has no leg to
stand.
As such the reference is dismissed. The terms of
reference is answered in favour of the 1st Party
(management of post) that its action in not paying
retrenchment compensation while terminating the service
of Shri S.K. Chauhan ED B.P.M. Beraja Bhalsan is legal and
justified.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 735.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj]
vkfMZusal QSDVªh] tcyiqj ds izcaèra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèdj.k ,ao Je U;k;ky; tcyiqj ds iapkV
¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj@20/2005½dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 02@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@11@2004&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 6th February, 2014
S.O. 735.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947(14 of 1947), the Central Government
hereby publishes the award (I.D No. CGIT/LC/R/20/2005)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Commander Works Engineers, Military
Engineering Service, Jabalpur and their workmen, which
was received by the Central Government on 02/02/2014.
[No. L-40011/11/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/20/2005
PRESIDING OFFICER: SHRI R.B.PATLE
The Secretary,
MES Employees Union,
Jabalpur Area, P-324/5, MES Colony,
Near OM Vidya Mandir School,
Bhopal (MP)
….Workman/Union
Versus
The Commander Works Engineers,
Military Engineering Services,
Sultania Infantry Lines,
Bhopal (MP)
….Management
AWARD
(Passed on this 20th day of January 2014)
1. As per letter dated 20.1.2005 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification No.
L-14011/11/2004-IR(DU). The dispute under reference
relates to:
"Whether the action of the management of
Commander Works Engineer, MES Bhopal in
awarding punishment of penalty of reduction to a
lower stage from Rs. 4350/- to Rs. 4270/- in the pay
scale without cumulative effect is just and legal? If
not, to what relief the workman is entitled to?"
2. After receiving reference, notices were issued to the
parties. 1st Party workman failed to participate in the
reference proceeding. Statement of claim is not filed on his
behalf. The case was fixed for filing exparte Written
Statement of 2nd Party. Despite of several chances granted,
2nd Party also failed to file Written Statement. Both parties
failed to participate in the reference. Both parties are
proceeded without Statement of Claim, Written Statement.
It appears parties are not interested in prosecuting the
dispute under reference.Therefore Award is passed as
under:—
"1st Party workman failed to prosecute reference,
therefore the claims under reference cannot be
allowed in favour of the workman."
R.B. PATLE, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 736.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj]
vkfMZusal QSDVªh] tcyiqj ds izcaèra= ds lac) fu;kstdksa vkSj muds
deZdkjks ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|kzfxd vfèdj.k ,aoa Je U;k;ky;] tcyiqj ds iapkV
¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj/75@95½dks izdkf'kr djrh gS
tks dsUnzh; ljdkj dks 02@02@2014 dks izkIr gqvk FkkA
[lañ ,y&14012@11@94&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 6th February, 2004
S.O. 736.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (LD No. CGIT/LC/R/75/95) of
the Central Government Industrial Tribunal/Labour Court,
Jabalpur now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of General Manager, Ordinance Factory,
Jabalpur and their workman, which was received by the
Central Government on 02/02/2014.
[No. L-14012/11/94-IR(DU)]
P. K. VENUGOPAL, Section Officer
1974
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL -CUM- LABOUR COURT,
JABALPUR
No. CGIT/LC/R/75/95
PRESIDING OFFICER: Shri R.B. Patle
Shri Mangal Prasad Rajput,
R.B.274. Near Micro Tower,
In front of Allahabad Bank,
Civil Lines, Jabalpur.
….Workman
Versus
General Manager,
Ordnance Factory,
Khamaria, Distt. Jabalpur
.......Management
AWARD
(Passed on this 22nd day of January, 2014)
1. As per letter dated 4.5.95 by the Government of India,
Ministry of Labour, New Delhi, the reference is received.
The reference is made to this Tribunal under Section 10 of
1. D. Act, 1947 as per Notification No. L-14012/11/94-IR(DU).
The dispute under reference relates to:
“ Whether the action of the management of Ordnance
Factory, Khamariya Jabalpur in terminating the
services of Shri Mangal Prasad. Ex-mazdoor w.e.f.
4.9.78 is legal and justified? If not, to what relief the
workman is entitled to?”
2. After receiving reference, notices were issued to the
parties. Statement of Claim is filed by workman. Case of
workman is that he was performing duty of machinist in
establishment of 2nd Party. Initially he was engaged as
labour from 15.11.1961 holding T. No. 570. He was promoted
as machinist Grade-C in 1963 against vacant post. While
performing his duties as machinist, he was injured in both
eyes suffered blindness. He further submits out of illiteracy
and ignorance, he did not report about incident. He
remained silent. He has not taken remedial measures.
Workman was undergoing medical treatment of his eyes
since he was leading towards blindness. That fact of medical
treatment and sickness was known to the
management.Workman had become completely blind by
the date his services were terminated. That management to
avoid payment of compensation for loss of earning
capacity, terminated his service on false pretext of long
absence from duty. Workman was not issued with
showcause notice. He was not given opportunity for
hearing, no enquiry was conducted against him. That after
17 years of service, he was terminated by management
from 4.9.78. That his termination from service is illegal and
deserves to be quashed.
3. Workman further submits that before termination, no
chargesheet was issued to him, no enquiry was conducted
by management. Termination of services amounts to
retrenchment under I.D. Act, the termination from service
is in violation of Section 25-G of I.D. Act,. Management
has employed fresh hands after his termination. That the
workman was completely blind. He was terminated. He has
handed over all his papers to Mr. Rajak, Union Leader. Mr.
Rajak met with accidental death while accompanying
marriage party. The papers could not be procured back
from deceased Rajak which caused delay in persuing the
remedy. On such grounds, workman is praying to quash
order of his termination and he be reinstated in service
with consequential benefits.
4. 2nd Party filed Written Statement at Page 81 to 85.
2nd Party submits that workman Shri Mangal Prasad was
its employee. He was irregular in attendance and indulged
in gross misconduct. For such misconduct, penalty of
withholding of increment for a period of two years with
cumulative effect was imposed. In 1976, workman engaged
in similar misconduct of irregular attendance. Penalty of
reduction in pay by one stage for two years with cumulative
effect was imposed on him. He continued to indulge in
misconduct. The workman did not reform. On 3rd occasion,
penalty of removal from service was imposed on 4.9.78
after examining the report of Enquiry. The charges were
framed under rule 14 of CCS CCA Rule 1965. Workman was
provided opportunity to defend himself to establish his
innocence. Disciplinary proceedings were held following
rules. Action of the management is justified. The habitual
nature of irregularities tantamount ing to gross misconduct-
conduct unbecoming of a Govt. servant. Workman was
terminated long back in 1978. He has not submitted
representation or appeal for reinstatement. The dispute is
raised belatedly is barred. The dispute is not tenable. It is
reiterated that for the proved misconduct, workman was
terminated from service. His claim is barred, 2nd Party claims
for rejection of claim of workman.
5. My learned predecessor vide order dated 16.7.12 held
enquiry conducted against workman is vitiated for want of
pleadings. The management was not entitled to prove
misconduct in Court. Management has submitted
application for proving misconduct. Vide detailed order
dated 10.10.13, the application was rejected.
6. Considering pleadings between parties and finding
on preliminary issue that enquiry conducted against
workman is vitiated, the points which arise for my
consideration and determination are as under. My findings
are recorded against each of them for the reasons as
below:—
(i) Whether the action of the
In Negative
management of Ordnance
Factory, Khamariya Jabalpur
in terminating the services of
Shri Mangal Prasad. Ex-mazdoor
w.e.f. 4.9.78 is legal and justified?
(ii) If not, what relief the
As per final order
workman is entitled to?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1975
REASONS
7. Workman is challenging legality of his termination
contending that he was not given opportunity of hearing,
no enquiry was conducted whereas the management has
pleaded that for irregular attendance, chargesheet was
issued to the workman, he was given opportunity for his
defence to establish his innocence. Workman was removed
from service from 4.9.78. The enquiry is found vitiated.
Management was not given opportunity to prove
misconduct of workman for want of pleadings. Application
filed seeking permission to prove misconduct has also been
rejected. Affidavit of evidence of management's witness
Shri Ashish Bhattacharjee, Jr. works Engineer is filed on
the point of enquiry conducted against workman. The
preliminary issue is decided by my predecessor and found
enquiry against workman is vitiated. Said order has received
finality. As enquiry conducted against workman is vitiated
for the reasons discussed by my predecessor, the
punishment of removal from service imposed against
workman cannot be said legal. As said order has been
passed on basis of report, the enquiry is vitiated. Therefore
I record my finding in Point No. l in Negative.
8. Point No. 2— In view of my finding in Point No. l, the
enquiry is vitiated, order of punishment of removal from
service cannot be sustained. The question arises to what
relief the workman is entitled? Workman was dismissed
from service on 4.9.78. The reference is made in 1995 after
lapse of about 17 years. Workman has pleaded that he had
handed over documents about his over all his papers to
Mr. Rajak, Union Leader, Mr. Rajak met with accidental
death while accompanying marriage party. The papers could
not be procured back from deceased Rajak which caused
delay . Written Statement filed by management is absolutely
silent on above facts. Workman died on 31.8.2000 leaving
LRs, his widow, 6 sons and 3 daughters. Absolutely no
evidence is adduced by parties whether deceased workman
was in gainful employment, what was the age of deceased
workman at the time of removal form service. As per
pleadings, workman joined service in 1961 as General
Mazdoor and he was removed from service in 1978 after
about 17 years. The enquiry is vitiated. The misconduct of
workman is not proved. Considering such facts, in my
considered view, compensation Rs. 2 Lakh would be
appropriate to meet the ends of justice in addition to
pensionary benefits to his widow as per rules. Accordingly
I record my finding in Point No.2.
9. In the result, award is passed as under:—
(1) Action of the management of Ordnance Factory,
Khamariya Jabalpur in terminating the services of
Shri Mangal Prasad. Ex-mazdoor w.e.f. 4.9.78 is not
proper.
(2) IInd party is directed to pay compensation Rs. 2
Lakh to LRs of deceased workman.
(3) IInd party is directed to allow pension to the widow
of deceased workman as per rules.
Amount as per above order shall be paid to workman
within 30 days. In case of default, amount shall carry 9%
interest per annum from the date of award till its
realization,
R. B. PATLE, Presiding Officer
ubZ fnYyh] 6 Qjojh] 2014
dkñvkñ 737.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj]
xouZesaV vksfi;e ,aM vYdkykW;M QSDVªh] uheqp ds izca/kra= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj/
107/2003½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 02@02@2014
dks izkIr gqvk FkkA
[lañ ,y&42012@25@2000&vkbZvkj¼Mh;w½]
ih-ds- os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 6th February, 2014
S.O. 737.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (I.D No. CGIT/LC/R/107/2003)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of General Manager, Govt. Opium and Alkaloid
Factory, Neemuch and their workman, which was received
by the Central Government on 02/02/2014.
[No. L-42012/25/2000-IR(DU)]
P. K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/107/2003
PRESIDING OFFICER: SHRI R. B. PATLE
Shri Abdul Hameed,
S/o Shri Munna Choudhary,
Hammal Mohalla,
Juna Baghana,
Neemuch (MP)
....Workman
Versus
General Manager,
Govt. Opium and Alkaloid Factory,
Neemuch.
.....Management
AWARD
(Passed on this 22nd day of January 2013)
1. As per letter dated 6-6-2003 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
1976
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Section 10 of I.D. Act, 1947 as per Notification No. L-42012/
25/2000-lR(DU). The dispute under reference relates to:
"Whether the action of the management of General
Manager, Govt. Opium and Alkaloid Works in
terminating the services of Shri Abdul Hameed S/o
Shri Munna Choudhary w.e.f. 10-7-92 is justified? If
not, to what relief the workman is entitled for?"
2. After receiving reference, notices were issued to the
parties, 1st Party Shri Abdul Hameed S/o Abdul Aziz has
filed statement of claim at Page 2/1 to 2/5. The reference
relates to termination of services of Shri Abdul Hameed S/o
Shri Munna Choudhary whereas statement of claim is filed
on behalf of Shri Abdul Hameed S/o Abdul Aziz. Thus the
inherent irregularity is committed in filing the statement of
claim. 1st Party workman has pleaded that he was initially
appointed as casual worker. His services were terminated
from 6-2-93 without supplying order of termination. That
he was continuously working more than 240 days in each
of the calendar year. That 1st Party submits that there were
permanent post available in establishment of IInd Party.
Other colleagues were deliberately not classified with
motive to deprive. The workman was classified as part time/
temporary employee. That junior employees were continued
in service. Workman was not given notice of termination.
Notice pay was not paid to him. Termination of his services
was in violation of Section 25-K of I.D. Act. More than 100
employees working in establishment of IInd party.
Establishment is covered under Chapter V-B of the I.D.
Act. The services of the 1st Party workman are terminated
without obtaining permission of Government under Section
25 of I.D. Act. Establishment of IInd Party is not seasonal.
The termination of services of workman is illegal for
violation of Section 25-F, G, N of I.D. Act. On such ground,
he prays for reinstatement with consequential benefits.
3. IInd Party filed Written Statement at Page 7/1 to 7/2.
IInd party submits that the workman was engaged as daily
wager. He has rendered 240 days continuous service as
per his pleadings. Workman has also prayed for
reinstatement. IInd Party management submits that for work
involved in the production of opium, management is
required to engage services of casual labour for short and
specified period. That casual labours are never employed
and their services have been obtained entirely on necessity
and availability of work. Workman never rendered services
for more than 240 days in a year. That Section 25-F of I.D.
Act is not necessary for removal of services. That in the
case of Casual Labour, his services commences in the
morning of the day he reports to the assigned work, it
automatically comes to end at the end of the day. The
services of workman were taken on need basis. He was not
on permanent nature of work, recruitment rules were not
followed. IInd party prays for rejection of the claim.
4. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
management of General Manager,
In Affirmative
Govt. Opium and Alkaloid Works
in terminating the services of
Shri Abdul Hameed, S/o
Shri Munna Choudhary
w.e.f. 10-7-92 is justified?
(ii) If not, what relief the
Workman is not entitled
workman is entitled to?"
to relief prayed by him.
REASONS
5. Present matter relates to the legality of termination of
workman. However the 1st Party workman is unfortunate.
His case is not properly submitted by his counsel. The
reference relates to termination of services of Shri Abdul
Hameed S/o Shri Munna Choudhary whereas statement of
claim is filed on behalf of Shri Abdul Hameed S/o Abdul
Aziz. Statement of claim is well drafted in English, signed
by Shri Abdul Hameed S/o Abdul Aziz. Inception of the
proceeding is in wrong name. Written Statement is filed in
the matter without noting the said infirmity even by the
IInd Party, The affidavit of evidence is filed in name of
Abdul Hameed S/o Shri Munna Choudhary on 9-2-99. He
was cross-examined by IInd Party. Workman in his cross-
examination says advertisement was given for the post,
his name was sponsored through Employment Exchange.
He has produced certificates about his appointment. He
was not allowed to complete 240 days by IInd Party. He
had worked for the days shown in the documents produced
by him. Documents Exhibit W-l(A)to W-l(I) shows working
days 178 days in 1984, 111 days in 84-85, 86 days in 1986,
33 days in 1986, 94 days in 1987, 87 days in 1987, 55 days in
1991, 35 days in 1992. He has also produced Exhibit W-2,
W-2(A), (B), W-3, The period of working is shown in the
documents. All those documents are bearing name of Shri
Abdul Hameed S/o Abdul Aziz. Thus the statement of claim
is not consistent with the documents filed by the workman.
Management has not adduced evidence. Claim of workman
cannot be upheld for the reason of inconsistency.
Statement of claim filed by different person and the
documents and evidence are produced by Abdul Hameed
S/o Shri Munna Choudhary. Thus inherent irregularities
are not explained by the workman. Documents are not
produced to justify irregularity. As per evidence in cross-
examination of workman, he has not completed 240 days
service. Therefore Section 25-F of I.D. Act is not violated.
6. Learned counsel for workman Miss R. Nair relies on
ratio held in—
"Case of Smt. Sunita Gupta versus Nagar Palika
Parisad, Sabalgarh and another reported in ILR(2010)
M.P. 1600. Their Lordship dealing with oral
termination of workman. Petitioner worked for more
than 12 months from date of termination. Held it is
not necessary employee must have in employment
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1977
during the preceding 12 calendar months. Their
Lordship dealing with Section 25-B of I.D. Act held it
is sufficient if the workman has actually worked for
not less than 240 days in a period of 12 months for
violation of Section 25-F, petitioner was held entitled
for reinstatement."
In the present case, infirmity discussed above that
Statement of Claim is submitted by different persons,
evidence is adduced by Shri Abdul Hameed, S/o Shri
Munna Choudhary cannot be reconciled. Therefore
I record my finding in Point No.1 in Affirmative.
7. In the result, award is passed as under:—
(1) Action of the management of General Manager,
Govt. Opium and Alkaloid Works in terminating the
services of Shri Abdul Hameed, S/o Shri Munna
Choudhary w.e.f. 10-7-92 is legal,
(2) Workman is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 738.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] fnYyh ds iapkV ¼lanHkZ la[;k 45/2011½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 14@02@2014 dks izkIr gqvk FkkA
[lañ ,y&12011@53@2010&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 738.—In pursuance oi Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947). the Central Government
hereby publishes the Award (Ref. No. 45/2011) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court No. 2, Delhi as
shown in the Annexure, in the industrial dispute between
the management of State Bank of India and their workmen,
received by the Central Government on 14/02/2014.
[No. L-12011/53/2010-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT - II, DELHI
Present : Shri Harbansh Kumar Saxena
ID No. 45/2011
Sh. Ratanmani Uniyal
Versus
State Bank Of India
No Dispute Award
The Central Government in the Ministry of Labour vide
notification No. L-1201 l/53/2010-IR (B-I) Dated 23/05/2011
referred the following industrial Dispute to this tribunal for
the adjudication :—
"Whether the action of the management of State Bank
of India, Dhutto, Tehari Garwal in terminating the
services of Shri Ratanmani Uniyal S/o Shri Rama Nand
without complying with the provision of section 25F,
G, H of Industrial Dispute Act, 1947, is legal and
justified ? To what relief the workman is entitled ?"
On 06.07.2011 reference was received in this tribunal.
Which was register as I.D No. 45/2011 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 Sh. Ratanmani
Uniyal not filed claim statement but management in
response to reference filed response on 21st day,
November wherein it mentioned as follows:—
Subject:— Reference I.D. No. 45/2011
A. That the present references has been raised by the
claimant workman with regard to his terminiation of
his services without following the provisions of
Section 25F of the Industrial Disputes Act, 1947, That
though the reference has been filed by the claimant
till date. The present reply is being filed pursuance
to the order dated 18/10/2013 passed by the Hon'ble
Court.
B. That the Management submits that the order-sheet
of the Ld. Tribunal would show that various dates
have been fixed for filing of the claim statement and
various notices have been issued to the claimant to
appear before the limited Ld.Tribunal and file his claim
statemant. Since the claimant had not appeared before
the Hon'ble court the management bank has been
directed to file its reply. The present reply is being
filed pursuant to the order of the Hon'ble court dated
18.10.2013 and management reserves its right to file
a detailed reply in case any statement of claim is filed
by the claimant at any subsequent stage.
C. That the management submits that there was no
employer - employee relation between the claimant
and the management and the claimant was never
appointed by the management bank .In fact , the
claimant had work from 07.12.1989 to 10.09.1991 for
Rs 100/- per month on temporary basis for sweeping
the branch premises for approximatly 1/2 hour daily
at the Ghuttu Branch of the management bank. The
approximate area of the branch was about 1150 sq.
Ft. And the claimant did not work for more than 3
hour a week in the small premises of the management
bank.
D. That the management submits that as per the Circular
Note dated 22.05.1994 one part time sweeper was
sanctioned for the branch for at least 1/3 scale wages
1978
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
at all the regular branches which were in existance /
operation on or before 31.12.1993 and the same was
made applicable w.e.f. 01.01.1994 .As the claimant
was not working at the branch on 31.12.1993 he was
not eligible and his name was not considerd. That
during that period Shri Jabbar Singh and Shri Vikram
worked as sweeper at the branch The claimant had
again started working in the bank w.e.f. January ,1994
at Rs 190/- per month. However, it is stated that the
Ghuttu Branch vide their letter dated 09.11,1993
addressed to the Employment officer Employment
exchange, Tehri Solicited names of the candidates
belonging to SC/ST category registered at the
Employement Exchange for the post of sweeper at
the branch .The Employment Exchange at Tehri did
not sponsor any name. Shri Uniyal belongs to the
general category,
E. That the management had thereafter advertised the
vacancy for part time sweeper in its branches for
Tehri District in the year 2003 and advertisement for
recruitment was published in March , 2003 whereby
the age limit criteria for the general category
candidates was between 18 to 28 Years and there
was a relaxation of 5 years for SC/ST candidates . A
chance was also given to the claimant to apply for
the same but the age of Shri Uniyal who was a general
category candidate was about 33 years on the date
of the said advertisement / vacancy and thus , he
was not eligible for the said post -
F. It was respectfully submitted that the engagement
of the claimant in the respondent bank was on
temporary basis for sweeping the branch premises
for about 1/2 hour daily and he was engaged by the
respondent bank for any other purpose.
G.. That the Hon'ble Apex Court in the Case of Secretary,
State of Karnataka Vs Uma Dcvi reported in 2006 4
SCC Page 1 has held that the employee appointed by
the states or its instrumentality in the capacity of
daily wagers / temporary appointment /part time
appointment /contractual appointments cann't claim
regularization as matter of right on the basis of the
fact that the employee had continued his services
on that status for a long period.
H. The management further states that regularization of
the temporary employees is only possible if they
fulfill eligibility criteria and the recruitment rules .
The management bank organizes recruitment process
for recruitment of parmanent employees. The
claimant had only rendered services on temporary
basis for cleaning of the branch premises hence he
was not eligible for regularized.
I. The management further submits that the claimant
had also approached the Assistant Labour
Commissioner (C), Dehradun and a notice was also
received by the management bank from the office of
the ALC(C), Dehradun and he had not appeared on
consecutives 4 dates and the ALC(C). Dehradun vide
its order dated 06.03.2013 had rejected the demand
observing that the claimant is not interested in
pursuing his matter.
J. That the claimant has also not perused, its case before
the Ld. Tribunal inspite of notice and inspite of being
given numerous opportunities to file its statement of
claim .
Wherein the management prayed as follows : —
It is therefore ,most respectfully prayed the present
reference may kindly be answered in favour of the
management since the claimant is not interested in
pursuing his case .
In these circumstances there remains no dispute
between Claimant/Workman & Respondent.
Had it been workman /Claimant has filed Claim
Statement, Rejoinder etc, and come forward to proceed
further.
In these circumstances it is a fit case for passing No
Dispute Award. Reference in decided in favour of
Management and Against Workman-No Dispute Award is
accordingly passed.
Dated : 16.1.2014
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 739.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Hkkjr lapkj fuxe
fyfeVsM] jryke ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k
lhthvkbZVh@,ylh@vkj/62/2002½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 23@12@2013 dks izkIr gqvk FkkA
[lañ ,yñ&40012@319@2001&vkbZ vkj ¼Mh;w½]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 739.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. CGIT/LC/R/62/2002)
of the Central Govt. Industrial Tribunal/Labour Court,
Jabalpur, now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of BSNL, Ratlam and their workman, which
was received by the Central Government on 23/12/2013.
[No. L-40012/319/2001-IR(DU)]
P. K VENUGOPAL, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1979
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/62/2002
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Gajadhar Singh,
S/o Shri Hemsingh Village Kudkela,
Tehsil Dharmajgarh
Raigarh (Chhattisgarh)
........Workman
Versus
Sub-Divisional Officer (Telegraphs),
BSNL, Raigarh, Chhattisgarh
Sub-Divisional Officer (Phones),
BSNL, Raigarh, Chhattisgarh
General Manager,
BSNL, Telephone Exchange,
Bilaspur (Chhattisgarh)
.........Managerments
AWARD
(Passed on this 13th day of September, 2013)
1. As per letter dated 1.4.2002 by the Government of India,
Ministry of Labour, New Delhi, the reference is received.
The reference is made to this Tribunal under Section -10 of
I.D. Act, 1947 as per Notification No.L-40012/319/2001-
IR(DU). The dispute under reference relates to:
"Whether the demand of Shri Gajadhar Singh, Ex-
Casual Labour from the management of the Telecom
Department (BSNL), Raigarh for reinstalment and his
regularisation in service is justified? If not, to what
relief the workman is entitled and from which date?"
2. After receiving reference, notices were issued to the
parties. 1st party workman submitted Statement of Claim at
page 2/1 to 2/3. The case of 1st party workman is that he
had worked as casual labour on muster roll with Ilnd Party
in 1990. He had worked during 1980 to 1983, 1984 to 1987
and in 1990. He claims to have worked more than 240 davs
during each of the calendar year. That Smt. Budhiarin Bai
and Pratapi Bai were part time labour in establishment of
IInd Party in 1988. They were directed to be given temporary
status as per order in Original Application No. 509/93 under
the Departmental Regularisation Scheme of 1989.
3. That several casual labours were working in IInd Party
till 1995. None of them were regularized. Rajesh Kumar
Kunwar and Keshav Prasad working under the IInd Party
filed Original Application No. 96/95. Seeking regularization.
Applicant had filed original application 467/97 before CAT,
Jabalpur. The directions were given to the applicant to
approach appropriate forum. Applicant submits that case of
Rajkumar and Keshav Prasad is identical and therefore he is
entitled to similar relief of temporary status/regularization.
4. IInd purty filed Written Statement at Page 10/1 to 10/4.
Claim of Ist Party is opposed. That workman has raised
industrial dispute alleging that his service were terminated
without following due procedure under I.D. Act. That the
respondent engaged workers for target works at various placed
in rival, the workers were engaged on muster roll for specified
period and works like for erecting lines and wires, laying under
ground cables, dismantling of lines and wires, providing long
distance connection etc. on daily basis etc. The workers were
employed on contract basis for specified period therefore they
were never engaged on regular basis against regular sanctioned
post. That after expiry of stipulated work, the services of casual
labours were automatically terminaied. They were again
deployed to the work under mustering officer when work was
available. The department had framed policy for conferring of
temporary status to casual workers known as Casual Labours
Grant of Temporary Status and Regularisation Scheme 1989.
The conditions were that the employee should be
(a) engaged prior to 30.3.1985,
(b) Continuing as casual worker on 7.11.1989,
(c) Have completed 240 days in a year
The scheme was extended as per order dated 25-6-93.
The required criterias are—
(a) Having been engaged between 30.3.1985 to
22.6.1988,
(b) Still continuing in the date of respective orders,
(c) Not remained absent for more than 365 days w.e.f.
the issue of respective orders.
5. IInd party submits that except in 1987, workman had
not completed 240 days service during the period of service.
He is not fulfilling conditions for temporary status.
Therefore he is not entitled for regularization of service.
That Smt. Budhiarin and Smt. Pratapi Bai was in employment
for longer period. The case of Rajesh Kumar and Keshav
Prasad were also not similar. On such grounds. IInd Party
submits that Ist Party workman cannot claim reliefs as similar
relief is granted to above workers. On such grounds, IInd
Party prays for rejection claim of workman.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the demand of Shri
In Negative
Gajadhar Singh, Ex-Casual
Labour from the management
of the Telecom Department (BSNL),
Raigarh for reinstatement and his
regularisation in service is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?”
workman is rejected?"
REASONS
7. As per terms of reference, Ist Party workman is
challenging legality of his termination. He is also claiming
regularization in service. However his statement of claim is
fully devoted for regularization as per the casual labours
regularisation scheme.
1980
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
8. IInd Party had denied claim of Ist Party contending
that he is not fulfilling eligibility criteria. The affidavit of
evidence is filed by workman. He has stated that he had
worked for 303 days during 1980 to 1983, 420 days from 1984
to 1987, 207 days from 1987 to 1988, 167 days from July 1987
to Dec-1987 and 177 days during 1988. That he was required
to work in the department in 1980. That he had completed
240 days continuous service preceding one year from 31-12-
88. He has further stated that his services were terminated
without notice, retrenchment compensation was not paid.
He was not granted temporary status as per the scheme.
9. In his cross-examination, workman says he had left
service in December 1998. That he was working as labour
in BSNL. His name was in muster. He was paid wages. He
had not received appointment letter. That he was working
on all 30 days of the month. He admits that working days
shown in Para-2 of his affidavit is six blocks is correct.
10. Management's witness Basant Xalxo in his affidavit
of evidence has stated the working days of Ist Party
workman from 1980 to 1988, in 1987 working days of
workman were 315 days, till October 1998, working days
were 177. That there is no provision of regularization of
casual workers directly. Unless temporary status is
concurred on him. In his cross-examination, management's
witness claims ignorance whether the entries of attendance
was marked in the muster roll. He admits contents of para-
6 that casual labours in muster roll was taken.
11. In present case as workman has admitted that he had
left service in 1988 there was no question of giving notice
under Section 25-F as argued by counsel for management.
12. Next question remains whether the workman is
entitled for regularisation under the scheme of 1989. As per
evidence in cross-examination of workman, he had left the
job in December 1988. The scheme was introduced from
7-11-89. The copy is produced on record. The scheme
prescribes various criterias for extending initials for
temporary status to employees completing 240 days service
as casual labour. The conferment of temporary status on a
casual labour would not involve any change in his duties.
Scheme also clearly provides that the employee is not
entitled for casual status. Their services are terminated
following conditions laid down in I.D. Act 1947. Though
evidence on record shows that workman had completed
more than 240 days service in 1987, he himself left the
service in December, 1988 before the scheme lor
regularization of casual employees was introduced. The
scheme cannot be given retrospective effect for giving
temporary status to the workman, Therefore, he is not
entitled to any of the relief prayed by him. For above
reasons, I record my finding in Point No. 1 in Negative.
13. In the result, award is passed as under:—
(1) Termination of service of workman is not illegal, he
is not entitled for regularization.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 740.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj vflLVsaV tujy
eSustj] chñ,lñ,uñ,yñ ,aM vnlZ] y[kuÅ ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
y[kuÅ ds iapkV ¼lanHkZ la[;k 33@2006½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 02@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40011@08@2006&vkbZ vkj ¼Mh;w½]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 740.—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 Cent.
Govt. Indus. Tribunal/Labour Court, Lucknow now as
shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of The
Assistant General Manager & Others, BSNL, Lucknow and
their workman, which was received by the Central
Government on 03/02/2014.
[No. L-40011/08/2006-IR(DU)]
P.K VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT : DR. MANJU NIGAM, Presiding Officer
I.D. No. 33/2006
Ref. No. L-40011/8/2006-IR(DU) dated 15.11.2006
BETWEEN :
The Org. Secretary
Bhartiya Mazdoor Sangh,
06, Naveen Market, Kaiser Bagh, Lucknow
(Espousing cause of Shri Shailendra Singh)
AND
1. The Asstt. General Manager (Admn.)
BSNL,
O/o Principal General Manager,
Telecom Distt. Gandhi Bhawan, Lucknow
2. The Sub-Divisional Engineer Phones (Ext.)
Central BSNL, Kaiser Bagh, Lucknow
AWARD
1. By Order No. L-40011/8/2006-IR (DU) dated 15.11.2006
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 the Org. Secretary, Bhartiya
Mazdoor Sangh, 06, Naveen Market, Kaiser Bagh, Lucknow
and the Asstt. General Manager (Admn.), BSNL, O/o
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1981
Principal General Manager, Telecom Distt., Gandhi Bhawan,
Lucknow & the Sub-Divisional Engineer Phones (Ext.),
Central, BSNL, Kaiser Bagh, Lucknow for adjudication.
2. The reference under adjudication is:
"Whether the Demand of the Bhartiya Mazdoor
Sangh for seeking temporary status in services, for
Shri Shailendra Singh, from the management of BSNL,
Lucknow, is legal and justified? If yes, to what relief
the workman is entitled to and from which date?"
3. The case of the workman's union, in brief, is that the
workman, Shailendra Singh had been engaged w.e.f.
01.07.2000 by the opposite party for cleaning work at
Charbagh Telephone Exchange, Lucknow and he put his
attendance on the Attendance Register and was made
payment on the ACG-17 voucher at the end of every month.
It is submitted by the workman's union that the workman
worked for more than 1500 days since his engagement and
also 240 days in each year and when he requested for his
regularization then the management instead of regularizing
his services terminated him; whereas on the contrary the
management has regularized the services of other junior
workman. Accordingly, the workman's union has prayed
that the workman be granted temporary status from July,
2003 and be given seniority upon the other junior workmen.
4. The management has denied the claim of the workman's
union by filling its written statement; wherein it has submitted
that the engagement of the workman was purely on daily
wage basis and was never engagd on permanent basis. It
has further submitted that the workman never completed
240 days of regular and continous service in any financial
year; therefore, the workman was neither given temporary
status nor was considered for regularization. The
management has also submitted that the workman was
engaged on daily wage basis as and when required, therefore,
there was no termination or retrenchment of his services by
the BSNL. Accordingly, the management has prayed that
the claim of the workman's union be rejected without any
relief to the workman concerned.
5. The workman's union has neither filed any rejoinder
nor has entered into the witness box to corroborate its
pleading in the statement of claim or to prove the photocoy
of the documents field by it through oral evidence.
6. From the perusal of the file it is evident that the
workman's union was first afforded the opportunity to lead
its evidence on 10.12.2007; but it failed to avail the same.
Since then the case is lingering on pretext or other; but the
parties did not adduce any evidence. Likewise the parties
did not forward any argument in support of their respective
stand, therefore, the case was reserved for award, keeping
in view long pendency of the case since year 2006 and
reluctance of the parties to contest their case.
7. I have scanned the entire material available on the file.
8. It is the case of the workman's union that the workman
had not been given temporary status in spite of completion
of more than 1500 days of continues service; but the
management has denied this fact. Hence, in view of the denial
of the management, it was incumbent upon the workman's
union to lead evidence to corroborate its averment; but the
workman's union utterly failed to do so, as it did not adduce
any evidence in support of its pleadings.
9. It is settled position of law that a party challenging
the legality of an action, the burden lies upon it to prove
illegality of the action and if no evidence is produced by
the party, invoking jurisdiction of the court, must fail. In
the present case burden was on the workman's union to
set out the grounds to challenge the validity of the action
of the management in not granting the temporary status to
the workman after completion of three years' continuous
services. This claim has been denied by the management;
therefore, it was for the workman's union to lead evidence
to show that the alleged injustice was done to the workman,
by the management of the BSNL; but the workman's union
failed to prove the same as it has not turned up to
corroborate the allegations by proper evidence.
10. In 2008(118) FLR 1164M/s. Uptron Powertronics
Employees'Union, Ghaziabad through its Secretary vs.
Presiding Officer, Labour Court (II), Ghaziabad & others,
Hon'ble High Court relied upon the law settled by the Apex
Court in 1979 (39) FLR 70 (SC) Sanker Chakravarti Vs.
Britannia Biscuit Co. Ltd. 1979 (39) FLR 70 (SC) V.K. Raj
Industries Vs. Labour Court and others, 1984 (49) FLR 38
Airtech Private Limited v. State. of U.P. and others and 1996
(74) FLR 2004 (Alld.) Meritech India Ltd. v. State of U.P. and
others; wherein it was observed by the Apex Court:
"That in absence of any evidence led by or on behalf
of the workman the reference is bound to be answered
by the Court against the workman. In such a situation
it is not necessary for the employers to lead any
evidence at all. The obligation to lead evidence to
establish an allegation made by a party is on the
party making the allegation. The test would be, who
would fail if no evidence is led."
11. In the present case the workman's union has not turned
to substantiate his case by way of filing any evidence. Mere
pleadings are no substitute for proof. It was obligatory on
the part of workman's union to come forward with the case
that the workman had not been granted temporary status, in
contravention to the rules; but the workman's union failed
to forward any evidence in support of its claim, as it did not
turn up for filing its evidence before this Tribunal. There is
no reliable material for recording findings that the alleged
injustice was done to the workman or the action of the
management of BSNL was illegal and unjustifed.
12. Accordingly, the reference is adjudicated against
the workman's union; and as such, I come to the conclusion
that the workman, Shailendra Singh is not entitled to any
of the relief(s) claimed.
13. Award as above.
Lucknow,
19th August, 2013.
Dr. MANJU NIGAM, Presiding Officer
1982
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 741.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,e lh ,y ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; Hkqous'oj ds iapkV ¼lanHkZ la[;k 8@2011½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 10@02@2014 dks izkIr gqvk FkkA
[lañ ,yñ&22012@36@2010&vkbZ vkj ¼lh ,e-II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 741.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 8/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure in the Industrial
Dispute between the management of Balaram OCP of MCP,
Hingula Area of MCL, and their workman, received by the
Central Government on 10/02/2014.
[No. L-22012/36/2010-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT AT BHUBANESWAR
PRESENT: Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE No. 8/2011
Date of Passing Award-3rd day of April, 2013
BETWEEN:
1.
The Management of the Project Officer,
Balaram OCP of MCL At/PO-Danra,
Distt-Angul, Odisha
2.
The Chief General Manager,
Hingula Area of MCL,
At-Mahendrapur, PO-Badajorada,
Distt-Angul-Odisha
...1st Party-Management.
And
Their Workman represented through
The General Secretary,
Talcher Coal Mines Employees Union,
At-Qr. No. A/121, PO-N.S. Nagar,
Distt-Angul, Odisha
...2nd Party-Workman.
APPEARANCES:
Shri Sitaram Das
...
For the 1st Party-
Dy. Manager (Pers).
Management.
None
...
For the 2nd Party-
Workman.
AWARD
1. An Industrial dispute existing between the
employers in relation to the Management of Balaram OCP
of Mahanadi Coalfields Limited and their workman has been
referred to this Tribunal-cum-Labour Court for adjudication
by the Government of India in the Ministry of Labour in
exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section (2A) of section 10 of the
Industrial Disputes Act, 1947 vide their letter No. L-22012/
36/2010-IR (CM-II), dated 31.1.2011.
2. The dispute as referred to has been mentioned in
the schedule of the letter of reference which is reproduced
below:—
"Whether the action of the Management of
Balaram OCP of M/s. Mahanadi Coalfields Limited in
removing Shri Bibhisan Nahak, Ex-General Mazdoor,
Cat. II from services w.e.f. 20.10.2006 on the ground
of unauthorised absence from 12.02.2005 to
06.06.2005 and previous habitual absenteeism, is legal
and justified? To what relief the workman is entitled
to?"
3. The 2nd Party union espousing the cause of the
disputant workman has filed it's statement of claim stating
that the disputant workman was a general mazdoor, cat. II
in Balaram OCP under the Hingula Area of MCL, Talcher.
He fell ill from 12.2.2005 to 6.6.2005 and was hospitalised at
the Subdivisional Hospital, Talcher and made fit for duty
w.e.f. 7.6.2005. Thereafter he reported for duty on 7.6.2005.
But, he was not allowed to resume duty and was
chargesheeted by the management of Balaram OCP of MCL
on 8.6.2005. An enquiry was instituted against the disputant
workman. The disputant workman also participated in the
said enquiry. After completion of enquiry a report was
submitted by the enquiry officer on which the disputant
workman was removed from service. He appealed against
the order of punishment. But, his appeal was rejected.
Thereupon he went for conciliation to the labour authority
and on failure of the conciliation proceeding the dispute
was referred to this Tribunal by the appropriate
Government.
4. The 2nd party union has submitted that the
disputant workman during his illness could not inform the
management. On getting fitness certificate, he reported for
duty as per rule and certified standing orders. But, instead
of permitting him to join the duties, the management has
removed him from service. The punishment is too harsh,
unfair and unjustified. Before imposing punishment of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1983
removal from service, the disputant workman was not given
any opportunity to show-cause on the report of the enquiry
officer. His appeal was also dismissed without giving any
specific ground. The findings of the enquiry officer are
wrong and biased. Hence, order of removal from service be
set aside and the disputant workman be reinstated in
service w.e.f. 7.6.2005.
5. The 1st party management in its written statement
has stated that the disputant workman had been prone to
long unauthorised absence from duty in the years 2000 to
2004 also. He remained unauthorisedly absent for 270 days,
218 days, 230 days and 188 days respectively during those
years. Further, he remained unauthorisedly absent from
duty w.e.f. 12.2.2005 to 6.6.2005. Letter dated 8/12.4.2005
and 6.5.2005 were issued to the disputant workman by the
Manager of Kalinga OCP now renamed as Balaram OCP of
MCL directing him to report for duty within 3 days of the
receipt of the letters above failing which he would be liable
for disciplinary action. Failing to resume duty he was
chargesheeted for misconduct on 8.6.2005 under the
relevant provisions of the certified standing orders and
called for to submit his explanation. But, he has not
submitted any explanation. Thereafter the domestic enquiry
committee was formed which conducted detailed enquiry.
The disputant workman was given full opportunity to
defend himself. The enquiry officer found him guilty of the
charges. Copies of enquiry proceedings and report of the
enquiry officer were sent to the disputant workman on
24.12.2005 for submission of representation if any. The
disputant workman submitted his representation vide letter
dated 24.12.2005. The disciplinary authority considered his
representation before deciding for penalty and thereafter
imposed the penalty of removal from service vide office
order No. 1303 dated 1.3.2006.
6. It is to be mentioned here that after filing of the
statement of claim by the authorized representative of the
2nd party union, no one appeared on its behalf, so also on
the later stage of the proceedings of the case. On the date
of settlement of issues, since the 2nd party union was
absent he was set exparte. Later on, rejoinder to the written
statement of the 1st party management was received
through post on 12.3.2012, but non appeared on behalf of
the union to get the exparte order set aside which still
stands as it is.
7. On behalf of the 1st party management, one Shri
Radha Mohan Panda, Sr. Manager (Personnel), Hingula
Area of MCL filed his sworn affidavit in exparte evidence
in which he proved the case of the management as stated
in the written statement.
8. The 2nd party union has failed to appear in the
case and lead any evidence in support of its case. It is a
proved fact that the disputant workman has unauthorisedly
remained absent from duty w.e.f 12.2.2005 to 6.6.2005
without any information to the management and did not
respond to the letter sent by the management directing the
disputant workman to report for duty. During the year 2000
to 2004 he also remained on unauthorized leave and for
that he was punished for five times. Thus, he had been a
habitual absentee. He was duly chargesheeted and after
proper enquiry in which he participated and got sufficient
opportunity to defend himself, he was found guilty of
charges and by way of punishment removed from service.
The 2nd party union or the disputant workman has grossly
failed to show that he was heavily punished and the
departmental enquiry against him was not conducted fairly
and in proper manner and he was not accorded sufficient
opportunity to defend himself. Hence the claims made in
the statement of claim prove to be void and the disputant
workman is not entitled to any relief.
9. The reference is answered accordingly.
J. SRIVASTAVA, Presiding Officer.
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 742.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj MCY;w lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
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djrh gS tks dsUnzh; ljdkj dks 10@02@2014 dks izkIr gqvk FkkA
[lañ ,y&22012@230@2004&vkbZvkj ¼lh,e&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 742.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 52/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure in the Industrial
Dispute between the management of Ballarpur Area of
M/s. Western Coalfields Limited, and their workman,
received by the Central Government on 10/02/2014.
[No. L-22012/230/2004-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOURT COURT, NAGPUR
Case No. CGIT/NGP/52/2005
Date: 23.01.2014
Party No. 1:
The Chief General Manager,
Ballarpur Area of M/s. Western
Coalfields Limited, Post & Tah.
Ballarpur, Chandrapur (MS)
Versus
1984
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Party No. 2:
Shri Lomesh Kharatad,
General Secretary,
Rashtriya Colliery Workers Congress,
Dr Ambedkar Nagar, Ballarpur,
P.O. & Tah. Ballarpur, Chandrapur (MS).
AWARD
(Dated: 23 January, 2014)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act"in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and their workman, Shri Rajesh
Narayan, for adjudication, as per letter No. L-22012/230/
2004-IR (CM-II) dated 29.06.2005, with the following
schedule:—
"Where the action of the management in relation to
Ballarpur Area of Western Coalfields Limited in
terminating the services of Shri Rajesh Narayan,
Sweeping Mazdoor Cat. I vide office order No. Vekoli/
Bakshe/Mumpara/Kavi/270 dated 18/26.05.2003 is
legal and justified? If not, to what relief the workman
is entitled?"
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman Shri Rajesh
Narayan, ("the workman"in short) through his union,
"Rashtriya Colliery Workers Congress", ("the Union" in
short) filed the statement of claim and the management of
WCL, ("Party No. 1" in short) filed the written statement.
The case of the workman as presented by the union
in the statement of claim is that it (union) is a registered
union under the Trade Unions Act, 1926 and the Party No.
1 is a Government Company and is a "State" within Article-
12 of the Constitution of India and the terms and conditions
of servcie of the workman are governed by the certified
standing order of Party No. 1 and the workman was working
as a Sweeping Mazdoor at Ballarpur Area office and he had
an unblemished service record and charge sheet dated
17/19.11.2001 (wrongly mentioned a 17/19.11.2009 in the
statement of claim) was served on him by the Dy. General
Manager, Ballapur Area, for remaining absent from duty
from 11.10.2001 and the workman submitted his reply to
the charge sheet on 26.11.2001, stating that he was ill and
that he was not allowed to resume duty from 26.11.2001 to
22.01.2002, though he approached the authority time and
again and he was kept under forced idleness, on the ground
of initiation of disciplinary proceedings and the same
amounted to suspension and he is entitled for full wages
or subsistence allowance and as the same was not paid to
him, the departmental enquiry was vitiated and the charge
sheet was signed by the Dy. General Manager, who is not
competent to do so, as per the provisions of the standing
order and the charge sheet was not maintainable and the
entire action based on such charge sheet was illegal and
the charge sheet was also vague and suffered from serious
infirmities and a false, fabricated and manipulated enquiry
was conducted against the workman, where the principles
of natural justice were grossly violated and though the
workman was reporting for enquiry, but most of the time,
either the enquiry officer or the management representative
was not available and his presence was not being marked
in the proceedings and on 01.02.2003, he submitted an
application to the Personnel Manager, Ballarpur in that
regard and he was not being marked as present in the enquiry
and the enquiry officer was biased and tried to blackmail
the workman and the same was brought to the notice of the
Manager and the enquiry officer acted only as a recorder
and the evidence was not evaluated properly and the
enquiry officer travelled beyond his jusrisdiction and he
did not explain the procedure of enquiry to the workman
and documents were suppressed and the reply of the
workman dated 26.11.2001 to the charge sheet was never
examined and the appointment of the enquiry officer by
the Personnel Officer (Administration) Ballarpur was illegal,
as the said officer was not the charge sheeting officer and
the workman was dismissed from services vide order dated
18/26.05.2003, issued by the staff officer (Mining) Ballapur
Area, who was not the competent authority in accordance
with the provisions of the certified standing order and the
appeal preferred by the workman against the order of
punishment vide letter dated 31.12.2003 to the General
Manager, Ballarpur Area and the union's letter dated
10.10.2003 remained unattended and was not disposed of
and the appeal of the workman to the Chairman-cum-
Managing Director vide his application dated 01.08.2005
against his dismissal was also not replied and the
punishment is too harsh and disproportionate.
Prayer has been made by the union for the
reinstatement of the workman in service with continuity,
full back wages and consequential benefits.
3. The Party No. 1 in the written statement has
pleaded inter-alia that the alleged industrial dispute has
been raised by Shri Lomesh Maroti Khartad as the General
Secretary of the union and at the conciliation stage itself,
it had challenged the locus standi of the union to riase the
dispute and to its knowledge, the union is registered at
Dhanbad, in the state of Jharkhand and the union has no
registered status at Ballarpur, within the meaning of the
Act and the union is not the union of the workers of
Ballarpur Colliery and as such, the union cannot raise the
dispute validly.
It is further pleaded by Party No. 1 that the workman
was employed as a sweeping mazdoor cat.I, at the office of
the Chief General Manager, Ballarpur Area on and from
01.04.2000 and right from the beginning of his carrier, he
developed the habit of remaining unauthorized absent, so
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1985
much so that, from May 2000 to December, 2000, he had
put in only 80 days attendance and for such unauthorized
absence, he had been charge sheeted and warned several
times, but there was no improvement in his conduct and
the workman again absented himself from duty without
any sanctioned leave and without any intimation to the
management, w.e.f. 11.10.2001 and therefore, a charge sheet
dated 17/19.11.2001 was issued to him and the workman
submitted his reply to the charge sheet, vide his letter dated
26.11.2001, in which, it was mentioned by him that his
relatives and mother were sick and he was busy in attending
them, hence, he counot not able to inform the management
and the workman admitted that he was at fault and tendered
apology and begged to be excused, with the assurance
that he would not commit any such mistake in future and
since, his explanation was found not to be satisfactory, a
departmental enquiry was constituted vide order dated
18.03.2002, appointing Shri R.K. Randhale as the enquiry
officer and the workman on his request was allowed on
duty pending enquiry, vide letter 20/22.04.2002, but did
not report for duty, even though, he received the letter
dated 20/22.04.2002 and the workman attended the enquiry
in the 2nd sitting held on 22.04.2002 and prayer for time to
engage co-worker, which was allowed by the enquiry officer,
but thereafter, he did attend the enquiry on several dates,
but he attended the enquiry in the 13th sitting on 15.02.2003
alongwith his coworker, Shri Shankar Das and when the
enquiry officer read over and explained the charges, the
workman admitted the charges and stated further that due
to falling sick frequently, he was not able to perform his
duty properly an that his hand was burnt and he begged
excuse, but the workman did not file any document in
support of his claim and even though, the enquiry was
adjourned twice thereafter, the workman did not attend the
enquiry and on the last date of enquiry, the management
representative filed and the relevant documents and
records in support of the charges, which were taken on
record and the enquiry came to be closed and the enquiry
officer submitted his report, which was based on the record
and documents of the enquiry, to Dy. General Manager,
Ballarpur Area on 05.05.2003 and a copy of the enquiry
report was served on the workman vide letter dated 08/
11.05.2003 and the workman did not file any representation
and he was dismissed from services vide office order dated
18/20.05.2003, with the approval of the competent authority
and the workman was served with the order of dismissal on
21.05.2003 and he did not file any appeal against the same
and the enquiry was fair and proper and considering his
consistent bad record of habitual absenteeism, his
misconduct was considered serious enough to dismiss him
from services and the punishment was proportionate to
the charges and the workman is not entitled to any relief.
4. In the rejoinder, it is pleaded by the union that it is
competent to raise the dispute.
5. As this is a case of dismissal of the workman, after
holding of a departmental enquiry, the fairness or otherwise
of the departmental enquiry was taken for consideration as
a preliminary issue as per order dated 22.11.2013, the
departmental enquiry conducted against the workman was
held to be legal, proper and in accordance with the principles
of natural justice.
6. It is to be mentioned here that evan though several
opportunities were given to the union to adduce evidence,
no evidence was adduced either by the union or the
workman. The union and so also the workman did not appear
to contest the case. So, on 21.08.2013, order was passed to
proceed exparte against the workman.
7. So far the question of perversity of the findings of
the enquiry officer and proportionality of the punishment
are concerned, on persusal of the record and taking into
consideration the submissions made by the Learned
advocate for the Party No. 1, it is found that this is not a
case of no evidence or that the findings of the enquiry
office are totally against the evidence on record. It is also
found that the enquiry officer after assessing the evidence
on the record of the enquiry in a precise manner has arrived
at the findings. The findings of the enquiry officer are not
as such, which cannot be arrived at by any prudent man on
the evidence on record. Hence, the findings of the enquiry
officer cannot be said to be perverse.
Grave misconduct of remaining unauthorized
absence has been proved against the workman in a properly
conducted departmental enquiry. It appears from the record
that the Party No. 1 has lost confidence on the workman.
So, the punishment of termination of the services of the
workman from services imposed against the workman
cannot be said to be shockingly disproportionate to the
grave misconduct proved against him. Hence, there is no
scope to interfere with the order of punishment. Hence, it
is ordered:—
ORDER
The action of the management in relation to Ballarpur
Area of Western Coalfields Limited in terminating the
services of Shri Rajesh Narayan, Sweeping Mazdoor Cat. I
vide office order no. Vekoli/Bakshe/Mumpara/Kavi/270
dated 18/26.05.2003 is legal and justified. The workman is
not entitled to any relief.
J.P. CHAND, Presiding Officer
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1986
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 10th February, 2014
S.O. 743.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 260/
2003) of the Cent. Govt. Indus, Tribunal-cum-Labour Court,
Nagpur, as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India,
and their workmen, received by the Central Government on
10/02/2014.
[No. L-22012/162/2003-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/260/2003
Date: 29.11.2013.
Party No. 1(a):
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur-440015.
Party No. 1(b):
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai-400020.
Versus
Party No. 2:
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Gajanan Daduji Chahande for adjudication,
as per letter No.L-22012/162/2003-IR (CM-II) dated
08.12.2003, with the following scheduled:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Gajanan Daduji Chahande,
Security Guard w.e.f. 14.03.1999 is legal and justified?
If not, to what relief the concerned workman is
entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Gajanan
Daduji Chahande, ("the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 15.07.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1993, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
¹Hkkx II—[k.M 3(ii)º
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labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by management and therefore, it was the mandatory duty
of the Party No. 1 to abolish the contract labour system in
all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 15.07.1993 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No. 1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No. 1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
1988
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[PART II—SEC. 3(ii)]
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that the Contractor approached them saying that there was
vacancy in FCI and accordingly the contractor engaged
them in F.C.I. and the contractor was Singh Security. The
workman in his cross-examination has further admitted that
no appointment order was issued either by the F.C.I. or
Singh Security to him.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No. 1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed tom work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continously from the date of their respective
engagement till December, 1998 in F.C.I. through different
contractors and F.C.I. had the control regarding the duties
to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
15.07.1993 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No. 1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and Party No. 1 also did not
comply with the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970 ("Act, 1970" in short)
and as such, the termination of the workman is illegal and
null and void. It is further submitted by the learned advocate
for the workman that the appointment of the workman to
work in the establishment of the Party No. 1 was admittedly
through contractor appointed by Party No. 1 and it is an
admitted position that the tenture of the contract was for
two years and though there was change of contractor in
every two years, the wrokman and other security guards
remained the same and there was a specific condition in
the contract between the management and the contractor
that the set of workers will be continued by the incoming
contractor and in such fashion, the workman and other
security guards continued to work in the establishment of
Party No. 1 right from the date of their respective date of
appointments till March, 1999 there was no bread in their
service and each of them completed 240 days of service in
each calendar year and the same shows that the work was
all time available in the establishment of Party No. 1 and is
of perennial nature and ever through the workman and
other security guards were employed by the contractor,
fact remains and is also admitted by the witness for the
Party No. I that Party No. 1 had control over the working of
the workman.
The learned advocate for the workman further
submitted that through Party No. 1 in the written statement
had in the written statement has contended that it was
exempted from the provisions of the Act, 1970, it has failed
to produce any document in corroboration of such
contention and as mere statement of Party No. 1 is no
sufficient, the fact remains that Party No. 1 was never
exempted from the provisions of the Act, 1970 and the
Central Government by notification dated 01.01.1990 issued
U/s 10 of the Act, 1970 abolished contract labour system in
the establishment of Party No.1 and after issuance of the
said notification, Party No. 1 was prohibited from engaging
any contract labour and as the workman and other security
guards were engaged by Party No. 1 inspite of notification
prohibiting contract labour system, the workman became
the direct employee of the Party No. 1 and he has attained
the status of regular employee of Party No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record and
document showing that it was registered as principal
employer or the contractors were registered under section 7
and Section 12 respectively of the Act, 1970 and in absence
of the said documents, it cannot be assumed that the
contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party
No. 1 appointed police and home guard personnel as
security guards and this proves that the work is available
even today and after the notification dated 01.11.1990, Party
No. 1 regularized the contract labourers were engaged at
Nagpur and Manmad, but same was not the case at Akola,
Amravati, Wardha and Gondia and this shows that Party
No. 1 indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR-167 (Food Corporation of India Vs.
Prashant Pandurang Ramteke & others).
¹Hkkx II—[k.M 3(ii)º
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The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by the Party No. 1 and he was engaged by the contractor
as a security guard and as such, the concerned contractor
is a necessary party and inspite of raising such objection
in the written statement, the workman did not implead the
contractor as a part and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the the Party No. 1 that the workman was
engaged by the contractor and as the contract of the
contractor came to an end in March, 1999, the services of
the workman were terminated by the contractor and as
such, there was no question of Party No. 1 complying with
the due procedure of termination and there was no
relationship of master and servant between the Party No. 1
and the workman and the Party No. 1 was exempted by the
Central Government from the ban imposed for engagement
of contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No. 1 that the workman and some others has
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition No. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said wirt
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgement that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgement of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
[reported in 2001(7) SCC1], and relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
*
*
*
*
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them to liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom. CR—167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the Party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party No. 1
as a security guard. In the very beginning of the statement
of claim, it has been mentioned by the workman that he
was initially engaged at Food Corporation of India Depot,
Wardha as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No. 1 of papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
1990
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No. 1 implemented such direction
at Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Law.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs. M/s. Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others.
In the decision reported in 1985-II LLOJ-4 (supra.)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
in such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do .........". The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957-I-W-477). Now where a contractor
employs a workman to do the work which he
contracted with a third person to accomplish on the
definition as it stands, the workman of the contractor
would not without something more become the
workman of that third person. Therefore, when the
workmen employed by the contractor were certainly
not the workmen of the corporation and no claim to
that effect has been made by the union."
11. In the decision reported in 2001 LAB IC—3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section (2)
of Section 10 of the Act among other relevant factors.
But, the presence of some or all those factors, provide
no ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S.10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
¹Hkkx II—[k.M 3(ii)º
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brought before it by any contract in regard to conditions
of service, the industrial adjudicator will have to consider
the question whether the contractor has been interposed
either on the ground of having undertaken to produce any
given result for the establishment or for supply of contract
labour for work of the establishment under a genuine
contract or is a mere ruse/camouflage to evade compliance
of various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is found
to be not genuine but a mere camouflage, the so called
contract labour will have to be treated as employees of the
principal employer who shall be directed to regularize the
services of the contract labour in the concerned
establishment. If the contract if found to be genuine and
the principal employer intends to employ regular workmen
he shall give preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by relaxing the
condition as to maximum age appropriately taking into
consideration the age of the workers at the time of their
initial employment by the contractor and also relaxing the
condition as to academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW 430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999, D/-
12-8-1999 (Call): C.O. No. 6545(W) if 1996, D/-9-5-1997(Call):
W.A. Nos. 345-354 of 1997m D/-17-4-1998 (Kant): W.P. No.
4050 of 1999, D/-2-8-2000 (Bom) and W.P. No. 2616 of 1999,
D/-23-12-1999 (Bom), 1998 Lab IC 2571 (Call), Reversed.
In cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between the
principal employer and the contract labour. Even a
combined reading of the definition of the terms "Contract
labour", "Establishment" and "Workman" does not show
that the legal relationship between the person employed in
any industry and the owner of the industry is created
irrespective of the fact as to who has brought about such
relationship. The word "Workman" is defined in wide terms.
It is a generic term of which contract labour is a species. It
is true that combined reading of the terms "Establishment"
and "Workman" shows that a workman engaged in any
establishment would have direct relationship with the
principal employer as a servant of master. But what is true
of a workman could not be correct of contract labour. When
the provisions of the Act neither contemplate creation of
direct relationship of master and servant between the
principal employer and the contract labour nor can such
relationship be implied from the provisions of the action
issuing notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be found to
exist from the rules and the forms made there under."
12. In the decision reported in 1994 II CLR 402
(Supra.), the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a workers, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2(1)(c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after consultation
with the Central Board or, as the case may be, a state
Board, prohibit, by notification in the Official Gazette,
employment of contract labour "in any process,
operation or other work in any establishment," Sub-
section (2) of Section 10 requires that before issuing
any such notification, in relation to an
establishments, the appropriate Government shall
have regard to the conditions of work and benefits
provided for the contract labour in that establishment
and other relevant factors. One of the relevant labour
factors, which is to be taken into consideration is
whether the work performed by the contract
labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable
shall undertake or execute any work through contract
1992
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[PART II—SEC. 3(ii)]
labour except under and in accordance with a license
issued in that behalf by the licensing authority. The
license so issued may contain conditions in respect
of hours of work, fixation of wages and other essential
amenities in respect of contract labour as the
appropriate Government may deem fit to impose in
accordance with rules. Section 20 provides that if
any amenity required to be provided under section
16, section 17, section 18, or section 19 for the benefit
of the contract labour employed in an establishment,
is not provided by the contractor within the time
prescribed by the contractor within the time
prescribed therefore, such amenity shall be provided
by the principle employer within such time as may be
prescribed and all expensed incurred by the principal
employer in providing the amenity may be recovered
by the principal employer from the contractor "either
by deduction from any amount payable to the
contractor under any contract or as a debt payable
by the contractor". Section 21 says that a contractor
shall be responsible for the payment of wages to
each worker employed by him as contract labour but
at the same time in order to protect the interest of
such contract labour, it requires every principal
employer to nominate a representative duly
authorized by him to be present at the time of
disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement
of wages in the presence of the authorized
representative of the principal employer. Because of
sub-section (4) of section 21, if the contractor fails to
make payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the amount
so paid from the contractor. Any contravention of
the provisions aforesaid has been made penal for
which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and recognized
contract labour and they have never purported to abolish
it in its entirety. The primary object appears to be that there
should not be any exploitation of the contract labourers by
the contractor or the establishment. For achieving that
object, statutory restrictions and responsiblities have been
imposed on the contractor as well as on the principal
employer. Of course if any expenses are incurred for
providing any amenity to the contract labourers or towards
the payment of wages by the principle employer he is
entitled to deduct the same from the bill of the contractor.
The Act also conceives that all appropriate government
may after consultation with the central board or the state
board, as the case may be, prohibit by notification in official
gazette, employment of contract labour in any process,
operation or other work in any establishment, taking all
facts and circumstances of employment of contract labour
in such process, operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years, they
make a claim that they should be absorbed by the principal
employer and be treated as employees of the principal
employer especially when the principal employer is the
central government or the state government or an authority
which can be held to be state within the meaning of Article
12 of the constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India Limited
Vs. Union of India (1974) I SCC 596, pointed out the object
and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association Vs.
Union of India, 1985 I CLR SC 165= (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the contract
labour as such but has provided for its abolition by the
Central Government in appropriate cases under section 10
of the Act. It is not for the court to enquire into the question
and to decide whether the employment of contract labour
in any process, operation or other work in any establishment
should be abolished or not. That has to be decided by the
government after considering the relevant aspects as
required by Section 10 of the Act. Again in the case of
Mathura, Refinery Mazdoor Sangh Vs. Indian Oil
Corporation Ltd., 1991 I CLR 684, this court refused to
direct the Indian Oil Corporation Ltd., to absorb the contract
labourers in its employment saying that, the contract
labourers have not been found to have direct connection
with the refinery. In other words, there was no relationship
of employer and employee between the Indian Oil
Corporation Ltd. and the contract labourers concerned.
Again in Dena Nath Vs. National Fertilizers Ltd., 1992 I CLR
1, this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of service
of the worker employed by the contractor who is engaged
by a principal employer and (ii) to provide for the abolition
¹Hkkx II—[k.M 3(ii)º
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1993
of contract labour altogether, in certain notified processes,
operation or other works in any establishment by the
appropriate government, under section 10 of the Act. It
was further stated that neither the Act nor the Rules framed
by the Central Government or by any appropriate
government provide that upon abolition of contract labour,
the labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many principal
employers while renewing the contracts have been insisting
that the contractor or the new contractor retains the old
employees. Infact such a condition is incorporated in the
contract itself. However, such a clause in the contract which
is benevolently inserted in the contract to protect the
continuance of the source of livelihood of the contract
labour cannot by itself give rise to a right to regularization
in the employment of the principal employer. Whether the
contract labourers have become the employees of the
principal employer in course of time and on whether the
engagement and employment of labaourers through a
contractor is a mere camouflage and a smoke screen, as
has been urged in this case, is a question of fact is to be
established by the contract labourers on the basis of the
requisite material. It is not possible for High Court or this
court, while exercising writ jurisdiction or jurisdiction under
Article 136 to decide such questions only on the basis of
the affidavits. It need not to be pointed out that in all such
cases, the labourers are initially employed and engaged by
the contractors. As such at what point of time a direct link
is established between the contract labourers and the
principal employer, eliminating the contractor from the
scene, is a matter which has to be established on material
produced before the court. Normally, the Labour Court and
the Industrial Tribunal, under the Industrial Disputes Act
are the Competent Fora to adjudicate such disputes on the
basis of the oral and documentary evidence produced
before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is own case of the workman that he was engaged
by the contractor. So, the contractor, who had engaged the
workman, is a necessary party in the reference. The said
contractor has not been added as a party in this reference.
Due to non-joinder of necessary party, the reference is bad
in law.
In view of the materials on records and the
discussions made above, the reference cannot be answered
in favour of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The work-
man is not entitled to any relief.
J.P. CHAND, Presiding Officer
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New Delhi, the 10th February 2014
S.O. 744.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 512009)
of the Cent. Govt. Indus. Tribunal/Labour Court, Lucknow
now as shown in the Annexure in the Industiral Dispute
between the employers in relation to the management of
the Manager (HRD), Hindustan Cables Limited and Others,
Allahabad and their workmen, which was received by the
Central Govenrment on 03/02/2014.
[No. L-42012/42/2009-IR(DU)]
P. K. VENUGOPAL, Section Officer
1994
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT: Dr. Manju Nigam, Presiding Officer
I.D. No. 51/2009
Ref. No. L-42012/42/2009-IR(DU)
dated: 26.10.2009
BETWEEN
Shri Chander Narain Singh S/o Shri Daljeet Singh
24/47/25/E, Kidwai Nagar, Allahapur, Allahabad.
AND
1. The Manager HRD, Hindustan Cables Limited,
Naini, Allahabad.
2. The Manager
M/s Industrial Security Services
4, Stratchy Road,
Allahabad.
AWARD
1. By Order No. L-42012/42/2009-IR(DU)
dated 26.10.2009 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 Chander Narain Singh,
S/o Shri Daljeet Singh, 24/47/25/E, Kidwai Nagar, Allahapur,
Allahabad and the Manager, HRD, Hindustan Cables
Limited, Naini, Allahabad and the Manager, M/s. Industrial
Security Services, 4, Stratchy Road, Allahabad for
adjudication.
2. The reference under adjudication is:
" Whether the contract between the management of
M/s. Hindustan Cables Ltd., Allahabad, and the
contractor, M/s. Industrial Security Services, 4, Stratchy
Road, Allahabad, with regard to employment of Shri
Chander Narain Singh is Sham and Bogus? If yes,
whether the action of the management in Terminating
his services w.e.f.26/10/1999 is legal and justified? If
not, what relief the workman is entitled to?"
3. The case of the workman, Chander Narain Singh,
in brief, is that the was appointed as a driver with the
opposite Party No. 1 on 31.10.1998 and worked
continuously, with some artificial break, till 23.08.1999; and
he was restrained from working by the Security Officer of
the management w.e.f. 26.10.1999. The workman has
submitted that he was working with the opposite party as
Driver which is not seasonal, but perennial nature of work;
and his work was being controlled and supervised by the
officers of the opposite Party No. 1 viz., M/s. Hindustan
Cables Ltd.; and accordingly, there was relationship of
employee and employer between him and the opposite
party No. 1. It is further been submitted by the workman
that he was paid through its illegal agent i.e. opposite Party
No. 02 viz., M/s. Industrial Security Services and in spite of
the fact that he worked for more than 240 days in each
calendar year, the management of the opposite Party
No. 1 terminated his services without following the
provisions of Section 25 F of the I.D. Act, 1947, and
accordingly it has been prayed by the workman that
reinstated with full back wages and his services be
regularized in the M/s. Hindustan Cables Limited, Allahabad.
4. The opposite Party No. 1 has disputed the claim of
the workman by filling its written statement; whereas the
opposite Party No. 2 viz., M/s. Industrial Security Services
did not turn up in spite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s. Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
Abolition) Act, 1970; and the opposite Party No. 2 is its
contractor under the contract Labour (Regulation and
Abolition) Act, 1970 having license under the Act. The
opposite Party No. 1 has specifically submitted that it has
neither engaged he workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25 F of the I.D. Act. It is
submitted by the opposite Party No. 1 that there has never
been any sanctioned post of Security Guards in the
M/s. Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite Party No. 02 viz. M/s. Industrial Security Services
was assigned job contract dated 27.09.1990, 01.10.1995 and
30.03.1999. It has been stated by the opposite Party No. 1
that it had never paid any wages to the workman; rather as
per terms of contract, M/s. Industrial Security Services
used to submit its bill for payment and the opposite Party
No. 1 used to make payment to the opposite Party No. 2
and thereafter, the workman was being paid by the opposite
Party No. 2; likewise, the opposite Party No. 2 used to
deduct the Provident Fund and ESI contribution in respect
of workman and deposit the same with the concerned
authorities; hence, there was no employer and employee
relationship between the opposite Party No. 1 and the
workman. It has also been submitted by the opposite Party
No. 1 that the contract between opposite Party No. 1 and
opposite Party No. 2 came to an end on 30th June, 2000 and
accordingly, the security personnel deployed by
M/s. Industrial Security Services were withdrawn by them
on 30.6.2000 itself; and this does not amount to termination
of services or termination in violation to the provisions of
I.D. Act, 1947. Accordingly, the opposite Party No. 1 has
prayed that the claim of the workman be rejected without
any relief to him being devoid of merit.
¹Hkkx II—[k.M 3(ii)º
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1995
6. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself;
whereas the management examined Shri Sanjeev Ratan,
Vice President of the Workers' Union and Shri S.N. Lakhorkar,
Dy. Manager (Personnel & Relation) in support of their
respective stands. The parties availed opportunity to corss-
examine the witnesses of each other apart from forwarding
oral arguments.
8. Heard the authorized representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
Party No. 01 on 31.10.1988 as Driver and worked as such till
24.08.1999 with some artificial breaks and during his tenure
he worked for more than 240 days in each calendar year,
even then he has been removed from duty without any
rhyme or reason in contravention to the provisions of
Section 25F of the I.D. Act, 1947.
10. In rebuttal, the opposite Party No. 01's
representative has contended that the workman is
contractor's employee as the opposite party has undergone
a contract with the M/s Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s. Industrial
Security Services and the said contract/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite Party No. 1
neither appointed the workman nor terminated his services;
rather his employment was regulated by M/s. Industrial
Security Services and the same came to an end with the
end of contract with the agency; hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my thoughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
12. The workman in his statement on oath has stated
that he had been appointed in the M/s. Hindustan Cables
Ltd. On 31.10.1988 as Driver after interview and the duties
performed by him were regular nature and no contract for
such work could be given to any contractor and also the
contractor has not obtained any license in this regard from
the labour department. In Cross-examination he has stated
that he used to drive HCL's vehicle No. UA 3440 and he
did not receive any appointment letter from HCL. He has
stated that paper No. 10/92 to 10/101 is salary slip which
bears office's name as Industrial Security Services; but he
received salary from HCL amount to Rs. 2500/- per month.
He also stated that paper No. 16/43 is issued by Industrial
Security Services. He admitted that he was not given
permanent Identity Card because he was engaged on daily
wages. He admitted his signatures on the paper No. 16/69.
13. The management witness, Shri Sanjeev Ratan,
Vice President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an employee of the HCL. It was further
stated that the Industrial Security Service used to arrange
duty of their workmen/employees, take their attendance
and makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards etc. It was stated in
cross-examination that all the casual and temporary
employees come through contractor and the workman
under reference is employee of the contractor; moreover,
he also stated that the workman was not a Driver. The HCL
has been registered on 12.08.1988 under Contract Labour
(Regulation & Abolition) Act, 1970. He has also stated that
the workman was employee of M/s. Industrial Security
Services and the HCL never entered into any contract with
respect to the services of the workman. He further stated
that there is recruitment policy in HCL and recruitment is
made as per prescribed procedure in the recruitment policy.
He stated that the workman was employed by the M/s.
Industrial Security Services and the workman was never
got any payment by the HCL; rather the payment was made
through the contractor; likewise his contribution towards
Provident Fund and ESI is being deducted by the
Contractor. It is stated by management witness that the
HCL neither appoints any one nor removes any one, the
workman was employee of the M/s. Industrial Security
Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Driver and worked continuously with some artificial
breaks for more than 240 days in each calendar year; and
his services have been terminated by the management
without following the mandatory provisions of the
Industrial Disputes Act, 1947. In the support of his pleading
he has filed photocopy of following documents:—
(i) Log book of HCL from 31.10.1998 to 23.08.1999.
(ii) Maintenance voucher of vehicle of HCL.
(iii) Petrol voucher.
(iv) Payment slips from November, 1998 to 23.08.1999.
(v) Experience Certificate.
(vi) Award of Industrial Tribunal dated 25.01.2003.
(vii) Judgment Hon'ble High Court, Allahabad.
(viii) Letter of HCL for requirement of Security Guards.
1996
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
15. Per contra, the opposite party No. 02 has not
turned up to contest the case since the very inception of
the proceedings before this Tribunal; whereas the opposite
party No. 01 has come with case that the workman
concerned is not their employee; rather he is an employee
of the opposite party No. 2 i.e. M/s. Industrial Security
Services whose services as temporary Guard were provide
to them by the said agency, in pursuance to the contract
for supply of security guards. It is also the case of
management that there is no sanctioned post of Security
Guard in their establishment and the security work is being
done through agencies on contractual basis; and
accordingly, the opposite party No. 01 entered into a
contract with M/s. Industrial Security Services to provide
Security Guards w.e.f. 01.05.1990 to 30.06.2000. The opposite
party has pleaded that it neither appointed the workman
nor supervise his duties, nor made any payment to the
workman nor terminated his services at any point of time.
Moreover, it is also contended that the workman was an
employee of the contracting agency, his work was
supervised by the agency and was paid by the agency, his
PF and ESI subscription as deducted and deposited by the
agency and his services were regulated by the contracting
agency i.e. M/s. Industrial Security Services. In this regard
the management has come forward with photo copy of
various documents including following:—
(i) Copy of Job Contract/Agreement dated
30.03.1999, 01.10.1995 and 27.09.1990.
(ii) Copy of letter regarding termination of contract
w.e.f. 30.06.2000.
(iii) Copy of M/s. Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letters issued by M/s. Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officers etc.
(v) Copy of bank payment voucher as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
contracting agency.
(vi) Copy of EPF challan and ESI challan etc.
(vii) Copy of written statement in adjudication case
No. 9/2002 between M/s Hindustan Cables Ltd.
& M/s. Industrial Security Services Vs. Chander
Narain Singh.
16. The terms of reference requires to adjudicate the
validity of contract between the management of
M/s. Hindustan Cables Ltd. and M/s. Industrial Security
Services with regard to the employment of the workman. In
this regrad there is very specific pleading from the
management of M/s. Hindustan Cables Ltd. that there is
no sanctioned post of Security Guard in their establishment
and the Security work is carried out by some agency on
contract. It is also pleaded that the services of the workman
were availed as temporary Guard through one contractor
viz. Industrial Security Services. In support of its contention,
the management of M/s. HCL has filled photocopies of
registration certificate under Contract Labour (Regulation
& Abolition) Act, 1970 and photocopies of contract/
agreement dated 30.03.1999, 01.10.1995 and 27.09.1990. The
registration certificate dated 12.08.88 issued by Dy Labour
Commissioner, Uttar Pradesh clearly mentions the name of
M/s. Industrial Security Services, Allahabad for providing
'security work' through 41 workmen; and the terms to
agreement between M/s. HCL and M/s. Industrial Security
Services shows that M/s. Industrial Security Services/
contractor was required to supply security guards. From
perusal of the contract agreements it is apparent that the
said contract for supply of security guards came into effect
from 01.05.1990 to 30.06.2000. However, there is no whisper
of existence of any contract between M/s. HCL and
M/s. Industrial Security Services for supply of security
guard in the statement of claim filed by the workman before
this Tribunal. Likewise the workman has not challenge the
validity of the contract entered between the opposite Party
No. 1 and opposite Party No. 2; rather he has pleaded that
he was appointed by the opposite party No. 01 as Driver
and was an employee of the opposite Party No. 1. On the
contrary the management of M/s. HCL has pleaded that it
was in an agreement with the M/s. Industrial Security
Services for supply of security guards and the workman
was one of them and he worked with HCL as temporary
Guard. The workman in his evidence also has not come
forward with the evidence that the contract between the
opposite parties was sham and bogus, therefore, he may
be treated as employee of the principle employer i.e.
M/s. Hindustan Cable Ltd. On the contrary he has come up
with the evidence that he was employee of the HCL and
M/s. Industrial Security Services has no existence.
17. In view of the discussions made hereinabove,
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and
submissions of the management of M/s. Hindustan Cables
Ltd. regarding existence of contract between itself and
M/s. Industrial Security Services with supportive
documentary evidence, I am of the opinion that the contract
between M/s. Hindustan Cables Ltd. and M/s. Industrial
Security Services for supply of security guards was neither
sham nor bogus.
18. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f.
23.08 .1999 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and another v. Jethabhai Pitamberbhai
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1997
Hon'ble Apex Court came to the conclusion that where the
workman failed to prove that he had been employment
with the employer for a period of 240 days uninterruptedly,
he is not entitled to protection in compliance of section 25-F
of the Industrial Disputes Act, 1947. It was held by the
Hon'ble Supreme Court that the scope of the enquiry before
the Labour Court was confined only to 12 months preceding
the date of termination to decide the question of the
continuous service for the purpose of section 25-F of the
Industrial Disputes Act, 1947. Further, Hon'ble Apex Court
has observed as under:
''The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit
under section 25-F of the Industrial Disputes Act. It
is now well settled that it is for the claimant to lead
evidence to show that he in fact worked for 240 days
in a year preceding his termination.''
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25-F of the Act, it is
necessary for the claimant to lead evidence to the effect
that he was actually in employment of the opposite party
for 240 days in the year preceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen for 240 days with
the management of the HCL in twelve calendar months
preceding the date of termination. The workman has filed
photocopy of Vehicle Log Book of Hindustan Cables Ltd.
regarding details of vehicles for the period November, 1998
to 23.08.1999 which bears signature of mostly workman,
Chandra Narayan in the column ''Signature of USER with
Designation there is no mention of the designation of the
signatories of the Log Book; also no stamp is there to
ascertain the fact as to who used the said vehicle and in
which capacity he used the said Vehicle. The workman
also did not produce any of person who signed the said
Log Book to corroborate his pleading that the actually
worked as 'Driver' with the HCL Hence, in the absence of
any supportive evidence the photo copy of the Log Book
filed by the workman is not reliable to be considered.
However, the vouchers of M/s. Jamuna Par Automobile,
Allahabad bears stamp and signatures of Security Officer
of HCL; but they pertain to intermitted dates and even if
they are admitted as secondary evidence even then they
do not suffice the need to prove the factum that the
workman worked as Diver with opposite party No. 1 for the
alleged period. The photocopy of other documents filed
by the workman do not support the statement of the
workman; rather they go contrary to his pleadings that he
was employee of the HCL, as the photocopy of wage slips
contain ISS (M/s. Industrial Security Service) as name of
establishment, however the place is mentioned as HCL,
Naini, Allahabad. The workman has utterly failed to
substantiate this fact that he worked for 240 days in a year
preceding the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Security Services as temporary security Guard in the HCL,
this includes copy of agreement, copies of letters issued
by M/s. Industrial Security Services regarding posting/
transfer of Security Guards/Security Officers etc., copy to
bank payment voucher as service charge of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF challan and ESI
challan etc. Apart from this the copy of written statement
in adjudication case No. 09/2002 between M/s. Hindustan
Cables Ltd. and M/s. Industrial Security Services Vs.
Chander Narian Singh goes to show that the workman
himself had pleaded before Industrial Tribunal that he was
appointed as security guard-cum-driver in HCL, Allahabad
on 30.10.1998 through contractor Industrial Security
Services. The management has also been able to prove
that deduction towards EPF and ESI was being made by
M/s. Industrial Security Services and being deposited in the
Government account by M/s. Industrial Security Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdiction of the court must fail. In the present
case burden was on the workman to set-out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding his alleged termination. In (2002) 3 SCC Range
Forest Officer vs. S.T. Hadimani Hon'ble Apex Court has
observed as under:
''It was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days or order or record of
appointment or engagement for that period was
produced by the workman. On this ground alone,
the award is liable to be set aside.''
20. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108) FLR
R.M. Yellatti and Asstt. Executive Engineer as follow:
1998
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
''It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus, in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management.''
In the present case the workman stated that he has
worked continuously for 240 days, but has not produced
any document neither original nor photocopy in support
of his oral evidence. The burden was on the workman to
show by the way of cogent evidence that he actually worked
for 240 days in the preceding 12 months from the date of
his alleged termination; but he failed to do so as he has he
could not bring this fact on record. In view of denial of the
management regarding his claim, the workman has nothing
to support his version, except photo copy of the Log Book
and certain vehicle servicing receipts, which do not suffice
the matter. Moreover, the photocopy of documents i.e.
wage slip, EPF pass book and his pleadings before Industrial
Tribunal, Uttar Pradesh goes contrary to his stand. Hence,
the workman could not establish that there was any
employee and employer relationship between him and the
opposite party No. 01.
21. On the other hand the management has well
proved its case by filling copy of the contract with the
M/s. Industrial Security Services that the security guards
were required to be paid through the contractor. Also, the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that
that the workman was an employee of the opposite party
No. 02 i.e. M/s. Industrial Security Services and he had
been deployed by the opposite party No. 02 to carry out
the work of security guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he failed to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year form the date of his alleged termination and the alleged
unjust or illegal order of termination was passed by the
management.
22. Thus, in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan Cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services,
4, Stratchy Road, Allahabad, with regard to employment of
Shri Chander Narain Singh was neither sham nor bogus.
The workman could not be able to prove to through cogent
evidence that there was a relationship of employee and
employer between him and the opposite party No. 1 viz.
M/s. Hindustan Cables Ltd.; rather from the evidence
adduced it is established that he was and an employee of
the contractor viz. M/s. Industrial Security Service,
therefore, the workman could not be granted the relief of
retrenchment compensation or any other relief sought by
the workman against the M/s. Hindustan Cables Ltd.. The
reference under adjudication is answered accordingly.
23. Award as above.
LUCKNOW.
26th November, 2013
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 745.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSustj ¼g j½]
LdwVlZ bafM;k fyfeVsM] y[kuÅ ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV
¼lanHkZ la[;k 28@2009½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
03-02-2014 dks izkIr gqvk FkkA
[lañ ,y&42011@38@2009&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 745.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 28/2009)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
1999
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 The Manager (HR), Scooters India Limited,
Lucknow and their workman, which was received by the
Central Government on 03.02.2014.
[No. L-42011/38/2009-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT: Dr. Manju Nigam, Presiding Officer
I.D. No. 28/2009
Ref. No. L-42011/38/2009-IR(DU)
dated 03.08.2009
Between :
The General Secretary
S.I.L. Employs Union
101-Chander Shekhar Azad Nagar Housing
Society
Daroga Khera, Post-Auravan
Lucknow
(Espousing cause of Shri Krishna Kumar
Pandey)
AND
The Manager (HR)
Scooters India Limited
Sarojini Nagar
Lucknow-226 008
AWARD
1. By order No. L-42011/38/2009-IR(DU) dated
03.08.2009 and its subsequent corrigendum dated 06.10.2009
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 the General Secretary, S.I.L.
Employs Union, 101-Chander Shekhar Azad Nagar Housing
Society, Daroga Khera, Post-Auravan, Lucknow and the
Manager (HR), Scooters India Limited, Sarojini Nagar,
Lucknow for adjudication to this CGIT-cum-Labour Court,
Lucknow.
2. The reference under adjudication is:
"Whether the action of the Management of
Scooters India Ltd., Lucknow in denying
Reimbursement/Medicines for treatment of Diabetes
to their workman Shri Krishna Kumar Pandey is legal
and justified? If not, what relief the workman
concerned is entitled to?"
3. The case of the workman's union, in brief, is that
the workman, Krishna Kumar Pandey, has been working as
Artisan Grade 'C' since 1976. It is alleged that the workman
is not being reimbursed the medical expenses pertaining to
treatment of Diabetes in respect of him and his wife. It is
submitted by the workman's union that the management in
a tripartite discussion, before the Dy. Labour Commissioner,
A.P. Sen Road, Lucknow, in the year 1992-93 admitted that
Diabetes is a chronic disease even then the management is
not making reimbursement to his medical expenses
arbitrarily treating Diabetes a non-chronic disease. It is
submitted by the union that the Diabetes is a chronic
disease and it needs medical treatment life long, therefore,
the action of the management in not making reimbursement
towards expenses treatment of diabetes is illegal and
unjustified and accordingly, has prayed that the
management be directed to make reimbursement to the
expenses born by him in his treatment of diabetes, treating
it a chronic disease.
2. The management of the Scooter's India has denied
the claim of the workman's union by submitting its written
statement, wherein it has been submitted that the company
has been providing every medical facility to the workman
and due payments as per medical rules for the disease
which requires prolonged treatment, including Diabetes, is
being paid to the workman and he is not entitled for the
relief as claimed by him in his statement of claim.
Accordingly, the management has prayed that the claim of
the workman's union be rejected being devoid of any merit.
3. The workman's union has filed rejoinder whereby
it has only reiterated his averments in the statement of
claim and has not introduced any new fact.
4. The parties have filed photocopies of various
documents in support of their respective claim. The
workman's union has examined Shri Vadsudev Pandey,
General Secretary, whereas the management has examined
Shri Sujeet Kumar, Chief Manager (HR and Admin) in
support of their stands. Parties availed opportunity to cross-
examine the witnesses of each other apart from forwarding
oral arguments.
9. Heard authorized representatives of the parties
and perused entire evidence on record.
10. The authorized representative of the workman
has submitted that the management has been making
reimbursement to the medical bills towards treatment of
Diabetes, treating it chronic disease, but has discontinued
the same and is making payment within the ceiling of one
month's pay. He has further submitted that it is well known
that the disease viz. Diabetes is chronic and its treatment is
carried out round the year, during whole life of the person
suffering from Diabetes, therefore, the move of the
management in not making reimbursement to the entire
sum incurred on treatment of diabetes is illegal.
2000
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
11. Per contra, the authorized representation of the
Scooter's India has submitted that the disease, Diabetes is
included in the list of chronic disease, therefore, the
workman is being reimbursement within the ceiling limit,
prescribed by the Factory under Medical Rules.
12. The workman union's witness has stated that the
management and the union arrived at a settlement on
01.07.1992; wherein it was agreed upon that chronic
diseases should be kept outside the purview of the one
month's ceiling. He further stated that the management
before Dy. Labour Commissioner agreed that Diabetes is
chronic disease but later refused the same and is not making
payment to the workman. In cross-examination he stated
that rules of one month's pay ceiling towards reimbursement
was made effective from 1990-92. He also stated that the
workman takes medicine from departmental dispensary;
but he is denied the same when he cross the ceiling limit.
13. In rebuttal, the management witness stated that
Diabetes does not find place in the list of chronic disease
dated 27.04.96 and no amendment has been made in the
said list till date. He further stated that the Health Scheme
in the establishment is implemented on agreement between
union and management and directions of the management.
He also stated that as per his establishment's Rules,
Diabetes is not a chronic disease.
14. The workman, union has come up with a case
that the workman, K.K. Pandey and his wife is suffering
from Diabetes which is a chronic disease, requiring prolong
treatment and the management had been making payment
to the expenses incurred on it, treating it chronic disease,
without any ceiling; but all of sudden the management has
stopped making reimbursement to the entire expenditure
incurred on the treatment of Diabetes and has reduced the
same to the ceiling limits of the one month's salary. In this
regard the management has pleaded that the Diabetes is
not a chronic disease as per list of chronic disease dated
27.04.96, therefore, the workman is entitled for
reimbursement within the ceiling limit of one month's salary
only. The case of management heavily rests on the list of
disease dated 27.04.1996, which reproduced hereunder:
"SCOOTERS INDIA LIMITED, LUCKNOW
27.04.1996
It is proposed that in case of the diseases requiring
prolong treatment medicines may be kept in the stock
of SIL dispensary and may be issued to the patient
based on physical examination by the company's
CMO. The medicines will be issued to the patient for
a week only at a time, after which the patient will
have to appear before the CMO once in a fortnight
for a check up.
In case the recommended medicines are not available
in the dispensary, the patient will have to procure
the same from market for at least 3 days consumption
on reimbursable basis after which the dispensary
will provide the same for further treatment.
In the first instance, essential/equivalent medicines
for the following disease shall be retained in
dispensary, procurement of which may please be
approved in principle.
Cancer
Poliomylitis
Tuberculosis
Leprosy
Cardiac diseases
Hypertension
Renal failures
Mental diseases
Wilsons disease
Trigeminal Nuralgia
Epilepsy
Irritable Bowel Syndrome—Crohn's disease
Obstructive Pulmonary diseases
AIDS
Sd/-
(S.A.H. RIZVI)
SM(P&A)"
A bare perusal of the contents of the above document
shows that the management of Scooter's India has devised
a list certain diseases which require long treatment; but on
going through the list of diseases mentioned therein it is
apparent that all of them are not chronic disease and also
in the document, there is no whisper of the fact that these
diseases are chronic; rather 'the disease requiring prolong
treatment' is used for them. Also, disease like Cancer and
Tuberculosis cannot be said to be chronic because they
may be cured through timely detection and taking full
course of the medicines.
15. The workman has pleaded that the management
has been making the reimbursement of the entire amount
incurred on treatment of Diabetes, treating it a chronic
disease, but has stopped this practice since 1992. In this
regard the management witness has stated in his cross-
examination that Factory Order, regarding management's
decision on the issue whether Diabetes is chronic disease
or not, has not been issued. This goes to show that the
management has neither prepared any authentic list of
disease in the chronic category, as it is evident from list
dated 27.04.1996 and has been making reimbursements,
beyond one month's ceiling, towards expenses incurred
on the treatment of Diabetes; but has stopped the same
and initiated making reimbursements within the ceiling limit
in an arbitrary manner with issuing any order/circular/
memorandum/notification. Also, as per general law an
employer, particularly Central Government PSU, cannot
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2001
escape from its liability to provide medical facility to it
employees within the parameters of schemes devised by
the Central Government, provided it has been spared by
the Central Government with special orders in this regard
or it is running its own better scheme. It is noteworthy to
mention that under the medical schemes run by the Central
Government, Diabetes is taken as 'Chronic Disease' then
the management of Scooter's India cannot delete Diabetes
from the list of Chronic disease in its establishment and
that too without approval of the Central Government or
issuance of any Factory Order in this regard.
16. Thus, in view of the facts and circumstances of
the case and the discussions made hereinabove, I am of
the considered opinion that the action of the management
of Scooters India Ltd., Lucknow in denying the
reimbursement/medicine for treatment of diabetes to their
workman is illegal and unjustified; and accordingly, the
workman, Krishna Kumar Pandey is entitiled for
reimbursement/medicine for treatment of diabetes,
irrespective of ceiling limit.
17. Award as above.
LUCKNOW.
18th October, 2013.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYYkh] 10 Qjojh] 2014
dkñvkñ 746.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSustj ¼gñjñMhñ½]
dekaMsaV] nsgjknwu dSaV] nsgjknwu ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV
¼lanHkZ la[;k 18@2009½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 03@02@2014 dks izkIr gqvk FkkA
[lañ ,y&14011@25@2001&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 746.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 18/2009)
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 The Commandant, Dehradun Cantt,
Dehradun and their workman, which was received by the
Central Government on 03/02/2014.
[No. L-14011/25/2001-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. Manju Nigam, Presiding Officer
I.D. No. 18/2009
Ref. No. L-14011/25/2001-IR(DU)
dated 01.07.2009
BETWEEN: Sh. Atar Singh and Others
Village—Gajiawala (Ghati Khola)
Post Ghanghora
Dehradun Cantt.
Dehradun.
And
1. The G.O.C.—in-Charge
Hq. Central Command, Post Dilkhsha
Lucknow.
2. The Commandant
447 Coy., ASC (Supply)
Type 'G' Dehradun Cantt.
Dehradun.
AWARD
1. By Order No. L-14011/25/2001-IR(DU) dated:
01.07.2009 the Central Government in the Ministry of
Labour, New Delhi is 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 Sh. Atar Singh
and others, Village—Gajiawala (Ghati Khola) Post
Ghanghora, Dehradun Cantt., Dehradun and the G.O.C. —
in-Charge, Hq. Central Command, Post Dilkhsha, Lucknow
& the Commandant, 447, Coy., ASC (Supply), Type 'G'
Dehradun Cantt., Dehradun for adjudication.
2. The reference under adjudication is:
"Whether the demand of Shri Atar Singh & 20 others
for regularization of their services from the dates
mentioned against their names, as per Annexure, by
the Management of Commandant, 447 Coy ASC
(Sup.), Type 'G', Dehradun, is legal and justified? If
yes, to what relief the workmen are entitled to?"
3. The order of reference was endorsed to the
President, RMU, C/o Hemraj Sharma, H.No. 570/66,
Gopalpuri, Alambagh, 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 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.
2002
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
4. The order of reference was registered in the
Tribunal on 15.07.2009 and the parties appeared on notice.
From perusal of file it is apparent that on 25.05.2010 both
the parties were present and on the said date the workman
moved an application, W-41 for furnishing the copy of
reference order to facilitate them to file the statement of
claim. On the next dated fixed i.e. 15.7.2010, the workman
moved an application, W-46, enclosing copy of
representation dated 14.7.2010, addressed to the Secretary,
Ministry of Labour for amending the terms of reference.
The workman in his application, W-46 has stated that it
would not be possible for the workmen to file the statement
of claim unless of terms of reference are modified because
it will be prejudicial to the interests of the workmen; and
accordingly, the workman prayed that the matter be kept
in abeyance until the decision of the Central Government.
Also, the office vide its letter dated 08.03.2011 required
the ministry to dispose of the representation dated
14.07.2010 of the workmen regarding issuance of the
corrigendum.
5. Since then the matter is pending for the want of
corrigendum from the Appropriate Government and the
workmen did not file any statement of claim. On 07.08.2012
the workman filed another application, D-77, stating therein
that a writ petition regarding same matters in pending in
the High Court, Delhi and next date in the said writ petition
is fixed for 11.09.2013, hence requested that a date be fixed
after 11.09.2013; accordingly, 24.10.2013 was fixed for further
order with direction to the workman to file orders of the
Hon'ble High Court.
6. On 24.10.2013 the parties were present; but the
workman neither filed any order of the Hon'ble High
Court where by a proceedings before this Tribunal have
been stayed nor filed any statement of claim nor moved
any application for adjournment seeking time to file the
statement of claim nor any corrigendum has been received.
Moreover, four year's time has passed and the workmen
have failed to file their statement of claim. Hence,
considering the reluctance of the workmen to file their
claim statement, presuming that they are not interested in
pursuing their case; and till date no direction from the
Central Government in this regard or any stay of Hon'ble
High Court has been received, the case was reserved for
award.
7. In the above circumstances, the present reference
order is decided as if there is no grievance left with the
workmen. Resultantly no relief is required to be given to
the workmen cocnerned. The reference under adjudication
is answered accordingly.
8. Award as above.
Lucknow
13th November, 2013
DR. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 747.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dk /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mk;jsDVj tujy
,aM gsM vkWQ+ vkWfQl] ft;ksykftdy losZ vkWQ+ bafM;k] y[kuÅ ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vks|ksfxd vf/kdj.k ,oa
Je U;k;ky;] y[kuÅ ds iapkV ¼lanHkZ la[;k 86@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@02@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@66@2012&vkbZ vkj ¼Mh;w½ ]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 747.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 86/2012)
of the Cent. Government Industrial Tribunal/Labour Court,
Lucknow now as shown in the Annexure in the Industiral
Dispute between the employers in relation to the
management of The Director General & Head of Office
Geological Survey of India, Lucknow and their workmen,
which was received by the Central Govenrment on
03/02/2014.
[No. L-42012/66/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. Manju Nigam, Presiding Officer
I.D. No. 86/2012
Ref. No. L-42012/66/2012-IR (DU)
dated: 06.12.2012
BETWEEN:
The General Secretary
Geological Survey of India Employed
Nav-Nhetana Association, 466/202-201
Primerose House Peer Bukhara, P.O. Chowk
Lucknow - 226 003
(Espousing cause of S.A.H. Rizvi)
AND
The Director General & Head of Office
Geological Survey of India
Northern Region, Sector -E
Aliganj Complex, Lucknow
AWARD
1. By Order No. L-42012/66/2012-IR (DU) dated:
06.12.2012 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2003
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 the General Secretary,
Geological Survey of India Employed, Nav-Nhetana
Association, 466/202-201, Primerose House Peer Bukhara,
P O Chowk, Lucknow and the Director General & Head of
Office, Geological Survey of India, Northern Region,
Sector-E, Aliganj Complex, Lucknow for adjudication.
2. The reference under adjudication is:
"Whether the action of opposite parties in not setting
aside and quashing the order of transfer dated
09/11/2010 of workman Shri S A H Rizvi, Steno Gr. II,
General Secretary to G.S.I. Employees, Nav-Chetna
Association, Lucknow was legal and justified? If not,
what relief the workman is entitled to?"
3. The order of reference was endorsed to the General
Secretary, Geological Survey of India Employed, Nav-
Nhetana Association, 466/202-201, Primerose House Peer
Bukhara, PO Chowk, 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 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 the
Tribunal on 21.12.2012 and the office was directed to issue
registered notice to the workman' union for filing the
statement of claim with list of reliance and list of witnesses
on 11.10.2012. On the date fixed i.e. 11.10.2013 the workman
was present in person; but did not file any statement of
claim and prayed for another date for filing the statement
of claim; accordingly, 18.03.2013 was fixed for filing the
claim statement on behalf of the workman's union.
5. The workman's union remained absent on
18.03.2013 and on subsequent dates i.e. on 07.05.2013,
07.06.2013, 18.07.2013 and 06.09.2013. More than eight
months' time has passed and the union has neither turned
up nor moved any application seeking time for filing the
statement of claim, on several dates, therefore, the case
was reserved for award keeping in view the reluctance of
the workman's union to contest their 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.
7. Award as above.
Lucknow.
09th September, 2013
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 748.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mhohlksuky
esustj] fMikVZesaV vkWQ+ VsfydkWe] Hkksiky ds izca/kra= lac) fu;kstdks
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUæh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds
iapkV ¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj/106/2001½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@02@2014 izkIr gqvk FkkA
[lañ ,y&40012@53@2001&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th Fabruary, 2014
S.O. 748.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
LC/R/106/2001) of the Central Government Industrial
Tribunal/Labour Court, Jabalpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The Divisional Manager,
Telecom, Bhopal and their workmen, which was received
by the Central Government on 03/02/2014.
[No. L-40012/53/2001-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/106/2001
PRESIDING OFFICER: Shri R.B. Patle
Shri Singhasan Ram,
S/o Shri Kishore Ram,
C/o Nankuram Shed No. 1,
Gandhinagar, Habibganj,
Bhopal
…Workman
Versus
The Divisional Manager,
Telecom, Arera Hills,
Telephone Exchange,
Bhopal (MP)
…Management
AWARD
Passed on this 3rd day of July 2013
As per letter dated 4-5-2001 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
2004
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Section -10 of I.D.Act, 1947 as per Notification No. L-40012/
53/2001-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Divisional
Manager, Telecom Bhopal in terminating the services
of Shri Singhasan Ram S/o Shri Kishore Ram w.e.f.
March, 1998 is justified? If not, to what relief the
workman is entitled?"
2. After receiving reference notices were issued to
the parties. Workman submitted statement of claim at page
2/1 to 2/5. The case of Ist Party workman is that he was
employed in Railway Electrification Project of department
as casual labour from September 86 to February 88. Without
assigning any reason, he was prevented from discharging
his duty from March 1988. That several circulars are issued
for regularization and giving temporary status to casual
muster roll labours upto 22-6-88. The circulars were issued
as per directions issued by Apex Court. That he was working
for 240 days during the 12 calendar year preceding his
discontinuation of service. He was not given one months
notice, he was not paid wages in lieu of notice. He was not
paid retrenchment compensation. His services are
terminated in violation of Section 25-F of I.D. Act. That
employing causal labours temporary employees for
unreasonably longer period amounts to exploitation. For
said reason, Hon'ble Apex Court had issued directions to
prepare a scheme on national basis for absobing casual
labours. Therefore it is incumbent on department to
regularize services of the workman. That Section 25-F & N
are violated while terminating his services, Article 14,15
and constitution are also violated. On such grounds,
workman prays that his termination be set-aside. He may
be requested with consequential benefits.
3. IInd party filed written statement denying claim of
the workman. That Railway electrification Project was for
short period. The workman was knowing about it. It is
denied that Ist party workman was working as casual labour,
no card was issued to the workman. It is denied that
workman was prevented from discharging his duty from
March 1998. That the workman was not available. The
circulars issued by the respondents in respect of
regularization/temporary status but the workman doesnot
fall within the limit of circulars.
4. IInd party submits that there was no question of
issuing termination order or payment of retrenchment
compensation. It is reiterated that workman was not
fulfilling eligibility for regularization of his services as per
the circulars issued. The workman was working on daily
wages subject to availability of work. The workman was
aware that workman of the project was for short period.
The workman was not appointed neither he was terminated.
He is not entitled to reinstatement. IInd party prayed for
rejection of claim of workman.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
management of Divisional
In Negative
Manager, Telecom Bhopal
in terminating the services
of Shri Singhasan Ram
S/o Shri Kishore Ram w.e.f.
March 1998 is legal?
(ii)
If so, to what relief the
As per final order.
"workman is entitled to?"
REASONS
6. 1st Party workman is challenging his termination
from march 1988. He claims to be continously working with
the IInd party from Sept. 86 to Feb. 88. IInd party denied
above contentions. The workman filed affidavit of his
evidence stating that he was working as casual labour with
IInd party from 21-9-86 to Feb-88. He was has also submitted
that he was continuously working. He was paid salary
through voucher receiving Rs. 320 per month. The service
card filed Exhibit W-1 consisting 4 pages without assigning
any reason or giving him opportunity of hearing the
services are terminated in violation of the law. He was not
paid retrenchment compensation, he was not paid wages
in lieu of notice, permission from appropriate Government
was not obtained. His services are terminated in violation
of Section 25-F of I.D. Act. He is not gainfully employed. In
his cross-examination, he says that he received
continuation upto Vth Standard. That the affidavit was
submitted in Hindi. That no Written Examination was held
for the post he was working. His name was sponsored
through Employment Exchange. Initially he was working in
telephone lines from Devathiya to Simari. thereafter he
worked at Hoshangabad, Bhangara and Bhopal. He was
paid wages for the working days till 1987. He was working
in Railway Electrification Project. Thereafter he was shifted
to Bhopal. He denied suggestion of IInd party that he
himself left the job. The evidence of workman that he was
continously working from 22-9-86 to Feb. 1988, he was
discontinued from March 88 remained unchallenged. His
evidence that he had worked form more than 240 days
continously and compliance of Section 25-F of I.D. Act is
neceassary also remained unchallenged. The workman is
his evidence stated that he has produced copy of the
Identity Card-Exhibit W-1 also remained unchallenged.
7. Management's witness Shri S.M. Garg in his
evidence says that Railway Electrification Project was short
term project. The work assigned for erection and dismantling
lines and wires. Applicant is aware that his project is
temporary/short period. The witness denied that casual
labour were issued Identity Cards. That workman was
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2005
engaged on daily wages subject to availability. The
evidence of management's witness doesnot disclose the
working days. In his cross-examination, management's
witness says that present case is for regularization during
1986 to 1988, he was posted in office of Director at Bhopal.
He was not working in the field. He doesnot know the
workman. No notice for termination was given. The
workman was not paid compensation. Daily wagers
attendance is marked in muster roll, witness was unable to
tell how many days workman was working. Thus to sum up
the evidence of workman about his working as casual
employee from Sept. 86 to Feb. 88. That he worked 240
days continuously before termination remained
unchallenged. Management's witness says that he has no
knowledge about working days of workman, it can be seen
only from the muster roll. The copy of muster roll is not
produced. From above, it is clear that there is no reason to
disbelieve the evidence of workman that he worked for 240
days continuously before his termination, his services is
terminated without paying notice pay, retrenchement
compensation etc. It amounts to illegal retrenchment.
8. The terms of reference relates to legality of
termination of services of workman and not for
regularization. As per the pleadings of the parties from
reasons discussed above, it is clear that services of workman
are terminated in violaltion of Section 25-F. Therefore the
action of the management cannot be said legal. For above
reasons, I record my finding in Point No. 1 in Negative.
9. Point No. 2- In view of my finding in Point No. 1,
the termination of services of workman is illegal being in
violation of Section 25-F of I.D. Act, now the Question
arises as to what relief workman is entitled? As per evidence,
workman was working as casual employee from Sept. 86 to
Feb. 88 for about 1 1/2 years. Workman is out of employment
since more than 24 years.
10. Learned counsel for IInd party Mr. Kapoor
submits that workman is not entitled for reinstatement, relief
of compensation may be appropriate. Reliance is placed in
ratio held in case of.
"Senior Superintendent Telegraph (Traffic) Bhopal
versus Santosh Kumar Seal and others reported in
2010 (6) Supreme Court Cases 733. Their Lordship
dealing with the point of reinstatement with back
wages held relief by way of reinstatement with back
wages not automatic even if termination of employee
is found to be illegal or in contravention of the
prescribed procedure and monetary compensation
in cases of such nature may be appropriate. On facts
as the workmen were engaged as daily wagers about
25 years back and they worked hardly for 2-3 years,
relief of reinstatement and back wages to them cannot
be said to be justified. Monetary compensation of
Rs. 40,000/- was directed to be paid."
In case of Ramesh Kumar versus State of Haryana
reported in 2010 (1) Supreme Court Cases (L&S) 420.
Their Lordship held that appointment on public post
cannot be made in contravention of recruitment rules
and constitutional scheme of employment,
contention that initial appointment of appellant was
contrary to recruitment rules and constitutional
scheme of employment was not raised either before
Labour Court or High Court at the first instance,
appellant had not prayed for regularization but only
for reinstatement with continuity of service to which
he is legally entitled. In addition to factual conclusion
by Labour Court that appellant had worked the
required 240 days, appellant also showed that
persons similarly situated had been reinstated and
regularized. Hence Labour Court's direction for
reinstatement with continuity of service upheld, but
with concession of workman to forego back wages."
In present case, considering short spam of service
of 1st party workman as casual labour for about 11/2 years,
his reinstatement with back wages is not appropriate.
Considering the days of his service and termination of his
service is in violation of Section 25-F of I.D. Act,
compensation Rs. 60,000/- would be appropriate in addition
to pay in lieu of notice and retrenchment compensation for
23 days wages. Accordingly I record my finding on Point
No. 2.
11. In the result, award is passed as under:—
(1) The action of the management of Divisional
Manager, Telecom Bhopal in terminating the
services of Shri Singhasan Ram S/o Shri
Kishore Ram w.e.f. March 1998 is illegal.
(2) IInd party management is directed to pay
compensation Rs. 60,000 one month's notice
pay and retrenchment compensation for 23
days.
Amount as per above order shall be paid to workman
within 30 days. In case of default, amount shall carry 9%
interest per annum from the date of award till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 749.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ tujy
esustj] fMikVZesaV vkWQ VsfydkWe] Hkksiky ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
tcyiqj ds iapkV ¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj/89/2001½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 02@02@2014 dks izkIr
gqvk FkkA
[lañ ,y&40012@34@2001&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
2006
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 10th February, 2014
S.O. 749.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
LC/R/89/2001) of the Central Government Industrial
Tribunal/Labour Court, Jabalpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Chief General Manager,
Telecom, Bhopal and their workman, which was received
by the Central Government on 03/02/2014.
[No. L-40012/34/2001-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/89/2001
SHRI R.B. PATLE, Presiding Officer
Shri Radheshyam Rathore,
S/o. Shri Ramchandra Rathore,
R/o Machalpur,
Rajgarh
....Workman
Versus
Chief General Manager,
Deptt. of Telecommunication,
Hoshangabad Road,
MP Circle, Bhopal.
TDE,
Rajgarh, At. Biaora,
Rajgarh
....Management
AWARD
(Passed on this 2nd day of July, 2013)
1. As per letter dated 27-4-2001 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No.
L-40012/34/2001/IR(DU). The dispute under reference
relates to:
"Whether the action of the management of Telecom
Distt. Engineer, Biaora in terminating the services of
Shri Radheyshyam Rathore, S/o Ramchandra Rathore
w.e.f. December 1995 is justified? If not, to what relief
the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist Party filed statement of claim at Page 4/1 to
4/4. The case of workman is that he was working as casual
labour with IInd Party No. 2 & 3 from March 1989. He was
working under S.I.T. Mohd. Ahmed, S.D.O.T. Shri Altaf
Hussain and J.T.O. Shri Kuraishi. He was doing the work of
local fault maintenance. As per judgement in AIR-1987-
234, directions were issues to frame scales for regularization
of services of casual employees. It is further submitted
that workman was working with different employees at
Rajgarh Exchange, Khilchipur Exchange, Machalpur
Exchange alongwith other employees. That his services
were terminated without holding any kind of enquiry. He
was not given notice or pay in lieu of notice, retrenchment
compensation was not paid. He has completed 240 days
continuous service prior to retrenchment of his services.
His services were orally terminated. It amounts to illegal
retrenchment. That workman was paid Rs. 1035/- per month
less than minimum wages and he was exploited. On such
contentions workman prayed for his reinstatement with
back wages.
3. IInd Party management filed Written Statement at
Page 8/1 to 8/2. IInd party submits that workman was
engaged by management as casual labour for specific work
and specific period. As the work was convenient, his
services were automatically discontinued by the
management. There was no question of giving one month's
notice or payment of retrenchment compensation. That
workman had never completed 240 days service in any
calendar year. In 1989 he worked for 154 days, in 1990 for
128 days, in 1991 for 164 days and in 1992 for 23 days.
4. It is further submitted that applicant doesnot fulfil
conditions of the scheme for regularization of casual
employees or even for status of casual worker. That
workman was not engaged prior to 30-3-85. They had not
completed 240 days continuous service required for
regularization. The scheme was extended for casual workers
vide order dated 21-6-93. The benefit was extended to the
employees engaged between 31-3-85 to 22-6-88 or the
employees continuing till 25-6-93. That applicant was not
engaged between the said period. He was not continued
on work till 25-6-93. Workman is not entitled to reliefs
prayed by him.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
management of Telecom
In Affirmative
Distt. Engineer, Biaora in
terminating the services of
Shri Radheyshyam Rathore
S/o Ramachandra Rathore
w.e.f. December 1995 is
legal?
(ii) If so, to what relief the
workman is entitled to?"
Reliefprayed by
workman is rejected.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2007
REASONS
6. As per the terms of reference, legality of termination
of services of workman needs to be decided. Workman
submitted statement of claim contending that he was
working from March 1989 till December 1995 as casual
employee. His services were orally terminated in violation
of Section 25-F of I.D. Act. Workman fails to adduce
evidence in support of his claim. Evidence of workman was
closed on 26-4-2011. The management filed affidavit of its
witness Ramjani Khan. The witness of the management
has stated that the workman had not completed 240 days
service on one calendar year. The break up of working
days in 1989 he worked for 154 days, in 1990 for 128 days,
in 1991 for 164 days and in 1992 for 23 days. The evidence
of management's witness remained unchallenged as
witness was not cross-examined on behalf of workman. I
do not find reason to disbelieve unchallenged evidence of
management's witness. As workman has not completed
240 days continuous service preceding his termination.
The violation of Section 25-F of I.D. Act is not established.
For above reasons, I record my finding in Point No. 1 in
Affirmative.
7. In the result, award is passed as under:—
(1) Action of the management of Telecom Distt.
Engineer, Biaora in terminating the services of
Shri Radheshyam Rathore S/o Ramachandra
Rathore w.e.f. December 1995 is legal.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 750.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj phQ tujy
esustj] fMikVZesaV vkWQ VsfydkWe] Hkksiky ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
tcyiqj] ds iapkV ¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj/31@2003½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 2@02@2014 dks izkIr
gqvk FkkA
[lañ ,y&40012@245@2000&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 750.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
LC/R/31/2003) of the Central Government Industrial
Tribunal/Labour Court, Jabalpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Chief General Manager,
Telecom, Bhopal, and their workman, which was received
by the Central Government on 03/02/2014.
[No. L-40012/245/2000-IR(DU)]
P. K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, JABALPUR
No.CGIT/LC/R/31/2003
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Indergeer,
S/o Shri Kalugeer,
Vill-Giroli, Tehsil Barod,
P.O. Lala, Thana Barod,
Distt. Shajapur.
… Workman
Versus
Chief General Manager,
Deptt. of Telecom,
Hoshangabad Road,
MP Circle, Bhopal
...Management
AWARD
(Passed on this 24th day of January 2014)
1. As per letter dated 4-2-2003 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-40012/
245/2000-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Chief
General Manager, Telecom Bhopal in terminating the
services of Shri Indergeer, S/o Shri Kalugeer w.e.f.
November 1995 is legal and justified? If not, to what
relief the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 3/1 to 3/4. Case of Ist party workman is that he was
working as casual labour with IInd party No. 3 from January
1988. IInd party No. 2 takes policy decision that
regularization of casual labours was approved by the
department in pursuance for judgment by Hon'ble High
Court reported in AIR 1987-SC-2342. The scheme for
regularization of casual employees was introduced on
7-11-89. As per said scheme, the employees working prior
to 30-3-85 were entitled to be absorbed. IInd party orally
terminated services of Ist party from November 1991 in
violation of Section 25-F of I.D. Act. The domestic enquiry
was not conducted against him.
3. Workman submits that he had completed 240 days
continuous service. He was not paid retrenchment
compensation. His services are orally terminated, he was
2008
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
paid wages Rs. 1800/- per month, less than the minimum
wages. He was subjected to exploitation. On such ground,
he submits that termination of his service is illegal. He
prays for reinstatement.
4. IInd party has filed Written Statement at Page
10/1 to 10/2. IInd party denied that workman worked as
casual employee at any time. It is denied that Ist party
workman appointed as labour in the Division from January
88. It is denied that workman worked in division. There was
no question of taking policy decision. There is no question
of regularization of workman. There is no point of
satisfactory working by workman before termination of his
service. It is denied that workman had completed 240 days
continuous service. There was no question of payment of
retrenchment compensation to him. There was no question
of payment of wages less than minimum wages prescribed.
On such ground, IInd party prayed for rejection of claim.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
management of Chief
General Manager, Telecom
Bhopal in terminating the
services of Shri Indergeer,
S/o Shri Kalugeer w.e.f.
November 1995 is legal and
justified?
(ii) If not, what relief the
Workman is not entitled
REASONS
6. Workman is challenging termination from service
for violation of Section 25-F of I.D. Act. Though workman
has pleaded for regularization of casual employees, it is
beyond the terms of reference and needs no consideration.
IInd party had denied workman was engaged by department
as casual labour or the workman had completed 240 days
continuous service. Workman filed affidavit of his evidence
covering most of his contentions in statement of claim. But
he remained absent and failed to make available for cross-
examination, evidence of workman was closed on 14-1-
2012. Management filed evidence on affidavit of witness
Shri Bhagchand Joshi. Workman remained absent and failed
to cross-examine management's witness. The evidence of
management's witness is in nature of denial of engagement
of workman by department. As workman failed to make
available for cross-examination, his evidence cannot be
considered. Evidence of management's witness remained
unchallenged. I find no reason to disbelieve his evidence.
For above reasons I record my finding on Point No. 1 in
Affirmative.
7. In the result, award is passed as under:—
(1) Action of the management of Chief General
Manager, Telecom Bhopal in terminating the services of
|Shri Indergeer, S/o Shri Kalugeer w.e.f. November 1995 is
legal.
(2) Workman is not entitled to any relief.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 751.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Mhohlksuky
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muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV
¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj/217/91½ dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 02@02@2014 dks izkIr gqvk FkkA
[lñ ,y&42012@102@91&vkbZvkj ¼Mh;w½]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 751.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
LC/R/217/91) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure, in
the Industrial Dispute between employers in relation to the
the management of The Divisional Engineer, Telecom,
Gwalior and their workman, which was received by the
Central Government on 03/02/2014.
[No. L-42012/102/91-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL -CUM-LABOUR COURT, JABALPUR
No. CGIT/LC/R/217/91
Presiding Officer, SHRI R.B. PATLE
Shri Kailash Chandra Rajoria,
S/o Shri Arjun Rajoria,
Gram : Guta, Lashkar,
Gwalior
....Workman
Versus
The Divsional Engineer,
Telecom,
Moti Mahal,
Chambal Division,
Gwalior
.....Management
In Affirmative
Workman is not
entitled to any relief.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2009
AWARD
(Passed on this 24th day of January 2014)
1. As per letter dated 12.11.91 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-42012/
102/91-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Divisional
Engineer, Telecom, Chambal Sambhag, Gwalior in
terminating the services of Shri K.C. Rajoria was
justified? If not, to what relief the workman is entitled
to?"
2. After receiving reference, notices were issued to
the parties. Ist Party workman submitted statement of claim
at Page 2/1 to 2/3. Case of workman is that he was working
on daily wages in Sub-Divisional Telecom Office, Shivpuri
from 1-12-1986, he was working with devotion, he was orally
discontinued by IInd Party from 1.8.88. His discontinuation
is illegal. He was not served one month's notice, he was
not paid one month's pay in lieu of notice, retrenchment
compensation was not paid to him. Termination order in
writing was not issued by IInd party. He had completed
240 days continuous service. Termination of his service is
in violation of Section 25-F, H & N of I.D. Act. On such
grounds, Ist Party workman prays for his reinstatement
with consequential benefits.
3. IInd Party filed Written Statement at Page 7/1 to
7/2. IInd party submits that workman was purely engaged
as contract labour temporarily from December 86 without
written order. Workman was engaged as casual labour for
specific work. There was no written agreement between
workman and management. After the work is finished, his
services were discontinued. One month's notice for
termination is not required as workman were engaged as
casual labour.
4. Management further submits that as per judgment
by Apex Court, scheme for regularization of casual labour
is framed in 1989 as per said scheme only casual labour
who fulfil conditions he was engaged by 30.3.85 on 7.11.89
as casual labour. He having completed 240 days service in
a year are covered for regularization. Ist Party workman is
not entitled to retrenchment compensation. IInd Party
denies that workman was terminated from service. Workman
was engaged as casual labour. He was discontinued after
completion of work. His discontinuation of workman is
covered under Section 2 (oo) of I.D. Act and doesnot
amount to retrenchment. On such ground , IInd Party prays
for rejection of claim.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
management of Divisional
Engineer, Telecom, Chambal
Sambhag, Gwalior in
terminating the services of
Shri K.C. Rajoria was
justified?
(ii) If not, what relief the
workman is entitled to?"
REASONS
6. Ist Party workman is challenging termination of
his services for violation of Section 25-F, H & N of I.D. Act.
He claims to have been completed 240 days continuous
service. Workman was not served with termination notice,
retrenchment compensation not paid, management denied
above contentions of workman. Rather as per management,
the workman was engaged as casual employee. He is not
entitled to termination notice or retrenchment
compensation. Workman filed affidavit of his evidence on
28.4.05. However' he failed to remian present for his cross-
examination. The ordersheet dated 9.6.06 clearly shows
that for absence of workman for cross-examination, his
affidavit shall not be read in evidence. Thus, evidence
adduced by workman on affidavit cannot be considered
for his failure to appear for cross-examination. The affidavit
of witness Shri R.K. Shrivastava for management is covering
most of the contentions of management in its Written
Statement. Counsel for workman remained absent and failed
to cross-examine witness. I find no reason to disbelieve
evidence of management's witness.
7. Though large number of citations are submitted in
bunch by counsel for management. As evidence of
workman cannot be read for his failure to remain present
for cross-examination, there is absolutely no evidence to
substantiate claim of workman that termination of his
services suffers from any kind of illegality. Therefore, I am
not inclined to discuss the citations submitted by the
management. For reasons discussed above, I record my
finding in Point No. 1 in Affirmative.
8. In the result, award is passed as under:—
(1) Action of the management of Divisional Engineer,
Telecom, Chambal Sambhag, Gwalior in
terminating the services of Shri K.C. Rajoria is
proper and legal.
(2) Workman is not entitled to any relief.
R.B. PATLE, Presiding Officer
In Affirmative
Workman is not
entitled to any relief.
2010
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 752.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Hkkjrh; thou
chek fuxe ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] ukxiqj ds iapkV ¼lanHkZ la[;k 04@2005½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 10@02@2014 dks izkIr gqvk FkkA
[lñ ,y&17012@33@2004&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 752.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 04/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of LIC of India and their workmen,
received by the Central Government on 10.02.2014.
[No. L-17012/33/2004-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRl J.P. CHAND, PRESIDING OFFICER,
CGTT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/04/2005
Date: 22 .01 2014
Party No.1:
(a)
The Regional Manager,
United India Insurance Co. Ltd.
Regional Office, Ambika House,
19, Dharampeth Extention Shankar
Nagar Square, Nagpur-10 (MS)
(b)
The Divisional Manager,
United Insurance Co. Ltd.,
Western Zone, Nagpur Branch,
Divisional, Office No. 1
Saraf Chambers, Mount Road
Extension, Sadar, Nagpur-1 (MS)
Versus
Party No. 2:
The Branch Secretary,
General Insurance Employees' Union,
Western Zone, Nagpur Branch,
C/O UIICL, Nagpur Regional Office,
Ambica House, 19, 4th floor,
Dharampeth Extention Shankar Nagar
Square, Nagpur-10 (M S).
AWARD
(Dated: 13th January, 2014]
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of United India Insurance Co. Ltd. and the
workman Shri Mohd. Iqbal S/o. Sh. Mohd. Ismail for
adjudication, as per letter No. L-17012/23/2004-IR (B-I)
dated 20.12.2004, with the following schedule:—
"Whether the action of the management of
M/s. United India Insurance Co. Ltd., Nagpur (M.S.)
in terminating the services of Sh. Mohd. Iqbal S/o.
Sh. Mohd. Ismail casual worker, w.e.f. 01.12.2003
without following the provisions of section 25-F of
the Industrial Dispute Act, 1947 is proper and
justified? If not, to what relief the workman concerned
is entitled?"
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the workman, Sh. Mohd.
Iqbal, ("the workman" in short) filed the statement of claim
and the management of United India Insurance Co. Ltd.,
(here-in-after referred to as the "Party No. 1") filed its written
statement.
The case of the workman as presented in the
statement of claim is that he was employed by party No.
1(b) in its establishment against a regular post w.e.f.
13.10.2000 on daily wages basis and he worked
continuously till 31.12.2003 and wages was being paid to
him weekly basis including the weekly off days and holidays
of the office, as per the standing practice and circular of
the department to that effect and he had completed more
than 240 days attendance in each year up to 30.11.2003 and
after completion of two years of service, he demanded for
permanency and he was a workman as per the definition of
section 2 (s) of the Act and party No.l (b) terminated his
services on 01.12 2003 without following the due procedure
of law and therefore, on his behalf, the union raised the
industrial dispute under section 2-A of the Act and during
the course of the conciliation, the party No. l was advised
to consider the matter, but party No.l raised the objection
of his being over aged, which shows that the post in which
he was working was still available at that point of time and
he entered into the service of party No.l at the age of
24 years and the age at the time of entry into service is
relevant for consideration for permanency.
It is to be mentioned here that the workman without
making any prayer for reinstatement in service has made a
peculiar prayer. He has prayed for giving due opportunities
to defend, which does not mean anything.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2011
3. The parties No. 1 (a) and 1 (b) have filed a joint
written statement pleading inter-alia that the workman was
not a workman as contemplated under the Act and there
was no employer-employee relationship between them and
the workman and neither any letter of appointment nor
contract of appointment, express or implied was issued to
the workman and the workman was engaged on daily wages
basis for cleaning the office premises and for bringing water,
in the absence of the regular part time/full time sweeper, as
and when required, purely as a stop gap arrangement and
thus his discontinuation was not removal or termination of
his services as alleged and the workman was not employed
in their establishment at any time on regular basis and
therefore, the regularisation of the workman does not arise
and the age limit for appointment of sub-staff/full time
sweeper is 35 years and the workman is already more than
37 years of age and as the workman worked purely on
temporary basis, there was no question of following the
procedure contemplated under the Act and the workman is
not entitled to any relief.
4. In support of their respective claims, both the
parties have led oral evidence, besides placing reliance
on documentary evidence.
The workman has examined one Ramsumiran
B. Yadav as a witness besides him self as a witness. Shri
Surenderjit Singh Sandhu, a Development Officer has
examined as the only witness on behalf of the party No. 1.
5. In his evidence on affidavit, the workman has
stated that he worked continuously and uninterruptedly
as casual employee with party No. 1 w.e.f. 1310.2000 till
28.11.2003 and he was orally terminated w.e.f. 01.12.2003,
without notice and without payment of any retrenchment
compensation, in breach of the provisions of the Act and
in the preceding one year before his termination on
01.12.2003, he had worked for 298 days and he had also
worked for more than 240 days in each year.
In his Cross-examination, a suggestion was given to
him that he was working as a gap arrangement from
01.04.1989 and the workman admitted the same. The
workman has admitted that no written appointment letter
was issued by the management for his engagement on
13.10 2000 and his date of birth is 25.06.1965 and he was
getting Rs. 25/- per day for working days.
6. The other witness examined on behalf of the
workman in his evidence on affidavit has stated that the
workman worked in the division office No. 1 as casual worker
in the vacancy of sub-staff from October, 2000 to November,
2003 and prior to that also, the workman had worked as
water boy from time to time in summer season. In his Cross-
examination, this witness has stated that he was working
as a clerk in the office during the period from 2000 to 2003
and he was not dealing with the attendance of the
employees and he cannot say if any appointment order
was issued in favour of the workman.
7. The witness for the party No. 1 in his evidence on
affidavit has reiterated the facts mentioned in the written
statement. In his Cross-examination, the workman was
engaged for giving water and tea to the employees of the
office, to fill water in the coolers and to do all odd jobs and
the workman was working as a peon.
8. Besides the oral evidence, nine documents have
been produced by the workman in support of his case. The
said documents have been admitted into evidence on behalf
of the workman on admission by the Party No. 1 and marked
as Exts. W-I to W-IX.
9. In this case, the workman himself has pleaded that
he was engaged as a daily wager w.e.f. 13.10.3000 and he
worked as such till 30.11.2003 and he was orally terminated
from service on 01.12.2003, without compliance of the
mandatory provisions of section 25- F of the Act and
before his termination on 01.12.2003, he had worked for 298
days and he had also worked for more than 240 days in
each year.
Party No. l has denied such claim. According to Party
No. l the workman was engaged on daily wages as and
when required and he had not worked for 240 days in the
preceding 12 calendar months of the alleged date of
termination.
It is well settled that service for 240 days in a period
of 12 calendars months is equal not only to service for a
year, but is to be deemed continuous service even if
interrupted. Therefore, though S.25-F speaks of continuous
service for not less than one year under the employer, both
conditions are fulfilled, if the workman has actually worked
for 240 days during a period of 12 calendar months.
It is also well settled that before a workman can
complain of retrenchment being not in consonance with
section 25-F of the Act, he has to show that he has been in
continuous service for not less than one year under that
employer who has, retrenched him from service.
10. As already mentioned ahove, in order to prove
his case, the workman has adduced both oral and
documentary evidence.
On perusal of the evidence of the workman, it is found
that the workman has categorically stated that he had filed
documents No. 6 (Ext W-VI) which was provided by party
No. 1, showing the details of the days he worked under the
Party No. 1 from 13.10.2000 to 23.02.2003. The workman
has also furnished the details of the days he worked from
24.02 2003 till 28.11.2003 under Party No.l in his evidence
on affidavit. He has further stated that in the preceding 12
calendar months of his date of termination on 01.12.2003,
he had worked for 298 days. Such assertion of the workman
has not at all been challenged in the cross-examination
2012
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Likewise, the assertion of the other witness examined on
behalf Ihe workman that the workman worked as a casual
worker from October, 2000 to November, 2003 under party
No. 1 has also not been seriously challenged in his cross-
examination.
11. So far the documentary evidence is concerned,
on perusal of the same, it is found that the document, Ext.
W-IX clinches the issue in favour of the workman. Ext.
W-IX is a letter written by the Assistant Manager, Personnel
Department, Regional Office, Nagpur to the Personnel
Department, Head Office, Chennai of Party No 1. In the
said letter, it has been specifically mentioned that the
workman was engaged as a casual daily wager from
13.10.2000 till 30.11.2003, As already mentioned Ext. W-IX
has been admitted into evidence and marked as exhibit on
behalf of the workman on admission by the Party No. 1.
In view of the document, Ext. W-IX, the evidence of
the witness examined by party No. l. that the workman did
not work for 240 days in the preceding 12 months of the
date of his alleged termination cannot be relied on.
From the oral evidence coupled with the documentary
evidence as mentioned above, it is found that the workman
has been able to prove that in fact he had worked for more
than 240 days in the preceding 12 calendar months of
01.12.2003, the date of his termination from services.
Admittedly, in this case, before the termination of
the services of the workman, the mandatory provisions of
section 25-F were not complied with. Hence, the termination
of the workman from services is illegal. The workman was
entitled for the protection as given in section 25-F of the
Act.
12. Now, the question remains for consideration is
as to what relief or reliefs the workman is entitled.
At this juncture, I think it proper to mention about
the recent decision of the Hon'ble Apex Court as reported
in the decision reported in (2013) 5 SCC-136 (Asstt. Engineer,
Rajasthan Development Corporation Vs. Gitam Singh). In
the said decision the Hon'ble Apex Court have been pleased
to take into consideration a large number of decisions
delivered by the Hon'ble Apex Court earlier, including the
decisions reported in 2011 II CLR-461 (Devinder Singh Vs.
Municipal Council, Sonaur, on which reliance has been
placed by the workman), (2010) 3 SCC-192 (Harjinder Singh
Vs. Punjab State Warehousing Corporation) and (2010)
9 SCC-126 (Incharge Officer Vs. Shankar Setty.]
The Hon'ble Apex Court have been pleased to hold
that:—
"In our view, Harjinder Singh and Devinder Singh do
not lay down the proposition that in all cases of wrongful
termination, reinstatement must fall. This court found in
those cases that judicial discretion exercised by the labour
Court was disturbed by the High Court on wrong
assumption that the initial employment of the employee
was illegal. As noted above, with regard to the wrongful
termination of a daily wager, who had worked for a short
period, this court in long line of cases has held that the
award of reinstatement cannot be said to be proper relief
and rather award of compensation in such cases would be
in consonance with the demand of justice. Before exercising
its judicial discretion, the labour court has to keep in view
all relevant factors, including the mode and manner of
appointment, nature of appointment, length of service, the
ground on which the dispute before grant of relief in an
industrial dispute.
In the light of the principles enunciated by the Hon'ble
Apex Court as mentioned above, now, the present case in
hand is to be considered. In this case, it is admitted that the
workman was engaged as a daily wager on 13.10.2000 to
30.11.2003. It is also found that he continued as such till
30.11.2003, when he was terminated from services by party
No. 1. In a case such as the present one, it appears that the
relief of reinstatement cannot be justified and instead
monetary compensation would meet the ends of justice.
Taking into consideration the facts and circumstance of
the case, in opinion, the compensation of Rs. 100000/-
(Rupees one lakh only) in lieu of reinstatment shall be
appropriate, just and equitable. Hence, it is ordered:—
ORDER
The action of the management of M/s. United India
Insurance Co. Ltd., Nagpur (M.S.) in terminating the
services of Sh. Mohd. Iqbal S/o Sh. Mohd. Ismail, casual
worker, w.e.f. 0l.12.2003 without following the provisions
of section 25 F of the Industrial Dispute Act, 1947 is improper
and unjustified. The workman is entitled for monetary
compensation of Rs. 1,00,000/- (Rupees one lakh only) in
lieu of reinstatement. He is not entitled for any other relief.
The party No. 1 is directed to pay the monetary
compensation of Rs. 1,00,000/- to the workman Sh. Mohd.
Iqbal within 30 days of the publication of the award in the
Official Gazette failing which, the amount will carry interest
at the rate of 6 percent per annum.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 753.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
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¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2013
New Delhi, the 10th February, 2014
S.O. 753.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 46/2009)
of the Cent. Govt. Indus. Tribunal/Labour Court, Lucknow
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
The Manager (HRD), Hindustan Cables Limited and Others,
Allahabad and their workman, which was received by the
Central Government on 03/02/2014.
[F.No. L-42012/32/2009-IR(DU)]
P.K VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
Present:
DR. MANJU NIGAM,
Presiding Officer
I.D. No. 46/2009
Ref. No. L-42012/32/2009-IR (DU)
dated: 09.10.2009
Between: Shri Ram Suchit Bind
Village Khameniya, Post Avta
Allahabad,
AND
1.
The Manager,
HRD, Hindustan Cables Limited, Naini
Allahabad.
2.
The Manager
M/s. Industrial Security Services
4, Stratchy Road
Allahabad.
AWARD
1. By order No. L-42012/32/2009-IR(DU) dated:
09.10.2009 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 Ram Suchit Bind, Village
Khameniya, Post Avta, Allahabad and the Manager, HRD,
Hindustan Cables Limited, Naini, Allahabad & the Manager,
M/s. Industrial Security Services, 4, Stratchy Road,
Allahabad for adjudication.
2. The reference under adjudication is:
"Whether the contract between the management of
M/s. Hindustan Cables Ltd., Allahabad, and the contractor,
M/s Industrial Security Services, 4, Stratchy Road,
Allahabad, with regard to employment of Shri Ram Suchit
Bind is Sham and Bogus? If yes, whether the action of the
management in terminating his services w.e.f. 26/10/1999 is
legal and justified? If not, what relief the workman is entitled
to?"
3. The case of the workman, Ram Suchit Bind, in
brief, is that he was appointed as a security guard with the
opposite party on 19.10.1994 and worked continuously,
with some artificial break, till 25.10.1999; and he was
restrained from working by the Security Officer of the
management w.e.f. 25.10.1999. The workman has submitted
that he was working with the opposite party as Security
Guard which is not seasonal, but perennial nature of work;
and his work was being controlled and supervised by the
officers of the opposite Party No. 01 viz. M/s. Hindustan
Cables Ltd.: and accordingly, there was relationship of
employee and employer between him and the opposite Party
No. 01. It is further been submitted by the workman that he
was paid through its illegal agent i.e. opposite party No. 02
viz. M/s. Industrial Security Services and in spite of the
fact that he worked for more than 240 days in each calendar
year, the management of the opposite Party No. 01
terminated his services without following the provisions
of Section 25 F of the I.D. Act, 1947; and accordingly it has
been prayed by the workman that reinstated with full back
wages and his services be regularized in the M/s. Hindustan
Cables Limited, Allahabad.
4. The opposite Party No. 01 has dispute the claim of
the workman by filling it written statement; whereas the
opposite Party No. 02 viz. M/s. Industrial Security Services
did not turn up in spite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s. Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
abolition) Act, 1970; and the opposite Party No. 02 is its
contractor under the Contract Labour (Regulation and
abolition) Act, 1970 having license under the Act. The
opposite Party No. 01 has specifically submitted that it has
neither engaged he workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25 F of the I.D. Act. It is
submitted by the opposite party No. 1 that there has never
been any sanctioned post of Security Guards in the
M/s. Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite Party No. 02 viz. M/s. Industrial Security Services
was assigned job contracts dated 27.09.1990. 01.10.1995
and 30.03.1999. It has been stated by the opposite party
No. 01 that it had never paid any wages to the workman;
rather as per terms of contract, M/s. Industrial Security
Services used to submit its bill for payment and the opposite
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Party No. 01 used to make payment to the opposite Party
No. 02 and thereafter, the workman was being paid by the
opposite Party No. 02; likewise, the opposite No. 2 used to
deduct the Provident Fund and ESI contribution in respect
of workman and deposit the same with the concerned
authorities; hence, there was no employer and employee
relationship between the opposite party No. 01 and the
workman. It has also been submitted by the opposite Party
No. 1 that the contract between opposite party No. 1 and
opposite Party No. 2 came to an end on 30th June, 2000 and
accordingly, the security personnel deployed by
M/s. Industrial Security Services were withdrawn by them
on 30.06.2000 itself; and this does not amount to termination
of services or termination in violation to the provisions of
I.D. Act, 1947. Accordingly, the opposite Party No. 01 has
prayed that the claim of the workman be rejected without
any relief to him being devoid of merit.
6. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself,
whereas the management examined Shri Sanjeev Ratan,
Vice President of the Workers' Union and Shri S.N. Lakhorkar,
Dy. Manager (Personnel & Relation) in support of their
respective stands. The parties availed opportunity to cross-
examine the witnesses of each other apart from forwarding
oral arguments.
8. Heard the authorized representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
Party No. 01 on 19.10.1994 as Security Guard and worked
as such till 25.10.1999 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reason in contravention to the
provisions of Section 25 F of the I.D. Act, 1947.
10. In rebuttal, the opposite Party No. 01's
representative has contended that the workman is
contractor's employee as the opposite party has undergone
a contract with the M/s. Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s. Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite Party No. 01
neither appointed the workman nor terminated his services;
rather his employment was regulated by M/s. Industrial
Security Services and the same came to an end with the
end of contract with the agency; hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my thoughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
12. The workman in his statement on oath has stated
that he had been appointed in the M/s. Hindustan Cables
Ltd. On 19.10.1994 after interview and the duties performed
by him were regular nature and no contract for such work
could be given to any contractor and also the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment letter from HCL. He has stated
that paper No. 9/40 to 9/43 is the page of this pass book
(Provident Fund) and it bears name of Industrial Security
Services as office's name. It was also stated that paper No.
9/25 to 9/38 is salary slip, which is filed by him; whoever he
has denied office's name mentioned as ISS i.e. Industrial
Security Services. He has also admitted that paper No.
16/67 to 16/69 bears his signatures. He also stated that he
did not receive any order or removal from the HCL. He also
stated that he was not given any identity Card by HCL.
13. The managemet witness, Shri Sanjeev Ratan. Vice
President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an employee of the HCL; however the
workman was security guard of the Industrial Security
Services; and the Industrial Security Service used to arrange
duty of their security guards, take their attendance and
makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness.
S.N. Lakhorkar stated that opposite Party No. 1 given the
security work contract to M/s. Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always carried out on contract basis as there was
no sanctioned post of Security Guard. The HCL has been
registered on 12.08.1998 under Contract Labour (Regulation
& Abolition) Act, 1970. He has also stated that the workman
was temporary guards of M/s. Industrial Security Services
and the HCL never entered into any contract with respect
to the services of the workman. He further stated that there
is recruitment policy in HCL and recruitment is made as per
presdcribed procedure in the recruitment policy. He stated
that the workman was employed by the M/s. Industrial
Security Services and the workman was never got any
payment by the HCL; rather the payment was made through
the Contractor; likewise his contribution towards Provident
Fund and ESI is being deducted by the Contractor. In cross-
examination it was admitted that there is no sanctioned
post of Security Guard in the HCL and security work is
being done by the agencies and the work of guards were
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supervised by the Security Officers of the Industrial
Security Services. It is stated by management witness that
the HCL neither appoints any one nor removes any one,
the workman was employee of the M/s. Industrial Security
Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Guard and worked continuously with some
artificial breaks for more than 240 days in each calendar
year; and his services have been terminated by the
management without following the mandatory provisions
of the Industrial Disputes Act, 1947. In the support of his
pleading he has filed photocopy of the following
documents:—
(i) Judgment dated 12.01.2009 of Hon'ble High Court,
Allahabad in Civil Misc. Writ Petition No. 29283/
200.
(ii) Award dated 21.12.2006 of Industrial Tribunal,
Allahabad.
(iii) Pass Book of EPF.
(iv) Payment Slip.
15. Per contra, the opposite Party No. 02 has not
turned up to contest the case since the very inception of
the proceedings before this Tribunal; whereas the opposite
Party No. 01 has come with case that the workman
concerned is not their employee; rather he is an employee
of the opposite party No. 2 i.e. M/s. Industrial Security
Services whose services as Security Guard were provide
to them by the said agency, in pursuance to the contract
for supply of security guards. It is also the case of the
management that there is no sanctioned post of Security
Guard in their establishment and the security work is being
done through agencies on contractual basis; and
accordingly, the opposite Party No. 01 entered into a
contract with M/s. Industrial Security Services to provide
Security Guards w.e.f. 01.05.1990 to 30.06.2000. The opposite
party has pleaded that it neither appointed the workman
nor supervise his duties, nor made any payment to the
workman nor terminated his services at any point of time.
Moreover, it is also contended that the workman was an
employee of the contracting agency, his work was
supervised by the agency and was paid by the agency, his
PF and ESI subscription as deducted and deposited by the
agency and his services were regulated by the contracting
agency i.e. M/s. Industrial Security Services. In this regard
the management has come forward with photo copy of
various documents including following:
(i) Copy of Job Contract/Agreement dated
30.03.1999, 01.10.1995 and 27.09.1990.
(ii) Copy of letter regarding termination of contract
w.e.f. 30.06.2000.
(iii) Copy of M/s. Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letters issued by M/s. Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officers etc.
(v) Copy to bank payment voucher as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI challan etc.
(vii) Copy of written statement in adjudication case
No. 34/2002 between M/s. Hindustan Cables Ltd.
& M/s. Industrial Security Services Vs. Ram Suchit
Bind Singh.
16. The terms of reference requires to adjudicate the
validity of contract between the management of M/s.
Hindustan Cables Ltd. and M/s. Industrial Security Services
with the regard to the employment of the workman. In this
regard there is very specific pleading from the management
of M/s. Hindustan Cables Ltd. that there is no sanctioned
post in their establishment and the security work is carried
out by some agency on contract. In support of its
contention, the management of M/s. HCL has filed
photocopies of registration certificate under Contract
Labour (Regulation & Abolition) Act, 1970 and photocopies
of contract/agreement dated 30.03.1999, 01.10.1995 and
27.09.1990. The registration certificate dated 12.08.88 issued
by Dy. Labour Commissioner, Uttar Pradesh clearly
mentions the name of M/s. Industrial Security Services,
Allahabad for providing 'security work' through 41
workmen; and the terms to agreement between M/s. HCL
and M/s. Industrial Security Services shows that M/s.
Industrial Security Services/contractor was required to
supply security guards. From perusal of the contract
agreements it is apparent that the said contract for supply
of security guards came into effect from 01.05.1990,
30.06.2000. However, there is no whisper of existence of
any contract between M/s. HCL and M/s. Industrial
Security Services for supply of security guard in the
statement of claim filed by the workman before this Tribunal.
Likewise the workman has not challenge the validity of the
contract entered between the opposite Party No. 01 and
opposite Party No. 02; rather he has pleaded that he was
appointed by the opposite party No. 01 and was an
employee of the opposite Party No. 01. On the contrary the
management of M/s. HCL has pleaded that it was in an
agreement with the M/s. Industrial Security Services for
supply of security guards and the workman was one of
them. The workman in his evidence also has not come
forward with the evidence that the contract between the
opposite parties was sham and bogus, therefore, he may
be treated as employee of the principle employer i.e.
M/s. Hindustan Cable Ltd. On the contrary he has come up
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with the evidence that he was employee of the HCL and
M/s. Industrial Security Services has no existence.
17. In view of the discussions made hereinabove,
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and submissions
of the management of M/s. Hindustan Cables Ltd. regarding
existence of contract between itself and M/s. Industrial
Security Services with supportive documentary evidence,
I am of the opinion that the contract between M/s. Hindustan
Cables Ltd. and M/s. Industrial Security Services for supply
of security guards was neither sham nor bogus.
18. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f.
26.10.1999 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25-F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and another Vs. Jethabhai Pitamberbhai Hon'ble
Apex Court came to the conclusion that where the workman
failed to prove that he had been in employment with the
employer for a period of 240 days uninterruptedly, he is not
entitled to protection in compliance of Section 25-F of the
Industrial Disputes Act, 1947. It was held by the Hon'ble
Supreme Court that the scope of the enquiry before the
Labour Court was confined only to 12 months preceding
the date of termination to decide the question of the
continuous service for the purpose of Section 25-F of the
Industrial Disputes Act, 1947. Further, Hon'ble Apex Court
has observed as under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salarly
or wages for 240 days or record of his appointment
or engagement for that year to show that he has
worked with the employer for 240 days to get the
benefit under Section 25-F of the Industrial Disputes
Act. It is now well settled that it is for the claimant to
lead evidence to show that he in fact worked for 240
days in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in Section 25 F of the Act, it is
necessary for the claimant to lead evidence to the effect
that the was actually in employment of the opposite party
for 240 days in the year proceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen worked for 240 days
with the management of the HCL in twelve calendar months
preceding the date of termination. The photocopy of the
documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears 'Name of Office to ISS (Industrial Security
Services), HCL, Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and not with the HCL. Likewise, the photocopy of
EPF deduction and Wages Slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has utterly failed to substantiate
this fact that he worked for 240 days in a year preceding
the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Security Services as security Guard in the HCL, this includes
copy of agreement, copies of letters issued by M/s.
Industrial Security Services regarding posting/transfer of
Security Guards/Security Officers etc., copy to bank
payment voucher as service charge of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF challan and ESI
challan etc. Apart from this the copy of written statement
in adjudication case No. 34/2002 between M/s. Hindustan
Cables Ltd. & M/s. Industrial Security Services Vs. Ram
Suchit Bind goes to show that the workman himself had
pleaded before Industrial Tribunal that he was appointed
on temporary basis in M/s. Industrial Security Services
and deduction towards EPF and ESI is being made by M/s.
Industrial Security Services and being deposited in the
Government account by M/s. Industrial Security Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdication of the court must fail. In the present
case burden was on the workman to set out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding his alleged termination. In (2002) 3 SCC 25 Range
Forest Officer vs S.T. Hadimani Hon'ble Apex Court has
observed as under:
"It was the case of the claimant that he had so worked
but this claim denied by the appellant. It was then for
the claimant to lead evidence to show that he had in
fact worked for 240 days in the year preceding his
termination. Filing of an affidavit is only his own
statement in his favour and that cannot be regarded
as sufficient evidence for any court or tribunal to
come to the conclusion that a workman had, in fact,
worked for 240 days or order or record of appointment
or engagement for that period was produced by the
workman. On this ground alone, the award is liable
to be set aside."
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20. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108) FLR
R.M. Yellatti & Asstt. Executive Engineer as follow:
"It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under Section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus, in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendace register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy in
support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination; but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e.
EPF pass book goes contrary to his stand. Hence, the
workman could not establish that there was any employee
and employer relationship between him and the opposite
Party No. 1.
21. On the other hand the management has well
proved its case by filing copy of the contract with the M/s.
Industrial Security Services the security guards were
required to be paid through the contractor. Also, the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that the
workman was an employee of the opposite Party No. 02 i.e.
M/s. Industrial Security Services and he had been deployed
by the opposite Party No. 02 to carry out the work of security
guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust or illegal order of termination was passed by the
management.
22. Thus, in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan Cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to employment of
Shri Ram Suchit Bind was neither sham nor bogus. The
workman could not be able to prove to through cogent
evidence that there was a relationship of employee and
employer between him and the opposite Party No. 1 viz
M/s. Hindustan Cables Ltd.; rather from the evidence
adduced it is established that he was and an employee of
the contractor viz. M/s. Industrial Security Services,
therefore, the workman could not be granted the relief of
retrenchment compensation or any other relief sought by
the workman against the M/s. Hindustan Cables Ltd. The
reference under adjudication is answered accordingly.
23. Award as above.
Dr. MANJU NIGAM, Presiding Officer
Lucknow
25th November, 2013.
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S.O. 754.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (1947 of 1947), the Central
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[PART II—SEC. 3(ii)]
Government hereby publishes the award (I.D. No. 41/2009)
of the Central Government Industrial Tribunal/Labour
Court, Lucknow, now as shown in the Annexure in the
Industrial Dispute between the employees in relation to
the management of The Manager (HRD), Hindustan Cables
Limited and Others, Allahabad and their workman, which
was received by the Central Government on 03/02/2014.
[No. L-42012/38/2009-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 41/2009
Ref. No. L-42012/38/2009-IR(DU)
dated: 30.09.2009
BETWEEN :
Shri Anant Bahadur Singh
S/o Shri Jagdmba Singh,
Village and Post Khadsara, Allahabad.
AND
1. The Manager (HRD),
Hindustan Cables Limited,
Naini, Allahabad.
2. The Manager,
M/s. Industrial Security Services,
4. Stratchy Road,
Allahabad.
AWARD
1. By order No. L-420l2/38/2009-IR(DU) dated
30.09.2009 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by cause
(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 Anant Bahadur Singh S/o
Shri Jagdmba Singh, Village and Post Khadsara, Allahabad
and the Manager, HRD, Hindustan Cables Limited, Naini,
Allahabad & the Manager, M/s. Industrial Security
Services, 4, Stratchy Road, Allahabad for adjudication.
2. The reference under adjudication is:
"Whether the contract between the management of
M/s. Hindustan Cables Ltd., Allahabad, and the
contractor, M/s. Industrial Security Services,
4, Stratchy Road, Allahabad, with regard to
employment of Shri Anant Bahadur Singh is Sham
and bogus? If yes, whether the action of the
management tn terminating his services w.e.f.
17/10/1999 is legal and justified? If not, what relief
the workman is entitled to?"
3. The case of the workman, Anant Bahadur, in brief,
is that he was appointed as a security guard with the
opposite party on 22.06.1989 and worked continously with
some artificial break, till 16.10.1999; and he was restrained
from working by the Security Officer of the management
w.e.f. 17.10.1999. The workman has submitted that he was
working with the opposite party as Security Guard which
is not seasonal but perennial nature of work; and his work
was being controlled and supervised by the officers of the
opposite Party No. 01 viz. M/s. Hindustan Cables Ltd.; and
accordingly, there was relationship of employee and
employer between him and the opposite Party No. 01. It is
further been submitted by the workman that he was paid
through its illegal agont i.e. opposite Party No. 02 viz. M/s.
Industrial Security Services and in spite of the fact that he
worked for more than 240 days in each calendar year, the
management of the opposite Party No. 01 terminated his
services without following the provisions of Section 25 F
of the I. D. Act, 1947; and accordingly it has been prayed
by the workman that reinstated with full back wages and
his services be regularized in the M/s. Hindustan Cables
Limited, Allahabad.
4. The opposite Party No. 01 has dispute the claim of
the workman by filing it written statement whereas the
opposite Party No. 02 viz. M/s. Industrial Security Services
did not turned up in spile of several registered notices.
However notice sent by this Tribunal was received back
with remark "left".
4. The management of M/s. Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer which is duly
registered under the Contract Labour (Regulation and
Abolition) Act, 1970, and the opposite Party No. 02 is its
contractor under the Contract Labour (Regulation and
abolition) Act, 1970 having license under the Act. The
opposite Party No. 01 has specifically submitted that it has
neither engaged the workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25 F of the I. D. Act. It is
submitted by the opposite Party No. 1 that there has never
been any sanctioned post of Security Guards in the
M/s. Hindustan Cables Ltd. and the security services were
always arranged on contract basis accordingly the opposite
Party No. 02 viz. M/s. Industrial Security Services was
assigned job contracts dated 27.09.1990, 01.10.1995 and
30.03.1999. It has been stated by the opposite Party No. 01
that it had never paid any wages to the workman rather as
per terms of contract, M/s. Industrial Security Services
used to submit its bill for payment and the opposite party
No. 01 used to make payment to the opposite Party No. 02
and thereafter, the workman was being paid by the opposite
Party No. 02; likewise, the opposite No. 2 used to deduct
the Provident Fund and ESI contribution in respect of
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workman and deposit the same with the concerned
authorities; hence there was no employer and employee
relationship between the opposrte Party No. 01 and the
workman. It has also been submitted by the opposite Party
No. 1 that the contract between opposite Party No. 1 and
opposite Party No. 2 came to an end on 30th June, 2000 and
accordingly, the security personnel deployed by
M/s. Industrial Security Services were withdrawn by them
on 30.06.2000 itself; and this does not amount to termination
of services or termination in violation to the provisions of
I.D. Act, 1947. Accondingly, the opposite Party No. 01 has
prayed that the claim of the workman be rejected without
any relief to him being devoid of merit.
5. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
6. The parties have filed photocopy of documents in
support of their cases. The workman examined himself;
whereas the management examined Shri Sanjeev Ratan,
Vice President of the Workers' Union and Shri S. N.
Lakhorkar, Dy. Manager (Personnel & Relation) in support
of their respective stands. The parties availed opportunity
to cross-examine the witnesses of each other apart from
forwarding oral arguments.
7. Heard the authorized representatives of the parties
and perused entire evidence available on record.
8. The authorized representative of the workman has
argued that the workman was appointed by the opposite
Party No. 01 on 22.06.1989 as Security Guard and worked
as such till 16.10.1999 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reason in contravention to the
provisions of Section 25F of the I.D. Act. 1947.
9. In rebuttal, the opposite Party No. 01's
representative has contended that the workman is
contractor's employee as the opposite party has undergone
a contract with the M/s. Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s. Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite Party No. 01
neither appointed the workman nor terminated his servies;
rather his employment was regulated by M/s Industrial
Security Services and the same came to an end with the
end of contract with the agency; hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
10. I have given my thoughtful consrderation to the
rival contentions of the parties and perused entire evidence
available on file.
11. The workman in his statement on oath has stated
that he had been appointed in the M/s. Hindustan Cables
Ltd. On 22.06.1989 after interview and the duties performed
by him were regular nature and no contract for such work
could be given to any contractor and afso the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment letter from HCL; however he
was being paid salary by the HCL which amounted to
approximately Rs. 2000/- per month. He has stated that
paper No. 11/24 is the page of his pass pook (Provident
Fund) and it bears the signatures and stamp ot Industrial
Security Services. It was also stated that paper No. 11/36
to 11/37 is salary slip; wherein office's name is mentioned
as ISS i.e. Industrial Security Services. He has also admitted
that in the written statement filed by him before Labour
Tribunal, he has mentioned this fact that he had been
appointed in HCL through ISS.
12. The management witness, Shri Sanjeev Ratan,
Vice President of the union has stated that he maintians
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not employee of the HCL; however the
workman was security guard of the Industrial Security
Services; and the Industrial Security Service used to arrange
duty of their security guards, take their attendance and
makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness,
S. N. Lakhorkar stated that opposite Party No. 1 given the
security work contract to M/s. Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always earned out on contract basis as there was
no sanctioned post of Security Guard. The HCL has been
registered on 12.08.1988 under Contract Labour (Regulation
& Abolition) Act. 1970. He has also stated that the workman
was temporary guards of M/s. Industrial Security Services
and the HCL never entered into any contract with respect
to the services of the workman. He further stated that there
is recruitment policy in HCL and recruitment is made as per
prescribed procedure in the recruitment policy. He stated
that the workman was employed by the M/s. Industrial
Security Services and the workman was never got any
payment by the HCL; rather the payment was made through
the Contractor; likewise his contribution towards Provident
Fund and ESI is being deducted by the Contractor. In cross-
examination it was admitted that there is no sanctioned
post of Security Guard in the HCL and security work is
being done by the agencies and the work of guards were
supervised by the Security Officers of the Industrial Security
Services. It is stated by management witness that the HCL
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
neither appoints any one nor removes any one, the
workman was employee of the M/s. Industrial Security
Services and he was appointed/removed by them.
13. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Guard and worked continuously with some
artificial breaks for more than 240 days in each calendar
year; and his services have been terminated by the
management without following the mandatory provisions
of the Industrial Disputes Act, 1947. In the support of his
pleading he has filed photocopy of following documents:
(i) Judgment dated 12.01.2009 of Hon'ble High Court,
Allahabad in Civil Misc. Writ Petition No. 29283/
2007, paper No 11/1 to 11/5;
(ii) Award dated 21.12.2006 of Industrial Tribunal,
Allahabad, paper No. 11/6 to 11/23;
(iii) Pass Book of EPF, paper No. 11/24 to 11/34;
(iv) Payment Slip, paper No. 11/35 to 11/37.
14. Per contra, the opposite Party No. 02 has not
turned up to contest the case since the very inception of
the proceedings before this Tribunal; whereas the opposite
Party No. 01 has come with case that the workman
concerned is not their employee; rather he is an employee
of the opposite Party No. 2 i.e. M/s. Industrial Security
Services whose services as Security Guard were provide
to them by the said agency, in pursuance to the contract
for supply of security guards. it is also the case of the
management that there is no sanctioned post of Security
Guard in their establishment and the security work is being
done through agencies on contractual basis; and
accordingly, the opposite Party No. 01 entered into a
contract with M/s. Industrial Security Services to provide
Security Guards w.e.f. 01.05.1990 to 30.6.2000. The opposite
party has pleaded that it neither appointed the workman
nor supervise his duties, nor made any payment to the
workman nor terminated his services at any point of time.
Moreover, it is also contended that the workman was an
employee of the contracting agency, his work was
supervised by the agency and was paid by the agency, his
PF and ESI subscription as deducted and deposited by the
agency and his services were regulated by the contracting
agency i.e. M/s. Industrial Security Services. In this regard
the management has come forward with photo copy of
various documents including following:
(i) Copy of Job Contract/Agreement dated
30.03.1999, 01.10.1995 and 27.09.1990.
(ii) Copy of letter regarding termination of contract
w.e.f. 30.06.2000.
(iii) Copy of M/s. Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letters issued by M/s. Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officer etc.
(v) Copy to bank payment voucher as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI Challan etc.
(vii) Copy of rejoinder in CP case No. 30/2002 between
Anant Bahadur Singh Vs. M/s Hindustan Cables
Ltd. & M/s. Industrial Security Services.
15. The terms of reference requires to adjudicate the
validity of contract between the management of
M/s. Hindustan Cables Ltd. and M/s. Industrial Security
Services with regard to the employment of the workman. In
this regard there is very specific pleading from the
management of M/s. Hindustan Cables Ltd. that there is
no sanctioned post in their establishment and the security
work is carried out by some agency on contract. In support
of its contention, the management of M/s. HCL has filed
photocopies of registration certificate under Contract
Labour (Regulation & Abolition) Act, 1970 and photocopies
of contract/agreement dated 30.03.1999, 01.10.1995 and
27.09.1990. The registration certificate dated 12.08.88 issued
by Dy. Labour Commissioner, Uttar Pradesh clearly
mentions the name of M/s. Industrial Security Services,
Allahabad for providing 'security work' through
41 workmen; and the terms to agreement between
M/s. HCL and M/s. Industrial Security Services shows
that M/s. Industrial Security Services/contractor was
required to supply security guards. From perusal of the
contract agreements it is apparent that the said contract
for supply of security guards came into effect from
01.05.1990, 30.06.2000. However, there is no whisper of
existence of any contract between M/s. HCL and
M/s. Industrial Security Services for supply of security
guard in the statement of claim filed by the workman before
this Tribunal. Likewise the workman has not challenge the
validity of the contract entered between the opposite Party
No. 01 and opposite Party No. 02; rather he has pleaded
that he was appointed by the opposite Party No. 01 and
was an employee of the opposite Party No. 01. On the
contrary the management of M/s. HCL has pleaded that it
was in an agreement with the M/s. Industrial Security
Services for supply of security guards and the workman
was one of them. The workman in his evidence also has
not come forward with the evidence that that the contract
between the opposite parties was sham and bogus,
therefore, he may be treated as employee of the principle
employer i.e. M/s. Hindustan Cable Ltd. On the contrary
he has come up with the evidence that he was employee of
the HCL and M/s. Industrial Security Services has no
existence.
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16. In view of the discussions made hereinabove,
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and submissions
of the management of M/s. Hindustan Cables Ltd. regarding
existence of contract between itself and M/s. Industrial
Security Services with supportive documentary evidence,
I am of the opinion that the contract between M/s. Hindustan
Cables Ltd. and M/s. Industrial Security Services for supply
of security guards was neither sham nor bogus.
17. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f.
17.10.1999 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25-F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and Another Vs. Jethabhai Pitamberbhai Hon'ble
Apex Court came to the conclusion that where the workman
failed to prove that he had been in employment with the
employer for a period of 240 days uninterruptedly, he is not
entitled to protection in compliance of section 25-F of the
Industrial Disputes Act, 1947. It was held by the Hon'ble
Supreme Court that the scope of the enquiry before the
Labour Court was confined only to 12 months preceding
the date of termination to decide the question of the
continuous service for the purpose of section 25-F of the
Industrial Disputes Act, 1947. Further, Hon'ble Apex Court
has observed as under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit
under section 25-F of the Industrial Disputes Act. It
is now well settled that it is for the claimant to lead
evidence to show that he in fact worked for 240 days
in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25-F of the Act, it is
necessary for the claimant to lead evidence to the effect
that the was actually in employment of the opposite party
for 240 days in the year preceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen worked for 240 days
with the management of the HCL in twelve calendar months
preceding the date of termination. The photocopy of the
documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears 'Name of Office to ISS (Industrial Security
Services), HCL, Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and not with the HCL. Likewise, the photocopy of
EPF deduction and Wages Slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has utterly failed to substantiate
this fact that he worked for 240 days in a year preceding
the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Security Services as Security Guard in the HCL, this
includes copy of agreement, copies of letters issued by
M/s. Industrial Security Services regarding posting/transfer
of Security Guards/Security Officers etc., copy to bank
payment voucher as service change of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF challan and ESI
challan etc. Apart from this the copy of rejoinder in CP case
No. 30/2002 between Anant Bahadur Singh Vs.
M/s. Hindustan Cables Ltd. & M/s. Industrial Security
Services goes to show that the workman himself had
pleaded before Industrial Tribunal that he was appointed
on temporary basis in M/s. Industrial Security Services
and deduction towards EPF and ESI is being made by
M/s. Industrial Security Services and being deposited in
the Government account by M/s. Industrial Security
Services.
18. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdiction of the court must fail. In the present
case burden was on the workman to set out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding his alleged termination. In (2002) 3 SCC 25 Range
Forest Officer Vs. S.T. Hadimani Hon'ble Apex Court has
observed as under:
"It was case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days or order or record of
appointment or engagement for that period was
produced by the workman. On this ground alone,
the award is liable to be set aside."
19. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108) FLR
R.M. Yellati & Asstt. Executive Engineer as follow:
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
"It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In case of
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus, in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy in
support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination; but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e.
EPF pass book goes contrary to his stand. Hence, the
workman could not establish that there was any employee
and employer relationship between him and the opposite
Party No. 01.
20. On the other hand the management has well
proved its case by filing copy of the contract with the
M/s. Industrial Security Services the security guards were
required to be paid through the contractor. Also the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that
that the workman was an employee of the opposite Party
No. 02 i.e. M/s. Industrial Security Services and he had
been deployed by the opposite Party No. 02 to carry out
the work of security guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust of illegal order of termination was passed by the
management.
21. Thus, in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan Cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services, 4,
Starchy Road, Allahabad, with regard to employment of
Shri Anant Bahadur Singh was neither sham nor bogus.
The workman could not be able to prove to through cogent
evidence that there was a relationship of employee and
employer between him and the opposite Party No. 1 viz.
M/s. Hindustan Cables Ltd.; rather from the evidence
adduced it is established that he was and an employee of
the contractor viz. M/s. Industrial Security Services,
therefore, the workman could not be granted the relief of
retrenchment compensation or any other relief sought by
the workman against the M/s. Hindustan Cables Ltd. The
reference under adjudication is answered accordingly.
22. Award as above.
LUCKNOW
25th November, 2013
Dr. MANJU NIGAM, Presiding Officer
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New Delhi, the 10th February, 2014
S.O. 755.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 45/2009)
of the Central Government Industrial Tribunal/Labour
Court, Lucknow now as shown in the Annexure in the
¹Hkkx II—[k.M 3(ii)º
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2023
Industrial Dispute between the employers in relation to the
management of The Manager (HRD), Hindustan Cables
Limited and Others, Allahabad and their workman, which
was received by the Central Government on 03/02/2014.
[No. L-42012/33/2009-IR (DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 45/2009
Ref. No. L-42012/33/2009-IR (DU)
dated: 09.10.2009
BETWEEN :
Shri Mohan Singh
EB-172, ADA Colony, Naini
Allahabad
AND
1. The Manager
HRD, Hindustan Cables Limited, Naini
Allahabad
2. The Manager
M/s. Industrial Security Services
4. Stratchy Road, Allahabad.
AWARD
1. By order No. L-42012/33/2009-IR (DU) dated:
09.10.2009 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 Mohan Singh. EB-172, ADA
Colony, Naini, Allahabad and the Manager, HRD, Hindustan
Cables Limited, Naini, Allahabad & the Manager, M/s
Industrial Security Services, 4 Stratchy Road, Allahabad
for adjudication.
2. The reference under adjudication is:
"Whether the contract between the management of
M/s. Hindustan Cables Ltd., Allahabad, and the
contractor, M/s Industrial Security Services,
4, Stratchy Road, Allahabad, with regard to
employment of Shri Mohan Singh is sham and bogus?
If yes, whether the action of the management in
terminating his services w.e.f. 26/10/1999 is legal and
justified? If not, what relief the workman is entitled
to?"
3. The case of the workman, Mohan Singh, in brief, is
that he was appointed as a security guard with the opposite
party on 18.12.1995 and worked continuously, with some
artificial break, till 25.10.1999; and he was restrained from
working by the Security Officer of the management w.e.f.
25.10.1999. The workman has submitted that he was working
with the opposite party as Security Guard which is not
seasonal but perennial nature of work, and his work was
being controlled and supervised by the officers of the
opposite Party No. 01 viz. M/s. Hindustan Cables Ltd; and
accordingly, there was relationship of employee and
employer between him and the opposite Party No. 01. It is
further been submitted by the workman that he was paid
through its illegal agent i.e. opposite Party No. 02 viz.
M/s. Industrial Security Services and in spite of the fact
that he worked for more than 240 days in each calendar
year, the management of the opposite Party No. 01
terminated his services without following the provisions
of Section 25-F of the I.D. Act, 1947; and accordingly it has
been prayed by the workman that reinstated with full back
wages and his services be regularized in the M/s. Hindustan
Cables Limited, Allahabad.
4. The opposite Party No. 01 has dispute the claim of
the workman by filing it written statement, whereas the
opposite Party No. 02 viz. M/s. Industrial Security Services
did not turn up in spite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s. Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
abolition) Act, 1970; and the opposite Party No. 02 is its
contractor under the Contract Labour (Regulation and
abolition) Act, 1970 having license under the Act. The
opposite Party No. 01 has specifically submitted that it has
neither engaged the workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25-F of the I.D. Act. It is
submitted by the opposite Party No. 1 that there has never
been any sanctioned post of Security Guards in the
M/s. Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite Party No. 02 viz. M/s. Industrial Security Services
was assigned job contracts dated 27.09.1990, 01.10.1995
and 30.03.1999. It has been stated by the opposite Party
No. 01 that it had never paid any wages to the workman;
rather as per terms of contract, M/s. Industrial Security
Services used to submit its bill for payment and the
opposite Party No. 01 used to make payment to the opposite
Party No. 02 and thereafter, the workman was being paid
by the opposite Party No. 02, likewise, the opposite Party
No. 2 used to deduct the Provident Fund and ESI
contribution in respect of workman and deposit the same
with the concerned authorities hence, there was no
employer and employee relationship between the opposite
Party No. 01 and the workman. It has also been submitted
by the opposite Party No. 1 that the contract between
opposite Party No. 1 and opposite Party No. 2 came to an
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
end on 30th June, 2000 and accordingly, the security
personnel deployed by M/s. Industrial Security Services
were withdrawn by them on 30.06.2000 itself; and this does
not amount to termination of services or termination in
violation to the provisions of I.D. Act, 1947. Accordingly,
the opposite Party No. 01 has prayed that the claim of the
workman be rejected without any relief to him being devoid
of merit.
6. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself,
whereas the management examined Shri Sanjeev Ratan,
Vice President of the Workers' Union and Shri S. N.
Lakhorkar, Dy. Manager (Personnel & Relation) in support
of their respective stands. The parties availed opportunity
to cross-examine the witnesses of each other apart from
forwarding oral arguments.
8. Heard the authorized representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
Party No. 01 on 18.12.1995 as Security Guard and worked
as such till 25.10.1999 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reason in contravention to the
provisions of Section 25 F of the I.D. Act, 1947.
10. In rebuttal, the opposite Party No. 01's
representative has contended that the workman is
contractor's employee as the opposite party has undergone
a contract with the M/s. Industrial Security Services for
supply of security personnel, and accordingly the workman
was one of the security guard supplied by M/s. Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite Party No. 01
neither appointed the workman nor terminated his services,
rather his employment was regulated by M/s. Industrial
Security Services and the same came to an end with the
end of contract with the agency, hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my thoughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
12. The workman in his statement on oath has stated
that he had been appointed in the M/s. Hindustan Cables
Ltd. On 20.12.1996 after interview and the duties performed
by him were regular nature and no contract for such work
could be given to any contractor and also the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment letter from HCL; however he
was being paid salary by the HCL which amounted to
approximately Rs. 1650 per month in 1995. He has stated
that paper No. 10/42 to 10/46 is the page of his pass book
(Provident Fund) and it bears the signatures and stamp of
Industrial Security Services. It was also stated that paper
No. 10/1 to 10/42 is salary slip, wherein office's name is
mentioned as ISS i.e. Industrial Security Services. He has
also admitted that in the written statement filed by him
before Labour Tribunal, he has mentioned this fact that he
had been appointed in HCL through ISS.
13. The management witness, Shri Sanjeev Ratan,
Vice President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an employee of the HCL; however the
workman was security guard of the Industrial Security
Services, and the Industrial Security Service used to arrange
duty of their security guards, take their attendance and
makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness,
S.N. Lakhorkar stated that opposite Party No. 1 given the
security work contract to M/s. Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always carried out on contract basis as there was
no sanctioned post of Security Guard. The HCL has been
registered on 12.08.1988 under Contract Labour (Regulation
& Abolition) Act, 1970. He has also stated that the workman
was temporary guards of M/s. Industrial Security Services
and the HCL never entered into any contract with respect
to the services of the workman. He further stated that there
is recruitment policy in HCL and recruitment is made as per
prescribed procedure in the recruitment policy He stated
that the workman was employed by the M/s. Industrial
Security Services and the workman was never got any
payment by the HCL; rather the payment was made through
the Contractor; likewise his contribution towards Provident
Fund and ESI is being deducted by the Contractor. In
cross-examination it was admitted that there is no sanctioned
post of Security Guard in the HCL and security work is
being done by the agencies and the work of guards were
supervised by the Security Officers of the Industrial Security
Services. It is stated by management witness that the HCL
neither appoints any one nor removes any one. the
workman was employee of the M/s. Industrial Security
Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Guard and worked continuously with some
artificial breaks for more than 240 days in each calendar
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year; and his services have been terminated by the
management without following the mandatory provisions
of the Industrial Disputes Act, 1947. In the support of his
pleading he has filed photocopy of following documents:
(i) Judgment dated 12.01.2009 of Hon'ble High Court,
Allahabad in Civil Misc. Writ Petition No. 29283/
200.
(ii) Award dated 21.12.2006 of Industrial Tribunal,
Allahabad.
(iii) Pass Book of EPF.
(iv) Payment Slip.
15. Per contra, the opposite Party No. 2 has not turned
up to contest the case since the very inception of the
proceedings before this Tribunal, whereas the opposite
party No. 1 has come with case that the workman concerned
is not their employee, rather he is an employee of the
opposite party No. 2 i.e. M/s. Industrial Security Services
whose services as Security Guard were provide to them by
the said agency, in pursuance to the contract for supply of
security guards. It is also the case of the management that
there is no sanctioned post of Security Guard in their
establishment and the security work is being done through
agencies on contractual basis, and accordingly, the
opposite party No. 1 entered into a contract with M/s.
Industrial Security Services to provide Security Guards
w.e.f. 01.05.1990 to 30.06.2000. The opposite party has
pleaded that it neither appointed the workman nor supervise
his duties, nor made any payment to the workman nor
terminated his services at any point of time. Moreover, it is
also contended that the workman was an employee of the
contracting agency, his work was supervised by the agency
and was paid by the agency his PF and ESI subscription as
deducted and deposited by the agency and his services
were regulated by the contracting agency i.e. M/s. Industrial
Security Services. In this regard the management has come
forward with photo copy of various documents including
following:—
(i) Copy of Job Contract/Agreement dated
30.03.1999, 01.10.1995 and 27.09.1990.
(ii) Copy of letter regarding termination of contract
w.e.f. 30.06.2000.
(iii) Copy of M/s. Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letters issued by M/s. Industrial
Security Services regarding posting/transfer of
Security Guards/Security Officers etc.
(v) Copy to bank payment voucher as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI challan etc.
(vii) Copy of written statement in adjudication
case No. 33/2002 between M/s. Hindustan Cables
Ltd. & M/s. Industrial Security Services Vs.
Mohan Singh.
16. The terms of reference requires to adjudicate the
validity of contract between the management of M/s.
Hindustan Cables Ltd. and M/s. Industrial Security Services
with regard to the employment of the workman. In this
regard there is very specific pleading from the management
of M/s. Hindustan Cables Ltd. That there is no sanctioned
post in their establishment and the security work is carried
out by some agency on contract. In support of its
contention the management of M/s. HCL has filed
photocopies of registration certificate under Contract
Labour of (Regulation & Abolition) Act, 1970 and
photocopies of contract/agreement dated 30.03.1999,
01.10.1995 and 27.09.1990. The registration certificate dated
12.08.88 issued by Dy. Labour Commissioner, Uttar Pradesh
clearly mentions the name of M/s. Industrial Security
Services, Allahabad for providing security work through
41 workmen: and the terms to agreement between
M/s. HCL and M/s. Industrial Security Services shows
that M/s. Industrial Security Services/contractor was
required to supply security guards. From perusal of the
contract agreements it is apparent that the said contract
for supply of security guards came into effect from 01
05.1990, 30.06.2000. However there is no whisper of
existence of any contract between M/s. HCL and M/s.
Industrial Security Services or supply of security guard in
the statement of claim filed by the workman before this
Tribunal. Likewise the workman has not challenge the
validity of the contract entered between the opposite Party
No. 1 and opposite Party No. 2, rather he has pleaded that
he was appointed by the opposite Party No. 2 and was an
employee of the opposite Party No 1. On the contrary the
management of M/s. HCL has pleaded that it was in an
agreement with the M/s. Industrial Security Services for
supply of security guards and the workman was one of
them. The workman in his evidence also has not come
forward with the evidence that that the contract between
the opposite parties was sham and bogus, therefore, he
may be treated as employee i.e. the principle employer of
M/s. Hindustan Cable Ltd. On the contrary he has come up
with the evidence that he was employee of the HCL and M/
s. Industrial Security Services has no existence.
17. In view of the discussions made herein move
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and submissions
of the management of M/s. Hindustan Cables Ltd.
regarding existence of contract between itself and
M/s. Industrial Security Services with supportive
documentary evidence. I am of the opinion that the contract
between M/s. Hindustan Cables Ltd. and M/s. Industrial
Security Services for supply of security guards was neither
sham nor bogus.
2026
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
18. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f.
26.10.1999 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25 F of the Industrial Disputes
Act, 1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and another Vs. Jethabhai Pitamberbhai Hon'ble
Apex Court came to the conclusion that where the workman
failed to prove that he had been in employment with the
employer for a period of 240 clays uninterruptedly, he is
not entitled to protection in compliance of section 25 - F of
the Industrial Disputes Act 1947. It was held by the Hon'ble
Supreme Court that the scope of the enquiry before the
Labour Court was confined only to 12 months preceding
the date of termination to decide the question of the
continuous service for the purpose of section 25-F of the
Industrial Disputes Act, 1947. Further, Hon'ble Apex Court
has observed as under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit
under section 25-F of the Industrial Disputes Act. It
is now well settled that it is for the claimant to lead
evidence to show that he in fact worked for 240 days
in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25F of the Act, it is
necessary for the claimant to lead evidence to the effect
that he was actually in employment of the opposite party
for 240 days in the year preceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen worked for 240 days
with the management of the HCL in twelve calendar months
preceding the date of termination. The photocopy of the
documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears 'Name of Office to ISS (Industrial Security
Services), HCL, Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and not with the HCL. Likewise, the photocopy of
EPF deduction and Wages Slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has utterly failed to substantiate
this fact that he worked for 240 days in a year preceding
the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Security Services as security Guard in the HCL, this includes
copy of agreement, copies of letters issued by M/s.
Industrial Security Services regarding posting/transfer of
Security Guards/Security Officers etc., copy to bank
payment voucher as service charge of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF challan and ESI
challan etc. Apart from this the copy of written statement
in adjudication case No. 33/2002 between M/s. Hindustan
Cables Ltd. & M/s. Industrial Security Services Vs. Mohan
Singh goes to show that the workman himself had pleaded
before Industrial Tribunal that he was appointed on
temporary basis in M/s. Industrial Security Services and
deduction towards EPF and ESI is being made by
M/s. Industrial Security Services and being deposited in
the Government account by M/s. Industrial Security
Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdiction of the court must fail. In the present
case burden was on the workman to set out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding his alleged termination. In (2002) 3 SCC 25 Range
Forest Officer Vs. S.T. Hadimam Hon'ble Apex Court has
observed as under:
"It was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days or order or record of
appointment or engagement for that period was
produced by the workman. On this ground alone,
the award is liable to be set aside."
20. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (103) FLR
R. M. Yellatti & Asstt. Executive Engineer as follow:
"It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
¹Hkkx II—[k.M 3(ii)º
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2027
workman stepping in the witness box. This burden
is discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus, in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for
240 days in a given year. The above judgements
further lay down that mere non production of muster
rolls per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy in
support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination; but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e.
EPF pass book goes contry to his stand. Hence, the
workman could not establish that there was any employee
and employer relationship between him and the opposite
Party No. 1.
21. On the other hand the management has well
proved its case by filing copy of the contract with the
M/s. Industrial Security Services the security guards were
required to be paid through the contractor. Also, the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that
that the workman was an employee of the opposite Party
No. 2 i.e. M/s. Industrial Security Services and he had
been deployed by the opposite Party No. 2 to carry out the
work of security guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for
240 days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden there is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust or illegal order of termination was passed by the
management.
22.Thus in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contact between the
management of M/s. Hindustan Cables Ltd., Allahabad,
and the contractor. M/s. Industrial Security Services,
4, Stratchy Road, Allahabad with regard to employment of
Shri Mohan Singh was neither sham nor bogus the workman
could not be able to prove to through cogent evidence
that there was a relationship of employee and employer
between him and the opposite Party No. 1 viz.
M/s. Hindustan Cables Ltd. rather from the evidence
adduced it is established that he was and an employee of
the contractor viz. M/s. Industrial Security Services,
therefore, the workman could not be granted the relief of
retrenchment compensation or any other relief sought by
the workman against the M/s. Hindustan Cables Ltd the
reference under adjudication is answered accordingly.
23. Award as above.
LUCKNOW
25th November, 2013
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 756.— vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj eSustj ¼g j Mh½]
fganqLrku dscYl fyfeVsM ,aM vkWFklZ] bykgkckn ds izca/kra= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;] y[kuÅ ds iapkV ¼lanHkZ la[;k 47@2009½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 03@02@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@36@2009&vkbZvkj ¼Mh;w½]
ihñdsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 756.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 47/2009)
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
Phenahagoment. The Manager (HRD), Hindustan Cables
Limited and Others, Allahabad and their workman, which
was received by the Central Government on 03/02/2014.
[No. L-42012/36/2009-IR(DU)]
P. K.VENUGOPAL, Section Officer
2028
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT,
LUCKNOW
PRESENT:
Dr. Manju Nigam,
PRESIDING OFFICER
I D No 47/2009
Ref No L-42012/36/2009-IR(DU)
dated: 09.10.2009
BETWEEN
Shri Jagdish Narain Gaur
Village Khataingia, Post Jasra Allahabad
AND
1
The Manager
HRD, Hindustan Cables Limited, Naini,
Allahabad
2.
The Manager,
M/s Industrial Security Services
4. Stratchy Road Allahabad.
AWARD
1. By order No. L-42012/36/2009-IR(DU)
dated 09.10.2009 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 Jagdish Narain Gaur, Village
Khataingia, Post Jasra, Allahabad and the Manager HRD
Hindustan Cables Limited. Naini, Allahabad & the Manager
M/s Industrial Security Services, 4, Stratchy Road,
Allahabad for adjudication.
2. The reference under adjudication is:
"Whether the contract between the management of
M/s. Hindustan Cables Ltd., Allahabad, and the
contractor, M/s. Industrial Security Services,
4, Stratchy Road, Allahabad, with regard to
employment of Shri Jagdish Narain Gaur is sham and
bogus? If yes, whether the action of the management
in terminating his services w.e.f. 26/10/1999 is legal
and justified? if not, what relief the workman is
entitled to?"
3. The case of the workman, Jagdish Narain Gaur, in
brief, is that he was appointed as a security guard with the
opposite party on 07.06.1996 and worked continuously,
with some artificial break, till 25.10.1999, and he was
restrained from working by the Security Officer of the
management w.e.f. 25.10.1999. The workman has submitted
that he was working with the opposite party as Security
Guard which is not seasonal, but perennial nature of work;
and his work was being controlled and supervised by the
officers of the opposite Party No. 1 viz. M/s. Hindustan
Cables Ltd and accordingly, there was relationship of
employee and employer between him and the opposite Party
No. 01. It is further been submitted by [he workman that he
was paid through its illegal agent i.e. opposite Party No. 2
viz. M/s. Industrial Security Services and in spite of the
fact that he worked for more than 240 days in each calendar
year, the management of the opposite Party No. 1
terminated his services without following the provisions
of Section 25-F of the I.D. Act. 1947; and accordingly it has
been prayed by the workman that reinstated with full back
wages and his services be regularized in the M/s. Hindustan
Cables Limited, Allahabad.
4. The opposite Party No. 1 has dispute the claim of
the workman by filing it written statement; whereas the
apposite Party No. 2 viz. M/s. Industrial Security Services
did not turn up in spite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s. Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
abolition) Act, 1970; and the opposite Party No. 2 is its
contractor under the Contract Labour (Regulation and
abolition) Act, 1970 having license under the Act The
opposite Party No. 1 has specifically submitted that it has
neither engaged he workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25-F of the I.D. Act. It is
submitted by the opposite Party No. 1 that there has never
been any sanctioned post of Security Guards in the
M/s. Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite Party No. 2 viz. M/s Industrial Security Services
was assigned job contracts dated 27.09.1990, 01.10.1995
and 30.03.1999. It has been stated by the opposite Party
No. 1 that it had never paid any wages to the workman;
rather as per terms of contract, M/s. Industrial Security
Services used to submit its bill for payment and the
opposite Party No. 1 used to make payment to the opposite
Party No. 2 and thereafter, the workman was being paid by
the opposite Party No. 2. likewise, the opposite No. 2 used
to deduct the Provident Fund and ESI contribution in
respect of workman and deposit the same with the concerned
authorities; hence, there was no employer and employee
relationship between the opposite Party No. 1 and the
workman. It has also been submitted by the opposite party
No 1 that the contract between opposite Party No. 1 and
opposite Party No. 2 came to an end on 30th June, 2000 and
accordingly, the security personnel deployed by
M/s. industrial Security Services were withdrawn by them
on 30.06.2000 itself; and this does not amount to termination
of services or termination in violation to the provisions of
I.D. Act, 1947. Accordingly, the opposite Party No. 1 has
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2029
prayed that the claim of the workman be rejected without
any relief to him being devoid of merit.
6. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself;
whereas the management examined Shri Sanjeev Ratan.
Vice President of the Workers' Union and Shri S. N.
Lakhorkar, Dy. Manager (Personnel & Relation) in support
of thieir respective stands The parties availed opportunity
to cross-examine the witnesses of each other apart from
forwarding oral arguments.
8. Heard the authorized representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
Party No. 1 on 07.06.996 as Security Guard and worked as
such till 25.10.1999 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reason in contravention to the
provisions of Section 25 F of the I.D. Act 1947.
10. In rebuttal, the opposite Party No. 1's
representative has contended that the workman is
contractor's employee as the opposite party has undergone
a contract with the M/s. Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s. Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite Party No. 1
neither appointed the workman nor terminated his services;
rather his employment was regulated by M/s. Industrial
Security Services and the same came to an end with the
end of contract with the agency hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my thoughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
12. The workman in his statement on oath has stated
that he had been appointed in the M/s. Hindustan Cables
Ltd. On 07.06.1991 after interview and the duties performed
by him were regular nature and no contract or such work
could be given to any contractor and also the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment letter from HCL; however he
was being paid salary by the HCL which amounted to
approximately Rs. 1800/- per month. He has stated that
paper No. 10/21 to 10/29 is his GPF pass book. He has also
stated that he filed case before Industrial Tribunal also:
wherein he fried written statement.
13. The management witness, Shri Sanjeev Ratan,
Vice President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an employee of the HCL; however the
workman was security guard of the Industrial Security
Services; and the Industrial Security Service used to
arrange duty of their security guards, take their attendance
and makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness,
S.N. Lakhorkar stated that opposite Party No 1 given the
security work contract to M/s Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always carried out on contract basis as there
was no sanctioned post of Security Guard. The HCL has
been registered on 12.08.1988 under Contract Labour
(Regulation & Abolition) Act. 1970. He has also stated
that the workman was temporary guards of M/s Industrial
Security Services and the HCL never entered into any
contract with respect to (he services of the workman. He
further stated that there is recruitment policy in HCL and
recruitment is made as per prescribed procedure in the
recruitment policy. He stated that the workman was
employed by the M/s. Industrial Security Services and
the workman was never got any payment by the HCL;
rather the payment was made through the Contractor,
likewise his contribution towards Provident Fund and
ESI is being deducted by the Contractor. In
cross-examination, it was admitted that there is no
sanctioned post of Security Guard in the HCL and security
work is being done by the agencies and the work of guards
were supervised by the Security Officers of the Industrial
Security Services. It is stated by management witness
that the HCL neither appoints any one nor removes any
one, the workman was employee of the M/s. Industrial
Security Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Guard and worked continuously with some
artificial breaks for more than 240 days in each calendar
year; and his services have been terminated by the
management without fallowing the mandatory provisions
of the Industrial Disputes Act. 1947. In the support of his
pleading he has filed photocopy of following documents:
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
(i) Judgment dated 12.01.2009 of Hon'ble High Court,
Allahabad in Civil Misc. Writ Petition No. 29283/
200.
(ii) Award dated 21.12.2006 of Industrial Tribunal,
Allahabad.
(iii) Pass Book of EPF.
(iv) Payment Slip.
15. Per contra, the opposite party No. 2 has not turned
up to contest the case since the very inception of the
proceedings before this Tribunal; whereas the opposite
party No. 1 has come with case that the workman concerned
is not their employee; rather he is an employee of the
opposite party No. 2 i.e. M/s. Industrial Security Services
whose services as Security Guard were provide to them by
the said agency, in pursuance to the contract for supply of
security guards. It is also the case of the management that
there is no sanctioned post of Security Guard in their
establishment and the security work is being done through
agencies on contractual basis; and accordingly, the
opposite party No. 1 entered into a contract with M/s.
Industrial Security Services to provide Security Guards
w.e.f.01.05.1990 to 30.06.2000. The opposite party has
pleaded that it neither appointed the workman nor supervise
his duties, nor made any payment to the workman nor
terminated his services at any point of time. Moreover, it is
also contended that the workman was an employee of the
contracting agency, his work was supervised by the agency
and was paid by the agency, his PF and ESI subscription
as deducted and deposited by the agency and his services
were regulated by the contracting agency i.e. M/s. Industrial
Security Services. In this regard the management has come
forward with photo copy of various documents including
following:
(i) Copy of Job Contract/Agreement dated 30-03-
1999, 01-10-1995 and 27-09-1990.
(ii) Copy of letter regarding termination of contract
w.e.f.30.06.2000.
(iii) Copy of M/s. Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letter issued by M/s. Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officers etc.
(v) Copy of bank payment voucher as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI challan etc.
(vii) Copy of written statement in adjudication case
No. 35/2002 between M/s. Hindustan Cables Ltd.
& M/s. Industrial Security Services Vs. Jagdish
Narain Gaur Singh.
16. The terms of reference requires to adjudicate the
validity of contract between the management of
M/s. Hindustan Cables Ltd. and M/s. Industrial Security
Services with regard to the employment of the workman. In
this regard there is very specific pleading from the
management of M/s. Hindustan Cables Ltd. that there is
no sanctioned post in their establishment and the security
work is carried out by some agency on contract. In support
of its contention, the management of M/s. HCL has filed
photocopies of registration certificate under Contract
Labour (Regulation & Abolition) Act, 1970 and photocopies
of contract/agreement dated 30.03.1999, 01.10.1995 and
27.09.1990. The registration certificate dated 12.08.88 issued
by Dy. Labour Commissioner, Uttar Pradesh clearly
mentions the name of M/s. Industrial Security Services,
Allahabad for providing 'security work' through 41
workmen; and the terms to agreement between M/s. HCL
and M/s. Industrial Security Services shows that
M/s. Industrial Security Services/contractor was required
to supply security guards. From perusal of the contract
agreements it is apparent that the said contract for supply
of security guards came into effect from 01.05.1990 to
30.06.2000. However, there is no whisper of existence of
any contract between M/s. HCL and M/s. Industrial
Security Services for supply of security guard in the
statement of claim filed by the workman before this Tribunal.
Likewise the workman has not challenge the validity of the
contract entered between the opposite party No. 1 and
opposite party No. 2; rather he has pleaded that he was
appoint by the opposite party No. 1 and was an employee
of the opposite party No. 1. On the contrary the management
of M/s. HCL has pleaded that it was in an agreement with
the M/s. Industrial Security Services for supply of security
guards and the workman was one of them. The workman in
his evidence also has not come forward with the evidence
that the contract between the opposite parties was sham
and bogus, therefore, he may be treated as employee of the
principle employer i.e. M/s. Hindustan Cable Ltd. On the
contrary he has come up with the evidence that he was
employee of the HCL and M/s. Industrial Security Services
has no existence.
17. In view of the discussions made hereinabove,
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and submissions
of the management of M/s. Hindustan Cables Ltd. regarding
existence of contract between itself and M/s. Industrial
Security Services with supportive documentary evidence,
I am of the opinion that the contract between M/s. Hindustan
Cables Ltd. and M/s. Industrial Security Services for supply
of security guards was neither sham nor bogus.
18. As regard second part of the reference regarding
validity of termination of the services of the workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2031
w.e.f.26.10.1999 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and another vs. Jethabhai Pitamberbhai Hon'ble
Apex Court came to the conclusion that where the workman
failed to prove that he had been in employment with the
employer for a period of 240 days uninterruptedly, he is not
entitled to protection in compliance of section 25-F of the
Industrial Disputes Act, 1947. It was held by the Hon'ble
Supreme Court that the scope of the enquiry before the
Labour Court was confined only to 12 months preceding
the date of termination to decide the question of the
continuous service for the purpose of section 25-F of the
Industrial Disputes Act, 1947. Further, Hon'ble Apex Court
has observed as under:
"The claimant, apart his oral evidence has not
produced and proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit
under section 25-F of the Industrial Dispute Act. It is
now well settled that it is for the claimant to lead
evidence to show that he in fact worked for 240 days
in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25F of the Act, it is
necessary for the claimant to lead evidence to the effect
that he was actually in employment of the opposite party
for 240 days in the year preceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen worked for 240 days
with the management of the HCL in twelve calendar months
preceding the date of termination. The photocopy of the
documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears 'Name of Office to ISS (Industrial Security
Services), HCL, Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and not with the HCL. Likewise, the photocopy of
EPF deduction and Wages Slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has utterly failed to substantiate
this fact that he worked for 240 days in a year preceding
the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Security Services as security Guard in the HCL, this includes
copy of agreement, copies of letters issued by
M/s. Industrial Security Services regarding posting/transfer
of Security Guards/Security Officers etc., copy to bank
payment voucher as service charge of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF challan and ESI
challan etc. Apart from this the copy of written statement
in adjudication case No. 35/2002 between M/s. Hindustan
Cables Ltd. & M/s. Industrial Security Services vs. Jagdish
Narain Gaur goes to show that the workman himself had
pleaded before Industrial Tribunal that he was appointed
on temporary basis in M/s. Industrial Security Services
and deduction towards EPF and ESI is being made by M/s.
Industrial Security Services and being deposited in the
Government account by M/s. Industrial Security Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdiction of the court must fail. In the present
case burden was on the workman to set out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding his alleged termination. In (2002) 3 SCC 25 Range
Forest Officer vs. S.T. Hadimani Hon'ble Apex Court has
observed as under:
"It was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
tribunal to come to the conclusion that a workman
had in fact, worked for 240 days or order or record of
appointment or engagement for that period was
produced by the workman. On this ground alone,
the award is liable to be set aside."
20. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108) FLR
R.M. Yellatti & Asstt. Executive Engineer as follow:
"It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
2032
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus, in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy in
support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination; but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e.
EPF pass book goes contrary to his stand. Hence, the
workman could not establish that there was any employee
and employer relationship between him and the opposite
party No. 1.
21. On the other hand the management has well
proved its case by filing copy of the contract with the M/s
Industrial Security Services the security guards were
required to be paid through the contractor. Also, the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that the
workman was an employee of the opposite party No. 2 i.e.
M/s. Industrial Security Services and he had been deployed
by the opposite party No. 2 to carry out the work of security
guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust or illegal order of termination was passed by the
management.
22. Thus, in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services, 4,
Stretchy Road, Allahabad, with regard to employment of
Shri Jagdish Narain Gaur was neither sham nor bogus. The
workman could not be able to prove to through cogent
evidence that there was a relationship of employee and
employer between him and the opposite party No. 1 viz. M/
s. Hindustan Cables Ltd.; rather from the evidence adduced
it is established that he was and an employee of the
contractor viz. M/s. Industrial Security Services, therefore,
the workman could not be granted the relief of retrenchment
compensation or any other relief sought by the workman
against the M/s. Hindustan Cables Ltd. The reference under
adjudication is answered accordingly.
23. Award as above.
Lucknow
25.11.2013
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 757.— vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj esustj ¼g j Mh½]
fganqLrku dscYl fyfeVsM ,aM vkWFklZ] vykgkckn ds izca/kra= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky; y[kuÅ ds iapkV ¼lanHkZ la[;k 48@2009½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 03@02@2014 dks izkIr gqvk FkkA
[lañ-,y-42012/37/2009-vkbZ vkj (Mh;w)]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 757.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 48/2009)
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 The Manager (HRD), Hindustan Cables
Limited and Others, Allahabad and their workman, which
was received by the Central Government on 03/02/2014
[No. L-42012/37/2009-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT : Dr. MANJU NIGAM, Presiding Officer
I.D. No. 48/2009
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2033
Ref. No. L-42012/37/2009-IR(DU) dated: 08.10.2009
BETWEEN
Shri Ram Avadh Yadav
Vill. Kathinagar, PO Mu Grhi (Muraina)
Raibareli.
AND
1. The Manager
HRD, Hindustan Cables Limited, Naini
Allahabad.
2. The Manager
M/s. Industrial Security Services
4, Stratchy Road
Allahabad.
AWARD
1. By order No. L-42012/37/2009-IR(DU) dated:
08.10.2009 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 Ram Avadh Yadav, Vill.
Kathinagar, PO Mu Grhi (Muraina), Raibareli and the
Manager, HRD, Hindustan Cables Limited, Naini, Allahabad
& the Manager, M/s Industrial Security Services, 4, Stratchy
Road, Allahabad for adjudication.
2. The reference under adjudication is:
"Whether the contract between the management of
M/s Hindustan Cables Ltd., Allahabad, and the
contractor, M/s Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to Employment
of Shri Ram Avadh Yadav is sham and bogus? If Yes,
whether the action of the management in terminating
his services w.e.f.22/01/2000 is legal and justified? If
no, what relief the workman is entitled to?"
3. The case of the workman, Ram Avadh Yadav, in
brief, is that he was appointed as a security guard with the
opposite party on 18.11.1992 and worked continuously,
with some artificial break, till 22.01.2000; and he was
restrained from working by the Security Officer of the
management w.e.f. 25.01.2000. The workman has submitted
that he was working with the opposite party as Security
Guard which is not seasonal, but perennial nature of work;
and his work was being controlled and supervised by the
officers of the opposite party No. 1 viz. M/s Hindustan
Cables Ltd.; and accordingly, there was relationship of
employee and employer between him and the opposite party
No. 1. It is further been submitted by the workman that he
was paid through its illegal agent i.e. opposite party No. 2
viz. M/s Industrial Security Services and in spite of the fact
that he worked for more than 240 days in each calendar
year, the management of the opposite party No, 1
terminated his services without following the provisions
of Section 25 F of the I.D. Act, 1947; and accordingly it has
been prayed by the workman that reinstated with full back
wages and his services be regularized in the M/s Hindustan
Cables Limited, Allahabad.
4. The opposite party No. 1 has dispute the claim of
the workman by filing it written statement; whereas the
opposite party No. 2 viz. M/s Industrial Security Services
did not turn up in spite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
abolition) Act, 1970; and the opposite party No. 2 is its
contractor under the Contract Labour (Regulation and
abolition) Act, 1970 having license under the Act. The
opposite party No. 1 has specifically submitted that it has
neither engaged he workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25 F of the I.D. Act. It is
submitted by the opposite party No. 1 that there has never
been any sanctioned post of Security Guards in the M/s
Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite party No. 2 viz. M/s Industrial Security Services
was assigned job contracts dated 27.09.1990, 1.10.1995 and
30.03.1999. It has been stated by the opposite party No. 1
that it had never paid any wages to the workman; rather as
per terms of contract, M/s Industrial Security Services used
to submit its bill for payment and the opposite party No. 1
used to make payment to the opposite party No. 2 and
thereafter, the workman was being paid by the opposite
party No. 2; likewise, the opposite No. 2 used to deduct the
Provident Fund and ESI contribution in respect of workman
and deposit the same with the concerned authorities;
hence, there was no employer and employee relationship
between the opposite party No. 1 and the workman. It has
also been submitted by the opposite party No. 1 that the
contract between opposite party No. 1 and opposite party
No. 2 came to an end on 30th June, 2000 and accordingly,
the security personnel deployed by M/s Industrial Security
Services were withdrawn by them on 30.06.2000 itself; and
this does not amount to termination of services or
termination in violation to the provisions of I.D. Act, 1947.
Accordingly, the opposite party No. 1 has prayed that the
claim of the workman be rejected without any relief to him
being devoid of merit.
6. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself;
whereas the management examined Shri Sanjeev Ratan,
2034
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Vice President of the Workers' Union and Shri S.N. Lakhorkar,
Dy. Manager (Personnel & Relation) in support of their
respective stands. The parties availed opportunity to cross-
examine the witnesses of each other apart from forwarding
oral arguments.
8. Heard the authorized representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
party No. 1 on 18.11.1992 as Security Guard and worked as
such till 22.01.2000 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reason in contravention to the
provisions of Section 25 F of the I.D. Act, 1947.
10. In rebuttal, the opposite party No. 01's
representative has contended that the workman is
contractor's employee as the opposite party has undergone
a contract with the M/s Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite party No. 01
neither appointed the workman nor terminated his services;
rather his employment was regulated by M/s Industrial
Security Services and the same came to an end with the
end of contract with the agency; hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my throughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
12. The workman in his statement on oath has stated
that he had been appointed in the M/s Hindustan Cables
Ltd. On 18.11.1992 after interview and the duties performed
by him were regular nature and no contract for such work
could be given to any contractor and also the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment/termination letter from HCL.
He has stated that paper No. 10/1 to 10/8 is salary slip and
paper No. 10/4 is his EPF pass book. He has also stated
that paper No. 16/67 is claim statement which bears his
signatures.
13. The management witness, Shri Sanjeev Ratan,
Vice President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an empolyee of the HCL; however the
workman was security guard of the Industrial Security
Services; and the Industrial Security Service used to arrange
duty of their security guards, take their attendance and
makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendence and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness,
S.N. Lakhorkar stated that opposite party No. 1 given the
security work contract to M/s Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always carried out on contract basis as there was
no sanctioned post of Security Guard. The HCL has been
registered on 12.08.1988 under Contract Labour (Regulation
& Abolition) Act, 1970. He has also stated that the workman
was temporary guards of M/s Industrial Security Services
and the HCL never entered into any contract with respect
to the services of the workman. He further stated that there
is recruitment policy in HCL and recruitment is made as per
prescribed procedure in the recruitment policy. He stated
that the workman was employed by the M/s Industrial
Security Services and the workman was never got any
payment by the HCL; rather the payment was made through
the Contractor; likewise his contribution towards Provident
Fund and ESI is being deducted by the Contractor. In cross-
examination it was admitted that there is no sanctioned
post of Security Guard in the HCL and security work is
being done by the agencies and the work of guards were
supervised by the Security Officers of the Industrial Security
Services. It is stated by management withness that the
HCL neither appoints any one nor removes any one, the
workman was employee of the M/s Industrial Security
Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Guard and worked continuously with some
artificial breaks for more than 240 days in each calendar
year; and his services have been terminated by the
management without following the mandatory provisions
of the Industrial Disputes Act, 1947. In the support of his
pleading he filed photocopy of following documents:
(i) Judgment dated 12.01.2009 of Hon'ble High Court,
Allahabad in Civil Misc. Writ Petition No. 29283/
200.
(ii) Award dated 21.12.2006 of Industrial Tribunal,
Allahabad.
(iii) Pass Book of EPF.
(iv) Payment slip.
15. Per contra, the opposite party No. 02 has not
turned up to contest the case since the very inception of
the providings before this Tribunal; whereas the opposite
party No. 01 has come with case that the workman
concerned is not their employee; rather he is an employee
of the opposite party No. 02 i.e. M/s. Industrial Security
Services whose services as Security Guard were provide
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to them by the said agency, in pursuance to the contract
for supply of security guards. It is also case of the
management that there is no sanctioned post of Security
Guard in their establishment and the security work is being
done through agencies on contractual basis';and
accordingly, the opposite Party No. 01 entered into a
contract with M/s. Industrial Security Services to provide
Security Guards w.e.f. 01.05.1990 to 30.06.2000. The opposite
party has pleaded that it neither appointed the workman
nor supervise his duties, nor made any payment to the
workman nor terminated his services at any point of time.
Moreover, it is also contended that the workman was an
employee of the contracting agency, his work was
supervised by the agency and was paid by the agency, his
PF and ESI subscription as deducted and deposited by
the agency and his services were regulated by the
contracting agency i.e. M/s Industrial Security Services.
In this regard the management has come forward with photo
copy of various documents including following:
(i) copy of Job contract/Agreement dated 30.03.1999,
01.10.1995 and 27.091990.
(ii) Copy of letter regarding termination of contract
w.e.f.30.06.2000.
(iii) Copy of M/s Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letter issued by M/s/ Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officers etc.
(v) Copy to bank payment vouchur as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI challan etc.
(vii) Copy of written statement in adjudication case
No. 36/2002 between M/s Hindustan Cables Ltd.
& M/s. Industrial Security Services vs Ram Avadh
Yadav.
16. The terms of reference requires to adjudicate the
validity of contract between the management of M/s.
Hindustan Cables Ltd. And M/s. Industrial Security
Services with regard to the employment of the workman. In
this regard there is very specific pleading from the
management of M/s. Hindustan Cables Ltd. That there is
no sanctioned post in their establishment and the security
work is carried out by some agency on contract. In support
of its contention,the management of M/s HCL has filed
photocopies of registration certificate under contract
Labour (Regulation & Abolition) Act, 1970 and photocopies
of contract/agreement dated 30.03.1999, 01.10.1995 and
27.09.1990. The registration certificate dated 12.08.88 issued
by Dy. Labour Commissioner, Uttar Pradesh clearly mention
the name of M/s. Industrial Security Services Allahabad
for providing 'security work' through 41 workmen; and the
terms to agreement between M/s. HCL and M/s. Industrial
Security Services shows that M/s Industrial Security
Services/contractor was required to supply security guards.
From perusal of the contract agreements it is apparent that
the said contract for supply of security guards came into
effect from 01.05.1990, 30.06.2000. However,there is no
whisper of existence of any contract between
M/s. HCL and M/s. Industiral Security Services for supply
of security guard in the statement of claim filed by the
workman before this Tribunal. Likewise the workman has
not challenge the validity of the contract entered between
the opposite party No. 01 and opposite party No. 02; rather
he has pleaded that he was appointed by the opposite
party No. 01 and was an employee of the opposite party
No. 01. On the contrary the management of M/s HCL has
pleaded that it was in an agreement with the M/s. Industrial
Security Services for supply of security guards and the
workman was one of them. The workman in his evidence
also has not come forward with the evidence that the
contract between the opposite parties was sham and bogus,
therefore, he may be treated as employee of the principle
employer i.e. M/s Hindustan Cable Ltd. On the contrary he
has come up with the evidence that he was employee of
the HCL and M/s Industrial Security Services has no
existence.
17. In view of the discussion made hereinabove,
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and submissions
of the management of M/s. Hindustan Cables Ltd.
Regarding existence of contract between itself and
M/s. Industrial Security Services with supportive
documentary evidence, I am of the opinion that the contract
between M/s. Hindustan Cables Ltd. And M/s. Industrial
Security Services for supply of security guards was neither
sham nor bogus.
18. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f.
22.01.2000 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and another v. Jethabhai Pitamberbhai Hon'ble
apex court came to the conclusion that where the workman
failed to prove that he had been in employment with the
employer for a period of 240 days uninterruptedly, he is not
entitled to protection in compliance of section 25 F of the
Industrial Disputes Act, 1947. It was held by the Hon'ble
Supreme Court that the scope of the enquiry before the
Labour Court was confined only only to 12 months
preceding the date of termination to decide the question of
the continuous service for the purpose of section 25F of
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
the Industrial Disputes Act, 1947. Further, Hon'ble Apex
Court has observed as under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit
under section 25 F of the Industrial Disputes Act. It
is now well settled that it is for the claimant to lead
evidence to show that he in fact worked for 240 days
in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25 F of the Act, it is
necessary for the claimant to lead evidence to the effect
that the was actually in employment of the opposite part
yfor 240 days in the year preceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen worked for 240 days
with the management of the HCL in twelve calendar months
preceding the date of termination. The photocopy of the
documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears 'Name of Office to ISS (Industrial Security
Services), HCL Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and to with the HCL. Likewise, the photocopy of
EPF deduction and Wages slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has utterly failed to substantiate
this fact that he worked for 240 days in a year preceding
the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Security Services as security Guard in the HCL, this includes
copy of agreement, copies of letters issued by M/s
Industrial Security Services regarding posting /transfer of
Security Guards/Security Officers etc., copy to bank
payment voucher as service charge of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF callan and ESI
challan etc. Apart from this the copy of written statement
in adjudication case No. 36/2002 between M/s. Hindustan
Cables Ltd. & M/s. Industrial Security Services vs. Ram
Avadh Yadav goes to show that the workman himself had
pleaded before Industrial Tribunal that he was appointed
on temporary basis in M/s Industrial Security Service and
deduction towards EPF and ESI is being made by M/s.
Industrial Security Services and being deposited in the
Government account by M/s. Industrial Security Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdication of the court must fail. In the present
case burden was on the workman to set out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding this alleged termination. In (2002) 3 SCC 25 Range
Forest Officer vs. S.T. Hadimani Hon'ble Apex Court has
observed as under:
"It was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days or order or record
of appointment or engagement for that period was
produced by the workman. On this ground along,
the award is liable to be set aside".
20. Analyzing its earlier decisions on the aforesaid
point Hon'ble apex Court has observed in 2006 (108) FLR
R.M. Yellatti & Asstt. Executive Engineer as follow:
"It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgments we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
workman steping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus, in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter or discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non production of muster rolls
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2037
per se without any plea of suppression by the
claimant workman will not be the ground of the
tribunal to draw an adverse inference against the
management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy in
support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination; but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e. EPF
pass book goes contrary to his stand. Hence, the workman
could not establish that there was any employee and
employer relationship between him and the opposite party
No. 01.
21. On the other hand the management has well
proved its case by filing copy of the contract with the M/s.
Industrial Security Services the security guards were
required to be paid through the contractor. Also, the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that the
workman was an employee of the opposite party No. 02 i.e.
M/s. Industrial Security Services and he had been deployed
by the opposite party No. 02 to carry out the work of
security guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked of 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust or illegal order of termination was passed by the
management.
22. Thus, in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan Cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to employment of
Shri Ram Avadh Yadav was neither sham nor bogus. The
workman could not be able to prove to through cogent
evidence that there was a relationship of employees and
employer between him and the opposite party No. 1 viz.
M/s. Hindustan Cables Ltd.; rather from the evidence
adduced it is established that he was and employee of the
contractor viz. M/s. Industrial Security Services, therefore,
the workman could not be granted the relief of retrenchment
compensation or any other relief sought by the workman
against the M/s. Hindustan Cables Ltd. The reference
under adjudication is answered accordingly.
23. Award as above.
Dr. MANJU NIGAM, Presiding Officer
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New Delhi, the 10th February, 2014
S.O. 758.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 49/2009)
of the Central Government Industrial Tribunal/Labour
Court, Lucknow now as shown in the Annexure, in the
Industiral Dispute between the employers in relation to the
management of The Manager (HRD), Hindustan Cables
Limited and Others, Allahabad and their workman, which
was received by the Central Government on 03/02/2014.
[No. L-42012/35/2009-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. Manju Nigam, Presiding Officer
I.D.No 49/2009
Ref. No. L-42012/35/2009-IR(DU) dated: 09.10.2009
BETWEEN :
Shri Radhey Shyam S/o Shri Ram Naresh Singh
724-C, Dariabad
Allahabad
AND
1. The Manager
HRD, Hindustan Cables Limited, Naini
Allahabad
2. The Manager
M/s Industrial Security Services
4. Stratchy Road
Allahabad
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
AWARD
1. By order No. L-42012/35/2009-IR(DU) dated:
09.10.2009 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 Radhey Shyam, S/o Shri
Ram Naresh Singh, 724-C, Dariabad, Allahabad and the
Manager, HRD Hindustan Cables Limited, Naini, Allahabad
& the Manager, M/s Industrial Security Services, 4, Stratchy
Road, Allahabad for adjudication.
2. The reference under adjudication is:
"Whether the contract between the Management of
M/s Hindustan Cables Ltd. Allahabad, and the
contractor, M/s Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to Employment
of Shri Radhey Shyam is Sham and Bogus? If yes,
whether the action of the management in terminating
his services w.e.f. 26/10/1999 is legal and justified? If
not, what relief the workman is entitled to?"
3. The case of workman, Radhey Shyam, in brief, is
that he was appointed as a security guard with the opposite
party on 29.02. 1996 and worked continuously, with some
artificial break, till 25.10.1999; and he was restrained from
working by the Security Officer of the management w.e.f.
25.10.1999. The workman has submitted that he was working
with the opposite party as Security Guard which is not
seasonal, but perennial nature of work; and his work was
being controlled and supervised by the officers of the
opposite party No. 01 viz. M/s. Hindustan Cables Ltd.; and
accordingly, there was relationship of employee and
employer between him and the opposite party No. 01. It is
further been submitted by the workman that he was paid
through its illegal agent i.e. opposite party No. 02 viz. M/s
Industrial Security Services and inspite of the fact that the
worked for more than 240 days in each calendar year, the
management of the opposite party No. 01 terminated his
services without following the provisions of Section 25 F
of the I.D. Act, 1947; and accordingly it has been prayed
by the workman that reinstated with full back wages and
his services be regularized in the M/s Hindustan Cables
Limited, Allahabad.
4. The opposite party No. 01 has dispute the claim of
the workman by filling it written statement; whereas the
opposite party No. 02 viz. M/s Industrial Security Services
did not turn up inspite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
abolition) Act 1970; and the opposite party No. 02 is its
contractor under the Contract Labour (Regulation and
Abolition) Act, 1970 having license under the Act. The
opposite party No. 01 has specifically submitted that it has
neither engaged the workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25 F of the I.D. Act. It is
submitted by the opposite party No. 1 that there has never
been any sanctioned post of Security Guards in the
M/s. Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite party No. 02 viz. M/s Industrial Security Services
was assigned job contracts dated 27.09.1990, 01.10.1995
and 30.03.1999. It has been stated by the opposite party
No. 01 that it had never paid any wages to the workman;
rather as per terms of contract, M/s Industrial Security
Services used to submit its bill for payment and the
opposite party No. 01 used to make payment to the opposite
party No. 02 and thereafter, the workman was being paid
by the opposite party No. 02; likewise, the opposite No. 2
used to deduct the Provident Fund and ESI contribution in
respect of workman and deposit the same with the concerned
authorities; hence, there was no employer and employee
relationship between the opposite party No. 01 and the
workman. It has also been submitted by the opposite party
No. 1 that the contract between opposite party No. 1 and
opposite party No. 2 came to an end on 30th June, 2000
and accordingly, the security personnel deployed by M/s.
Industrial Security Services were withdrawn by them on
30.06.2000 itself; and this does not amount to termination
of services or termination in violation to the provisions of
I.D. Act, 1947. Accordingly, the opposite party No. 01 has
prayed that the claim of the workman be rejected without
any relief to him being devoid of merit.
6. The workman has filed its rejoinder wherein he
had introduced nothing new apart from reiterating the
averments already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself;
whereas the management examined Shri Sanjeev Ratan,
Vice President of the Workers' Union and Shri S.N. Lakhorkar,
Dy. Manager (Personnel & Relation) in support of their
respective stands. The parties availed opportunity to cross-
examine the witnesses of each other apart from forwarding
oral arguments.
8. Heard the authoriszed representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
party No. 01 on 29.02.1996 as Security Guard and worked
as such till 25.10.1999 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reasons in contravention to the
provisions of Section 25F of the I.D. Act, 1947.
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2039
10. In rebuttal, the opposite party No. 01's
representative has contended that the worokman is
contractor's employee as the opposite party has undergone
a contract with the M/s Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite party No. 01
neither appointed the workman nor terminated his services;
rather his employment was regulated by M/s Industrial
Security Services and the same came to an end with the
end of contract with the agency; hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my throughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
12. The workman in his statement on oath has stated
that he had been appointed in the M/s Hindustan Cables
Ltd. on 29.02.1996 after interview and the duties performed
by him were regular nature and contract for such work
could be given to any contractor and also the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment letter from HCL. He has stated
that paper No. 16/97 16/98 is pay slip or PF statement of
HCL, which he never received. He has also stated that he
filed case before Industrial Tribunal also; wherein he filed
written statement.
13. The management witness, Shri Sanjeev Ratan,
Vice-President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an employee of the HCL; however the
workman was security guard of the Industrial Security
Services; and the Industrial Security Service used to arrange
duty of their security guards, take their attendance and
makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness,
S.N. Lakhorkar stated that opposite party No. 1 given the
security work contract to M/s Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always carried out on contract basis as there was
no sanctioned post of Security Guard. The HCL has been
registered on 12.08.1988 under Contract Labour (Regulation
& Abolition) Act, 1970. He has also stated that the workman
was temporary guards of M/s Industrial Security Services
and the HCL never entered into any contract with respect
to the services of the workman. He further stated that there
is recruitment policy in HCL and recruitment is made as per
prescribed procedure in the recruitment policy. He stated
that the workman was employed by the M/s Industrial
Security Services and the workman was never got any
payment by the HCL; rather the payment was made through
the Contractor; likewise his contribution towards Provident
Fund and ESI is being deducted by the Contractor. In cross-
examination it was admitted that there is no sanctioned
post of Security Guard in the HCL and security work is
being done by the agencies and the work of guards were
supervised by the Security Officers of the Industrial Security
Services. It is stated by management witness that the HCL
neither appoints any one nor removes any one, the
workman was employee of the M/s Industrial Security
Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Guard and worked continuously with
some artificial breaks for more than 240 days in each
calender year; and his services have been terminated by
the management without following the mandatory
provisions of the Industrial Disputes Act, 1947. In the
support of his pleading he has filed photocopy of following
documents.
(i) Judgment dated 12.01.2009 of Hon'ble High Court
Allahabad in Civil Misc. Writ Petition No. 29283/
200.
(ii) Award dated 21.12.2006 of Industrial Tribunal,
allahabad.
(iii) Pass Book of EPF.
(iv) Payment Slip
15. Per contra, the opposite party No. 02 has not
turned up to contest the case since the very inception of
the proceedings before this Tribunal; whereas the
opposite party No. 01 has come with case that the workman
concerned is not their employee; rather he is an employee
of the opposite party No. 2 i.e. M/s Industrial Security
Service whose services as Security Guard were provide to
them by the said agency in pursuance to the contract for
supply of security guards. It is also the case of the
management that there is no sanctioned post of Security
Guard in their establishment and the security work is being
done through agencies on contractual basis; and
accordingly, the opposite party No. 01 entered into a
contract with M/s Industrial Security Services to provide
Security Guards w.e.f. 01.05.1990 to 30.06.2000. The
opposite party has pleaded that it neither appointed the
workman nor supervise his duties, nor made any payment
to the workman nor terminated his services at any point of
time. Moreover, it is also contended that the workman was
an employee of the contracting agency, his work was
supervised by the agency and was paid by the agency,
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
his PF and ESI supscription as deducted and deposited
by the agency and his services were regulated by the
contracting agency i.e. M/s Industrial Security Services.
In this regard the management has come forward with
photo copy of various documents including following:—
(i) Copy of Job Contract/Agreement dated
30.03.1990, 01.10.1995 and 27.09.1990.
(ii) Copy of letter regarding termination of contract
w.e.f. 30.06.2000.
(iii) Copy of M/s Industrial Security Services letter
regarding payment of salary.
(iv) Copy of letters issued by M/s Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officers etc.
(v) Copy of bank payment voucher as service charge
of M/s Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI Challan etc.
(vii) Copy of written statement in adjudication case
No. 32/2002 between M/s. Hindustan Cables
Ltd. & M/s. Industrial Security Services Vs
Radhey Shyam Singh.
16. The terms of reference requires to adjudicate
the validity of contract between the management of
M/s. Hindustan Cables Ltd. and M/s. Industrial Security
Services with regard to the employment of the workman.
In this regard there is very specific pleading from the
management of M/s. Hindustan Cables Ltd. that there is
no sanctioned post in their establishment and the security
work is carried out by some agency on contract. In support
of its contention, the management of M/s HCL has filed
photocopies of registration certificates under Contract
Labour (Regulation & Abolition) Act, 1970 and
photocopies of contract/agreement dated 30.03.1999,
01.10.1995 and 27.09.1990. The registration certificate dated
12.08.88 issued by Dy. Labour Commissioner, Uttar
Pradesh clearly mentions the name of M/s. Industrial
Security Services, Allahabad for providing 'Security work'
through 41 workmen; and the terms to agreement between
M/s. HCL and M/s. Industrial Security Services shows
that M/s. Industrial Security Services/contractor was
required to supply security guards. From perusal of the
contract agreeement it is apparent that the said contract
for supply of security guards came into effect from 1.5.1990
to 30.6.2000. However, there is no whisper of existence of
any contract between M/s. HCL and M/s. Industrial
Security Services for supply of security guard in the
statement of claim filed by the workman before this
Tribunal. Likewise the workman has not challenge the
validity of the contract entered between the opposite
Party No. 01 and opposite Party No. 02; rather he has
pleaded that he was appointed by the opposite Party No.
1 and was an employee of the opposite Party No. 01. On
the contrary the management of M/s. HCL has pleaded
that it was in an agreement with the M/s. Industrial Security
Services for supply of security guards and the workman
was one of them. The workman in his evidence also has
not come forward with the evidence that the contract
between the opposite parties was sham and bogus,
therefore he may be treated as employee of the principle
employer i.e. M/s. Hindustan Cable Ltd. On the contrary
he has come up with the evidence that he was employee of
the HCL and M/s. Industrial Security Services has no
existence.
17. In view of the discussions made hereinabove,
absence of any pleading and evidence on behalf of the
workman regarding validity of the contract and
submissions of the management of M/s Hindustan Cables
Ltd. regarding existence of contract between itself and
M/s Industrial Security Services with supportive
documentary evidence, I am of the opinion that the
contract between M/s Hindustan Cables Ltd. and M/s
Industrial Security Services for supply of security guards
was neither sham nor bogus.
18. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f
26.10.1999 the workman has pleaded that he has appointed
by the HCL and worked for more than 240 days in each
calender year and his services have been terminated by
the HCL without complying with the provisions
contained in Section 25F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145 (SC) Surenderanagar
Panchayat and another v. Jethabhai Pitamberbhai Hon'ble
Apex court came to the conclusion that where the
workman failed to prove that he had been in employment
with the employer for a period of 240 days uninterruptedly,
he is not entitled to protection in compliance of section
25-F of the Industrial Disputes Act, 1947. It was held by
the Hon'ble Supreme Court that the scope of the enquiry
before the Labour Court was confined only to 12 months
preceding the date of termination to decide the question
of the continuous service for the purpose of section
25-F of the Industrial Disputes Act, 1947. Further, Hon'ble
Apex Court has observed as under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary of
wages for 240 days or record of his appointment or
engagement for that year to show that he was worked with
the employer for 240 days to get the benefit under section
25-F of the Industrial Disputes Act. It is now well settled
that it is for the claimant to lead evidence to show that he in
fact worked for 240 days in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25 F of the Act, it is
necessary for the claimant to least evidence to the effect
that he was actually in employment of the opposite party
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2041
for 240 days in the year preceding his termination and he
was actually paid for it. In the instant case there is no iota
of evidence to show that the workmen worked for 240
days with the management of the HCL in twelve calendar
months preceding the date of termination. The photocopy
of the documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears Name of Office to ISS (Industrial Security
Services), HCL, Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and not with the HCL. Likewise, the photocopy
of EPF deduction and Wages Slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has ulterly failed to substantiate
this fact that he worked for 240 days in a year preceding
the termination.
On the Contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and he was deployed by M/s. Industrial
Services as security Guard in the HCL, this includes copy
of agreement, copies of letters issued by M/s. Industrial
Security Services regarding posting/transfer of Security
Guards/Security Officers etc., copy to bank payment
voucher as service charge of M/s. Industrial Security
Services with details of attendance and payment to the
contracting agency, copy of EPF challan and ESI challan
etc. Apart from this the copy of written statement in
adjudication case No. 32/2002 between M/s. Hindustan
Cables Ltd. & M/s. Industrial Security Services vs. Radhey
Shyam goes to show that the workman himself has pleaded
before Industrial Tribunal that he was appointed on
temporary basis in M/s. Industrial Security Services and
deduction towards EPF and ESI is being made by M/s.
Industrial Security Services and being deposited in the
Government account by M/s. Industrial Security Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdiction of the court must fail. In the present
case burden was on the workman to set out the grounds
challenge the validity of the termination order and to
prove the termination order was illegal. It was the case of
the workman that he has worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to
show that she had infact worked up to 240 days in the
year preceding his alleged termination. In (2002) 3 SCC 25
Range Forest Officer vs S.T. Hadimani Hon'ble Apex Court
has observed as under:
‘‘It was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was then for
the claimant to lead evidence to show that he had in fact
worked for 240 days in the year preceding his termination.
Filing of an affidavit is only his own statement in his
favour and that cannot be regarded as sufficient evidence
for any court or tribunal to come to the conclusion that a
workman had, in fact worked for 240 days as order or
record of appointment or engagement for that period was
produced by the workman. On this ground along, the award
is liable to be set aside."
20. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108)
FLR R.M. Yellatti & Asstt. Executive Engineer as follows:
"It is clear that the provisions of the evidence Act in
terms to not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgements we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon
the workman stepping in the witness box. This
burden is discharged upon the workman adducing
cogent evidence, both oral and documentary. In
cases of termination of services of daily wages
earner, there will be no letter of appointment or
termination. There will also be no receipt or proof
of payment. Thus, in most cases, the workman
(claimant) can only call upon the employer to
produce before the Court the nominal muster roll
for the given period, the letter of appointment or
termination, if any, the wage register, the attendance
register etc. Drawing of adverse inference ultimately
would depend thereafter on facts of each case. The
above decision however make it clear that mere
affidiavits or self serving statements made by the
claimant/workman will not suffice in the matter of
discharge of the burden placed by law on the
workman to prove that he had worked for 240 days
in a given year. The above judgment further lay
down that mere non production of muster rolls per
se without any plea of suppression by the claimant
workman will not be the ground for the tribunal to
draw an adverse inference against the management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy
in support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination; but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e.
EPF pass book goes contrary to his stand. Hence, the
workman could not establish that there was any employee
and employer relationship between him and the opposite
Party No. 01.
2042
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
21. On the other hand the management has well
proved its case by filing copy of the contract with the
M/s. Industrial Security Services the security guards were
required to be paid through the contractor. Also, the
payment statement, attendence details and the statement/
receipt of EPF and ESI contribution goes to show that
that the workman was an employee of the opposite Party
No. 02 i.e. M/s. Industrial Security Services and he had
been deployed by the opposite Party No. 02 to carry out
the work of security guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust or illegal order to termination was passed by the
management.
22. Thus, in view of the facts and circumstances of
the case and discussion, made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan Cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to employment of
Shri Radhey Shyam was neither sham nor bogus. The
workman could not be able to prove to through cogent
evidence that there was a relationship of employee and
employer between him and the opposite Party No. 1 viz.
M/s. Hindustan Cables Ltd.; rather from the evidence
adduced it is established that he was and an employee of
the contractor viz. M/s. Industrial Security Services,
therefore the workman could not be granted the relief of
retrenchment compensation or any other relief sought by
the workman against the M/s. Hindustan Cables Ltd.,
The reference under adjudication in answered accordingly.
23. Award as above.
LUCKNOW
25th November, 2013
Dr. MANJU NIGAM, Presiding Officer
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New Delhi, the 10th February, 2014
S.O. 759.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 50/2009)
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 The Manager (HRD), Hindustan Cables
Limited and Others, Allahabad and their workman, which
was received by the Central Government on 03/02/2014.
[No. L-42012/34/2009-IR(DU)]
P. K. VENUGOPAL Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT : Dr. MANJU NIGAM, Presiding Officer
I.D. No. 50/2009
Ref. No. L-42012/34/2009-IR(DU) dated 09.10.2009
BETWEEN :
Shri Sudarshan Singh
Irrigation Workshop Colony, Karchana
Allahabad.
AND
1. The Manager
HRD, Hindustan Cables Limited, Naini
Allahabad.
2. The Manager
M/s. Industrial Security Services
4, Stratchy Road
Allahabad.
AWARD
1. By Order No. L-42012/34/2009-IR(DU) dated:
09.10.2009 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 Industril Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Shri Sudarshan Singh, Irrigation
Workshop Colony, Karchana, Allahabad and the Manager,
HRD Hindustan Cables, Limited, Naini, Allahabad and the
Manager, M/s. Industrial Security Services, 4, Stratchy
Road, Allahabad for adjudication.
2. The reference under adjudication is:
"Whether the contract between the management of
M/s. Hindustan Cables Ltd., Allahabad, and the
contractor, M/s. Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to employment
of Shri Sudarshan Singh is sham and bogus? If yes,
¹Hkkx II—[k.M 3(ii)º
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2043
whether the action of the management in terminating
his services w.e.f. 26/10/1999 is legal and justified? If
not, what relief the workman is entitled to"?
3. The case of the workman, Sudarshan Singh, in
brief, is that he was appointed as a security guard with the
opposite Party on 02.02.1996 and worked continously, with
some articial break, till 25.10.1999; and he was restrained
from working by the Security Officer of the management
w.e.f. 26.10.1999. The workman has submitted that he was
working with the opposite Party as Security Guard which
is not seasonal, but perennial nature of work; and his work
was being controlled and supervised by the officers of the
opposite Party No. 01 viz. M/s Hindustan Cables Ltd., and
accordingly, there was relationship of employees and
employer between him and the opposite Party No. 01. It is
further been submitted by the workman that he was paid
through its illegal agent i.e. opposite Party No. 02 viz. M/s.
Industrial Security Services and in spite of the fact that he
worked for more than 240 days in each calendar year, the
management of the opposite Party No. 01 terminated his
services without following the prvosions of Section 25F of
the I.D. Act, 1947; and accordingly it has been prayed by
the workman that reinstated with full back wages and his
services be regularized in the M/s. Hindustan Cables
Limited, Allahabad.
4. The opposite Party No. 01 has dispute the claim of
the workman by filing it written statement; whereas the
opposite Party No. 02 viz. M/s. Industrial Security Services
did not turn up in spite of several registered notices.
However, notice sent by this Tribunal was received back
with remark "left".
5. The management of M/s. Hindustan Cables Ltd. in
its written statement has denied the claim of the workman
with submission that it is principle employer, which is duly
registered under the Contract Labour (Regulation and
abolition) Act, 1970; and the opposite Party No 02 is its
contractor under the Contract Labour (Regulation and
abolition) Act, 1970 having license under the Act. The
opposite Party No. 1 has specifically submitted that it has
neither engaged he workman nor retrenched his services
at any point of time, therefore, there arises no question of
violating the provisions of Section 25 F of the I.D. Act. It is
submitted by the opposite Party No. 1 that there has never
been any sanctioned post of Security Guards in the M/s.
Hindustan Cables Ltd. and the security services were
always arranged on contract basis; accordingly the
opposite Party No. 02 viz. M/s. Industrial Security Services
was assigned job contracts dated 27.09.1990, 01.10.1995
and 30.03.1999. It has been stated by the opposite Party
No. 01 that it had never paid any wages to the workman;
rather as per terms of contract, M/s. Industrial Security
Services used to submit its bill for payment and the
opposite Party No. 01 used to make payment to the opposite
Party No. 02 and thereafter, the workman was being paid
by the opposite Party No. 02; likewise, the opposite Party
No. 2 used to deduct the Provident Fund and ESI
contribution in respect of workman and deposit the same
with the concerned authorities; hence, there was no
employer and employee relationship between the opposite
Party No. 01 and the workman. It has also been submitted
by the opposite Party No. 1 that the contract between
opposite Party No. 1 and opposite Party No. 2 came to an
end on 30th June, 2000 and accordingly, the security
personnel deployed by M/s. Industrial Security Services
were withdrawn by them on 30.06.2000 itself; and this does
not amount to termination of services or termination in
violation to the provisions of I.D. Act, 1947. Accordingly,
the opposite Party No. 1 has prayed that the claim of the
workman be rejected without any relief to him being devoid
of merit.
6. The workman has filed its rejoinder wherein he has
introduced nothing new apart from reiterating the averments
already made in the statement of claim.
7. The parties have filed photocopy of documents in
support of their cases. The workman examined himself;
whereas the management examined Shri Sanjeev Ratan,
Vice President of the Workers' Union and Shri S.N. Lakhorkar,
Dy. Manager (Personnel & Relation) in support of their
respective stands. The parties availed opportunity to cross-
examine the witnesses of each other apart from forwarding
oral arguments.
8. Heard the authorized representatives of the parties
and perused entire evidence available on record.
9. The authorized representative of the workman has
argued that the workman was appointed by the opposite
Party No. 01 on 02.02.1996 as Security Guard and worked
as such till 25.10.1999 with some artificial breaks and during
his tenure he worked for more than 240 days in each
calendar year, even then he has been removed from duty
without any rhyme or reason in contravention to the
provisions of Section 25 F of th I.D. Act, 1947.
10. In rebuttal, the opposite Party No. 01's
representative has contended that the workman is
contractor's employee as the opposite Party has undergone
a contract with the M/s. Industrial Security Services for
supply of security personnel; and accordingly the workman
was one of the security guard supplied by M/s. Industrial
Security Services and the said contractor/agency was duly
paid for it, which in turn paid salary to the workman. It has
been urged that the management of opposite Party No. 01
neither appointed the workman nor terminated his services;
rather his employment was regulated by M/s. Industrial
Security Services and the same came to an end with the
end of contract with the agency; hence there was no
violation of provisions of the Industrial Disputes Act, 1947.
11. I have given my thoughtful consideration to the
rival contentions of the parties and perused entire evidence
available on file.
2044
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
12. The workman in his statement on oath has stated
that he had been appointed in the M/s. Hindustan Cables
Ltd. On 02.02.1996 after interview and the duties performed
by him were regular nature and no contract for such work
could be given to any contractor and also the contractor
has not obtained any license in this regard from the labour
department. In cross-examination he has stated that he did
not receive any appointment letter from HCL; however he
received salary Rs. 1700. He has stated that paper No. 9/1
to 9/13 bears his signatures and in the said slip ISS and
HCL is mentioned. He also stated that paper No. 9/16 is
photo copy of EPF pass book, which bears stamp and
signatures of officer of ISS, issuing the same. He has also
stated that he filed case before Industrial Tribunal also;
wherein he filed written statement.
13. The management witness, Shri Sanjeev Ratan,
Vice President of the union has stated that he maintains
attendance and leave record of all the employees and
officers working in the company and knows all the
employees of the company. It was further stated that the
workman was not an employee of the HCL; however the
workman was security guard of the Industrial Security
Services; and the Industrial Security Service used to arrange
duty of their security guards, take their attendance and
makes payment of salary etc. through their Security
Officers. It was further stated that he never look after the
attendance and leave of the Guards. It was stated in cross-
examination that all the casual and temporary employees
come through contractor and the workman under reference
is employee of the contractor. The management witness,
S.N. Lakhorkar stated that opposite Party No. 1 given the
security work contract to M/s. Industrial Security Services
which was from 01.05.1990 to 30.06.2000 and the security
work was always carried out on contract basis as there was
no sanctioned post of Security Guard. The HCL has been
registered on 12.08.1988 under Contract Labour (Regulation
& Abolition) Act, 1970. He has also stated that the workman
was temporary guards of M/s. Industrial Security Services
and the HCL never entered into any contract with respect
to the services of the workman. He further stated that there
is recruitment policy in HCL and recruitment is made as per
prescribed procedure in the recruitment policy. He stated
that the workman was employed by the M/s. Industrial
Security Services and the workman was never got any
payment by the HCL; rather the payment was made through
the Contractor; likewise his contribution towards Provident
Fund and ESI is being deducted by the Contractor. In corss-
examination it was admitted that there is no sanctioned
post of Security Guard in the HCL and security work is
being done by the agencies and the work of guards were
supervised by the Security Officers of the Industrial Security
Services. It is stated by management witness that the HCL
neither appoints any one nor removes any one, the
workman was employee of the M/s. Industrial Security
Services and he was appointed/removed by them.
14. The workman has come up with a case that he
has been appointed by the management of the HCL on the
post of Security Gaurd and worked continuously with some
artificial breaks for more than 240 days in each calendar
year; and his services have been terminated by the
management without following the mandatory provisions
of the Industrial Disputes Act, 1947. In the support of his
pleading he has filed photocopy of following documents:
(i) Judgment dated 12.01.2009 of Hon'ble High Court,
Allahabad in Civil Misc. Writ Petition No. 29283/
200.
(ii) Award dated 21.12.2006 of Industrial Tribunal
Allahabad
(iii) Pass Book of EPF.
(iv) Payment Slip.
15. Per contra, the opposite Party No. 02 has not
turned up to contest the case since the very inception of
the proceedings before this Tribunal; whereas the opposite
Party No. 01 has come with case that the workman
concerned is not their employee, rather he is an employee
of the opposite Party No. 2 i.e. M/s. Industrial Security
Services whose services as Security Guard were provide
to them by the said agency, in pursuance to the contract
for supply of security guards. It is also the case of the
management that there is no sanctioned post of Security
Guard in their establishment and the security work is being
done through agencies on contractual basis; and
accordingly, the opposite Party No. 01 entered into a
contract with M/s. Industrial Security Services to provide
Security Guards w.e.f. 01.05.1990 to 30.06.2000. The opposite
Party has pleaded that it neither appointed the workman
nor supervise his duties, nor made any payment to the
workman not terminated his services at any point of time.
Moreover, it is also contended that the workman was an
employee of the contracting agency, his work was
suppervised by the agency and was paid by the agency,
his PF and ESI subscription as deducted and deposited by
the agency and his services were regulated by the
contracting agency i.e. M/s. Industrial Security Services.
In this regard the management has come forward with photo
copy of various documents including following:
(i) Copy of Job Contract/Agreement dated
30.03.1999, 01.10.1995 and 27.09.1990.
(ii) Copy of letter regarding termination of contract
w.e.f. 30.06.2000.
(iii) Copy of M/s. Industrial Security Services letter
regarding payment of salary.
(iv) Copies of letters issued by M/s. Industrial Security
Services regarding posting/transfer of Security
Guards/Security Officers etc.
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2045
(v) Copy to bank payment voucher as service charge
of M/s. Industrial Security Services for October,
1999 with details of attendance and payment to
the contracting agency.
(vi) Copy of EPF challan and ESI challan etc.
(vii) Copy of written statement in adjudication case
No. 31/2002 between M/s. Hindustan Cables Ltd.
& M/s. Industrial Security Services Vs. Sudarshan
Singh.
16. The terms of reference requires to adjudicate the
validity of contract between the management of M/s.
Hindustan Cables Ltd. and M/s. Industrial Security Services
with regard to the employment of the workman. In this
regard there is very specific pleading from the management
of M/s. Hindustan Cables Ltd. that there is no sanctioned
post in their establishment and the security work is carried
out by some agency on contract. In support of its
contention, the management of M/s. HCL has filed
photocopies of registration certificate under Contract
Labour (Regulation and Abolition) Act, 1970 and
photocopies of contract/agreement dated 30.03.1999,
01.10.1995 and 27.09.1990. The registration certificate dated
12.08.88 issued by Dy. Labour Commissioner. Uttar Pradesh
clearly mention the name of M/s. Industrial Security
Services, Allahabad for providing 'security work' through
41 workman; and the terms to agreement between M/s.
HCL and M/s. Industrial Security Services shows that
M/s. Industrial Security Services/contractor was required
to supply security guards. From perusal of the contract
agreements it is apparent that the said contract for supply
of security guards came into effect from 01.05.1990 to
30.06.2000. However, there is no whisper of existence of
any contract between M/s. HCL and M/s Industrial Security
Services for supply of security guard in the statement of
claim filed by the workman before this Tribunal. Likewise
the workman has not challenge the validity of the contract
entered between the opposite Party No. 01 and opposite
Party No. 02; rather he has pleaded that he was appointed
by the opposite Party No. 1 and was an employee of the
opposite party No. 01. On the contrary the management of
M/s. HCL has pleaded that it was in an agreement with the
M/s. Industrial Security Services for supply of security
guards and the workman was one of them. The workman in
his evidence also has not come forward with the evidence
that the contract between the opposite parties was sham
and bogus, therefore, he may be treated as employee of the
principle employer i.e. M/s. Hindustan Cable Ltd. On the
contrary he has come up with the evidence that he was
employee of the HCL and M/s. Industrial Security Services
has no existence.
17. In view of the discussions made hereinabove,
absance of any pleading and evidence on behalf of the
workman regarding validity of the contract and submissions
of the management of M/s. Hindustan Cable Ltd. regarding
existence of contract between itself and M/s. Industrial
Security Services with supportive documentary evidence.
I am of the opinion that the contract between M/s.
Hindustan Cables Ltd. and M/s. Industrial Security Services
for supply of security guards was neither sham nor bogus.
18. As regard second part of the reference regarding
validity of termination of the services of the workman w.e.f.
26.10.1999 the workman has pleaded that he has been
appointed by the HCL and worked for more than 240 days
in each calendar year and his services have been terminated
by the HCL without complying with the provisions
contained in Section 25-F of the Industrial Disputes Act,
1947. In 2005 (107) FLR 1145(SC) Surenderanagar Panchayat
and another Vs. Jethabhai Pitamberbhai Hon'ble Apex Court
came to the conclusion that where the workman failed to
prove that he had been in employment with the employer
for a period of 240 days uninterruptedly, he is not entitled
to protection in compliance of section 25-F of the Industrial
Disputes Act, 1947. It was held by the Hon'ble Supreme
Court that the scope of the enquiry before the Labour Court
was confined only to 12 months preceding the date of
termination to decide the question of the continuous service
for the purpose of section 25-F of the Industrial Disputes
Act, 1947. Further, Hon'ble Apex Court has observed as
under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary or
wages for 240 days or record of his appointment or
engagement for that year to show that he has worked
with the employer for 240 days to get the benefit
under section 25-F of the Industrial Disputes Act. It
is not well settled that it is for the claimant to lead
evidence to show that he in fact worked for 240 days
in a year preceding his termination."
Therefore, in view of the above referred case law, in
order to take any relief for non-compliance of mandatory
provisions contained in section 25-F of the Act, it is
necesary for the claimant to lead evidence to the effect that
he was actually in employment of the opposite party for
240 days in the year preceding his termination and he was
actually paid for it. In the instant case there is no iota of
evidence to show that the workmen worked for 240 days
with the managment of the HCL in twelve calendar months
preceding the date of termination. The photocopy of the
documents filed by the workman do not support the
statement of the workman as the photocopy of EPF pass
book bears 'Name of Office to ISS (Industrial Security
Services), HCL, Naini, Allahabad, goes to show that the
workman was on the rolls of M/s. Industrial Security
Services and not with the HCL. Likewise, the photocopy of
EPF deduction and Wages Slip do not indicate that the
same were issued by the HCL and the workman was their
employee. The workman has utterly failed to substantiate
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
this fact that he worked for 240 days in a year preceding
the termination.
On the contrary the management of the HCL has
come out with ample documentary evidence to show that
the workman was an employee of the M/s. Industrial
Security Services and the was deployed by M/s. Industrial
Security Services as Security Guard in the HCL, this
includes copy of agreement, copies of letters issued by
M/s. Industrial Security Services regarding posting/transfer
of Security Guards/Security Officers etc., copy to bank
payment voucher as service charge of M/s. Industrial
Security Services with details of attendance and payment
to the contracting agency, copy of EPF challan and ESI
challan etc. Apart from this the copy of written statement
in adjudication case No. 31/2002 between M/s. Hindustan
Cables Ltd. and M/s. Industrial Security Services Vs.
Sudarshan Singh goes to show that the workman himself
had pleaded before Industrial Tribunal that he was
appointed on temporary basis in M/s. Industrial Security
Services and deduction towards EPF and ESI is being made
by M/s. Industrial Security Services and being deposited
in the Government account by M/s. Industrial Security
Services.
19. It is well settled that if a party challenges the
legality of order the burden lies upon him to prove illegality
of the order and if no evidence is produced, the party
invoking jurisdiction of the court must fail. In the present
case burden was on the workman to set out the grounds to
challenge the validity of the termination order and to prove
the termination order was illegal. It was the case of the
workman that he had worked for 240 days in the year
concerned. This claim has been denied by the management;
therefore, it was for the workman to lead evidence to show
that she had in fact worked up to 240 days in the year
preceding his alleged termination. In (2002) 3 SCC 25 Range
Forest Officer Vs. S.T. Hadimani Hon'ble Apex Court has
observed as under:
"It was the case of the claimant that he had so worked
but this claim was denied by the appellant. It was
then for the claimant to lead evidence to show that
he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days or order or record of
appointment or engagement for that period was
produced by the workman. On this ground alone,
the award is liable to be set aside."
20. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108) FLR
R.M. Yellatti and Asstt. Executive Engineer as follow:
"It is clear that the provisions of the evidence Act in
terms do not apply to the proceedings under section
10 of the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
judgements we find that this Court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked 240 days in a
given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing congent
evidence, both oral and documentary. In cases of
termination of services of daily wages earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus in
most cases, the workman (claimant) can only call
upon the employer to produce before the Court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non-production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management."
In the present case the workman has stated that he
has worked continuously for 240 days, but has not
produced any document neither original nor photocopy in
support of his oral evidence. The burden was on the
workman to show by the way of cogent evidence that he
actually worked for 240 days in the preceding 12 months
from the date of his alleged termination, but he failed to do
so as he has he could not bring this fact on record. In view
of denial of the management regarding his claim, the
workman has nothing to support his version, except his
own statement before this Tribunal, which does not suffice
the matter. Moreover, the photocopy of documents i.e.
EPF pass book goes contrary to his stand. Hence, the
workman could not establish that there was any employee
and employer relationship between him and the opposite
Party No. 01.
21. On the other hand the management has well
proved its case by filing copy of the contract with the M/s.
Industrial Security Services the security guards were
required to be paid through the contractor. Also, the
payment statement, attendance details and the statement/
receipts of EPF and ESI contribution goes to show that the
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workman was an employee of the opposite Party No. 02 i.e.
M/s. Industrial Security Services and he had been deployed
by the opposite Party No. 02 to carry out the work of security
guard.
Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he was to discharge the above
burden. There is no reliable material for recording findings
that the workman had worked for 240 days in the preceding
year from the date of his alleged termination and the alleged
unjust or illegal order of termination was passed by the
management.
22. Thus, in view of the facts and circumstances of
the case and discussions made herein above I am of
considered opinion that the contract between the
management of M/s. Hindustan cables Ltd., Allahabad,
and the contractor, M/s. Industrial Security Services, 4,
Stratchy Road, Allahabad, with regard to employment of
Shri Sudarshan Singh was neither sham nor bogus. The
workman could not be able to prove to through cogent
evidence that there was a relationship of employee and
employer between him and the opposite Party No. 1 viz.
M/s. Hindustan Cable Ltd.; rather from the evidence
adduced it is established that he was and an employee of
the contractor viz. M/s. Industrial Security Services,
therefore, the workman could not be granted the relief of
retrenchment compensation or any other relief sought by
the workman against the M/s. Hindustan Cables Ltd. The
reference under adjudication is answered accordingly.
23. Award as above.
Lucknow
25th November, 2013
Dr. MANJU NIGAM, Presiding Officer
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New Delhi, the 10th February, 2014
S.O. 760.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 59/2007)
of the Central Covernment Industrial Tribunal/Labour Court
No. II, Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Bharat Sanchar Nigam Ltd., Bhiwani and
their workman, which was received by the Central
Government on 03/02/2014.
[File No. L-40012/43/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II, DELHI
PRESENT: Shri Harbansh Kumar Saxena
ID No. 59/2007
Sh. Vinod Kumar
Versus
Bharat Sanchar Nigam Ltd., Bhiwani
AWARD
The Central Government in the Ministry of Labour
vide notification No. [L-40012/43/2007-IR(DU)] dated
9.10.2007 referred the following industrial Dispute to this
tribunal for the adjudication:—
"Whether the action of the management of BSNL,
Bhiwani in terminating the services of their workman
Shri Vinod Kumar, w.e.f. 28.03.2006 is legal and
justified? If not, to what relief the workman is entitled
to?"
On 19.10.07 reference was received in this tribunal.
Which was register as I.D. No. 59/2007 and claimant was
called upon to file claim statement with fifteen days from
date of serviece of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
After service of notice workman/claimant filed claim
statement. Wherein he stated as follows:—
1. That Pettitioner/workman was engaged/appointed
as Driver w.e.f. 07/03/2000 (Log book) by the respondent/
Management and was posted as such as at Bhiwani. The
Petitioner was working as Driver on Jeep No. HR-16B/5051
which is the ownership of respondent No. -1. The Petitioner
was drawing a salary of Rs. 2500/- P.M. and it was revised
to Rs. 3000.-w.e.f. 2004. The work & conduct of the
Petitioner-workman remained satisfactory during his long
service tenure.
2. That the post on which the Petitioner was working
was and is of permanent nature, but the respondent termed
the same as daily wages.
3. That on 28.03.2006, when the Petitioner-workman
reported for duty as usual, he was not allowed to do his
work rather he was told that his services are no longer
required and in this way his services stand terminated since
then.
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[PART II—SEC. 3(ii)]
4. That the Petitioner has worked continuously from
07.03.2000 to 27.03.2006 (Log book) with utmost sincerity
and probity and to the entire satisfaction of his superiors.
5. That the terminating of services of the Petitioner
in such a unilateral manner is quite illegal, unjustified,
capricious, viod-ab-initio, being not in accordance with
the provisions of the Chapter-V of Industrial Dispute Act,
1947 and principle of natural justice.
6. That this type of oral terminations amount to
retrenchment, but no notice or any retrenchment
compensation was paid or offered to the Pettitioner at the
time of his termination, so the respondent have violated
the provisions of 25(F) & (G) of the ID Act, 1947.
7. That at the time of termination/retrenchment of
services of the Petitioner about more than 200 workers
were working with BSNL, but the respondent have neither
issued any notice assigning reasons and cause of
retrenchment nor sought any permission from the
appropriate Government. In this way, the respondent have
violated the mandatory provisons of Section 25N of the
Industrial Dispute Act, 1947.
8. That the respondents has appointed fresh hands
after termination/retrenchment of the Petitioner, but no
opportunity of employment have been afforded to the
Petitioner. In this way, the respondents have violated the
provisions of the Industrial Disputes Act, 1947.
9. That the Petitioner have been made a victim by the
respondent only to adjust their own person in place of
Petitioner.
10. That the respondent/management has adopted
the policy of hire and fire at their sweet will on one hand
and they indulged in Unfair Labour Practice on the other
hand by appointing the young poor persons as daily wages
Workers on perennial nature of work.
11. That Telephone Department carries on systematic
activities which are organized by co-operation between
the employee and employer and services are rendered to
satisfy the human wants and wishes, hence the Telephone
Department falls under the definition of industry as per
Section 2(j) of the Industrial Dispute Act, 1947. The
Petitioner was engaged as Driver and used to do the manual
work for hire and reward. There exists relationship of
employer and employee between the Petitioner and the
Department; hence Petitioner is a workman as per the
definition of workman as per Section 2(S) of the Industrial
Disputes Act, 1947.
12. That after termination of service, the Petitioner
has visited numbers of the times to the office of respondent
for getting his services reinstated, but of no use except
false assurances.
13. That the Petitioner is a poor young man and
forced unemployed since the date of his termination/
retrenchment, however, the Petitioner made many efforts
to get job but succeed so far.
14. That the Petitioner has requested many a times to
the respondents for taking back him on duty with full back
wages and continuity of service along with all other
attending benefits, but the respondents refused to do the
same, so a demand Notice dated 10.05.2006 was sent to the
respondent by Registered Post for reinstated of the
Petitioner, but the respondent by Registered post for
reinstated of the Petitioner, but the respondents did not
reply the same, which shows their refusal to admit the claim
of the Pettitioner. Photocopies of Demand Notice and Postal
Receipts are attached herewith for kind persual.
15. That refusal of the respondent to admit the claim
of the Petitioner. The Petitioner filed an Industrial Dispute
regarding his illegal terminating before the Assistant Labour
Commissioner Central, Faridabad. The Assistant Labour
Commissioner called both the parties for conciliation
proceeding. And the same were failed and as such failure
report was submitted by A.L.C. Faridabad. To the (Regional
Labour) Commissioner, New Delhi for making reference of
the dispute before this Hon'ble Court for adjudication. So
the case has been referred to this Hon'ble Court by the
regional Labour Commissioner (Central). The letter Dt.
9.10.2007 No. L-40012/43/2007-IR(DU) recd. On 18.10.07
Govt. of India/Bharat Sarkar/Ministry of Labour is attached.
It is therefore prayed that the claimed statement may
kindly be accepted with cost at the petition and the
petitioner workman may kindly be ordered to be reinstated
with full back wages and continuity of service along with
attending benefit including litigation expenses.
MANAGEMENT FILED WRITTEN STATEMENT
AGAINST
CLAIM
STATEMENT
WHEREIN
UNDERHEAD PARAWISE REPLY TO THE GROUNDS.
PRELIMINARY OBJECTIONS:
(A) That without going into the question that alleged
workman Shri Vinod Kumar was ever appointed/engaged
and retrenched from service as alleged, the opinion to the
effect that an Industrial Dispute exists in this matter is
baseless, and hence the Reference is void.
(B) That the alleged workman Shri Vinod Kumar had
never been an employee of the opposite party/respondent
as alleged, and there existed no employer and employee
relationship between them. Without ascertaining the
relationship, no question of his alleged termination arises
and therefore the Reference is bad in law.
In view of the preliminary objections raised herein
before, it is submitted that the present order of reference is
void and illegal and is not maintainable and this Hon'ble
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2049
Tribunal has no jurisdiction to try and decide the same on
merits. However, in the light of above averments/
objections, the written statement of the respondent is
submitted on merits as under:
ON MERIT:
1. That the contents of para 1 of the Claim Statement
are misconceived, false and baseless, hence denied. The
petitioner was never appointed/engaged as Driver by the
answering respondents. Lok-books does not itself
constitute a proof of his appointment. The petitioner is put
to strict proof of his appointment and of his receiving salary
as alleged.
2. That the contents of para 2 of the Claim Statement
are false and misconceived, hence not admitted subject to
Additional Pleas.
3. That the contents of para 3 of the Claim Statement
are false and frivolous, hence not admitted. The petitioner
is put to strict proof of the contents made therein.
4. That the contents of para 4 of the Claim Statement
are false, frivolous and misconceived, hence not admitted.
The petitioner had not been in continuous service of the
respondents within the meaning of section 25-B of the
Industrial Disputes Act, 1947.
5. That the contents of para 5 of the Claim Statement
are false and frivolous, hence deined and is subject to
Additional Pleas.
6. That the contents of para 6 of the Claim Statement
are baseless, hence not admitted. In view of facts as stated
in the Additional Pleas, the provisions of section 25-F and
25-G of Industrial Disputes Act, 1947 do not apply in the
present circumstances.
7. That the contents of para 7 of the Claim Statement
are misconceived, false and frivolous, hence not admitted.
In view of the fact that there is no relationship of employer
and employee between the respondents and the petitioner,
and the fact that the petitioner was not employed in
continuous service within the meaning of section 25-B of
the Industrial Disputes Act, 1947, the provisons of section
25-N of Industrial Disputes Act, 1947 are not attracted in
the present circumstances.
8. That the contents of para 8 of the Claim Statement
are false and baseless, hence denied. No fresh hands have
been employed by the respondents as alleged. The
petitioner is put to strict proof of the same.
9. That the contents of para 9 of the Claim Statement
are false and baseless and is therefore not admitted. The
petitioner is put to strict proof of the contents made therein.
10. That the contents of para 10 of the Claim
Statement are vegue, baseless and devoid of any reason,
hence emphatically denied. The petitioner is put to strict
proof of the contents made therein.
11. That the contents of para 11 of the Claim
Statement are misconceived, false and fictitious and are
not admitted in view of additional pleas.
12. That the contents of para 12 of the Claim
Statement are absolutely wrong, hence denied. The
petitioner never made any representation regarding his
reinstatement to the respondents. The petitioner is put to
strict proof of the same.
13. That the contents para 13 of the Claim Statement
are false and hence denied.
14. That the contents of para 14 of the Claim
Statement are false and misconceived, hence not admitted.
The Demand Notice dated 10.05.2006 was sent to give
colour to the pleas of the petitioner to get service in the
office of the respondents through back door, although the
contents of the said Demand Notice are false and baseless,
hence, it was not considered to be answered.
15. That the averments of para 15 of the Claim
Statement are matters of record and require no comment.
That the petitioner is not entitled to any relief and
the Claim Statement is liable to be dismissed with costs.
ADDITIONAL PLEAS
16. That the Claim Statement is vague, baseless,
improper, devoid of merit and not tenable in the eye of law
and facts and thus is liable to be dismissed with costs.
17. That the Claim Statement is neither factually, nor
legally maintainable against the answering respondents.
18. That the petitioner has never been appointed/
engaged as an employee of the respondents and there was
no master and servant relationship between them. The
petitioner was never posted in the office of the respondents
as Driver during the period alleged nor he drew monthly
salary. The petitioner did not even worked as daily wage
worker for the period as alleged. The petitioner was not a
workman of the respondents within the meaning of section
2(s) of the Industrial Disputes Act, 1947 for his entitlement
for the relief claimed and therefore the petitioner lacks locus-
standi, as such the Claim Statement is liable to be dismissed
with costs.
19. That since the petitioner had never been a
workman in continuous service of the answering
respondents and no relationship of master and servant
existed between the respondent and the petitioner, no
question of the improper termination/retrenchment of the
petitioner arises. The petitioner cannot take the benefit of
section 25-F of the Industrial Disputes Act, 1947. The person
who claims the benefit of section 25-F of the said Act must
be one validly appointed in the service of the employer. In
the present circumstances, the provisions of section 25-F
were not requried to be complied with.
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
20. That the petitioner had casually worked as a daily
wager on the contingency of work on different days for
which he was paid daily. His engagement began on every
working day and came to end on every ending of a working
day that is why he got only payment for his working days.
The petitioner has never been employed in continuous
service within the meaning of section 25-B of the Industrial
Disputes Act, 1947.
21. That the post of a Driver can be filled by regular
appoinment after following the prescribed procedure only.
The petitioner somehow laid hands on the log-book and
thereafter fraudulently planned the stroy of his
retrenchment.
22. The alternatively, the nature of the alleged work/
funciton of the petition does not even for the slightest
stretch of imagination contribute towards any industrial
manaul work.
23. That the respondents No. 1 the Sub Divisional
Engineer (P), No. 2 the Divisional Engineer (Telecom) and
No. 3 the Divisional General Manager posted at Bhiwani
do not form an 'Industry' within the meaning of section 2(j)
of the Industrial Disputes Act, 1947. Respondents No. 1
and 2 are themselves employees of Bharat Sanchar Nigam
Ltd. and respondent No. 3 is on deputation working with
B.S.N.L. whereas the B.S.N.L. has not been impleaded as a
party. The Claim Statement is therefore misconceived and
deserves to be dismissed on this score only.
24. That Bharat Sanchar Nigam Ltd. helps connect
through telephonic links without indulging itself in
commercial activity. B.S.N.L. therefore does not fall within
the purview of 'Industry' as defined under Section 2(j) of
the Industrial Disputes Act, 1947.
25. That Bharat Sanchar Nigam Ltd. came into
existence on 1.10.2000 from erstwhile Department of
Telecom under Ministry of Telecommunication. The alleged
appointments of the petitioner on 7.3.2000 by the
respondent/management is not, therefore possible.
26. That the petitioner has disclosed no cause of
action against the answering respondents and as such the
Claim Statement against the answering respondents is not
maintainable legally.
27. That the answering respondents further reserve
that right to file an amended or additional written statement
at a later stage of the proceedings if some new fact/evidence
is brought before the Tribunal.
28. That the Claim Statement is not properly verified/
attested in accordance of the Industrial Disputes (Central)
Rules, 1957 and is therefore liable to be dismissed.
In view of the facts and circumstances given herein
above, the petitioner is not entitled to any relief and the
Claim Statement merits dismissal with costs.
Workman filed rejoinder wherein he stated as
follows:—
Replication to Preliminary Submissions:—
(A) That para (A) of the written statement is
absolutely wrong, denied and not admitted. The petition/
workman was engaged/appointed as Driver w.e.f. 07.03.2000
(log book) by the respondent/Management and was posted
as such at Bhiwani. On 28.03.2006, petitioner was not
allowed to do his work and was told that his services are
no longer required. There is relation of Master and servant
and Industrial Dispute exists between the parties to the
petition and Reference is liable to be accepted, being the
genuine one.
B) That para (B) of the written statement is absolutely
wrong, denied and not admitted. Workman had been an
employee of the respondents since 7.03.2000 till 28.03.2006
there exists employer and employees relationship between
them.
The claim of the workman is correct, he same is
genuine legal and according to law, same is liable to be
accepted and this Hon'ble Tribunal has jurisdiction to try
and decide the same on merits.
Replication to on merits.
1. That para No. 1 of the written statement is wrong,
denied and not admitted. Nothing has been concealed in
the Claim statement. The petitioner was appointed, as driver,
Para No. 1 of the claim statement is correct and reiterated. It
is pertinent to mention here that in case State Vs. Tarachand
cr 1 case no. 118-1 of 2003 decided on2.8.2004, the workman
was produced as witness by the department, being the
driver of Jee No. HR 16B-5051 (copy of judgment is
attached) further more in claim petition, decided on
16.05.2006 titled Prakash Devi Vs. Vinod Kumar (driver of
Jeep No. HR 16B-5051) and others the workman was
involved as driver of the Jeep No. HR 16B-5051), (Copy of
claim petition is also attached herewith) further more several
other cases, it is clearly proved that the workman was the
driver of Jeep No. HR 16B-5051 ownership of respondent
No. 1 Sufficient proofs are in possession of workman, same
would be submitted as and when ordered.
2. That para No. 2 of the written statement is wrong,
para No. 2 of the claim statement is correct and reiterated.
3. That para No. 3 of the written statement is wrong,
para No. 3 of claim statement is correct and reiterated.
Sufficient proof is attached, as detailed in para No. 1.
4. That para No. 4 of the written statement is wrong,
para No. 4 of claim statement is correct and reiterated. The
workman remained in continuous service from 7.3.2000 to
27.3.2006 (copy of log book is attached.)
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5. That para No. 5 of the written statement is
wrong, para No. 5 of the claim statement is correct and
reiterated.
6. That para No. 6 of the written statement is wrong,
para No. 6 of the claim statement is correct and reiterated.
Provisions of section 25-F and 25-G of I.D. Act, 1947 is
fully applicable in the present matter.
7. That para No. 7 of the written statement is wrong,
para No. 7 of the claim statement is correct and reiterated.
All the provisions of I.D. Act, 1947 are applicable in the
present case.
8. That para No. 8 of the written statement is wrong,
para No. 8 of the claim statement is correct and reiterated.
Fresh hands have been appointed by the respondents.
9. That para No. 9 of the written statement is wrong,
para No. 9 of the claim statement is correct and reiterated.
10. That para No. 10 of the written statement is wrong,
para No. 10 of the claim statement is correct and reiterated.
11. That para No. 11 of the written statement is wrong,
para No. 11 of the claim statement is correct and reiterated.
Aditional pleas are totally false.
12. That para No. 12 of the written statement is wrong,
para No. 12 of the claim statement is correct and reiterated.
So many representations were made by the workman.
13. That para No. 13 of the written statement is wrong,
para No. 13 of the claim statement is correct and reiterated.
14. That para No. 14 of the written statement is wrong,
para No. 14 of claim statement is correct and reiterated.
Demand notice has been sent under due law procedure
and all the contents of demand notice are correct.
15. That para No. 15 of the written statement needs
no reply.
Reply to Additional pleases
16. That para No. 16 of the written statement is
absolutely wrong, hence denied. The claim statement is
correct, the same is tenable in the eye of law.
17. That para No. 17 of the written statement is wrong,
the claim statement is genuine and the same is maintainable.
18. That para No. 18 of the written statement is
absolutely wrong, workman was appointed as driver and
he remained in service as detailed in the claim statement. In
proof copies of two judgements, are attached herewith.
Totally false and version has been given by the
respondents.
19. That para No. 19 of the written statement is also
absolutely wrong, workman remained continue in service
till 27.03.2006 (copy of log book is attached).
20. That para No. 20 of the written statement is wrong,
the workman remained employee in continuous service.
21. That para No. 21 of the written statement is the
effort to keep the Hon'ble Court in dark, there is no truth.
22. That para No. 22 of the written statement is wrong,
petitioner is legally entitled to the relief as prayed for.
23. That in reply of para No. 23 of the written
statement it is stated that the matter is between the master
and servant. Nothing has ben concealed in the claim
statement.
24. That para No. 24 of the written statement is wrong,
the matter is between employee and employer the same
falls within the purview of 'Industry'.
25. That para No. 25 of the written statement has
been written only to create some wrongful evidence in
their favour by the respondents which has no base.
26. That para No. 26 of the written statement is wrong,
cause of action has accrued to the workman on denial to
discharge his duties with the directors that his services are
not required further.
27. That para No. 27 of the written statement is wrong,
it is the result of cunningness of the respondents, otherwise
they have no right to file additional written statement.
28. That para No. 28 of the written statement is wrong,
claim statement is properly verified accordingly.
It is, therefore, prayed that claim statement may kindly
be accepted as prayed for.
On basis of pleading of parties following issues has been
framed by my Ld. Predecessor on 05.11.08:—
(1)'' Whether the petitioner was a workman of the
management of BSNL Bhiwani and had been in continuous
service from 07.03.2000 to 28/03/2006 of the respondents
within the meaning of Section -25-B of the Industrial
Disputes Act, 1947.'' OPW.
Workman in support of his case filled affidavit in his
evidence. wherein he stated as follows:—
1. That the deponent was engaged/appointment as
Driver with effect from 7.03.2000 by the respondent/
management and as such he was posted at Bhiwani. The
deponent was working as driver on a Jeep bearing
registration No.HR-16/B 5051 owned by the respondent
No. 1. The deponent was drawing Rs. 2500 as salary per
month initially which was subsequently revised to
Rs. 3000 per month with effect from year 2004. The work
and conduct of the respondent has remained highly
satisfactory throughout his service tenure.
2. That the post on which the deponent was working
was of permanent nature, but the respondents termed the
deponent as daily wager.
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[PART II—SEC. 3(ii)]
3. That when the deponent reported for his duty as
usual on 28.03.2006, he was not allowed by the respondent
to resume his duty by saying verbally that the services of
the deponent stands terminated since then. The deponent
has thus worked continuously with the respondents/
management from 7.3.2000 to 27.03.2006 with utmost
sincerely and probity and to the entire satisfaction of his
superiors.
4. That termination of services of the deponent in
such a unilateral manner is quite illegal, unjustified,
capricious,viod-ab-initio, being not in accordance with the
provisions of chapter-V of the Industrial Dispute Act, 1947
and the principles of natural justice.
5. That such type of oral termination of services of
the deponent amounts to retrenchment without issuing
any notice and making any retrenchment compensation.
Termination of service of the deponent is in utter violation
of provisions of sections 25(F) and 25(G) of Industrial
Disputes Act, 1947.
6. That at the time of terminating the services of the
petitioner/deponent, more then 200 workers were working
with the respondents, but the respondents neither issued
any notice assigning reason and cause of retrenchment
nor sought any permission from the Appropriate
Government. In this way, the respondents have voilated
the mandatory provisions of section 25N of the Industrial
Dispute Act.
7. That the respondents have appointed many fresh
hands after terminating the services of the deponent, but
no opportunity of employment has been afforded to the
deponent. In this way, the respondents have violated the
provisions of Industrial Dispute Act, 1947.
8. That the services of the deponent have been
terminated by the respondents with a view to adjust their
own near and dear in place of the deponent. The
respondents have adopted the policy of 'hire and fire' at
their sweet will no one hand and they are in indulged in
unfair labour practice on the other hand by apponting as
daily wager on perennial nature of work.
9. That respondent department caries on systematic
activities which are organized by co-operation between
the employee and employer and the services are rendered
to satisfy the human wants and wishes, hence the
respondent department falls under the definition of industry
as per section 2(J) of Industrial Dispute Act, 1947. The
Deponent was engaged as driver and he used to do the
manual work of driver for hire and reward so there exists
relationship between the deponent and respondents of
employee and employer, hence the deponent is a workman
as per definition of workman as provided under section
2(s) of the Industrial Disputes Act, 1947.
10. That the deponent visited the office of the
respondents after his termination for re-instatement,but of
no use as they only gave false assurance.
11. That the deponent was an employee/workman
under the respondents/Deptt. in this proof deponent is
hereby state on oath that during the service tenure of the
deponent was falsely involved in Motor Accident case
vide FIR No. 43 dt. 19.3.2005, P.S. Tosham, District Bhiwani
for which deponent faced the trial and was acquitted the
case/petition was decided by the then M.A.C.T. Bhiwani
titled' State Vs. Vinod driver of Jeep No. HR 16B-5051 which
is of the department. (copy of judgment is attached). Further
more in connected FIR the deponent also faced Motor
Accident Claim Tribunal case where the management i.e.
SDE and others compromised the case by making
compensation to the Claimant (copy of the petition is already
on file) while now the Master/Department has denied the
relation of Master and servant.
12. That the deponent remained in service 7.3.2000
till his termination.
13. That the deponent/master now denying the
relationship between department and deponent knowingly
only with ulterior motive while it is absolutely true fact that
deponent is an employee/servant of the department all the
concerned cases are on file.
14. That it is further pointed out that if workman has
not worked with respondent then what was the necessity
of bringing the deponent before the Court in the case
mentioned above.
15. That the deponent is a young poor person and
forced unemployed since the date of his termination and
he has not succeeded in getting other employment so far.
The deponent made many requests to the respondent to
re-instate his services with back wages and all attending
benefits, but there repondents did not pay any heed and in
the compelling circumstances, the depoment challenged
his termination by filling a demand notice dated 10.05.06
U/s 2-A of Industrial Disputes Act, 1947.
16. That in the circumstances of the case, the present
reference is liable to be awarded in favour of the deponent
and against the respondent as prayed for.
Workman tendered his affidavit on 1.12.2010.
He was cross-examined on the same day.
His cross examination is as follows:—
It is correct that no appointment letter was ever issued
to me by the management whereby I was appointed. I have
no filed any document showing my employment with the
management. I got the driving license for the first time on
30.01.1995. There was the notice board displayed at the
gate of the office of the management whereby they had
requested for employing the drives. On reading that notice
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2053
I met Sub Divisional Engineer Sh. Jeet Ram who took my
test and appointed me but did not give me any paper. I
used to get my wages on vouchers in cash. Two other
similarly placed labourers were also getting their wages in
the same manner on vouchers. The wages used to be paid
every month on monthly basis. I used to perform my duties
for the whole of the month including Sundays and holidays
and was paid accordingly. I did not use to do the job of
cable repairing though I was doing other miscellaneous
jobs as was required of me. My signatures used to be
obtained on blank papers and I used to sign on the revenue
stamps and thereafter I do not know what they filling in the
said papers.
The log book of the vehicle used to remain with me
with the vehicle. I did not use to deposit the log book in the
office even when such log books used to be complete and
fresh one's were put into use. The log book used to be
filled and signed by the SDE and thereafter I also used to
sign the log book. It is correct that my signature are not
there on the log books. It is correct that there is no column
for the driver to sign the log books.
Motor accident claim case titled as Parkashi Devi's
Vs. Vinod Kumar whereby I was impleaded as driver of the
vehicle was ultimately withdrawn by Parkashi Devi and
court dismissed the said case as withdrawn. It is correct
that I have been acquitted in case FIR No. 43
dated 19.3.2005, PS Tosham, Distt. Bhiwani, Haryana. It is
correct that Parkashi Devi and Ved Parkash, eye witnesses
in the said case did not identify me as accused-driver and
I was acquitted. It is correct that I did not identify accused
Tara Chand in another case, State Vs. Tara Chand, also of
Bhiwani district. It is incorrect to suggest that I have
deposed falsely or that I have no case against the
management. It is incorrect to suggest that I did not remain
in continuous service from 7.3.2000 to 27.3.2006. I earn
about Rs. 3,000/- per month by working as labourers. It is
incorrect to suggest that I am earning Rs. 6,000/- per month
by working as driver.
Management in support of its case filed affidavit of
management witness Sh. Jeet Ram, Wherein he stated as
follows:—
1. That I, the deponent above names was working as
Divisional Engineer, BSNL and having been posted at
Bhiwani SSA is fully aware of the facts and circumstances
of the case and is therefore competent to swear this affidavit
and as such is fully acquainted with the facts deposed
herein below.
2. That the deponent was posted as Divisional
Engineer at Bhiwani (Rohtak SSA) from 20.1.2000 to
09.04.2003. The deponent retired on attaining the age of
superannuation on 31.08.2008 from the post of Divisional
Engineer, Karnal SSA.
3. That no notice was issued and hence not displayed
at the Gate/Notice Board of the office of BSNL, Bhiwani for
any requirement of Drivers during my tenure at Bhiwani.
Neither any such Notice was published in any newspaper
nor was any such requirement solicited by any
advertisement.
4. That the workman Vinod Kumar S/o Chander Singh
did not approach the deponent for recruitment as Driver.
That the deponent neither took any driving test for
recruitment of drivers nor the deponent took driving test
of Vihod Kumar. The deponent did not appoint/engage
Vinod Kumar as driver.
5. That the recruitment of drivers in BSNL is made in
terms of the Recruitment Rules of Drivers as published by
HRD Cell of BSNL dated 28.01.2002. Recruitment Rules of
Driver in BSNL dated 28.01.2002 are filed as annexure and
marked as Exhibit E-1.
6. That BSNL came into existence on 01.10.2000 from
erstwhile Dot/DTS/DTO. On the date of the alleged
appointment i.e. 7.03.2000, the recruitment rules of drivers
as framed by the Ministry of Communication, Department
of Telecommunications published in the Gazette of India
dated 19.6.1999 vide G.S.R. No. 188 dt. 7th June 1999 were
in force and any recruitment to the posts of Motor, Jeep,
lorry and Staff Car drivers was to be made in accordance
with the Recruitment Rules dated 19.06.1999. The
Department of Telecommunications (Drivers) Recruitment
Rules., 1999 are filed herewith as annexure and marked as
Exhibit E-2.
7. That as per the recruitment rules, a post of driver is
filled through selection by a Selection Committee consisting
of a Chairman (Head of Recruitment Unit) and two member
(Officers of Group 'A' and 'B' of Telecom Circle/Telecom
District respectively). The procedure of recruitment of
drivers includes publication of notification of vacancies
through advertisement in leading newspapers and selection
is made after holding driving test by a Selection Committee
after passing out written examination from eligible
candidates.
8. That the workman Vinod Kumar was not appointed/
engaged as Driver in the services of BSNL at all and his
alleged appointment/engagement was also not in
accordance with the procedure prescribed by rules. In
BSNL, a person cannot be recruited off the Recruitment
Rules.
9. That the deponent was not competent authority
as per the Recruitment Rules to recruit drivers.
10. That the post of driver is a post of permanent
nature in Group 'C' Non-Gazetted, Non-Ministerial in a fixed
IDA pay scale corresponding to CDA scale and gets all the
benefits of government rules relating to allowances, leaves,
medical, promotion etc. A driver properly recruited gets
monthly salary and does not get wages on daily or periodic
basis.
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[PART II—SEC. 3(ii)]
11. That workman Vinod Kumar had never been
posted as driver in SSA Bhiwani during my tenure i.e.
21.01.2000 to 09.04.2003 as D.E (P) & 23.07.2003 to 27.07.2004
as SDE (Coml.) at Bhiwani and to my knowledge nor had he
been posted as driver at SSA Bhiwani even after my transfer
to SSA Karnal i.e. after 27.07.2004.
12. That the log-books are official records and remain
in the custody of the office of the SDE. The registers of
log-books on completion were used to be kept in safe
custody of the office of the SDE.
13. That the respondent/management of BSNL is a
Govt.of India Enterprise and is governed by law applicable
thereto. BSNL has been carved out from erstwhile DoT/
DTs/DTO. As per the rules and practice, daily wagers are
engaged casually on the contingency of work on different
days for which they are paid on daily basis. Nature of work
of daily wager is not perennial.
14. That the claim of the workman Vinod Kumar is
vague, baseless and devoid of any merits and therefore
deserves dismissal.
His affidavit was tendered by management and then he was
cross-examination on 18.4.2012 by A/R for the Claimant.
His crossed examination is as follows:—
Jeep No. HR 16B5051 belonged to our department.
This vehicle used to be driven personally by SDO and in
case he requires the services of any driver, he could engage
somebody for a particular occasion. I do not know if Vinod
was driving this vehicle on 03.02.2005 as emergency driver.
I do not know what pay is given by the department to the
drivers who are appointed as per rules. I do not know if the
signatures of the drivers used to be obtained by those
officers who hire the services of the driver on a particular
occasion. There was no permanent driver during the time I
remained in service. Now I am retired. I know the workman.
Workman Arguments on Behalf of workman is as
follows:—
1. That the petitioner has filed the present claim
petition-statement being a workman. Brief facts of the case
are that on 7.3.2000 the petitioner was engaged/appointed
as driver by the respondent-management and posted as
such (driver) at Bhiwani and he was doing his duty as
driver on the Jeep bearing registration No. HR16B/5051,
which was the ownership of respondent No. 1. The
petitioner was getting a salary of Rs. 2500/- per month and
it was revised to Rs. 3000/- w.e.f. 2004. The work and conduct
of the petitioner-workman remained satisfactory during his
long service tenure. It was the permanent post of the
petitioner but the respondents termed the same as daily
wages.
2. That on 28.3.06 the petitioner reported his duty as
usual but he was not allowed to do his work, rather he was
told that his services are no longer required and in this way
his services were terminated since then.
3. That the petitioner has worked continuously from
7.3.2000 to 28.03.06 (log-book) with utmost sincerity and
probity to the entire satisfaction of his superiors and there
was relationship of employee and employer.
4. That the termination of the service of the petitioner
in such a manner was quite illegal, unjustified, capricious,
void ab initio,without notice being not in accordance with
the provisions of the Chapter V of the Industrial Disputes
Act, 1947 and principles of natural justice.
5. That the respondents have also appointed fresh
hands after the termination/retrenchment of the services
of the petitioner but no opportunity of employment has
been given to the petitioner and thereby the respondents
have violated the provisions of the Industrial Disputes
Act, 1947.
6. That the petitioner has requested the respondents
many a times but in vain and thereafter the petitioner on
12.05.06 served a legal notice upon the respondent but the
same remained reply-less. Hence, the petitioner filed the
present claim petition.
7. On notice, the respondents put in appearance and
filed their written statement taking several false and
frivolous grounds, inter alia, that the matter is baseless,
reference is bad in law. Not maintainable in the preset and
this Hon'ble Tribunal has no jurisdiction to entertain, try
and decide the petition. On merit, it has been alleged that
the petitioner was never appointed/engaged as driver by
the answering respondent. Log Book does not itself
constitute a proof of his appointment. In nut shell the
respondents have denied the claim of the petitioner on one
pretext or the other and in the last prayed for dismissal of
the claim petition has been made. In the additional pleas
also it is alleged that the petitioner has no locus standi to
file the petition and the provisions of section 25F of the
Act does attract to the present petition and in the last
prayer for the dismissal of the claim petition has been made.
8. The petitioner filed replication to the written
statement of the respondents controverting the allegations
made in the written statement and reiterating his stand
taken in the claim petition.
9. Both the parties have led their oral as well as
documentary evidence in support of their respective claims.
10. In support of his case, the petitioner himself
appeared as PW1 and tendered his affidavit. He has fully
supported his case as mentioned in the petition. His said
evidence has gone unchallenged and unrebutted. He has
stated that during his service tenure, the petitioner-
deponent was falsely involved in a Motor Accident claim
case vide FIR No. 43 dated 19.3.05, PS Tosham, district
¹Hkkx II—[k.M 3(ii)º
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2055
Bhiwani, for which he faced trial and he was acquitted of
the offence in which jeep belonging to the department
bearing No. HR 16B 5051 was involved. So, it cannot be
said that he was not appointed/engaged as driver by the
department. Moreover, in the said MACT case arising out
of that accident the respondent-department had
compromised the matter by paying compensation amount,
copy of which is already on the file. Therefore, it cannot be
said that the petitioner was not the employee of the
employer-respondents. There exists relationship of
employee and employer. In his affidavit produced on behalf
of the respondent-department, Jeet Ram son of Sh. Khushi
Ram the then SDE, BSNL, has deposed that the deponent
was not competent authority as per the recruitment rules
to recruit driver. He has further stated that the post of a
driver is a post of permanent nature and he is entitled to
allowances, leaves etc. He has further deposed that a driver
properly recruited gets monthly salary and does not get
wages in daily or periodic basis. So, when the deponent
was not competent authority, his affidavit is baseless does
not attain any importance. From the above said evidence
of the petitioner oral as well as documentary it is evidently
clear that the petitioner was appointed/engaged as driver
in the said department and he was getting salary and his
services have been terminated illegal, unlawfully, without
any notice and the same is liable to be set aside. It is also
pertinent to mention here that a case was registered against
one Tara Chand titled as State vs. Tara Chand son of Shri
Giga Singh bearing FIR No. 423 dated 19.10.2002, under
sections 332, 353, 504 and 379 IPC in PS Sadar Bhiwani, on
the basis of the complaint made by the department on
19.10.2002. In that case also petitioner Vinod driver appeared
as PW 4 on 30.07.2004 in the Hon'ble Court of Sh. V.P.
Sarohi, the then learned Addl. Chief Judicial Magistrate,
Bhiwani, and given evidence on behalf of the department.
If he was not posted in the respondent-department as driver
then how his name has come as a witness on behalf of the
respondent to appear as a witness and in that case the
accused Tara Chand was acquitted of the charge by the
said Hon'ble Court on 2.08.2004. It is also worthwhile to
mention here that a claim petition titled as Smt. Parkashi
Devi Vs. Vinod Kumar and others, was filed against Vinod
Kumar and SDE and Senior TOA of Bharat Sanchar Nigam
Limited, Tosham, district Bhiwani, on 17.11.2005 and
keeping in view the statement of the counsel for the
petitioner, the said claim petition was dismissed as
withdrawn on 16.05.2005 by the Court of Sh. V.K. Bakshi,
the then learned motor Accident Claims Tribunal, Bhiwani.
Moreover, in the said petition also the petitioner Vinod
Kumar has been shown as driver of jeep bearing No. HR16B/
5051. Therefore, the respondents have been deposing
falsely and they have produced false and frivolous evidence
to show that Vinod Kumar petitioner was never recruited/
engaged as driver in the department. All the oral as well as
documentary evidence falsifies the case of the respondents.
The respondents have failed to prove and produce any
iota of evidence against the said documentary evidence.
Moreover, the orders are passed by the Hon'ble Courts
and their authenticity cannot be doubted. Mere saying
that he was not recruited or engaged in the department is
driver has no significance in the eye of law particularly
when there is overwhelming documentary evidence of the
claimant-petitioner.
Submitted the above points of arguments, it is
humbly requested that the claim petition of the petitioner
may kindly be allowed as prayed for in the petition.
Written submissions on behalf of Respondents/
Management. Wherein he stated as follows:—
Case of Workman
The workman claims to be appointed/engaged as
driver by respondent-management in the BSNL, Bhiwani
since 7.3.2000. He claims to have given satisfactory
continuous service till his alleged illegal termination on
28.03.2006. He also claims to receive initially Rs. 2500/- per
month and subsequently Rs. 3000/- per month as salary.
The workman alleges to have sent a demand notice dated
10.05.2006 and prayed for reinstatement with full back wages
and continuity of service.
Contention of Respondent/Management
The respondents/management in their written
statement denied the relationship of employer and
employee between the respondents and the workman and
categorically stated that the workman had never been
appointed/engaged by them as driver, he was not an
employee of BSNL, and he did not get monthly salary. The
respondents/management also asserted that the petitioner-
Workman was not a workman within section 2(s) of
Industrial Disputes Act, 1947 and thus he lacks locus standi,
and that no question of alleged improper termination arises
hence provisions of Section 25-F and 25-B of Industrial
Disputes Act, 1947 do not attract.
Issues
On the pleadings of parties, apart for the issued under
reference, an additional issue was framed on 5.11.2008 for
determination which is as follows:—
"Whether the petitioner was workman of
management of BSNL, Bhiwani and had been in
continuous service from 7.3.2000 to 28.3.2006 of the
respondents within the meaning of section 25-B of
Industrial Disputes Act, 1947."
Evidence led by workman
To substantiate his claim, the petitioner/workman
examined himself (WW1) and tried to show his engagement
as driver by two court cases. (i) State Vs.Vinod, FIR No. 43
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[PART II—SEC. 3(ii)]
dated 19.3.2005 P.S. Tosham District Bhiwani u/s 279, 337
338 IPC. (ii) Motor Accident Claim case arising out of the
alleged accident Smt. Prakashi Devi V. Vinod Kumar & Ors.
The workman although did not speak about any other
case in his affidavit but has referred yet third case in his
written submissions being State Vs. Tara Chand, FIR No.
423 dated 19.10.2002 u/s 332, 353, 504, 379 IPC PS Sadar
Bhiwani wherein workman alleged to be a prosecution
witness in complaint lodged by BSNL officials.
No other evidence oral or documentary was placed
on record by the workman in proof of his Claim.
In his cross-examination the workman concedes that
Motor accident claim case titled Smt. Prakashi Devi. Vs.
Vinod Kumar was dismissed as withdrawal. The workman
also concedes that he was acquitted in case State Vs. Vinod
FIR No. 43 dated 19.3.2005 PS Tosham, Distt. Bhiwani as
eye witness Smt. Prakashi Devi and Ved Prakash did not
identify as accused —driver of the vehicle jeep No. HR
16B 5051 involved in the alleged accident. The workman
also concedes that he turned hostile and did not identify
accused. Tara Chand in case FIR No. 423 dated 19.10.2002
as a result of which accused Tara Chand was acquitted.
As regards log books, the workman after seeing
original log-books, states and confirms in his cross
examination that log-books for a period of 8.12.2003 to
28.3.2006 do not bear his signatures.
Evidence led by Respondent/Management
Respondent/Management examined MW1 Shri Jeet
Ram who was posted as Divisional Engineer at Bhiwani
(Rohtak SSA) from 20.1.2000 to 9.4.2003 who categorically
denied the appointment/engagement of the workman as
driver in services of BSNL at all and also stated that he did
not appoint/engage the workman as driver nor he took any
diriving test of workman for recruitment. He also stated on
oath that no notice for recruitment of driver was issued,
displayed or published during his tenure. Sh. Jeet Ram
also proved Recruitment Rules of Drivers in BSNL Exhibit
E-1 filed along with his affidavit. He also stated that at the
date of alleged appointment i.e. 7.3.2000, the recruitment
rules of drivers as framed by Ministry of Communication,
Department of Telecommunications published in Gazette
of India dated 19.6.1999 were in force and explained the
recruitment procedure and proved the said Recruitment
Rules vide Exhibit E-2 filed along with the affidavit.
Nothing material could be extracted from cross-
examination of MW1 Shri Jeet Ram.
Arguments
It is settled law that onus lies on the workman to
prove his case.
NO RELATIONSHIP OF EMPLOYER AND EMPLOYEE
APPOINTMENT—NOT PROVED
The workman claims to have been appointed as driver
by respondent/management and claims to draw monthly
salary. The workman could not establish his appointment
by producing any appointment letter or salary slip.
Admittedly no appointment letter was issued. Post of driver
is a permanent post and requires to be validly filled in after
following recruitment procedure. Mere single statement
on affidavit without supporting evidence does not prove
the fact. On the contrary, MW1 Shri Jeet Ram stated that
workman had never been appointed as driver in BSNL,
Bhiwani. Workman fails to prove his contention. Thus no
valid, legal appointment was established. Alleged
appointment, if any, is illegal and against Articles 14 and 16
of Constitution of India. Hence, workman cannot get benefit
of Sections 25-F & 25-B. There is no relationship of
employer and employee between the respondent/
management and the workman.
COURT CASES —DO NOT ESTABLISH WORKMAN
AS DRIVER
The main thrust of the workman to prove his case in
on the court cases mentioned earlier. Material facts and
admissions extracted from the cross-examination of
workman completely demolishes the case of the workman.
In motor accident case FIR No. 43 dated 19.3.2005
u/s 279, 337, 338 IPC State Vs. Vinod, it is admitted by the
workman that he was acquitted because eye witness Smt.
Prakashi Devi and Ved Prakash did not identify him as
accused driver of the vehicle jeep No. HR 16B 5051
belonging to respondent/management department. It is an
adjudicated fact that workman Vinod was not a driver of
the vehicle of the department respondent/management.
The Chief Judicial magistrate, Bhiwani vide judgment dated
2.6.2006 while acquitting accused-workman Vinod observed
that prosecution has miserably failed to connect accused
with the alleged accident. The said judgment and admission
by the workman in this regard itself falsify the fact that
workman was driver on the vehicle of respondent/
management.
Motor Accident Claim Petition titled Prakahsi Devi
Vs. Vinod & Ors. was admittedly dismissed as withdrawn.
It too does not establish that workman was driver of
respondent/management.
In case FIR No. 423 dated 19.10.2002 State Vs. Tara
Chand, it is admitted by workman that he turned hostile
and did not identify accused Tara Chand. Police may have
wrongly put Vinod as witness in the aforesaid criminal trial.
Moreover, the said incident was of 19.10.2002 and hence
does not come within the ambit of inquiry of this Hon'ble
Tribunal as the scope of inquiry for the purpose of
continuous service dates back only to preceding 12 calendar
months of the alleged dated of termination which is
28.3.2006 in the instant case. Further, according to section
21 of Evidence Act, admissions cannot be proved by or on
¹Hkkx II—[k.M 3(ii)º
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2057
behalf of person who makes them. The workman tries to
prove his own statement given in that case to prove his
own case which is not permissible under law. His earlier
statement in the said criminal case is not relevant and
cannot be taken into evidence.
CONTINUOUS SERVICE—NOT PROVED-LIMITED
SCOPE OF INQUIRY
The Workman states that he used to sign the log
books whereas he admits in his cross-examination that log
books from 8.12.2003 to 28.3.2006 do not bear his
signatures. The scope of inquiry for the purpose of
adjudication of continuous service is 12 calendar months,
preceding date of alleged termination which is 28.3.2006 in
the instant case. In the preceding 12 calendar months, the
workman could not establish his presence in the office.
The workman could not establish that he actually worked
during a period of 12 calendar months preceding 28.3.2006,
the date of alleged termination. Thus the workman could
not be said to be in continuous service within the meaning
of section 25-B.
REGULARISATION/ABSORPTION — NO RIGHT
Although, the workman fails to prove his case,
without admitting anything, it is submitted that daily wager
has no right to be absorbed or regularized in service.
Completion of 240 days of continuous service by itself
does not create a ground for absorption. Working for more
than 240 days does not ipso facto entitle the workman to
be regularized. It is settled law that illegal appointment
should not be regularized and that persons entered by
backdoor must be shown backdoor.
CASE LAW—RELIED ON
(2008)2 SCC 552 Chandra Shekar Azad Krishi Evam
Prodyogiki Vishwadilaya Vs. United Trades Congress &
Anr.
Held: Working for more than 240 days continuously
from the date of engagement by itself does not confer right
to be regularised ......... In the event the constitutional and
statutory requirements are not complied with, the contract
of employment would be rendered illegal.
(2005)2 SCC 470 Dhampur Sugar Mills Ltd. Vs. Bhola
Singh.
Held: Completion of 240 days of continuous service
in a year may not by itself be a ground for directing
regularization, particularly in a case when the workman
had not been appointed in accordance with the extant rules.
(2005) 8 SCC 750 Surendra Nagar District Panchayat
Vs. Dayabhai Amar Singh.
Held: Scope of inquiry before Labour Court was
confined to only to twelve months preceding the date of
termination to decide question of continuation of service
........ Burden of proof lies on workman.
In view of the above submissions, it is prayed that
the claim of the workman be rejected with costs.
In the light of contention and counter contentions I
perused the claim statement, written statement, rejoinder
and evidence of the parties on record. Principles laid down
in the cited rulings and settled law on the relevant points.
Perusal of claimant evidence shows that he gave his
oral as well as possible documentary evidence to show
that he was employee of the management. In his evidence
he pointed out that during his service tenure claimant was
falsely implicated in a Motor accident case Vide FIR No. 43
dated 19.3.2005, Police Station, Tosham District Bhiwani
for which he face trial and he was acquitted to the offences
in which Jeep belonging to the Department bearing No. HR
16B 5051 was involved so it cannot be said that he was not
driver of the Department. Moreover MACT case arise out
of the aforesaid accident has been compromised. Copy of
which is on record which shows that compromise took
place and compensation was paid to petitioner of Motor
Accident claim petition.
It is also relevant to mention here that FIR No. 423,
dated 19.10.2002 u/s 332, 353, 504, 379 IPC in Police Station
Sadar Bhiwani was lodged on the basis of complaint made
by the department on 19/10/2002. Police submitted
chargesheet against accused Tarachand. On Chargesheet
concerned magistrate took cognizance. Thereafter during
proceeding evidence claimant Vinod Kumar produced as
PW4 on 30.7.2004 in the court of additional chief judicial
Magistrate, Bhiwani. He gave evidence on behalf of
department. In which accused Tarachand was acquitted
on 2/8/2004.
On the basis of evidence of claimant/workman it is
crystal clear that workman during proceeding of aforesaid
two cases was shown to be employee of management as
driver. It is not in dispute that aforesaid cases took place
before the reference of the present Industrial Dispute. Even
than management is denying the employer and employee
relationship with claimant.
Moreover management is keeping mum on the point
of registered notice giving to management by workman
prior to institution of proceedings of instant case.
It is also relevant to mention here that management
could not explain with possible, credible and reliable
evidence that workman Vinod Kumar was not such person
whose name figures in aforesaid motor accident claim
petition and FIR of criminal case.
In addition to it claimant/workman in support its case
gave all possible and available evidence at his end.
Moreover in rebuttal management could not dare to
produce the documents in possession that is attendance
2058
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
register etc. and could not offer explanation how the
photocopy of Log-Book of aforesaid car of department
was in possession and filed by workman in the instant
case.
In these circumstances there is sufficient evidence
on record to come on this conclusion that workman was at
least daily wager driver of the management. Although
management has left no stone unturned to whistle out his
claim.
On the basis of aforesaid discussion I am considered
view that claimant Sh. Vinod Kumar was driver of
management on daily wages.
In the light of contentions and counter contentions
I perused the settled law of Hon'ble Supreme Court on the
point of reinstatement and grant of back wages which
shows that reinstatement is not a necessary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be awarded.
In Assistant Engineer, Rajasthan Dev. Corporation and Anr
Vs. Gitam singh, (2013)II LLJ 141 Hon'ble Supreme Court
has held that reinstatement of workman with continuity of
service and 25% back wages was not proper in the facts
and circumstances of the case and the compensation of
Rs. 50,000/- (Rs. Fifty Thousand Only) shall meet the ends
of justice. In Jagbir Singh Vs. Haryana State Agriculture
Marketing Board & Anr AIR 2009 Supreme Court 3004,
Hon'ble Supreme Court held thus "the award of
reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year
preceding the date of termination particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded." In catena of Judgments,
Hon'ble Supreme Court has taken a view that reinstatement
is not automatic, merely because the termination is illegal
or in contravention of S-25-F of the Industrial Dispute Act.
In Talwara Co-operative credit and service society Limited
Vs. Sushil Kumar (2008) 9 SCC 486, Hon'ble Supreme Court
held thus," grant of relief of reinstatement, it is trite, is not
automatic. Grant of back wages is also not automatic."
Workman of the instant case was not appointed by
following due procedure and as per rules. He had rendered
service with the respondent as a casual worker, thus.
Compensation of Rs. 50,000/- (Rs. Fifty thousand only) by
way of damages as compensation to the workman/claimant
by Management after expiry of period of limitation of
available remedy against Award. That will meet the ends of
Justice.
Thus Reference is decided in favour of workman and
against Management.
Award is accordingly passed.
Dated : 27.01.2014
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 761.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsØsVjh laLd`fr
ea=ky; ,aM vnlZ] ubZ fnYyh ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV
¼lanHkZ la[;k 01@2011½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
3@02@2014 dks izkIr gqvk FkkA
[lañ ,y&42025@03@2014&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 761.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 01/2011)
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 The Secretary, Sanskriti Mantralaya, New
Delhi & Others and their workman, which was received by
the Central Government on 03/02/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
PRESENT:
Dr. Manju Nigam, Presiding Officer
I.D. No. 01/2011
BETWEEN
Vikas Kumar Gupta S/o Shri Baidhnath Prasad
R/o Village - Malkauli, Post - Naripur
PS - Bagha-2, Distt. Champaran
Bihar-845 105
AND
1. Secretary
Sanskriti Mantralaya
Bharat Sarkar
Sashtri Bhawan, New Delhi
2. Director & Head of Office
Rashtriya Sanskriti Sampada Sanrakshan Anusandhan
Prayogshala
(NRLC)
E/3, Aliganj, Lucknow
AWARD
1. The present claim has been filed by the workman
Vikash Kumar Gupta under provisions contained in the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2059
Section 2A of the Industrial Disputes Act, 1947 for alleged
termination of the services of the workman by the
management of Rashtriya Sanskriti Sampada Sanrakshan
Anusandhan Prayogshala (NRLC), Lucknow.
3. The case of the workman, in brief, is that he had
been appointed on the post of bilingual computer typist
on 14.06.2006; and worked accordingly up to 08.05.2009
continuously. It has been stated by the workman that
though the duties performed by him were of regular nature
but he was paid as daily wager in contravention to the
Government order vide OM No. 49014/2/86-Estt. (C) dated
7.6.88 & No. 15022/4/90-Estt. (Allowances) dated 9.6.1994.
It is alleged by the workman that his services have been
terminated by the management by orally without any notice
or notice pay in contravention to the provisions contained
in Section 25 F of the I.D. Act, 1947; and accordingly, the
workman has prayed that his termination w.e.f. 08.09.2009
be declared injustified and illegal and he be reinstated with
consequential benefits, including continuity in service and
full back wages.
4. The management of the NRLC has disputed the
claim of the workman by filing its written statement wherein
it has disputed the claim of the workman, submitting that
the opposite party establishment does not comes within
the purview of 'industry', therefore, the present case is not
maintainable before this Tribunal. It has further submitted
the workman was engaged in the department on daily wages
as and when required as per need on the basis of contract
on specified terms and his time period for engagement was
extended from time to time. It is also submitted by the
management that due to non-availability of work, the
services of the workman got terminated on 08.08.2009 as
per terms of the contract, therefore, there was no
termination of his services as alleged by him. It is further
submitted that the workman was engaged for contractual
services to carry out computer typing vide order dated
01.06.2007 and he was required to work as daily rated worker
as per terms of the contract and he was paid accordingly,
therefore, not entitled for payment at par with the regular
employees. Hence, the management has prayed that the
claim of the workman be rejected out rightly being devoid
of merit.
5. The workman has filed its rejoinder; wherein it has
submitted that the opposite party is an 'industry' within
the provisions contained in the I.D. Act and in this regard
he has relied upon the Banglore Water Supply case. Further,
he has also denied his engagement on contract basis and
has reiterated his averments made in the statement of claim.
6. After completion of the pleading of the parties, the
workman field list of documents, paper No. W-10 and
application for summoning the documents from the
management, paper No. W-11. In rebuttal the management
neither filed any documents in support of their case nor
any objection to the application summoning the documents
from the management.
7. The parties kept absenting themselves since
28.03.2012; and thereafter several dates have been fixed for
hearing in the present case; but none turned up from the
either parties to press their case; accordingly, the case was
reserved for award, keeping in view the reluctance of the
parties and long pendency of the case since 2011.
8. The workman has come forward with the case that
he had been appointed on 14.06.2006 with the management
and worked continuously till 08.05.2009; but has not filed
any evidence in support of his claim. Although he
summoned certain documents from the opposite party; but
in the event of non-filing of any objection thereto or
documents by the management, the workman was to come
forward to take resultant benefit; but he failed to do so, as
he absented himself all together. In M/s. Uptron
Powertronics Employees' Union, Ghaziabad through its
Secretary vs. Presiding Officer, Labour Court (II), Ghaziabad
& others 2008 (118) FLR 1164, Hon'ble High Court relied
upon the law settled by the Apex Court in Sanker
Chakravarti vs. Britannia Biscuit Co. Ltd. 1979 (39) FLR 70
(SC), V.K. Raj Industries vs. Labour Court and others 1979
(39) FLR 70 (SC), Airtech Private Limited vs. State of U.P.
and others 1984 (49) FLR 38 and (Alld.) Meritech India Ltd.
vs. State of U.P. and others 1996 (74) FLR 2004; wherein it
was observed by the Apex Court:
"that in absence of any evidence led by or on behalf
of the workman the reference is bound to be answered by
the Court against the workman. In such a situation it is not
necessary for the employers to lead any evidence at all.
The obligation to lead evidence to establish an allegation
made by a party is on the party making the allegation. The
test would be, who would fail if no evidence is led."
From the photocopy of the documents filed by the
documents, which are not duly proved by the workman
though his oral evidence, it cannot be arrived at the
conclusion that the workman actually worked with the
management continuously from 14.06.2006 to 08.05.2009
as claimed by him or he worked for 240 days in the year
preceding his termination; and his termination was in
contravention of the provisions of the Section 25 F of the
Industrial Disputes Act, 1947.
9. In the above circumstances, it appears that the
workman does not want to pursue its claim on the basis of
which he has raised the present industrial dispute;
therefore, the present industrial dispute is decided as if
there is no grievance left with the workman. Resultantly no
relief is required to be given to the workman concerned.
The industrial dispute under adjudication is adjudicated
accordingly.
10. Award as above.
Lucknow
23rd September, 2013
Dr. MANJU NIGAM, Presiding Officer
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 10 Qjojh] 2014
dkñvkñ 762.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj dekaMsaV] ,u lh
lh xzqi gSM DokVZlZ] xksj[kiqj ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] y[kuÅ ds iapkV
¼lanHkZ la[;k 104@2011½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 03@02@2014 dks izkIr gqvk FkkA
[lañ ,y&14012@02@2011&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 10th February, 2014
S.O. 762.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (ID No. 104/2011)
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 The Commandant NCC Group Headquarters,
Gorakhpur and their workman, which was received by the
Central Government on 03/02/2014.
[No. L-14012/02/2011-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM- LABOUR COURT, LUCKNOW
PRESENT :
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 104/2011
Ref. No. L-14012/2/2011-IR(DU) dated: 23.05.2011
BETWEEN
Shri Upendera Pandey
R.K. Puram Colony,
Near Samajghar, Daudpur,
Gorakhpur
AND
The Commandant
NCC Group Headquarters
Canal Road, Mohaddipur
Gorakhpur
AWARD
1. By order No. L-14012/2/2011-IR(DU) dated:
23.05.2011 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 Upendera Pandey, R.K.
Puram Colony, Near Samajghar, Daudpur, Gorakhpur and
the Commandant, NCC Group Headquarters, Canal Road,
Mohaddipur, Gorakhpur for adjudication to this CGIT-cum-
Labour Court, Lucknow.
2. The reference under adjudication is:
"Whether the action of the management of
commandant, NCC Group Headquarters Gorakhpur
in terminating services of Shri Upendra Pandey,
cashier cum Bradma Operator w.e.f. 01/09/2009
without complying with the mandatory provisions
of industrial disputes Act, 1947 and without following
the due procedure of regulation of employees of unit
run canteen is legal and justified? what relief the
applicant is entitled to?"
3. The case of the workman, Upendra Pandey, in brief,
is that he was appointed as cashier cum bradama operator
on 13.07.2004 and was granted two increments of
Rs. 200/- each. It is alleged by the workman that the
management has terminated his services w.e.f. 01.06.2009
without any; written order or any opportunity of hearing
to him. Accordingly, the workman has prayed that the action
of the management in terminating his services without
complying with the mandatory provisions of I.D. Act as
well as Regulations of employees of Unit Run Canteen, be
declared illegal and he be reinstated with all consequential
benefits including salary.
4. The management of the NCC Group Headquarter
has denied the claim of the workman by filing its written
statement wherein it has disputed the appointment of the
workman on the basis of the irregularities committed in the
appointment letter, appointing the workman, renders it as
an illegal document. It has also disputed the appointment
of the workman on the basis of other irregularities committed
while making his appointment and has pleaded that the
name of the workman has neither been sponsored by the
Employment Exchange nor any advertisement was
published, inviting application for filling the vacancy. The
management has submitted that after due notice of a week's
time, the workman was called for personal hearing on
31.05.2009 to clarify the facts of his illegal appointment. It
is submitted by the management that the workman was
asked to explain as to whether his name was ever forwarded
by the Employment Exchange or he applied in response to
any advertisement or he ever appeared in any test or
interview or he ever gone through some medical
examination or his antecedents were ever verified before
reporting to the duty. It is further pleaded by the
management that when the workman failed to explain the
circumstances under which he was appointed through an
'illegal document', his services were terminated w.e.f.
01.06.2009. It is also submitted by the management that the
services of the workman were terminated when the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2061
management came to know that the appointment was based
on illegal document; and accordingly, the management has
prayed that the claim of the workman be rejected being
devoid of merit and no relief be granted to him.
5. The workman has filed rejoinder whereby apart
from reiterating his averments in the statement of claim he
has denied he was ever given any opportunity of personal
hearing by the management before terminating his services
as he never received any information or letter from the
opposite party to the effect.
6. The parties have filed photocopies of various
documents in support of their respective claim. The
workman has examined itself whereas the management has
examined Colonel B.P. Shahi, Brigadier (Retd.) A.K.R.
Tripathi and Colonel Prabhat Ranjan in support of their
stands.
7. The parties availed opportunity to cross-examine
the witnesses of each other apart from forwarding oral
arguments.
9. Heard authorized representatives of the parties
and perused entire evidence on record.
10. The authorized representative of the workman
has submitted that he had been appointed on the post of
Cashier-cum-Bradma operator vide appointment letter dated
13.07.2004, issued by the managemet, which is admitted by
the management; and this leaves no occasion for the
management to terminate the service of the management
without giving any opportunity to the workman to defend
himself. It has been argued by the workman that the
contention of the management that irregularities were
observed during issuance of the appointment letter and
due procedure prescribed for appointment were not
followed, then it is not a fault on the part of the workman as
there is no allegation of misrepresentation by the workman
for obtaining the job. The workman has also argued that
the action of the management in terminating the services
of the workman without giving him any opportunity to
defend himself before a formal inquiry is in violation to the
principles of natural justice.
11. In rebuttal the management has stressed on the
point that the appointment of the workman was done
through an illegal documents/appointment letter which is
not sustainable in the eye of law as it does not incorporate
certain facts regarding approval of the approving authority
or who is the appointing authority or any finding regarding
fitness before any selecting board etc. It has also argued
that the appointment of the workman was made by passing
the due procedures of appointment; therefore, same was
liable to be terminated as the workman could not furnish
any detail regarding the process adopted during the course
of his appointment; which rendered his appointment to be
illegal one.
12. I have given my thoughtful consideration to the
rival contentions of the parties and perused entire material
available on record.
13. The case of the workman is that he was appointed
by the opposite party vide appointment letter dated
13.07.2004 on the post of Cashier-cum-Bradma Operator
and during his working with the opposite party he was
granted two annual increments @ Rs. 200/- each as per
terms mentioned in the appointment letter. Thereafter, the
opposite party terminated his services w.e.f. 01.06.2009 in
an arbitrary manner without any rhyme or reason or without
affording him any opportunity of hearing to him and against
the provisions of the Industrial Disputes Act, 1947.
14. Per contra, the management has come up with the
case that the workman is relying upon a letter which is an
illegal document having so many irregularities as it did not
mention many vital facts in it, likewise the terms and
condition of the appointment and the workman has not
under went with the prescribed procedures for the
appointment; accordingly, he cannot be allowed to continue
the services as per law.
15. The opposite party has taken preliminary
objection that the applicant is not a 'workman' as defined in
the Section 2 (s) (iv) of the I.D. Act, 1947. The workman has
denied the contention of the management. Section 2 (s) of
the Industrial Disputes Act, 1947 defines 'workman' as
under.
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 proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a
consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but does
not include any such person—
(i) ...............
(ii) ...............
(iii) ...............
(iv) Who, being employed in a supervisory capacity,
draws wages exceeding [ten thousand 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."
In this regard the onus was on the management to
come forward with evidence such as details of work liabilities
in respect of workman and powers conferred upon him to
show that the applicant was actually engaged in managerial
or supervisorial work; but the management has utterly failed
2062
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
to do so, in as much as, apart from above pleading he has
corroborated the same with cogent documentary evidence.
On the contrary it is evident from the appointment letter
dated 1.07.2004, issued to the workman, that the workman
had been appointed as cashier-cum-Bradma Operator
which is clerical nature of post; also that he was not
conferred upon any financial or administrative powers. It
is not denied that the workman had not worked with the
opposite party, the onus is on the opposite party to explain
in what capacity he has been inducted with the opposite
party, which puts him out of the purview of the definition
of 'workman'. Therefore, on the basis of the evidence on
record, I am of the opinion that the applicant is 'workman'
as defined in the Section 2 's' of the Act.
16. From contentions of the parties it is evident that
they have relied on the appointment letter dated 13.07.2004.
The workman has taken a stand that he was appointed in
pursuance to said appointment letter and was granted two
annual increments; whereas the management has disputed
the validity/legality of the said appointed letter on the basis
of non-mention of certain facts regarding appointment etc.
The contents of the said appointment letter are reproduced
hereunder:
"Telephone: 2200165
NCC GP HEAD QUARTERS
GORAKHPUR - 273008
6005/CSD/Fin.
13th July, 2004
Shri Upendra Pandey
R.K. Puram Colony,
Doudpur, Gorakhpur
APPOINTMENT
1. Your appointment as Cashier-cum-Bradma
operator of CSD Canteen NCC Gp HQ Gorakhpur in pay of
Rs. 2000.00 (Rupees Two Thousand only) per month, is
hereby approved.
2. Annual increment will be at the discretion of Gp
Cdr.
-Sd.-
(S.C. Singla)
Lt. Col.
OI/C Canteen"
From perusal of the above appointment letter is very
much clear that the workman was conveyed of the approval
of his appointment and also the term of his employment
were mentioned in the said appointment letter i.e. quantum
of his pay and admissibility of annual increment. While
disputing the above appointment letter the management
has not pleaded that the above appointment letter was
obtained by the workman by misrepresentation or fraud. It
is also not pleaded that the said appointment letter is
forged one or it has not disputed the signatures of the
Lt. Col. S.C. Singla. It is also not pleaded that Col. Singla
was not the appointing authority, then mere contention
that it does not bear any mention regarding appointing
authority or fitness of the applicant by the Selection Board
or non-mentioning of appointing authority, does not hold
good. It was for the management to observe these
technicalities at the time of issuance of his appointment
letter and not later on.
The appointment of the workman is not denied by
the management. It is also not denied the workman was
given two annual increments on the basis of said
appointment letter. It is also not denied that the said letter
was not issued by Lt. Col. S.C. Singla under his signatures,
then it is not open to management to dispute the legality of
the appointment letter if any irregularity or omission is
there, it is the fault on the part of the management. Even if
certain fact are not mentioned in the appointment letter
about procedure adopted, which is not of much importance
to mention in the appointment letter as the appointment
letter dated 13.07.2004 has conveyed the approval of the
appointment and the same is comprehensive in itself. The
appointment letter is sort of communication to the
appointee about approval of the competent authority of
his appointment and this approval of the authority is given
in the related files and the same need not to be reflected in
the body of the appointment letter as contended by the
management. Further, terms of services are vital part of the
appointment letter i.e. it must mention about rate or payment
and admissibility of various allowances, increment or terms
of terminating of services etc. In the instant case the
appointment letter dated 13.07.2004 very well reflected about
rate or pay and annual increment, therefore, it cannot be
said that the same was illegal, particularly when the
genuineness of the signatures are not disputed by the
management.
17. The terms of reference comprises of two issues
firstly as to whether the termination of the workman was in
violation to the provisions of the I.D. Act, 1947; and
secondly, as to whether the termination of the workman
was in violation to the due procedure of regulation of
employees of Unit Run Canteen? In this regard, on looking
into the question regarding compliance of provisions of
I.D. Act, 1947, it comes out that admittedly the workman
had been appointed with the opposite party vide
appointment letter dated 13.07.2004 and worked as such till
the date of alleged termination i.e. 01.06.2009; and as per
provisions of Section 25F of the Act, which reads as under:
"25F 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
¹Hkkx II—[k.M 3(ii)º
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2063
workman has been paid in lieu of such notice,
wages for the period of the notice;
(b) The workmkan 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 approporiate Government by
notification in the Official Gazette."
It is not the case of the management that the workman
had not been appointed by them. It is also not their case
that the workman worked with them continuously up to
the alleged date of termination i.e. 01.06.2009. In
Surenderanagar Panchayat and another v. Jethabhai
Pitamberbhai 2005 (107) FLR 1145 (SC) Hon'ble Apex
Court came to the conclusion that were the workman proves
that he had been in employment with the employer for a
period of 240 days uninterruptedly, in a year preceding his
alleged termination, he is entitled to protection in
compliance of section 25-F of the Industrial Disputes Act,
1947.
Therefore, in view of above case law, it is for the
management to comply with the mandatory provisions of
Section 25 F of the Act as the workman worked continuously
from 13.07.2004 to 31.05.2009 continuously and there is no
denial in this regard on behalf of the management,
therefore, the action of the management in terminating his
services without complying with the provisions of Section
25 F of the Industrial Disputes Act, 1947 was illegal and
unjust.
18. Now coming to the second point of reference,
regarding validity of termination of the services of the
workman by the opposite party without following the due
procedure of regulation of employees of Unit Run Canteen,
the workman has relied on the "Rules regulating the terms
and conditions of service of civilian employees of unit run
canteens paid out of non public funds", paper No. 3/9 to
3/21; wherein procedure for dismissal/discharge of
employees on account of misconduct/indiscipline is given,
paper No. 3/21., which provides that due procedure is to
be adopted in accordance with the principle of natural
justice while dismissing/discharging the employees, which
included issuance of charge-sheet, appointment if inquiry
officer, holding of any inquiry, persual of the report of
Inquiry Officer by the Disciplinary Authority, issuance of
show cause notice, issuance of order of punishment etc.
In this regard, it is contended by the opposite party
that the workman was called for personal hearing on
31.05.2009 in the office of the Group Commander, NCC Group
Headquarters, Gorakhapur to clarify the facts of illegality
of his appointment on 13.07.2004; but this fact was denied
by the workman that he was ever called upon by the
management or was given any opportunity of personal
hearing before terminating his services on 01.06.2009. In
view of settled procedure of law regarding the pleadings
of the opposite party about commission of alleged
irregularities during the appointment of the workman or
non-observance of due procedure, it was incumbent upon
the management to set up an inquiry to probe into the
matter and submit its report before appropriate authority
for necessary action. It was onus on the management to
prove that the inquiry was conducted and during inquiry
evidence in the matter was recorded. No document was
produced to support the contention that the inquiry was
conducted in this court, as no inquiry proceeding as
submitted, by the management that it conducted the
inquiry is produced nor any inquiry report is produced.
The workman was required to call upon before the inquiry
to explain his position, but the management utterly failed
to observe this settled procedure of law; instead it shifted
the burden on the workman by calling him to show the
proof of the formalities that were required to observe
during his appointment. This can be understood very easily
that all the documents/details relating to the appointment
of an employee is readily available with the management
and it can go throught it at any time in order to find out any
alleged irregularity committed during the appointment of
an employee; but in present case the opposite party
adopted a different way just to protect the officers involve
in the non-compliance of the procedure required to be
followed. The workman has specifically pleaded that the
management never called him for personal hearing
whatsoever; and also, the management could not prove
through any cogent evidence that it ever called upon the
workman to defend his case, which makes the action of the
management arbitrary, even if it is taken for the argument's
sake that som error, mistake or omission was committed
during the course of appointment of the workman as it was
not open for the management to terminate the services of
an employee, who has rendered the services, regularly,
without giving any show cause or giving him any
opportunity for defence. There is no iota of the evidence
to show that the management ever adopted the procedure
prescribed in the regulation of employees of Unit Run
Canteen. The management has not rebutted this fact that
the above regulations were not applicable upon the
workman, therefore, the management was ought to observe
said procedure before taking any action against the
workman in which the management failed all together.
19. Thus, in view of the facts and circumstances of
the case and the discussions made hereinabove, I am of
the considered opinion that the action of the management
of Commandant, NCC Group Headquarters, Gorakhapur in
terminating the services of the workman w.e.f. 01.09.2009
was illegal and unjustified; as the said termination of
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
service of the workman was neither in compliance of the
provisions of the Industrial Disputes Act, 1947 nor with
the regulation of employees of Unit Run Canteen.
20. As regards relief that could be granted to the
workman, it is pleaded by the management that the
appointment of the workman was done in the contravention
to the prescribed procedure for appointment i.e. his name
was not sponsored by the Employment Exchange, which
is also admitted by the workman; and the workman did not
face any Selection Board , his name was not approved by
the Selection Board/Appointing Authority etc. In this
regard it has relied on Secretary, State of Karnataka &
others vs Uma Devi (3) & others (2006) 4 SCC 1 and
State of Bihar vs Upendra Narayan Singh & others (2009)
5 SCC 65 wherein Hon'ble Apex Court has held that
"persons appointed by back-door methods or as a result
of favoritism, nepotism or corruption have been found to
be lacking in devoting to duty and efficiency. However,
evil consequences of the unwarranted sympathy shown in
such cases has been gradually realized by the Courts and
thus relief of reinstatement /regularization has been denied
to illegal appointees/back-door entrants."
In Jagbir Singh v. Haryana State Agriculture Mktg.
Board (2009) 15 SCC 327: (2010) 1 SCC (L&S) 545: Senior
Superintendent Telegraph (Traffic), Bhopal v. Santosh
Kumar Seal and others (2010) 2 SCC (L&S) 309 Hon'ble
Apex Court has observed as under:
"However , in recent past, there has been a shift in
the legal position and in a long line of cases, this Court,
has consistently taken the view that relief by way of
reinstatement with back wages is not automatic and may
be wholly inappropriate in a given fact situation even
though the termination of an employee is in contravention
of the prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice.
The award of reinstatement with full back wages in a
case where the workman has completed 240 days of work
in a year preceding the date of termination, partiuclarly,
daily wagers has not been found to be proper by this
Court and instead compensation has been awarded."
21. In the light of principle laid down in
aforementioned case laws, it would not be just and proper
to direct that the workman be reinstated in service. The
ends of justice would meet by paying compensation to the
workman instead in place of relief of reinstatement in service.
22. Having regards to these facts that the workman
has worked as regular Cashier-cum-Bradma Operator and
getting Rs. 2400 per month at the time of his alleged
termination and keeping in view the entire facts of the case
and the law, the interest of justice would be subserved, if,
management is directed to pay lump-sum amount towards
compensation only.
23. Accordingly, the management is directed to pay
a sum of Rs. 1,50,000 (Rupees One Lakh Fifty Thousand
only) to the workman as compensation for termination of
his services in violation of section 25 F of the I.D. Act. The
said amount shall be paid to the workman within 08 weeks
of publication of the award, falling which; the same shall
carry interest @ 8% per annum.
24. The reference is answered accordingly.
25. Award as above.
Lucknow
1st November, 2013
Dr. MANJU NIGAM, Presiding Officer
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dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;qdks cSad ds izca/
kr= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp vuqca/k esa
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gS] tks dsUæh; ljdkj dks 11-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12012@161@2004&vkbZ vkj ¼ch&II)]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 763.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 01/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of UCO Bank and their workmen,
received by the Central Government on 11-02-2014.
[No. L-12012/161/2004-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/01/2005
Date: 19.11.2013.
Party No. 1 : The Regional Manager,
UCO Bank, Regional Office,
Bhagwaghar Layout,
Dharampeth, Nagpur.
V/s.
Party No. 2 : Shri Sanjay Hegu
Near Mukharji Bangala,
R/o. Rout Wadi, Akola,
Distt. Akola (MS).
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2065
AWARD
(Dated: 19th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of Section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of the UCO Bank and their workman,
Shri Sanjay Hegu, for adjudication, as per letter No. L-
12012/161/2004-IR (B-II) dated 23.11.2004, with the following
schedule:—
"Whether the action of the management of UCO Bank
through its Regional Manager, Regional Office,
Nagpur in dismissing the workman Shri Sanjay
S/o. Ramappa Hegu PFM No. 36026 Typist from
service w.e.f. 30.08.2003 is just and legal? If not, to
what relief is the workman is entitled?"
2. On receipt of the reference, parties were noticed to
file their respective statement of claim and written statement,
in response to which, the workman, Shri Sanjay Hegu, ("the
workman" in short) filed the statement of claim and the
management of UCO Bank, ("Party No. 1" in short) filed
the written statement.
The case of the workman as presented by the
statement of claim is that UCO Bank is a Nationalised Bank
and the service conditions of the employees of Party No. 1
are governed by the provisions of Sastry Award, Desai
Award and different bi-partite settlements signed between
the Indian Bank's Association and Federation of Bank
employees and he came to be appointed in the services of
Party No. 1 as a typist in the year 1983 and while he was
serving at Akola Branch as a typist, he was served with
the charge sheet dated 17.07.1990 by the Disciplinary
Authority and simultaneously, departmental enquiry was
ordered and one Shri Bhombe was appointed as the enquiry
officer and pending departmental enquiry, he was put under
suspension, vide order dated 10th March, 1990 and besides
the initiation of the departmental enquiry, the Party No. 1
also filed a F.I.R. against him at Akola Police Station, as a
result of which, a criminal case was registered against him
and as the facts of the criminal case and so also the
departmental equiry were similar to larger extent and
continuance of the departmental action would have been
prejudicial to the evidence to be brought before the criminal
court, he approached the Hon'ble High Court of Judicature
of Bombay, Bench at Nagpur by filing writ petition No.
2554/1990 and the Hon'ble Court was pleased to stay the
further proceedings of the departmental enquiry initiated
against him, for certain period, vide order dated 18.10.1990
and as such, Shri Bhombe, the enquiry officer did not
proceed with the enquriy and thereafter, for some reasons,
the Party No. 1 appointed another enquiry officer, namely,
Shri Shendre in place of Shri Bhombe and he faced his trial
in the court of the Judicial Magistrate First Class, Akola in
the criminal case and was acquitted of all the charges by
the judgment dated 30.10.1999 and soon after his acquitall
in the criminal case, Party No. 1 appointed one Shri Pande
in place in Shri Shendre, to conduct the departmental equiry
against him, but unfortunately, the said enquiry officer
conducted the departmental enquiry exparte and submitted
his report dated 16-06-2003 to the Disciplinary Authority
and in his report, the equiry officer held the charge No. 1 to
heve been proved in part against him and all other charges
not to have been proved and the disciplinary authority,
after conducting farce of personal hearing, awarded the
punishment of his dismissal from services, vide order dated
30.08.2003 and the appeal preferred by him against the order
of punishment was dismissed by the appellate authority,
vide order dated 12.03.2004.
The further case of the workman is that as the facts
involved in the criminal case and the charge sheet dated
17.07.1990 submitted against him were identical and similar
and he was acquitted in the criminal case, the Party No. 1
had no right to proceed with the departmental enquiry and
it would have been just and proper to drop the departmental
proceedings, but Party No. 1 with biased mind, proceeded
with the enquiry against him illegally, without following
the principles of natural justice and made a farce of declaring
the charge as proved and awarded the punishment of
dismissal and as the order impugned is unjust and illegal,
the same is liable to be set aside. It is further pleaded by the
workman that on 23.04.2002, he sought for permission to
engage an advocate for his defence and the management
representative recorded of his no objection to the same
and the enquiry officer accorded permission for
engagement of advocate, but on the next date of the enquiry,
i.e. on 29.05.2002, when he attended the enquiry with his
lawyer, the enquiry officer recalled his earlier rulings and
did not allow him to defend by the lawyer and after having
once granted permission for engagement of advocate,
rejecting the said permission, on the next date, amounts to
unfair practice.
The further case of the workman is that after one
year of his suspension, he was entitled for full pay and
allowances, but Party No. 1 even did not pay 1/2 of the pay
as subsistence allowance and made his life pathetic and
miserable and non-payment of adequate and legal
subsistence allowance and subjected him to trial before
the enquiry officer goes to establish that no proper and
reasonable opportunity of defence was given to him, by
the enquiry officer and the same is against the principles of
natural justice and under such circumstances, continuing
with the enquiry exparte is illegal and the enquiry is invalid.
It is also pleaded by the workman that the enquiry
officer has declared the charges 2 to 4 as not proved and
charge No. 1 to have been partly proved and as such, the
order of dismissal without notice for a partly proved charge
2066
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
is not justified and is illegal and the findings of the enquiry
officer are based on conjunctures and surmises and there
is no proper evaluation of evidence and much reliance was
placed by the enquiry officer on a fraudulent document,
i.e, a letter of confession dated 6th March, 1990 purported
to have been signed by him and infact, the contents of the
said letter was fraudulently created by the management
themselves and one Shri Kuberkar, A.S., Senior Officer was
sent for pre-investigation, by the Divisional Manager, Shri
Patankar and Shri Kuberkar advised him to appear and see
the Division Manager at Nagpur and accordingly, he called
upon the Divisional Manager on 04.03.1990 at Nagpur and
he was threatened by the Divisional Manager that if the
amount of Rs. 70,000 would not be deposited by him, then
Police complaint would be filed against him and in case of
his depositing of the said amount, the matter would be
treated as closed and at that time, he was very young and
was newly married and he could not visualize the
complexity of the situation and even though he was not
involved in the incident, to avoid Police action, he assured
the Divisional Manager that he would arrange the money
from his relatives and he would deposit the same and
believing on the threat-cum-advice of the Divisional
Manager, he deposited the amount of Rs. 70,000 in total on
04.03.1990, 05.03.1990 and 06.03.1990 and when, he called
upon the Divisional Manager, the Divisional Manager
asked him to sign on three blank papers and as the
Divisional Manager was the highest authority of the Region,
he signed on three blank papers at the place indicated by
Shri Patankar, the Divisional Manager and Shri Patankar
managed to get typed the contents of the letter dated
06.03.1990 on the blank paper signed by him and as the
document, basis on which, the enquiry officer held the
charge No. 1 to have been proved in part is a fraudulent
and fabricated document, the finding of the enquiry officer
can be held to be illegal and perverse and that ground
alone, the order impugned is liable to be set aside and the
findings of the enquriy officer are based on erroneous
reasoning, much less, no proper reasoning and the findings
are given in a most casual manner and non-application of
mind writ large on the face of the findings and therefore,
the findings are pervese and the disciplinary authority
without observing the principles of natural justice awarded,
shockingly disproportionate punishment of dismissal,
without notice and as such, the purnishment is arbitrary,
unjust and illegal and since he was already acquitted by
the criminal court, it was necessary on the part of the
disciplinary authority to deal with the matter as per the
powers vested upon it, by Sastry Award and his past record
was not taken into consideration, before awarding a
shockingly disproportionate punishment of dismissal
without notice and the action is therefore, unjust, unfair
and illegal and he is entitled for reinstatement in service
with full back wages and all other consequential benefits.
3. The Party No. 1 in their written statement have
pleaded inter-alia that the workman was served with the
charge sheet dated 17.07.1990 and though the workman
was acquitted by the Judicial Magistrate First Class, Akola
on 30.10.1999, in the cirminal case, but the acquittal was
not a clean acquittal and he was acquitted by giving the
benefit of doubt and the enquiry was conducted on various
dates during 04.04.2002 to 20.03.2003 and full opportunity
was given to the workman to defend his case and due to
the non-cooperation of the workman in participating in the
enquiry, there was delay in the enquiry, but the same was
concluded with scrupulous regard for natural justice and
the enquiry was not conducted hastily and the enquiry
officer submitted his report on 16.06.2003 and the order of
the disciplinary authority dated 30.08.2003 confirmed the
findings recorded by the enquiry officer and the appeal
preferred by the workman was dismissed by the appellate
authority, by a reasoned order dated 12.03.2004. The further
case of the Party No. 1 is that the workman deliberately did
not want to participate in the enquiry and created one or
the other obstacle and the findings of the enquiry officer
were based on the evidence on record and the evidence
was judiciously screened by the enquiry officer and
subsistence allowance was paid to the workman as per
financial rules and regulations and the findings of the
enquiry officer did not base on any conjuncture and
surmises and the enquiry officer impartially assessed and
scrutinized the evidence on record of the enquiry rationally
and on the basis of the evidence on record, the enquiry
officer held only the charge No. 1 to have been proved
partly, which clearly shows that the enquiry officer without
any prejudice or bias conducted the enquiry and the order
of the dismissal was passed not ony on the basis of strong
evidence, but in accordance with the rules and regulations
and as the workman deliberately did not participate in the
enquiry, the enquiry officer was forced to continue the
enquiry exparte and the findings of the criminal court has
no bearing on the conduction of the departmental enquiry
and the findings of the same and hence, the workman is
not entitled to any relief.
4. As this is a case of dismissal of the workman from
services, after holding a departmenal enquiry, the validity
of the departmental enquiry was taken as a preliminary
issue for consideration and by order dated 20.02.2013, the
departmental enquiry conducted against the workman was
held to be legal, proper and in accordance with the principles
of natural justice.
5. At the time of argument, it was submitted by the
learned advocate for the workman that apart from initiation
of a departmental enquiry against the workman, a criminal
case had been registered against him or the same allegations
and the workman was acquitted by the criminal court on
30.10.1999 and he was exonerated from all the criminal
charges and in view of the acquittal of the workman, the
departmental enquiry initiated against him should have
¹Hkkx II—[k.M 3(ii)º
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2067
been dropped by Party No. 1. It was further submitted by
the learned advocate for the workman that the workman
was not paid the subsistence allowance and pay as required
under the bipartite settlement and the workman is entitled
for such allowances and pay as required to be paid under
clause 3(C) of Chapter-XVII [Disciplinary Action and
Procedure therefore of Sastry Award (Bipartite settlement].
The learned advocate for the workman also submitted
that out of the four charges levelled against the workman,
the enquiry officer only found the first link of the charge
No.1 to be proved and the 2nd link of charge No.1 and
charges 2 to 4 not to have been proved and the extreme
penalty of "dismissal of the workman from services without
notice" for a prtly proved charge is too harsh and
shockingly disproportionate and so also unjustified and
the findings of the enquiry officer in regard to the charge
No.1 are without any basis and perverse and as such, the
punishment imposed against the workman is liable to be
quashed and set aside and the workman is entitled for
reinstatement in service with continuity and all
consequential benefits.
6. Per contra, it was submitted by the learned advocate
for the Party No.1 that at the time of deciding the preliminary
issue regarding the fairness of the departmental enquiry,
the contentions raised in respet of the acquittal of the
workman in the criminal case and non-payment of
subsistence allowance have already been considered by
this Tribunal and the findings of the enquiry officer are
based on the evidence on record of the enquiry and so
also the admission of guilt of the workman and the findings
cannot be said to be perverse or without any evidence and
the partly proved charge of fraudulently withdrawal of
Rs. 70,000 in cash form the current account of M/s. Kalpana
Enterprises, Amravati, with Akola Branch is very grave in
nature and grave nature of misconduct has been proved
against the workman in a properly conducted departmental
enquiry and the management of the Bank has lost
confidence on the workman and as such, the punishment
imposed against the workman of dismissal from service
without notice cannot be said to be shockingly
disproportionate or harsh to the prove misconduct and for
that there is no scope to interfere with the punishment and
the workman is not entitled to any relief.
In support of such contentions, the learned advocate
for the Party No.1 placed reliance on the dicision reported
in 2012 IV LLJ-79 (Del.) (Synidcate Bank Vs. R.K. Rohilla).
7. On perusal of the record, it is found that the
submissions made regarding the non-payment of
subsistence allowance and the effect of acquittal of the
workman in the criminal case have already been considered
at the time of deciding the preliminary issue about the
fairness of the departmental enquiry and answered against
the workman.
8. So, the question of perversity of the findings of
the enquiry officer and proportionality of the punishment
are concerned, on perusal of the record and taking into
consideration the submissions made by the learned
advocates for the parties, it is found that this is not a case
of no evidence or that the findings of the enquiry officer
are totally against the evidence on record. It is also found
that the enquiry officer after assessing the evidence on the
record of the enquiry in a precise manner has arrived at the
finding. The findings of the enquiry officer are not as such,
which cannot be arrived at by any prudent man on the
evidence on record. Hence, the findings of the enquiry
officer cannnot be said to be perverse.
Grave misconduct of withdrawing an amount of
Rs. 70,000 fraudulently from the account of a customer of
the bank has been proved against the workman in a properly
conducted departmental enquiry. It appears from record
that the Party No.1 has lost confidence on the workman.
So, the punishment of dismissal from services without
notice imposed against the workman cannot be said to be
shockingly disproportionate to the grave misconduct
proved against his. Hence, there is no scope to interfere
with the order of punishment. Hence, it is ordered:—
ORDER
The action of the management of UCO Bank through
its Regional Manager, Regional Office, Nagpur in dismissing
the workman Shri Sanjay S/o. Ramappa Hegu PFM No.
36026 Typist from service w.e.f. 30.08.2003 is just and legal.
The workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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izdkf'kr djrh gS tks dsUnzh; ljdkj dks 11-02-2014 dks izkIr gqvk
FkkA
[lañ ,y&12011@129@2001&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 764.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Re. No. 82/2001)
of the Cent. Govt. Indus.Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Central Bank of India
and their workmen, received by the Central Government on
10.02.2014.
[No. L-12011/129/2001-IR(B-II)]
RAVI KUMAR, Section Officer
2068
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/82/2001
Dated: 18.10.2013
Party No. 1
:
The Zonal Manager
Central Bank of India, Central Building,
2nd Floor, Kamptee Road,
Nagpur-440001
Party No. 2
:
The General Secretary,
Central Bank Staff Union, C/o. Rashtriya
Mill Mazdoor Sangh, Baidyanath Chowk,
Great Nag Road, Nagpur-440003.
AWARD
(Dated: 18th October, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Central Bank of India and their workman,
Shri Yogesh Baban Prasad Murai, Rajesh Baban Prasad
Murai, Rabindra Devidas Tayade, and Shri Sanjay Laxman
Navghare for adjudication, as per letter No. L-12011/129/
2001-IR (B-II) dated 10.10.2001, with the following
schedule:—
"Whether the action of the management of Central
Bank of India through its Zonal Manager, Nagpur in
not absorbing and regularizing the services of Shri
Yogesh Baban Prasad Murai, Rajesh Baban Prasad
Murai, Rabindra Devidas Tayade as part time Safai
Karamchari and Shri Sanjay Laxman Navghare as Sub-
staff is legal, proper and justified? If not, what relief
the said workmen are entitled to? Whether the
management has adopted the disputants against
regular vacancies for short spells of time one after
the other to perform the duties of Safai Karmacharis/
Sub-staff with a view that none of them was able to
complete 240 days in a calendar year? If so, what
directions are necessary in the matter?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union, "Central Bank Staff
Union", filed the statement of claim on behalf of the four
workmen, Shri Yogesh Baban Prasad Murai, Shri Rajesh
Baban Prasad Murai, Rabindra Devidas Tayade, and Shri
Sanjay Laxman Navghare, ("the workmen" in short) and
the management of Central Bank of India, ("Party No. 1" in
short) filed their written statement.
The case of the workmen as presented by the union
in the statement of claim is that it (union) is a registered
trade union under the Trade Unions Act, 1926 and Party
No. 1 is a Nationalized Bank and is a banking company
having branches throughout the country and the branches
of the said Bank at Nagpur, Amravati, Akola and Jalgaon
regions are under the Control of Zonal Manager, Nagpur
and the provisions of Bombay Shops and Establishments
Act, 1948 are applicable to Party No. 1 and no recognized
union is operating at Party No. 1 and the four workmen
worked with Party No. 1 for several years and they were
being allowed to work for 60 days each year and they were
being terminated and in their places, new persons were
being appointed for the same work and the work was
available round the year and as the workmen were
terminated, the same amounted to retrenchment and even
though the work was of regular nature, the appointment of
the workmen only for 60 days each year amounted to unfair
labour practice and workman, Shri Yogesh Baban Prasad
Murai worked for 60 days 63 days, 63 days 63 days, 60
days and 60 days in the years 1993, 1994, 1995, 1996, 1997,
1998 and 1999 respectively at Amravati extension counter
and workman, Shri Rajesh Baban Murai worked for 51 days,
13 days, 09 days, 41 days, 17 days, 45 days and 57 days in
1993, 1994, 1995, 1996, 1997, 1998 and 1999 respectively at
Amravati extension counter and workman, Shri S.L.
Navghare worked for 60 days, 60 days, 60 days, 60 days, 60
days, 54 days, 54 days, 59 days and 50 days in 1986, 1987,
1988, 1989, 1992, 1993, 1995, 1996 and 1997 respectively at
Amravati Shankar Bhawan and workman, Shri Ravindra
Devidas Tayade worked for 50 days, 58 days, 56 days, 29
days, 02 days, 07 days, 58 days, 52 days, 49 days, 45 days,
46 days, 60 days, 55 days, 58 days and 54 days in 1983,
1984, 1985, 1986, 1987, 1989, 1990, 1991, 1992, 1993, 1994,
1995, 1996 and 1997 respectively at Dotala and Malkapur
branches in Akola region and from the above mentioned
facts, it will be seen that many of the employees had worked
for more than 60 days and their termination was prima facie
illegal, improper and unjustified and Party No. 1
discontiuned them to avoid their regularisation and Party
No. 1 adopted such practice and played the mischief to
avoid the regularisation of the workmen, in view of the fact
that, an employee, who completes 240 days of work in a
period of 12 months becomes entitle to be regularized as
per the provisions of the standing orders and on 01.12.1993,
the Party No. 1 issued a circular not to employ and employee
on casual or temporary basis for a period beyond 60 days
and the said circular itself clearly indicates that Party No. 1
was aware that under the law, an employee, who completes
60 days of work becomes a permanent employee and Party
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2069
No. 1 had admitted that the provisions of Bombay Shops
and Establishments Act, 1948 are applicable to them and
once the same is admitted, it cannot deny the application
of standing order and temporary employees are not engaged
by Party No. 1 because of temporary increase in work as
claimed by the Party No. 1, but such appointments were
made to avoid the regularisation and the standing orders
shall prevail in case of any conflict between the standing
orders and an agreement and the argument entered into of
the unions cannot bind the non-members and as the jobs
of the employees of Party No. 1 are transferable jobs, the
availability of work has to be considered on zonal basis
and the workmen were paid less wages than the regular
employees and the workmen are entitled for wages for the
period during which they were not employed and for
regularization in service from the date of their initial
appointment and all the consequential benefits.
3. The Party No. 1 in the written statement, denying
all the adverse contentions raised in the statement of claim
has pleaded inter alia that all the four workmen were
engaged on daily wages basis as per the requirement of
the respective branches on day to day basis and the work
taken from them were not work of continuous nature and
they were engaged only on the days, the existing staff was
on leave or whenever any occasion arose to do some misc.
jobs and no appointment orders were issued to them.
It is further pleaded by the Party No. 1 that the union
has no authority to raise the dispute as the workmen, who
were engaged on contractural basis on daily wages could
not have been members of the union and the workmen
were engaged on daily wages as per exigencies of the
branches purely on stop gap basis, based on requirement,
with a clear understanding that their services would be
discontinued on cessation of the requirement and their
intermittent engagement was necessitated during the
absence of the part time safai karmachari deployed for the
job and they had not completed 240 days continuous
service in the preceding 12 calendar months before their
disengagement from work and as such, the provisions of
Section 25-H and 25-G of the Act are not applicable to them
and the workmen were not engaged by following the
prescribed procedure for requirement/regularisation of sub-
staff and they were not appointed on any particular
sanctioned post and their disengagement from service
cannot be construed as retrenchment and the workmen are
not entitled to any relief.
4. It is to be mentioned here that after filing of the
statement of claim, neither the petitioner nor appeared in
the case and contented the same. No evidence was adduced
by the union or the workmen in support of the claim.
5. Party No. 1 has examined Shri Vilas Laxman Ailawar,
a senior manager as a withness in support of its case. The
evidence of Shri Vilas is on affidavit. This witness in his
evidence has reiterated the facts mentioned in the written
statement. The evidence of the witness has remained
unchallenged, as none appeared on behalf of the petitioner
to cross-examine him.
6. It is well settled that whenever a workman raises a
dispute challenging the validity of the termination of the
service, it is imperative for him to file written statement
before the Industrial Court setting out grounds on which
the order is challenged and the must also produces
evidence to prove his case and if the workman fails to
appear or file written statement or produce evidence, the
dispute referred by the government cannot be answered in
favour of the workman and he would not be entitled to any
relief.
In this case, no evidence has been produced either
by the union or the workmen to prove the case of the four
workmen. The union (petitioner) and so also, the workmen
failed to appear and contest the claim. So, applying the
settled principles as mentioned above to the case in hand,
it is found that the workmen are not entitled to any relief.
7. At this juncture, it is necessary to mention that
even though the reference could have been disposed of in
accordance with the findings given in paragraph 6, I think
it proper to deal with the merit of the case raised by the
petitioner in the statement of claim and to dispose of the
reference, in the interest of justice.
8. In this reference, the schedule as given consists
of two links. The first link is regarding not absorbing and
regularizing of the services of the workmen and the second
is about the legality of the action of the Bank in engaging
large number of persons on daily wages basis for short
periods one after the other.
So far the first link of the schedule of reference
regarding the not absorbing and regularizing of the services
of the workmen is concerned, it is the case of the workmen
that they were engaged for 60 days for several years by the
Bank and after working for 60 days each year, their services
were terminated, even though the work they were doing
was available round the year and the termination amounts
to retrenchment and the action of the Bank amounts to
unfair labour practice. However, the Party No. 1 has denied
such claim and has stated that the workmen were engaged
on daily wages basis temporarily as and when required
and on day to day basis and there is no question of
termination of their services.
2070
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
It is necessary to mention here that in the statement
of claim, on page numbers 5 and 6, the details of the working
days of the four workmen year wise have been furnished
by the union. On perusal of the same, it is found that the
claim of the workmen regarding their working for 60 days
every year for several years (As mentioned in the schedule
of reference and so also in the statement of claim) is not
correct. It is found from the statement of claim that the
workmen did not work for 60 days in every year. It is clear
from the pleadings made in the statement of claim itself and
so also the schedule of reference that none of the four
workmen completed 240 days of work in any calendar year
including in the preceding 12 calendar months of the
alleged date of their termination.
At this juncture, I think it apropos to mention about
the principles enunciated by the Hon'ble Apex Court
reported in the decision reported in 1996-II-LLJ-820 (Central
Bank of India Vs. Satyam and others). In the said decision,
the Hon'ble Apex Court have held that:—
"The benefit of applicability of section 25-F can be
claimed by a workman only if he has been in continuous
service for not less than one year as defined in section 25-
B. Any other retrenched workman who does not satisfy
the requirement of continuous service for not less than
one year cannot avail the benefit of section 25-F which
prescribes the conditions precedent to retrenchment of
workman of this category."
As, in this case, according to their own pleadings,
none of the workmen was in continuous service of one
year as defined in section 25-B of the Act, i.e. 240 days
service in 12 calendr months in a geven year, their
termination cannot be said to be retrenchment and they are
not entitled for the benefits of section 25-F of the Act.
There is also no provision in any law or in the Standing
Orders that when a workman is engaged for 60 days on
daily wages by an employer each year for some years, the
workman is entitled for permanency or regularisation in
service by the employer. Hence, the workmen are not entitled
to any relief.
9. So far the second link of the reference is concerned,
I think it proper to mention about the principles settled by
the Hon'ble Apex Court in the decision reported in 2006-II-
LLJ-722 (Secretary, State of Karnataka and other Vs. Uma
Devi). The Hon'ble Apex Court have held that:—
"Inspite of this scheme, there may be occasions when
the sovereign State or its instrumentalities will have to
employ persons, in posts which are temporary, on daily
wages, as additional hands or taking them in without the
required procedure, to discharge the duties in respect of
the posts that are sanctioned and that are required to be
filled in terms of the relevant procedure established by the
constitution or for work in temporary posts or projects that
are not needed permanently. This right of the union or of
the State Government cannot but be recognized and there
is nothing in the Constitution which prohibits such
engaging of persons temporarily or on daily wages, to meet
the needs of the situation. But the fact that such
engagements are restored to, cannot be used to defeat the
very scheme of public employment. Nor can a court say
that the union or the State do not have the right to engage
persons in various capacities for a duration or until the
work is a particular project is completed."
In this case, it is the admitted case that the workmen
were engaged on daily wages basis at the time of necessity
by the party No. 1. The claim of the party No. 1 is that such
engagement was being made during the temporary absence
of the permanent members of the sub-staff on leave or
otherwise and such work is not available round the year
and such claim has not been challenged or denied by the
union. Though the union has mentioned the days of work
of the workmen year wise in the statement of claim, the
period (dates) of such engagement has not been mentioned
to show that the engagement of the workmen was one after
the other. So, applying the principles enunciated by the
Hon'ble Apex Court as mentioned above to this case in
hand, it is found that the engagement of some daily wagers
by party No. 1 at the time of necessity for a limited period
cannot be said to be illegal. However, party No. 1 has to
allow the directions given by the Hon'ble Apex Court in the
decision reported in 2006-II-LLJ-722 (Supra) in this regard.
Hence, it is ordered:—
ORDER
The reference is answered in negative. The workmen
are not entitled to any relief. The party No. 1 Central Bank
of India has to follow the directions given by the Hon'ble
Apex Court in the decision reported in 2006 II-LLJ-722
(Secretary, State of Karnataka Vs. Uma Devi) in respect of
engagement of daily wage workers.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 11 Qjojh] 2014
dkñvkñ 765.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ tujy
esustj] dks;EcVksj fLi¯ux vkSj oh¯ox feYl] dks;EcVksj ds
izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2071
Je U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 41@2012½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 04-02-2014 dks izkIr gqvk FkkA
[lañ ,y-42011/05/2012-vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 765.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 41/2012)
of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Chief General Manager, Coimbatore
Spinning & Weaving Mills, Coimbatore and their workmen,
which was received by the Central Government on
04.02.2014.
[No. L-42011/05/2012-IR(DU)]
P. K. VENUGOPAL Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 28th January, 2014
PRESENT:
K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 41/2012
(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 Coimbatore Spinning and Weaving
Mills and their workman)
BETWEEN
1. The General Secretary
Coimbatore District Mill Labours Union (CITU)
Anupparpalayam, Kattoor, Coimbatore
1st Party/1st Petitioner Union
2. The General Secretary
Kovai Mandala Panchalai Thozhilalar Sangam
(NDLF), 32, Perumal Koil Veedhi
Vilankurichi, Coimbatore.
1st Party/2nd Petitioner Union
3. The Asstt. General Secretary
Desiya Panchalai Thozhilalar Sangam
(INTUC), 1848 Trichy Road
Ramanathapuram, Coimbatore
1st Party/3rd Petitioner Union
4. The General Secretary
Kovai, Periyar Mavatta Dravida Panchalai
Thozhilal Munnetra Sangam
162 Pankaja Mill Road, Coimbatore
1st Party/4th Petitioner Union
AND
The Chief General Manager
Coimbatore Spinning & Weaving Mills
Krishnaswamy Mudaliar Road
Post Box No. 24, Coimbatore
2nd Party/Respondent
APPEARANCE:
For the Petitioner Unions :
M/s. Senthilnathan, S. Shanmugasundaram, Advocates
For the 2nd Party/Management :
M/s. T.S. Gopalan & Co., Advocates
AWARD
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-42011/05/2012-IR(DU)
dated 06.07.2012 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the NTC Mill Management,
Southern Region, Coimbatore not resuming 3 shifts
in Coimbatore Spinning and Weaving Mills on par
with their Unit of NTC Mills is justified? If not, to
what relief the workmen are entitled to?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 41/2012 and issued notices to both
sides.
3. Four Unions are arrayed as First Party. On receipt
of notice number one out of them have entered appearance.
The others though received notice, did not appear at all.
The Second Party has appeared through its counsel. My
predecessor has repeatedly posted the matter for filing
Claim Statement. Since the First Party failed to file the
statement, he has passed an order against the First Party.
Subsequently, S.No. 2 in the array of the First Party has
filed IA 42/2013 before this Tribunal and got the matter
2072
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
restored to file by order dated 29.10.2013. This Court had
posted the case for Claim Statement repeatedly even though
there was no representation on behalf of the First Party
after the ID has been restored to file. Today also, when the
matter was called there was no one to represent the First
Party. The counsel was also not available.
4. It is clear from the conduct of the First Party that
they are not interested in pursuing the dispute. The matter
has come before this Tribunal for the first time on
13.08.2012. Even after expiry of more than a year the First
Party seems to be not taking any steps to prosecute the
case properly .In the absence of any Claim Statement and
in the absence of any material, the First Party is not entitled
to any relief.
5. The reference is answered against the First Party.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 28th January, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents Marked
On the Petitioner's side
Ex. No.
Date
Description
Nil
On the Management's side
Ex. No.
Date
Description
Nil
ubZ fnYyh] 11 Qjojh] 2014
dkñvkñ 766.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]
VsfydkWe fMikVZesaV] Hkkjr lapkj fuxe fyfeVsM] vEckyk ds izcaèra=
ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;&2] paMhx<+ ds iapkV ¼lanHkZ la[;k 1354@2008½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 04-02-2014 dks izkIr gqvk FkkA
[lañ ,y&40012@61@2007&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 766.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. 1354/
2008) of the Central Government Industrial Tribunal/Labour
Court No. II, Chandigarh now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of The General Manager, Telecom
Department, Bharat Sanchar Nigam Ltd., Ambala and their
workman, which was received by the Central Government
on 04.02.2014.
[No. L-40012/61/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
PRESENT: SRI KWEAL KRISHAN, Presiding Officer
Case No. I.D. No. 1354/2008
Registered on 6.2.2008
Smt. Reshma, W/o Sh. Gurmeet Singh,
Village Panjokhra, Ambala (Haryana).
...Petitioner
Versus
The General Manager, Telecom Department,
Bharat Sanchar Nigam Ltd., Ambala (Haryana).
...Respondent
APPEARANCES
For the Workman :
Ex parte.
For the Management :
Sh. Anish Babbar Adv.
AWARD
(Passed on 17.1.2014)
Central Government vide Notification No. L-40012/
61/2007 (IR(DU)) Dated 31.1.2008, by exercising its powers
under Section 10 Sub-Section (1) Clause (d) and Sub
Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Act') has referred the following
industrial dispute for adjudication to this Tribunal:—
"Whether the action of the management of Bharat
Sanchar Nigam Limited, Ambala in terminating the
services of their workman Smt. Reshma Devi w.e.f.
9.10.2006, is legal and justified? If not, to what relief
the workman is entitled to?"
In response to the notice the workman appeared and
submitted statement of claim pleading that she worked as
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti-=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2073
part-time sweeper with the respondent management for 17
years and her services were regularized as per procedure
of the Government of India issued in the year 2001. She has
written to the respondent management to convert his
services into full time and even served a notice on 4.10.2006.
But her services were terminated orally on 9.10.2006. That
the respondent management indulge in unfair labour
practice. That her termination is against the provisions of
the Act and she is liable to be reinstated with all the benefits.
Respondent management filed reply denying the
relationship and pleaded that the petitioner was never
employed by it.
Workman did not lead any evidence and was
proceeded against ex parte vide order dated 1.9.2010.
On the other hand the respondent has examined
A.L. Bhan in its evidence.
I have heard Sh. Anish Babbar, counsel for the
management.
It is the case of the workman that she worked as a
part-time sweeper with the respondent for 17 years but no
evidence has been led to prove this fact. There is nothing
on the file to suggest that she was ever employed by the
respondent management and thus the relationship of an
employer and employee between the parties is not proved
on the file. Being so, it cannot be said that her services
were terminated by the respondent management w.e.f.
9.10.2006 and she is not entitled to any relief. The reference
is answered accordingly. Let hard and soft copy of the
award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 11 Qjojh] 2014
dkñvkñ 767.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj izkstsDV Mk;jsDVj]
us'kuy gkbost vFkkWfjVh vkWQ bafM;k ,aM vnlZ] Hkqcus'oj ds izcaèra=
ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V
vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;] Hkqcus'oj ds iapkV ¼lanHkZ la[;k 01@2014½ dks izdkf'kr
djrh gS tks dsUæh; ljdkj dks 04-02-2014 dks izkIr gqvk FkkA
[lañ ,y-42025/03/2014-vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 767.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 01/2014)
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 The Project Director, National Highways
Authority of India & Others, Bhubaneswar and their
workman, which was received by the Central Government
on 04.02.2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, BHUBANESWAR
PRESENT:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar,
INDUSTRIAL DISPUTE CASE NO. 1/2014
Date of Passing Order— 22nd January, 2014
BETWEEN:
1. The Project Director,
National Highways Authority of India,
1st Floor, SETU Bhavan, Nayapalli,
Unit-VIII, Bhubaneswar.
2. The Management of Egle Infra. Ltd.,
Tool Plaza, Gangapada, Dist. Khurda.
.........1st Party-Managements.
And
Shri Belalsen Khuntia,
S/o. Late Udayanath Khuntia,
Vill. Balada, Po. Postal,
P.S. Gobindpur, Dist. Cuttack
..........2nd Party-Workman.
APPEARANCES :
None
... For the
1st Party-Managements.
Shri Belalsen Khuntia
... For Himself the
2nd Party-Workman
ORDER
Case presented today before me. The 2nd Party-
workman is present in person. The 1st Party-Management
No. 1 and 2 are absent.
2074
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
The case is at initial stage. However notices have
been issued to the 1st Party-Managements. The 2nd Party-
workman on 6.1.2014 has moved a petition before this
Tribunal that an amicable settlement has been arrived at
with the company and the company has agreed to re-
appoint him in his previous service. So he is not willing to
continue with the case and permission to withdraw the
case be granted.
2. I have heard the 2nd Party-workman. He still wants
to withdraw the case on the assurance of the company to
re-appoint him. I find no legal impediment in allowing the
petition. Therefore the petition to withdraw the case is
allowed. The 2nd Party-workman is permitted to withdraw
the case.
3. The application filed under section 2-A of the
Industrial Disputes Act, 1947 is accordingly dismissed as
withdrawn.
J. SRIVASTAVA, Presiding Officer
ubZ fnYyh] 11 Qjojh] 2014
dkñvkñ 768.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMfo'kuy
bathfu;j] VsyhxzkQ] egkjk"Vª ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] ukxiqj ds iapkV
¼lanHkZ la[;k lhthvkbZVh@,uthih@104@2004½ dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 04@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@209@1994&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 768.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
NGP/104/2004) of the Cent. Govt. Indus. Tribunal/Labour
Court, Nagpur now as shown in the Annexure, in the
industrial dispute between the employers in relation to the
management of The Divisional Engineer, Telegraph,
Maharashtra and their workman, which was received by
the Central Government on 04/02/2014.
[No. L-40012/209/1994-IR (DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/104/2004 Date 03.01.2014
Party No. 1
:
The Divisional Engineer, Telegraph,
Bhandara, Distt. Bhandara,
Maharashtra-441904
Versus
Party No. 2
:
Shri Dilip Sondawale,
Bagadgang, Ganga Bai Ghat Road,
Ward No. 38, Nagpur, 440001.
AWARD
(Dated: 3rd January, 2014)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government had referred the industrial
dispute between the employers, in relation to the
management of Telegraph and their workman, Shri Dilip
Sondawal, to the Central Government Industrial Tribunal-
cum-Labour Court, Jabalpur for adjudication, as per letter
No. L-40012/209/1994-IR (DU) dated 27.12.1995, with the
following schedule:—
"Whether the action of the management of Divisional
Engineer, Telegraph, Bhandara in terminating the
services of Shri Dilip Sondawale, w.e.f. 16.05.1984 is
proper, legal and justified? If not, to what relief the
workman is entitled?"
Subsequently, the reference was transferred to this
Tribunal for disposal in accordance with law.
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Dilip
Govindrao Sondawale, ("the workman" in short), filed the
statement of claim and the management of Divisional
Engineer BSNL, Bhandara ("Party No. 1" in short) filed
their written statement.
The case of the workman as projected in the
statement of claim is that he had been working as a casual
labourer under the supervision and control of the party
No. 1 and he worked as a class "D" staff in the office of
party no. 1 from 09.05.1983 to 12.05.1984 and his services
came to be terminated orally w.e.f. 15.05.1984 and his name
was sponsored by Employment Exchange and he was
provided with work after holding of a interview and his
appointment by party No. 1 was against a vacancy and
though the work given to him was perennial in nature, he
was given artificial breaks and he was not continuously
employed, though work was available, in order to deprive
him the status and privileges of a permanent employee.
It is further pleaded by the workman that before
termination of his services, party No. 1 neither issued one
month's notice nor paid one month's pay in lieu of the
notice or retrenchment compensation and inspite of his
repeated approaches, party No. 1 did not take any action
to reinstate him in service and party No. 1 engaged new
persons, namely, Shri Anil Ingle, Shri Rajesh Samarth and
Shri Rajesh Dhamne after termination of his services and
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2075
made them permanent in service and the termination of his
services by party No. 1 is in violation of the provisions of
section 25-F of the Act and as such, his termination is
illegal, improper and contrary to law and he is entitled for
reinstatement in services with continuity and full back
wages and all monetary benefits of permanent employee
with retrospective effect.
3. The party No. 1 in the written statement has
pleaded inter alia that the reference as well as the claim
made by the workman is a stale claim and the workman has
claimed the relief of reinstatement with back wages after a
period of 25 years and the workman was neither sponsored
by the Employment Exchange nor appoint against any
regular vacancy and the workman was never engaged by it
and Bharat Sanchar Nigarm Limited was erstwhile under
the department of Telecommunication till 01.10.2000 and
the Department of Telecommunication came into existence
in the year 1987, hence the question of engagement of the
workman for the period from 09.05.1983 to 12.05.1984 does
not arise and such claim is prima facie illegal and there is
no merit in the claim put-forth by the workman and the
workman is not entitled to any relief.
4. In support of his claim, the workman has examined
himself as a witness, besides placing reliance on
documentary evidence.
One Smt. Ranjana V. Patil has been examined as a
witness on behalf of the party No.1
5. In this examination in chief, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination the workman has admitted
that he was working in the office of the Divisional Engineer,
Telegraph, Nagpur from 1983 to 1984 and he did not work
in the office of the Divisional Engineer, Telegraphs,
Bhandara from 09.05.1983 to 12.05.1984 and he has not
filed any appointment order showing his appointment in
the office of the Divisional Engineer, Telegraphs, Bhandara
and he has also not filed any document to show that his
name was sponsored by the Employment Exchange and
that he was appointed after appearing in a interview and he
has not filed any document to show that Shri Anil Ingle,
Shri Rajesh Samarth and Shri Rajendra Damne were
regularized in service.
6. The evidence of the witness examined by the party
No. 1 is also on affidavit and in his evidence, the witness
has reiterated the facts mentioned in the written statement.
This witness has further stated that the workman worked
as a casual labourer in the office of Divisional Engineer
(Telegraph) Nagpur from May, 1983 to May, 1984 for a
period of 2261/2 days and he did not work continuously for
240 days and the Divisional Engineer, (Telegraphs) Nagpur
had issued a certificate dated 10.01.1985 to the workman in
that regard and the workman has filed the said certificate in
original on record and as the workman did not work for 240
days, the question of issuing of notice and payment of
retrenchment compensation does not arise at all and the
workman left the work on his own accord and did not turn
up for work and he also did not give his whereabouts to
party No. 1 and the workman was never appointed as per
the recruitment Rules or against a permanent post.
The evidence of the witness for the party No. 1 has
virtually remained unchallenged in the cross examination.
This witness has denied the suggestion that the workman
worked for 240 days in one calendar year and his termination
is illegal.
7. During the course of argument, it was submitted
by the learned advocate for the workman that the workman
was appointed against a regular vacancy and his name
was sponsored by the Employment Exchange and his
appointment was made after he was interviewed and
though the workman worked for 240 days from 09.05.1983
to 12.05.1984, the mandatory provisions of section 25-F of
the Act were not complied with before his termination from
services and neither one month's notice nor one month's
pay in lieu of the notice nor retrenchment compensation
was paid to the workman and as such, the termination is
illegal and the workman is entitled to reinstatement in
service with continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the party No. 1 that the reference is not maintainable
both on the point of Law and facts and the workman was
engaged as a casual worker on daily wages basis in the
office of the Divisional Engineer (Telegraph) Nagpur, but
the divisional Engineer, Nagpur has not been made a party
in this reference and as such, the reference is not
maintainable. It was further submitted by the learned
advocate for the party No. 1 that the claim raised by the
workman is quite belated and the claim is raised about 25
years after his alleged termination and there is no
explanation for such delay and on that count also the
reference is not maintainable and it is clear from the
document filed by the workman himself and the
unchallenged evidence of the witness for the party No. 1
that the workman worked as a casual daily wager for a
period of 226 1/2 days and not for 240 days and he left the
job on his own accord, so there was no compliance of the
provisions of section 25-F of the Act and the workman has
also failed to show that Shri Ingle, Shri Samarth and Shri
Damne were juniors to him and they were made permanent
in the service and therefore, the reference is liable to be
dismissed and the workman is not entitled to any relief.
In support of the submissions, the learned advocate
for the party No. 1 placed reliance on the decision reported
in 2011(4) Mh. L. J.-33 (Executive Engineer, PHD, Wardha
Vs. Namdeo)
9. First of all, I will take up the submission made
regarding the delay in raising the dispute.
2076
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
The Hon'ble High Court in the decision mentioned
above have held that:
"Though the court cannot import the period of
Limitation and the reference cannot be dismissed
merely on the ground of delay, it does not mean that
irrespective of the facts and the circumstances of
the case, a stale claim must be entertained and the
relief should be granted."
The Hon'ble High Court have also set down the
principles for the guidance of the court.
Keeping in view the principles as mentioned by the
Hon'ble High Court in the above mentioned decision, now,
the present case in hand is to be considered.
The alleged termination of the workman was took
place in May, 1984 and the dispute was raised by the
workman in 1994. So, there is a delay of 10 years in raising
the dispute by the workman. it is also found that the party
No. 1 has raised the plea of delay in the written statement.
The workman though entered the witness box, he did not
offer any explanation in regard to the delay in raising the
dispute. The workman did not produce any documentary
evidence to explain the delay. The reference is therefore,
stale and is liable to be rejected on that sole ground.
10. The next submission made by the learned
advocate for the party No. 1 is regarding non maintainability
of the reference due to raising of the industrial dispute
against wrong management and not impleading the right
management as a party. it was submitted that the workman
has raised the dispute challenging his alleged termination
by the Divisional Engineer (Telegraph), Bhandra claiming
that he had worked in the office of the D.E, Telegraph,
Bhandra from 08.05.1983 to 12.05.1984, but in the year 1983-
84, office of the Divisional Engineer, Telegraph, Bhandara
was not at all in existence and the said office came into
existence in the year 1987 and in fact, the workman was
engaged in the office of the Divisional Engineer, Telegraph,
Nagpur as casual daily wages worker as and when required
and as the dispute has been raised against wrong
management and the Divisional Engineer, Telegraph,
Nagpur has not been made a party, the reference is not
maintainable for non-implication of necessary party and
implication of unnecessary party.
The workman has not denied such assertion made
by the Party No. 1. Rather, the workman has admitted such
facts in his cross-examination. He has categorically admitted
that he did not work in the office of the Divisional Engineer,
Telegraph, Bhandara, but worked in the office of Divisional
Engineer, Nagpur during the period from 08.05.1983 to
12.05.1984. So, it is crystal clear that the dispute was raised
against the wrong management and the necessary party
i.e. Divisional Engineer, Telegraph, Nagpur has not been
made a party in the reference. So, on this ground also, the
reference is not maintainable.
11. The last contention raised by the learned
advocate for the Party No. 1 is that the engagement of the
workman was on casual daily wages basis as and when
required in the office of the Divisional Engineer, Telecom,
Nagpur and his engagement was never made against any
permanent vacancy as per the Recruitment Rules and as
the workman did not work for 240 days during the period
from 08.05.1983 to 12.05.1984 and left the job on his own
volition, without intimating the Party No. 1 regarding his
whereabouts, there was no question of compliance of the
provisions of Section 25-F of the Act and for availing the
benefits of the provisons of Section 25-F of the Act, it is
necessary for the workman to prove that he worked for 240
days in the preceding 12 calender months of the date of the
alleged termination and in this case, as the workman has
failed to discharge the said burden of proof, he is not
entitled for the benefits of the provisions of Section 25-F
of the Act and the workman is not entitled to any relief.
12. It is to be mentioned here that it is settled beyond
doubt by the Hon'ble Apex Court in catena of decisions
that the initial burden of proof is on workman to show that
he had completed 240 days of service and onus of proof
does not shift to employer nor is the burden of proof on
the workman discharges, merely because employer fails to
prove a defence or an alternatie plea of abandonment of
service and filing of affidavit of workman to the effect he
had worked for 240 days continuously or that the workman
had made repeated representation or raised demands for
reinstatement, is not sufficient evidence that can discharge
the said burden.
13. At this juncture, it is to be mentioned that there is
no definite pleading from the side of the workman regarding
the exact date of his termination. According to the schedule
of reference, the workman was terminated from services on
16.05.1984. According to the statement of claim filed by the
workman on 10.04.1996, he was terminated from services
on 12.05.1984. In the statement of claim filed on 18.12.2006
by the workman, he has mentioned the date of his
termination as 15.05.1984. The workman neither in the
statement of claim dated 10.04.1996 nor in the statement of
claim filed on 18.12.2006 nor in his evidence has specifically
pleaded to have worked for 240 days prceding the date of
his alleged termination, even though he has pleaded to
have worked continuously from 08.05.1983 to 12.05.1984.
Rather in the statement of claim dated 18.12.2006 and in his
evidence on affidavit, the workman has pleaded that though
the work given to him was of perennial nature, he was
given artificial breaks and he was not employed continously
in order to deprive him of the status and privilege of a
permanent employee.
The workman in support of his claim has filed one
experience certificatre issued by the Divisional Engineer
Telegraphs, Nagpur. On perusal of the said certificate, it is
found that the workman worked as a casual labourer for
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2077
226½ days between May, 1983 to May, 1984 against 'D'
staff on daily wages basis in the Office of Divisional
Engineer Telegraphs, Nagpur. The document produced by
the workman himself shows that he did not work for 240
days from May, 1983 to May, 1984. Hence, the provisions
of Section 25-F of Act are not applicable to his case. On
this ground also, the workman is not entitled to any relief.
14. Though the workman has claimed that after his
termination, Party No. 1 engaged three persons in the work
and made them permanent in service, no evidence at all has
been produced by him to substantiate such claim. Hence,
it cannot be said that juniors to the workman were retained
and absorbed in service by Party No. 1. Hence, it is
ordered:—
ORDER
The reference is answered in the negative and against
the workman. The workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 11 Qjojh] 2014
dkñvkñ 769.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsaVªy ifCyd
oDlZ fMikVZesaV ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;&2] fnYyh ds iapkV ¼lanHkZ la[;k
26@2008½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 04-02-2014
dks izkIr gqvk FkkA
[lañ ,y&42011@16@2008&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 11th February, 2014
S.O. 769.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 26/2008)
of the Central Government Industrial Tribunal/Labour Court
No. II, Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of C.P.W.D., and their workman, which was
received by the Central Government on 04.02.2014.
[No. L-42011/16/2008-IR(DU)]
P. K. VENUGOPAL, Section Officer.
ANNEXURE
GOVERNMENT OF INDIA, 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. 26/2008
Sh. Ashok Kumar
Versus
C.P.W.D.
AWARD
The Central Government in the Ministry of Labour
vide notification No L-42011/16/2008-IR(DU) dated
02.06.2008 referred the following Industrial Dispute to this
tribunal for the adjudication :—
"Whether the action of the management of Executive
Engineer, CPWD, in terminating/retrenching their
workman Shri Ashok Kumar w.e.f. 31/12/2000 is legal
and justified? If not, to what relief the workman is
entitled to?"
On 09.06.2008 reference was received in this tribunal.
Which was register as I.D. No. 26/2008 and claimant was
called upon to file claim statement with in fifteen days from
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
After service of notice workman/claimant filed
claim statement on 06.04.2010. Wherein he stated as
follows:—
l. That the appropriate Government vide its order No,
L-42011/16/2008-IR(DU) dated 02.06.2008 has referred
the instant dispute for adjudication by this Hon'ble
Tribunal on the following terms of reference:—
"Whether the action of the management of Executive
Engineer, CPWD, in terminating/ retrenching their
workman Shri Ashok Kumar son of Shri Ram Chand,
Beldar w.e.f. 31.12.2000 is legal and justified? If not,
to what relief the workman is entitled to?"
2. That the workman Shri Ashok Kumar son of Shri
Ram Chand was working as Beldar on Muster Roll
(monthly rated) with effect from and he was
subsequently transferred in S.P. Marg, Project.
CPWD, 35, S.P, Marg, New Delhi.
3. That the services of the workman are transferable on
All India basis when need arises. The workman was
not appointed by the S.P. Marg Project Division itself
and the workman joined this office on transfer from
other unit of CPWD.
4. That the workman is entitled to be regularized in
service since 08 October, 1990 as per the directions
of DG(W) CPWD and provisions of CPWD Manual
Vol. Ill and when the services of the workman were
not regularized, the workman approached the Hon'ble
CAT Principal Bench, New Delhi for regularization of
services through O.A. No. 197/2000.
5. That when the case was pending before the Hon'ble
Court, management retrenched the services of the
2078
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
workman vide their O.M.No. 10(1) /SMPM/200/932,
dated 1st December, 2000 without giving
retrenchment compensation etc. as per provisions
of Industrial Disputes Act, 1947.
6. That the workman had put in more than 240 days of
service continuously without any break in each year
since 15.12.1986 upto 30.12.2000.
7. That while the services of the workman herein were
terminated those junior to him were retained in
service.
8. That therefore, the termination of the services of the
workman herein is contrary, illegal and contrary to
the mandatory provisions of Section 25 (F), (G) and
(H) of the Industrial Disputes Act, 1947.
9. That even in O.A. No. 197 of 2000, the Hon'ble CAT
had issued directions to CPWD for regularization of
services of the workman and pursuant to that
directions the department had conducted an
interview on 6th December, 2001 of the workman
herein and in the said interview the workman got his
documents verified by the appropriate authority but
despite he has not been regularised in service nor
been paid any legal dues on account of retrenchment
etc.
10. That the workman is entitled to be treated as having
a temporary status as per the Govt. of India's
directions and regulations and circular issued on this
behalf and his services cannot be terminated in such
a casual manner by the management without applying
the principle of natural justice.
11. That the temporary status was also granted to the
workman as per orders of DOP& T & DG(W), CPWD
in this regard. According to this order, the benefits
like regularisation, leave, contribution to GPF are also
given to the workman and period of service rendered
on casual basis is also to be counted for Pensionary
benefits.
12. That even at present, vacant, and sanctioned post
of Beldar available with the management but the
management still refuses to re-instate and regularise
the workman herein.
13. That despite his best efforts the workman herein has
been unable to secure any alternative employment
and the workman is unemployed since the date of
the termination of his service and is the verge of
starvation.
PRAYER
In view of the above facts and circumstance of the
instant case, it is, therefore, most respectfully prayed that
this Hon'ble Tribunal may kindly be pleased to answer the
said reference in favour of the workman herein by holding
that termination of services of the workman is illegal and
contrary to law and the workman herein is entitled to re-
instatement with full back wages and all consequent relief
and also the regularisation of his services.
MANAGEMENT FILED WRITTEN STATEMENT
AGAINST CLAIM STATEMENT. WHEREIN
UNDERHEAD PARAW1SE REPLY TO THE GROUNDS.
Parawise Reply
1. That the contents of paragraph 1 of the application/
statement of claim filed by the workman concerned, referred
to as application in the foregoing paragraph of this counter
reply, pertains to the matter of record. However, it is
submitted that there is no employee/employer relationship
between the workman concerned and the respondent
management. Therefore the reference order is best in the
eyes of law and the same cannot be legally and validity
adjudicated upon by this Hon'ble Tribunal as there exists
no industrial dispute between the parties.
2. That the contents of paragraph 2 of the application/
statement of claim filed by the workman concerned are
misconceived , wrong and such as are denied. The workman
concerned was not engaged on monthly rated basis in the
office of the respondent management but workman
concerned was engaged purely on temporary nature of
work along with the extra hand engaged on a particular
project. The workman concerned was transferred to the
S.P. Marg, Project. But since the project of Gole Market
was concluded, he was appointed afresh on he said project.
No Transfer letter was ever issued to the workman
concerned for joining at S.P. Marg project. The workman
concerned is put to strict proof thereof.
3. That the contents of paragraph 3 of the application/
statement of claim filed by the workman concerned are
wrong and are denied. The engagement of the workman
concerned as for a particular project and after completion
of the project the need of the workman concerned Ashok
Kumar was not engaged by S.P. Marg division and he joined
the S.P. Marg was issued and as such the allegation of the
workman concerned is wrong and malafide.
4. That the contents of paragraph 4 of the application/
statement of claim filed by the workman concerned it is
submitted that in compliance of the order dated 18.5.2001
passed by the Hon'ble CAT Principal Bench New Delhi in
O.A. No. 197 of 2000 case of the workman concerned for
regularization of his services as beldar was considered by
the competent authority. But the case was not found fit for
regularisation and hence it was rejected by the competent
authority. Thus there was full and fair consideration on
merits regarding the case or regularization of services of
the workman concerned.
5. That the contents of paragraph 5 of the
application/statement of claim filed by the workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2079
concerned are wrong and denied. It is wrong to allege that
the services of the workman concerned was retrenched in
violation of the provisions of Section 25 of the Industrial
Dispute Act, 1947, as no retrenchment compensation was
given to the workman concerned. It is stated that the
services of the workman concerned was retrenched as per
office memorandum dated 1.12.2000 which itself states that
the workman concerned is given one month's notice on
account of retrenchment under Section 25 of the Industrial
Dispute Act, 1947 with effect from the date of issue of such
order and after expiry of the notice period the services of
the workman concerned stand retrenched w.e.f . 31.12.2000.
Thus the workman concerned was given one month's notice
in writing indicating the reasons for retrenchment. On
becoming surplus on completion of S.P. Marg project the
workman concerned was also paid retrenchment
compensation. Thus there was full compliance of Section
25 F (a), (b), (c) of the Industrial Dispute Act ,1947. It is
stated that the workman concerned was given retrenchment
compensation along with the retrenchment order but he
had not accepted the retrenchment benefit as admitted by
him under paragraph 15 of his petition filed before the
Assistant Labour Commissioner, New Delhi. The workman
himself refused to accept the retrenchment benefit. Thus
for his default, the answering the Respondents cannot be
blamed nor the retrenchment order can be held to be bad
on this ground alone.
6. That the contents of paragraph 6 of the application/
statement of claim filed by the workman concerned are
wrong and denied. It is also wrong to allege that the
retrenchment order is bad in the eyes of law.
7. That the contents of paragraph 7 of the application/
statement of claim filed by the workman concerned are
wrong and denied. It is wrong to allege that junior to the
workman concerned had been retained. The workman
concerned is put to a strict proof thereof. It is stated that all
surplus hands engaged at S.P. Project had been retrenched
as the said retrenched near completion.
8.That the contents of paragraph 8 of the application/
statement of claim filed by the workman wrong and denied.
9.That the contents of paragraph 9 of the application/
Statement of Claim filed by the workman concerned are not
admitted in the form as stated, and as such as denied. Full
facts in this regard have been stated in the preceding
paragraphs.
10.That contents 10 of the application/statement of
claim filed by the workman concerned are wrong and denied,
as the workman concerned cannot be treated as having a
temporary status as per the guidelines issued by the
Government of India. It is wrong to allege that the
engagement of the applicant had been terminated in
violation of principle of natural justice.
11 .That the contents of paragraph 11 of the applicant/
statement of claim filed by the workman concerned are not
admitted.
12.That the contents of paragraph 12 of the
application/statement of claim filed by the workman
concerned are wrong and denied. There is no vacant and
sanctioned post of Beldar Available with the respondent
management.
13.That for the reasons stated above the claim
deserves to be rejected.
Workman filed rejoinder wherein he stated as follows:—
Reply to the Preliminary Submissions:—
1. That the content of para No.l to 16 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
2.That the contents of para No.2 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
3.That the contents of para No.3 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
4.That the contents of para No.4 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
5.That the contents of para No.5 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
6.That the contents of para No.6 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
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[PART II—SEC. 3(ii)]
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
7.That the contents of para No.7 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
8.That the contents of para No. 8 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
9.That the contents of para No. 9 of the written
statement, filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
I0.That the contents of para No.10 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
11.That the contents of para No.11 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
12.That the contents of para No.12 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
13. That the contents of para No.13 of the written
statement filed by the management are wrong, false,
concocted and frivolous and thus vehemently denied and
the content of the concerned para of the statement of claim
are reiterated and reaffirmed. The reply in preceding para
may be taken as reply herein and are not being repeated for
the sake of brevity.
In view of the above it therefore , most respectfully
prayed that this Hon'ble Tribunal be please to allow the
prayers in statement of claim filed by the workman.
My Ld predecessors has not framed any issue but proceed
to adjudicate the present reference on the basis of schedule
wherein questions of determination are as follows:—
' Whether the action of the management of Executive
Engineer, CPWD, in terminating/ retrenching their
workman Shri Ashok Kumar w.e.f. 31/12/2000 is legal
and justified? If not, to what relief the workman is
entitled to?"
Workman in support of his case filled affidavit in his
evidence wherein he stated as follows:—
1. That I am the workman in the above noted case
and well conversant about the facts and circumstances of
the instant case as much competent to swear the present
affidavit.
2. That I was appointed by the Management above
noted as Beldar on Muster Roll (monthly rated ) w.e.f.
15.12.1986 and I was subsequently transferred to S.P. Marg
Project, CPWD, 35, S.P. Marg, New Delhi.
3.That my services are transferable on all India basis
when need arises and I was not appointed by the S.P. Marg
Project Division itself and I join this office on transfer from
other Unit of the Management.
4. That I am entitled to be regularized in service since
08.10.1990 as per the directions of DG(W) CPWD and
provisions of CPWD Manual Vol. III.
5.That my services were not regularized and I along
with other workman approached the Hon'ble C.A.T. Principal
Bench, New Delhi for regularizalion of services through
O.A. No. 197/2000.
6.That when the case was pending before the Hon'ble
C.A.T., the Management illegally retrenched my services
vide O.M. No. 10 (l) SMPM/200/932 dated 01.12.2000
without giving retrenchment compensation etc. as per
provisions of Industrial Disputes Act, 1947.
7 That it is pertinent to mention herein that I have
put in more than 240 days of services continuously without
any breach in each every year since 15.12.1986 upto
30.12.2000 i.e. more than 14 years.
8.That prima-facie, my services were illegally
terminated on 31.12.2000.
9.That it is pertinent to mention herein, that when my
services were terminated, those Junior to me were retained
in service.
10.That vacant sanctioned posts of Beldar are
available with the Management even till today.
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11. That I have been unemployed since the illegal
termination of my services and have been unable to secure
any alternative employment despite my best effort and I
am dependent upon my in-laws for survival of my family
members.
12. That I am entitled to be reinstated in service with
full back wages and all consequential arrear and benefits.
13.That the contents of this affidavit have been
explained to me in vernacular language.
In view of the above, it is therefore, most respectfully
prayed that his Hon'ble Tribunal be pleased to answer the
instant reference in favour of deponent herein.
Workman tendered his affidavit on 11.04.2012.
He was cross-examined on the same day.
His cross examination is as follows:—
I got my name registered in the employment Exchange.
1 never got any appointment letter from the management. I
never got any order transferring me anywhere. It is incorrect
to suggest that I was given one month's notice by the
management before my services were terminated vide office
memorandum dated 01.12.2000. I did not get any office
memorandum dated 01.12.2000. It is correct to suggest that
I was given retrenchment compensation by the management
before my services were terminated. It is incorrect to
suggest that I have no case against the management.
Management in support of its case filed affidavit of
management witness Sh. R.P. Singh, wherein he stated as
follows:—
1 .That I, being the Deponent in the above matter, am
well conversant with the facts and circumstances of the
instant case and as such competent to swear this affidavit.
2. That the deponent says that the workman was
engaged in CPWD on purely temporary/need basis on a
practical project and the engagement of the workman
concerned was a purely temporary nature for a particular
project.
3.That deponent says that there is already regular
and sufficient staff with the respondent management to
carry out their work but wherever new project is started by
the CPWD extra/additional hands are engaged purely on
temporary basis to meet the sporadic need of the occasion
on the particular project. The deponent further says that
this engagement is purely of temporary and casual nature
for carrying out the need of extra hands on a particular
project.
4.That deponent says what when a particular period
is over and whenever new projects are stated, preference
in engagement of casual labour is given to those who had
sincerely worked on earlier projects but the subsequent
engagement has not connection of any nature whatsoever
with the earlier engagement as the engagement is for a
particular project having no sequence or connection with
the earlier project definite process of appointment after
due notification of the vacancies, the names of appropriate
candidates are called from the employment exchange. The
deponent further says that appointment authority who
issues appointment letters to the employee concerned
appointment him on probation for a particular period and
on successful completion of probation period, they are
issued confirmation letters confirming them on service.
5. That deponent says that there is no vacancy of
permanent nature is available in the office of the
respondent to accommodate the workman concerned and
if the workman concerned is reinstated and absorbed in
service it would create a great labour unrest and
disharmony in the office of the respondent.
6. That deponent says that the present workman
concerned was also engaged on a particular project and
after completion of one project, he was given the preference
in engagement on a new project on sympathetic
consideration that he had already worked on any earlier
project.
7. That the workman concerned was neither
appointed on a substantive vacancy on permanent basis
nor was his name called for from the Employment Exchange
in as much as he was not ( issued any appointment letter as
his employment was purely of temporary basis to fulfill a
particular need on a project and after the project is over the
need also ceases to exist.
8. That deponent further says that engagement of
the workman concerned in the department was after
imposition of ban as engagement of casual labour and the
said ban has not been lifted so far, therefore, the
engagement of the workman concerned cannot be termed
as casual labour as engagement was purely of temporary
nature on need basis of particular project.
9. That deponent says that Ministry of Finance had
further imposed a ban vide office memorandum dated
05.08.1999 even for fill up vacant posts thus, in view of this
aforesaid office memorandum, the workman concerned
cannot be retained or regularized in the services.
10. That deponent further says that there is no
vacancy in the category of Beldar to accommodate the
workman concerned.
11. That deponent says in compliance of the order
dated 18.05.2001 passed by the CAT New Delhi in O.A. No.
197 of 2000, the case of this workman concerned was
considered by the competent authority for regularization
but the case of the workman concerned not being found fit
was rejected after due consideration and vide office
memorandum dated 20.08.2002, the workman concerned
was also intimated accordingly.
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12. That deponent says that vide office memorandum
dated 01.12.2000, the services of the workman concerned
was retrenchment after giving one months notice in
compliance of Section 25 F of Industrial Dispute Act of
1947 as S.P. MARG PROJECT was nearing completion and
the services of the workman concerned was not required
on S.P. Marg Project and he had become surplus. Upon
careful examination of the circumstances, the competent
authority had decided to retrench the services of the
workman concerned after giving benefit as per the rules.
13. That dispensing of the service of the workman
concerned w.e.f. 31.12.2000 as per office memorandum dated
01.12.2000 is absolutely valid and legal.
14. That deponent says that there is no employee/
employer relationship between the workman concerned and
the respondent management.
15. That the deponent says that the workman
concerned was not engaged on monthly rated basis in the
office of the respondent management but the workman
concerned was engaged purely on temporary nature of
work along with extra hand engaged on a particular project.
The deponent further says that the workman was engaged
to the S.P. Marg Project. No transfer letter was ever issued
to the workman.
16. That deponent says that engagement of the
workman was for a particular project and after completion
of the project, the need of the workman was not engaged
by the S.P. Marg division.
17.That the services of the workman was
retrenchment as per office memorandum dated 01.12.2000
which itself states that the workman concerned is given on
month's notice on account of retrenchment under section
25 F of the I.D. Act 1947. The workman was given one
month's notice in writing indicating the reasons for
retrenchment.
18.That the deponent says that there is no vacant
and sanctioned post of Beldar available with the respondent
management.
19. That the deponent says that the workman has
filed false and frivolous petition just only to harass the
management and in order to extract undue money. The
petition of the workman has no merit and is liable to be
dismissed.
20 .That it is my true statement.
He was cross-examined on 14/06/2013 by A/R for the
Claimant.
His cross examination is as follows:—
Claimant was working with the management as
Beldar. Claimant has worked with the management for
14 years. It is also correct that in every calendar year,
claimant has worked for more than 240 days. Notice was
served to the claimant before his retrenchment.
Retrenchment compensation was also paid to him. A sum
of Rs. 23112.00 was paid to the claimant as retrenchment
compensation. Claimant was working in a temporary
capacity. Since no work was available for the claimant, his
services were retrenched after paying retrenchment
compensation. It is incorrect that action of the management
was illegal.
It is correct that service of the claimant were
retrenched on 30.12.2000. Ques. Please tell as to how many
persons were recruited as Beldar by the management in the
year 2001?
Ans. In my Division there was no recruitment as
Beldar, I cannot say whether any person was recruited as
beldar by the management in other Divisions. No person
was recruited as beldar in my Division in the year 2002.
Same is my reply in respect of year 2003. Job of the claimant
was not transferable. Vol. on completion of one project, the
management can sent the claimant on another project also.
It is incorrect that on 15.12.1986, the claimant was
transferred to a project at S.P. Marg, New Delhi.
In the light of contentions and counter contentions.
I perused the pleadings of the parties contained in claim
statement, written statement, and Rejoinder & their
respective evidence, as well as settled law on the point.
Perusal of evidence on record shows that Workman
/Claimants Sh. Ashok Kumar was engaged as Beldar on
15.12.1986 by C.P.W.D (Here in after referred to as the
management) , thereafter he continuously served the
management till Dec. 31.2000, the date when his service
was discontinued aggrieved by the said order, he raised
the demand of reinstatement of his services, which was
not conceded too. He raised an Industrial Dispute before
the conciliation officer, but conciliation proceeding ended
in failure. On consideration of failure report, submitted by
the conciliation officer, the appropriate government referred
the dispute to this Tribunal Vide Oder Notification No.
L-42011/16/2008 IR(DU) dated 02.06.2008. Claim Statement
was filed by Sh. Ashok Kumar wherein he stated along
with other fact that he was working with the management
as Muster Roll Beldar since 15.12.1986 up to 30.12.2000. He
was entitled for regularization of his service but he was not
regularized. When he protested his services were dispensed
with Vide Order Dated 31.12.2000 though his services was
terminated yet. His juniors to him were retained in service.
Act of terminating of his service is violated of statutory
provision, sections 25 F, 25 G, 25 H of Industrial Dispute
Act 1947.
Management filed Written Statement against
aforesaid claim statement through which he prayed that
claim statement is liable to dismiss and claimant is not
entitled to relief of reinstatement as claimed by him. On the
basis of averment made in the Written Statement.
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Claimant in reply to written statement filed his
rejoinder through which he retreats facts pleaded by him in
his Claim Statement.
To substantiate his claim, the claimant filed his
affidavit in evidence on 14/11/2011. He was cross examined
in detail on behalf of the management. Shri Santosh Kumar
Mishra, tendered his affidavit dated 11.04.2012 as evidence
on behalf of the management. He was cross-examined on
behalf of the claimant. No other witness was examined by
either of the parties.
I have heard the arguments of Ld. A/R's for the
parties. I perused the pleadings and evidence of the parties
including settled law and relevant provision of concerned
law on the points.
My findings on issues involved in the controversies are as
follows:—
Claimant swears in his affidavit that he was appointed
as Beldar on Muster roll on 15.12.1986. Subsequently he
was transferred to S.P. Marg Project, CPWD, 35, S.P. Marg,
New Delhi. He was regular employee and entitled for
temporary status as well as regularization in services of the
management. He along with other workmen approached
the Hon'ble CAT Principal Bench New Delhi for
regularization of services O.A. No. 197/2000.
When the case was pending before the management
illegally retrenched his services vide (O.M. No.10 (1) SMPM/
200/932 dated 01.12.2000 without giving retrenchment
compensation etc. as per provisions of Industrial Dispute
Act, 1947. In his affidavit Shri R.P. Singh , Executive
Engineer, Construction Division XIIth, CPWD . I.P. Bhawan
N.D, on S.A. Facts as detailed in Written Statement of the
management. During his cross-examination he does not
dispute that workman worked for about 14 years and in
every calendar year he rendered 240 days continuous
service. However, he stated that no work is available for
the claimant. Hence, his services were retrenched after
paying him retrenchment compensation.He could not
dispute that the project continued even after
discontinuation of the services of the claimant.
Whether relationship of employer and employee,
existed between the parties? For an answer to this question,
it is to be appreciated as to how a contract of service is
entered into. Relationship of employer and employee is
constituted by a contract express or implied between the
employer and employee. A contract of service is one in
which a person undertakes to serve another and to obey.
Reasonable orders within the sphere 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 employee.
Any such inference, however, is open to the rebuttal as by
showing that relation between the parties concerned was
on charitable footing or the parties were relations or partners
or were directors of a limited company, which employ no
staff. While employees, at the time, when his services were
engaged, need not have known to identity of his employer,
there must have been some act or contract by which parties
recognize one another a master and servant.
To establish relationship of employer and employee
claimant/workman examined himself in his oral evidence.
He was cross-examined by Sh. Santosh Kumar Mishra A/R
for the management but nothing could be extracted out
which may disprove the relationship of employer and
employee among management & claimant . On the other
hand MW1 Shri. R.P. Singh concedes in his testimony that
claimant rendered about 14 years continuous service with
the management. Consequently, facts unfolded by Shri.
Ashok Kumar and Shri R.P. Singh are sufficient to conclude
that the claimant was engaged as muster roll Beldar by the
management on 15.12.1986 to 30.12.2000. He rendered his
continuous service for more than 240 days in each calendar
year. When the claimant was engaged as Muster roll Beldar,
on whom temporary status was accorded, it does not lie in
the mouth of the management that there was no relationship
of employer and employee between the parties. Thus
claimant has established through his credible and reliable
evidence that he was an employee of the management. As
projected by the parties, services of claimant were
dispensed with on 31.12.2000. Shri . R.P. Singh unfolds in
his affidavit exhibit MW1/A that engagement of the
workman was for a particular project and after completion
of the project, the need of the workman was not engaged
by the S.P. Marg, project, CPWD,35, New Delhi.
That seniors of the workman was retrenched as per
office memorandum dated 1.12.2000. Service of one month
notice is also not disputed by the claimant .Thus it makes
crystal clear that claimant was bidden farewell by the
management on 31.12.2000.
Whether termination of services of Shri Ashok
Kumar amounts to retrenchment? For an answer, definition
of the term is to be construed. Clause (oo) of Section 2 of
the Industrial Disputes Act, 1947 (in short the Act) defines
retrenchment. For sake of convenience, the said definition
is as extracted thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any reason
whatsoever, otherwise than as a punishment inflicted
by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf; or
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[PART II—SEC. 3(ii)]
(bb) termination of the services of the workman as a result
of the non-renewal of the contract of employment
between the employer and the workman concerned
on its expiry or of such contract being terminated
under a stipulation in that behalf contained therein;
or
(c) termination of the services of a workman on the
ground of continued ill-health".
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
(1) LJJ 1] and Mahabir [1979 (II) LJJ 363].
Sub Clause (bb) purports to exclude from the ambit
of the definition of retrenchment (i) termination of the
service of a workman as a result of non-renewal of the
contract of employment between the employer and the
workman concerned, on its expiry, or (ii) termination of the
contract of employment in terms of a stipulation contained
in the contract of employment in that behalf. The first part
relates to termination of service of a workman as a result of
non-renewal of the contract of employment between the
employer and the workman concerned on its expiry. Thus
"non-renewal of contract of employment" pre-supposes
an existing contract of employment, which is not renewed.
When services of an employee is terminated on account of
non-renewal of contract of employment, between the
employer and the workman, it does not amount to
retrenchment. The second part refers to "such contract"
being terminated under a stipulation in that behalf contained
therein. The cases contemplated, under this part too, would
not amount to retrenchment. However this sub-clause,
being in the nature of an exception to clause (oo) of Section
2 of the Act, is ruled to be construed strictly when
contractual agreement is used as modus operand to
frustrate claim of the employee to become regular or
permanent against a job. The adjudicator has to address
himself to the question whether the period of employment
was stipulated in the contract of employment as a device
to escape the applicability of the definition of retrenchment.
See Shailendra Nath Shukla (1987 Lab. I.C. 1607), Dilip
Hanumantrao Shrike (1990 Lab, I.C. 100) and Balbir Singh
[1990 (l) LJJ. 443]. On review of law laid by the Apex Court
and various High Courts, a Single Judge of the Madhya
Pradesh High Court, in Madhya Pradesh Bank Karamchari
Sangh (1996 Lab, I.C 1161) has laid following principles of
interpretation and application of sub-clause (bb) of clause
(oo) of Section 2 of the Act:
"(i) that the provisions of Section 2(oo)(bb) are to be
construed benevolently in favour of the workman,
(ii) that if the workman is allowed to continue in service
by making periodic appointments from time to time,
then it can be said that the case would not fall under
Section 2(oo)(bb),
(iii) that the provisions of Section 2 (oo)(bb) are not to
be interpreted in the manner which may stifle the
main provision,
(iv) that if the workman continues in service, the non-
renewal of the contract can be deemed as mala fide
and it may amount to be a fraud on statute;
(v) that there would be wrong presumption of non-
applicability of Section 2(oo)(bb) where the work is
of continuous nature and there is nothing on record
that the work for which a workman has been
appointed had come to an end".
Whether provisions of retrenchment, enacted in the
Act, provide for any security of tenure? Answer lies in
negative. Provisions of retrenchment provide for certain
benefits to a workman in case of termination of his service,
falling within the ambit of definition of retrenchment. On
compliance of the requirements of Sections 25F or 25N and
25G of the Act, it is open to the employer to retrench a
workman.
Termination of service of an employee during the
period of probation was held to be covered by the exception
contained in sub-clause (bb) of Section 2(oo] of the Act, in
C.M.Venugopal [1994 (1) LJJ 597]. As per fact of the case,
Regulation 14 of the Life Insurance Corporation of India
(Staff) Regulation 1962 empowered the Corporation to
terminate the service of an employee within the period of
probation. The employee was put on probation for a period
of one year, which was extended by another year. Since he
could not achieve the target to earn confirmation, his service
was terminated in terms of Regulation 14 as well as order of
appointment. The Apex Court ruled that the case was
covered by the exception contained in sub-clause (bb),
hence it was not retrenchment.
In Morinda Co-operative Sugar Mills Ltd. (1996 Lab,
I.C. 221) a sugar factory used to employ certain number of
workmen during crushing season and at the end to the
crushing season their employment used to cease. The
Supreme Court held that despite the fact that the workmen
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worked for more than 240 days in a year, cessation of their
employment at the end of crushing season would not amount
to retrenchment in view of the provisions of sub-clause
(bb) of section 2(oo) of the Act. It was observed as follows:
"4. It would thus be clear that the respondents were
not working throughout the season. They worked
during crushing seasons only. The respondents were
taken into work for the season and consequent to
closure of the season, they ceased to work.
5. The question is whether such a cessation would
amount to retrenchment. Since it is only a seasonal
work, the respondents cannot be said to have been
retrenched in view of what is stated in sub-clause
(bb) of section 2(oo) of the Act. Under these
circumstances, we are of the opinion that the view
taken by the Labour Court and the High Court is
illegal. However, the appellant is directed to maintain
a register for all workmen engaged during the seasons
enumerated herein before and when the new season
starts the appellant should make a publication in
neighbouring places in which the respondents
normally live and if they would report for duty, the
appellant would engage them in accordance with
seniority and exigency of work."
Above legal position was reiterated by the Apex Court
in Anil Bapuro Kanase [1997 (10) S.C.C. 599] wherein it was
noted as follows:
"3. The learned counsel for the appellant contends
that the judgment of the High Court of Bombay relied
on in the impugned order dated 28.3.1995 in Writ
Petition No.488 of 1994 is perhaps not applicable.
Since the appellant has worked for more than 180
days, he is to be treated as retrenched employee and
if the procedure contemplated under Section 25-F of
the Industrial Disputes Act, 1947 is applied, his
retrenchment is illegal. We find no force in this
contention. In Morinda Coop. Sugar Mills Ltd. v.
Ram Kishan in para 3, this Court has dealt with
engagement of the seasonal workman in sugarcane
crushing, in para 4, it is stated that it was not a case
of retrenchment of the workman, but of closure of
the factory after the crushing season was over.
Accordingly, in para 5, it was held that it is not
'retrenchment' within the meaning of Section 2(oo)
of the Act. As a consequence the appellant is not
entitled to retrenchment as per sub-clause (bb) of
Section 2(oo) of the Act. Since the present work is
seasonal business, the principles of the Act have no
application. However, this Court has directed that
the respondent management should maintain a
register and engage the workmen when the season
starts in the succeeding years in the order of seniority.
Until all the employees whose names appear in the
list are engaged in addition to the employees who
are already working, the management should not go
in for fresh engagement of new workmen. It would
be incumbent upon the respondent management to
adopt such procedure as is enumerated above."
In Harmohinder Singh (2001 (5) S.C.C. 540) an
employee was appointed as a salesman by kharga canteen
on 1.6.74 and subsequently as a cashier on 9.8.75. The
letter of appointment and Standing Orders, inter alia,
provided that his service could be terminated by one
month's notice by either party. He was served with a notice
to the effect that his service would be relinquished with
effect from 30.6.1989. Relying precedent in Uptron India
Ltd, [1998 (6) S.C.C. 538] the Apex Court ruled that contract
of service for a fixed term are excluded from the ambit of
retrenchment. Decision in Balbir Singh (supra) was held to
be erroneous. It was also ruled that principles of natural
justice are not applicable where termination takes place on
expiry of contract of service.
In Batala Coop. Sugar Mills Ltd. [2005 (8) S.C.C. 481]
an employee was engaged on casual basis on daily wages
for specific work and for a specific period. He was engaged
on 1.4.1986 and worked upto 12.2.94. The Labour Court
concluded that termination of his services was violative of
provisions of section 25-F of the Act, hence ordered for his
reinstatement with 50% back wages. Relying precedents in
Morinda Coop. Sugar Mills (supra) and Anil Bapuro Kanase
(supra) the Apex Court ruled that since his engagement
was for a specific period and specific work, relief granted
to him by the Labour Court cannot be maintained.
The Apex Court dealt with such a situation again in
Darbara Singh (2006 LLR 68) wherein an employee was
appointed by the Punjab State Electricity Board as peon
on daily wage basis from 8.1.88 to 29.2.88. His services
were extend from time to time and finally dispensed with in
June 1989. The Supreme Court ruled that engagement of
Darbara Singh was for a specific period and conditional.
His termination did not amount to retrenchment. His case
was found to be covered under exception contained in
sub-clause (bb) of section 2(oo) of the Act. In Kishore
Chand Samal (2006 LLR 65), same view was maintained by
the Apex Court. It was ruled therein that the precedent in
S.M. Nilajkar [2003 (II) LJJ 359] has no application to the
controversy since it was ruled therein that mere mention
about the engagement being temporary without indication
of any period attracts section 25 F of the Act if it is proved
that the concerned workman had worked continuously for
more than 240 days. Case of Darbara Singh and Kishan
Chand Samal were found to be relating to fixed term of
appointment.
In BSES Yamuna Power Ltd, (2006 LLR 1144) Rakesh
Kumar was appointed as Copyist on 29.9.89, initially for a
period of three months as a daily wager. His term of
appointment was extended up to 20.9.90. No further
extension was given and his services were dispensed with
on 20.9.90. On consideration of facts and law High Court of
Delhi has observed thus:
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"...In the present case, the respondent was appointed
as a copyist for totaling the accounts of ledger for
the year 1986-87 and then for 1987-88. His initial
appointment was for the period of three months. It
was extended from time to time and no extension was
given after 20th September, 1990. He was appointed
without any regular process of appointment, purely
casual and on temporary basis for specific work of
totaling of ledger. When this work was over, no
extension was given. I consider that appointment as
that of the respondent is squarely covered under
section 2(oo)(bb) of the Act. Giving of non extension
did not amount to termination of service, it was not a
case of retrenchment."
Precedents, handed down by Allahabad High Court
in Shailendra Nath Shukla (supra), Bombay High Court in
Dilip Hanumantrao Shirke (supra), Punjab & Haryana High
Court in Balbir Singh (supra) and Madhya Pradesh High
Court in Madhya Pradesh Bank Karamchari Sangh (supra)
castrate sub-clause (bb) of section 2(oo) of the Act. Ratio
decidendi in these precedents abrogates statutory
provisions of sub-clause (bb) of section 2 (oo) of the Act
without even discussing the legality or constitutional
validity of the clause. On the other hand the Apex Court in
C.M.Venugopal (supra), Morinda Co-operative Sugar Mills
Ltd. (supra), Anil Bapurao Kanase (supra), Harmohinder
Singh (supra), Batala Coop. Sugar Mills Ltd. (supra),
Darbara Singh (supra) and Kishore Chand Samal (supra)
and High Court of Delhi in BSES Yamuna Power Ltd. (supra)
spoke that case of an employee, appointed for a specific
period which was extended from time to time, would be
covered by the exception contained in sub-clause (bb) of
section 2(oo) of the Act, in case his services are dispensed
with as a result of non-renewal of the contract of
employment between him and his employer, on its expiry or
termination of the contract of employment in terms of a
stipulation contained in the contract of employment in that
behalf. The law, so laid, holds the water and would be
applied to the case of the claimant.
At the cost of repetition, it is said that the claimant
was not appointed against S.P. Marg project for specified
period. No evidence has come over the record that services
of the claimant came to an end as a result of non renewal of
the contract of employment on its expiry or it were
terminated as per stipulation contained in the contract of
employment. For application of the provisions of sub-clause
(bb) of clause (oo) of Section 2 of the Act, the management
is under an obligation to show that the engagement of the
claimant was not for casual works on daily wages. Non
renewal of contract of employment presupposes an existing
contract of employment which is not renewed. Even in
respect of a daily wager a contract of employment may
exist, such contract being from day to day. The position,
however, would be different since such contract is in reality,
camouflage for a more sustaining nature of arrangement,
but the mode of daily wager is adopted so as to avoid
rigors of the Act. Therefore, it is concluded that sub-clause
(bb) of clause (oo) of section 2 of the Act does not
contemplate to cover contract such as of a daily wager and
is rather intended to cover more general clause of contracts
where a regular contract of employment is entered into and
the termination of service is because of non renewal of the
contract. Therefore, sub-clause (bb) of clause (oo) of
section 2 of the Act cannot be pressed into service by the
management to espouse its case. In view of all these facts,
it is clear that management cannot avail benefit of sub-
clause (bb) of Clause (oo) of Section 2 of the Act and
termination of the service of the claimant amounts to
retrenchment.
In his testimony claimant projects that retrenchment
compensation was not paid to him. Shri R.P. Singh speaks
on the same lines in his affidavit Ex.MW-1/A. For sake of
convenience paragraph 18 of his affidavit reads thus:—
"That the services of the workman was retrenched
as par office memorandum dated 1.12.2000 which itself
states that the workman concerned is given one
month's notice on account of retrenchment under
section 25F of the I.D. Act, 1947. The workman was
given one month's notice in writing indicating reasons
for retrenchment."
As indicated above, Shri R.P. Singh simply spells
that one months notice was given to the claimant. He
nowhere unfolds that retrenchment compensation was paid
to him. On that issue the claimant is much vocal when he
swears in his affidavit that he was not given retrenchment
compensation. Section 25F of the Act postulates three
conditions to be fulfilled by an employer for effecting a
valid retrenchment namely:— (a) one month's notice in
writing indicating reasons for retrenchment or wages in
lieu of such notice, (b) payment of compensation equivalent
to 15 days average pay for every completed year of
continuous service or any part thereof in excess of 6 months,
and (c) notice to the appropriate Government in the
prescribed manner. Negative language used in section 25F
of the Act imposes, a mandatory duty on the employer
which is a condition precedent to retrenchment of workman.
Contravention of mandatory requirement of the section
would invalidate retrenchment and render it void ab initio.
When these mandatory requirements are not complied with,
the retrenchment of the claimant cannot be upheld.
Consequently I am constrained to conclude that
retrenchment of the claimant is violative of the provision
of section 25F of the Act. Reference can be made to the
precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992
Lab. l.C. 1364) and Ollur Regional Imitation Diamond
Manufacturing Industrial Co-op. Society Ltd. [1993 (II) LJJ
174].
Claimant claims regularization of his services with
the management. It is not his case that at the time of his
engagement recruitment rules were followed. No evidence
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was brought over the record to show that public
advertisement was given, inviting public at large to
compete. In his affidavit the claimant made a bald statement
to the effect that his name was sponsored by the
Employment Exchange. He could not substantiate this fact
by any documentary evidence. Though he tried to assert
that an appointment letter was issued in his name, but this
claim also proved to be wrong. He could not produce his
appointment letter before the Tribunal. It is apparent that
the claimant made wrong statement on counts. He failed to
establish that he was appointed as a Beldar in consonance
with the recruitment rules. There is a complete vacuum of
evidence that the claimant took test and faced interview
for his selection. It has not been projected by him that at
the time of his selection norms of reservation policies were
followed. It has also not been shown that candidates of
minor communities were also considered and appointed,
when he was selected for appointment with the
management. Therefore, out of the facts projected by the
claimant, it nowhere comes over the record that procedure
prescribed for appointment to the post of a regular Beldar
was followed.
A "seasional workman" is engaged in a job which
lasts during a particular season only, while a temporary
workman may be engaged either for a work of temporary or
casual nature or temporarily for work of a permanent nature,
but a permanent workman is one who is engaged in a work
of permanent nature only. The distinction between
permanent workman engaged on a work of permanent nature
and a temporary workman engaged on a work of permanent
nature is, in fact, that a temporary workman is engaged to
fill in a temporary need of extra hands of permanent jobs.
Thus when a workman is engaged on a work of permanent
nature which lasts throughout the year, it is expected that
he would continue there permanently unless he is engaged
to fill in a temporary need. In other words a workman is
entitled to expect permanency of his service. Law to this
effect was laid by the Apex Court in Jaswant Sugar Mills
[1961 (l)LLJ 649].
Some casual workmen employed in a Canteen, raised
demand of permanency in service. The Tribunal directed
that from particular date they should be treated as
probationer and appointed in permanent vacancy without
going into the question as to whether more than permanent
workmen were necessary to be appointed in the canteen,
over and above the existing permanent strength to justify
the making of the casual workman as permanent, where
they were working. Neither there was any permanent
vacancy in existence nor the Tribunal directed for creation
of new posts. When the matter reached the Apex Court, it
was announced that the Tribunal was not justified in
making these directions. The workman may be made
permanent only against permanent vacancies and not
otherwise, announced the Apex Court in Hindustan
Aeronautics Limited Vs. their workmen [1975 (II) LLJ 336].
In Uma Devi (2006(4) SCC I) the Apex Court
considered the proposition as to whether the persons who
got employment, without following of a regular procedure
or even from the back door or on daily wages can be ordered
to be made permanent in their posts, to prevent regular
recruitment to the posts concerned. Catena of decisions
over the subject were considered and the court declined
the submissions of the workmen to be made permanent on
the post which was held by them in temporary or ad hoc
capacity for a fairly long spell. The Court ruled thus:
"With respect, why should the State be allowed to
depart from the normal rule and indulge in temporary
employment in permanent posts? This Court, in our
view, is bound to insist 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 modal 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 judgment 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". Taking note
of some of recent decisions, the Apex Court held
that the State does not enjoy a power to make
appointments in terms of article 162 of the
Constitution. The Court quoted its decision in Girish
Jyanti Lal Vaghela [2006 (2) SCC 482] with approval,
wherein it was ruled thus.
"The appointment to any post under the State can
only be made after a proper advertisement has been
made inviting applications from eligible candidates
and holding of a selection by a body of experts or a
specially constituted committee whose members are
fair and impartial through a written examination or
interview or some other rational criteria for judging
the inter se merit of candidates who have applied in
response to the advertisement made. A regular
appointment to the post under the State or Union
cannot be made without issuing advertisement in
the prescribed manner which may in some cases
include inviting applications from the employment
exchange, where eligible candidate get their names
registered. Any regular appointment made on a post
under the State or Union without issuing
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advertisement inviting applications from eligible
candidates and without holding a proper selection
where all eligible candidates get a fair chance to
compete would violate the guarantee enshrined under
article 16 of the Constitution."
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 retreated the law laid down in Uma
Devi's case (supra) and announced that the rules of
recruitment cannot be relaxed and court cannot direct
regularization of temporary employees de hors the rules
nor can it direct continuation of service of a temporary
employee whether with a casual, Ad-hoc or daily rated
employee or payment of regular salaries to them. In Daya
Nand [2008 (10) SCC 1] the Apex Court ruled that menace
of illegal and back door appointment compels the court to
rethink and in large number of subsequent portions the
court declared to entertain the claim of Ad-hoc and
temporary employees for regularization of service saying
that theory of legitimate expectation cannot be successfully
advanced by temporary, contractual or casual employees.
It was ruled therein that claim of the claimants for
regularization of their job cannot be considered.
Now it would be considered whether the claimant
could show that he was engaged on daily wage basis in
pursuance of recruitment rules applicable; to the
management. He had adopted a posture of silence on this
issue. On the other hand Shri R.P Singh was candid enough
to say that the claimant was engaged de hors the rules. It is
evident that engagement of the claimant was not in
pursuance of the rules of recruitment. In that situation it
cannot be said that his recruitment was irregular, which
can be regularized. In Uma Devi's case (Supra) Apex court
dealt with appointment of casual employees on two
standards (1) irregular appointment (2) illegal appointment.
For irregular appointment where the appointee have
rendered 10 years or more service in a duly sanctioned
post the State was commanded to take one time measure to
regularize there services but in case of illegal appointee the
court concluded that they have no right to continue in the
service. The claimant being an illegal appointee cannot
claim a right to continue in service of the management.
Therefore I do not find it to be a case for reinstatement of
the claimant in service.
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 lieu of
reinstatement. Section 11A of the Act vests the industrial
adjudicator with discretionary jurisdiction to give "such
other relief to the workmen" 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.
The Apex Court and High Courts dealt with the issue
of award of compensation in catena of decisions, when
reinstatement in service was not found expedient. Those
precedents may help the Tribunal in ascertaining the
quantum of compensation, which may be awarded to the
claimant. In S.S.Shetty [1957 (II) LJJ 696] the Apex Court
indicated some relevant factors which an adjudicator has
to take into account in computing compensation in lieu of
reinstatement, in the following words:
"The industrial Tribunal would have to take into
account the terms and conditions of employment,
the tenure of service, the possibility of termination
of the employment at the instance of either party, the
possibility of retrenchment by the employer or
resignation or retirement by the workman and even
of the employer himself ceasing to exist or of the
workman being awarded various benefits Including
reinstatement under the terms of future awards by
industrial Tribunal in the event of industrial disputes
arising between the parties in future ....In computing
the money value of the benefits of reinstatement, the
industrial adjudicator would also have to take into
account the present value of what his salary, benefits
etc. would be till he attained the age of superannuation
and the value of such benefits would have to be
computed as from the date when such reinstatement
was ordered under the terms of the award.
Having regard to the considerations detailed above,
it is impossible to compute the money value of this
benefit of reinstatement awarded to the appellant
with mathematical exactitude and the best that any
tribunal or court would do under the circumstances
would be to make as correct as estimate as is possible
bearing, of course in mind all the relevant factors pro
and con."
A Divisional Bench of the Patna High Court in
B.Choudhary (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
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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. LC1887).
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) LJJ 398] the amount of
compensation equivalent to two years 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) LJJ 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.l.C. 44] the court
directed payment of Rs.75000 in view of reinstatement with
back wages. In Naval Kishor [1984 (11) 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.IC.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.l.C.1650) a compensation
of Rs. 2.50 lac was awarded in lieu of reinstatement.
In the lighl of contentions and counter contentions I
perused the settled law of Hon'ble Supreme Court on the
point of reinstatement and grant of back wages which
shows that reinstatement is not a necessary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be awarded.
In Assistant Engineer, Rajasthan Dev. Corporation and Anr.
Vs. Gitam Singh, (2013) II LLJ 141 Hon'ble Supreme Court
has held that reinstatement of workman with continuity of
service and 25% back wages was not proper in the facts
and circumstances of the case and the compensation of
Rs. 50000 (Rs. Fifty Thousand Only) shall meet the ends of
justice. In Jagbir Singh Vs. Haryana State Agriculture
Marketing Board & Anr. AIR 2009 Supreme Court 3004,
Hon'ble Supreme Court held thus "the award of
reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year
preceding the date of termination particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded". In catena of Judgments,
Hon'ble Supreme Court has taken a view that reinstatement
is not automatic, merely because the termination is illegal
or in contravention of S-25-F of the Industrial Dispute Act.
In Talwara Co-operative Credit and Service Society Limited
Vs. Sushil Kumar (2008) 9 SCC 486, Hon'ble Supreme Court
held thus, "grant of relief of reinstatement, it is trite, is not
automatic. Grant of back wages is also not automatic".
As referred above the Claimant /Workman rendered
240 days continuous service for 14 consecutive calendar
years as a Casual Worker. On 15.12.86 the claimant /workman
was about 26 years of age. After rendering service with the
management he completed the age of about 40 years. Now
his age is about 54 years. He is admittedly working for gain
since his alleged retrenchment. As he has become overage
so he cannot get a job in any public sector undertaking or
government department. His services with the management
were found to be good and satisfactory. Considering all
these facts and the circumstance that retrenchment
compensation was not paid to him. I am of considered view
that a compensation of Rs. 50,000 (Fifty thousand only) , in
lieu of reinstatement in service, would meet the ends of the
justice.
Reference is accordingly decided in favour of
Claimant/Workman and against Management of CPWD
is directed to pay the aforesaid compensation to
Claimant/Workman after expiry of period of available
remedy against this award.
Award is accordingly passed.
Dated : 9.1.2014
HARBANSH KUMAR SAXENA, Presiding Officer
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[PART II—SEC. 3(ii)]
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New Delhi, the 11th February, 2014
S.O. 770.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No. 62/2007)
of the Central Government Industrial Tribunal/Labour Court
No. II, Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Chief Post Master General, New Delhi and
their workman, which was received by the Central
Government on 04/02/2014.
[No. L-40011/35/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, DELHI
Present : Shri Harbansh Kumar Saxena
ID. No. 62/07
Sh. Gajendra Singh
Versus
Chief Post Master General
AWARD
The Central Government in the Ministry of Labour
vide notification No L-40011/35/2007-IR(DU) dated
22.10.2007 referred the following Industrial Dispute to this
tribunal for the adjudication :—
"Whether the action of the management of the Chief
Master General, Dehradun, in denying employment
on compassionate ground to Shri Gajender Singh
S/o Late Shri Gabel Singh, is legal and justified? If
not, what relief the claimant is entitled to?"
On 26/10/2007 reference was received in this tribunal.
Which was register as I.D. No. 62/2007 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
Shri Gajendra Singh through Shri Vijendra, State Secretary,
Bhartiya Mazdoor Sangh, Uttrakhand filed claim statement
on 18.12.2007 in this tribunal. Wherein grounds were taken
as follows:—
1. That Industrial Dispute u/s 36(1)(B). Industrial
Dispute Act has been filed for providing seeking job for
Gajendra Singh S/o Late Shri Gabel Singh on die- in-
heiriness grounds.
2. Late Shri Gabel Singh permanent Group-D
employee, Vikas Nagar, Post Office died suddenly on
22.12.1994 during his service tenure.
3. After death of Late Shri Gabel Singh his nominee
wife Smt. Lalita Devi also expired after about 6 months on
24.06.1995.
4. That on the date of death of Late Shri Gabel Singh
& his wife Late Smt. Lalita Devi their dependents Gajendra
Singh (Son) aged about 12 years, Surender Singh (Son)
aged about 6 years, Kumari Guddi (Daughter) aged about 4
years all were minors.
5. That Smt. Lalita Devi wife of Late Shri Gabel Singh,
moved an application seeking job but before any order
passed by department she expired on 24.06.1995. So she
couldn't get job.
6. All dependents of Late Shri Gabel Singh were
minors having 1.189 hectares of land and one Kacha house
which is registered in the name of his uncle. In which their
share is included. In such situation maintenance of
dependents is difficult.
7. That additional district Judge Dehradun, decided
miscellaneous case No. 84/96, Through order he appointed
Shupa Singh, Guardian of the aforesaid three minors of
Late Shri Gabel Singh. Who is looking after them till now.
8. That after becoming major Shri Gajendra Singh
out of aforesaid minors applied for job on 04.09.2002. On
die-in-heiriness ground.
9. That Post Office Department of Dehradun,
through its Letter No. B-2/01, dated 25.09.2003 called upon
Gajendra to furnish information contain in letter. Which
was furnished by Shri Gajendra Singh to the Post Office.
10.That pension provided to minors by Post Office
department is not sufficient. Minors are suffering from
natural calamity.
11.That Shri Gajendra Singh applied in writing before
department that he is ready to serve other that department
of Post Office but department paid no attention.
12.That at the time of death of Late Shri Gabel Singh
Quota of dependents of deceased in appointment was
100%. Hence, non-providing job to dependent is unjustified
and illegal.
13.That applicant Shri Gajendra Singh is entitled for
job in department.
On the basis of aforesaid averments that at time of
death of Late Shri Gabel Singh applicant Sh. Gajendra Singh
¹Hkkx II—[k.M 3(ii)º
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2091
prayed for job in department. On the basis of his educational
qualification.
Senior Superintendent of Post Office of Dehradun on
17.11.08 filed Written Statement. Wherein he stated as
follows :—
1. That Sh. Gajendra Singh S/o Late Sh. Gabel Singh
filed Industrial Dispute U/s 36(1)(B) Industrial Dispute Act
1947 for seeking job as an dependent of deceased. Claimant
is not workman. Hence, answering dependent has objection
against institution of aforesaid of Industrial Dispute on
the ground the Section 36 Industrial Dispute Act, 1947 is
applicable where there is dispute between workman and
his employer. According to provision of Section 2-(S)
Industrial Dispute Act Sh. Gajendra Singh Claimant is not
workman. In this background claimant is not entitled to file
Industrial Dispute for seeking job through Daak Karamchari
Sangh Postman Avam Chaturth Shredi Dehradun Prakhand.
2. Statement is true.
3. No comment is required.
4. No comment is required.
5. Claimant himself admitted that death of
Smt. Lalita Devi occurred on 24/06/1995. So, her case for
seeking job was not considered and in para 4 he himself
stated that other dependent family members were minors
who cannot be entitled for appointment. In those
Sh. Gajendra Singh was included.
6. No comment is required.
7. No comment is required.
8. No comment is required.
9. Contents are admitted.
10.No comment is required.
11.Claimant Sh. Gajendra Singh applied in department
for his appointment for the post of departmental Postman.
On which Selection Committee considered on 15.12.2003.
His name was not approved on the grounds mentioned in
Para-9. In addition to it there is no provision to consider
his name for additional departmental post for the same.
12.Contention is not admitted because after death of
Sh. Gabel Singh and his wife all dependents members were
minors. Who were not eligible for employment? Again
claimant Sh. Gajendra Singh in 2002 applied for job after
becoming major as he stated in Para 4 and 8. So, his statement
that after death of Late Sh. Gabel Singh non providing job
to 100% dependents is not logical. However, department
exhaust his process according to rules.
13.Circle selection committee SPMG Karyalaya
Dehradun has already considered the application of
Claimant for seeking job on 15.12.2003 and case of applicant
could not be approved because such appointment of Group
D and C are considered for 5% of total existing vacancies.
Such principle has been laid down by Hon'ble Supreme
Court on 5.04.1994 in case of Umay Kumar Nagpal V/s.
Haryana State [J.T. 1994(3) S.C. 525]. Thus claimant is not
entitled for seeking job in department nor dependent can
appoint him nor claimant can be provided any claim.
Claimant on 24/03/2008 filed Rejoinder. Wherein he
stated as follows:—
1. Contents of Para No. 1 of Written Statement not
admitted because dispute is related to appointment which
has been raised through Union. Hence, Claimant is not
required to be workman.
2. Contents of Para No. 2, 3 and 4 of Written
Statement require no comments.
3. Contents of Para No. 5 of Written Statement
require no comments.
4. Contents of Para No. 6 ,7 and 8 of written
Statement require no comments.
5. Contents of Para No. 9 are partly admitted and
rest are denied.
6. Contents of Para No. 10 of Written Statement
require no comments.
7. Contents of Para No. 11 of Written Statement are
not admitted because of untrue facts.
8. Contents of Para No. 12 of Written Statement is
not admitted due to untrue facts.
9. Contents of Para No. 13 of Written Statement is
not admitted due to untrue facts.
10.Summary history annexed with written statement
is partly admitted remaining is not admitted due to untrue
facts.
On the basis of aforesaid contents prayer for passing
award was made.
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 of the Chief
Master General, Dehradun, in denying employment
on compassionate ground to Shri Gajender Singh
S/o Late Shri Gabel Singh, is legal and justified? If
not, what relief the claimant is entitled to?"
Workman in support of his case filed affidavit of
Sh. Gajendra Singh in his evidence, Wherein he stated as
follows:—
1. That my father Late Sh. Gabel Singh was
permanent Group-D employee in Vikas Nagar, Post Office,
who died suddenly on 22.12.1994.
2092
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
2. That my mother Late Smt. Lalita Devi applied for
the job but after 6 months she also expired on 24.06.95 . At
that time I Gajendra Singh, my brother Surender Singh and
sister Guddi, all were minors.
3. That I have 1.189 hectare land and 1 kacha makan
which is in name of my Uncle. In which I have a share.
4. That district judge Dehradun, appointed guardian
to my uncle Sh. Shupa Singh for looking after and
maintenance for the we minors. Since, than he is looking
after.
5. That after becoming major I applied for job on
4/9/2002 in the department which was allowed by
department but job has not been provided.
6. That I myself, my brother and sister are
prosecuting studies. Hence, pension provided to us is not
sufficient for education and maintenance to us. There is no
other source of Income to us.
7. That after rejection of my application I moved an
application before Bhartiya Mazdoor Sangh and prayed to
institute a dispute to seek justice.
8. That is therefore prayed I shall be provided job in
department as per my education qualification.
On 10.5.2010 affidavit of Workman was tendered & he
was cross-examined on same day. His cross examination-
in-chief and cross-examination as follows:—
MW1, Mr. Gajendra Singh S/o Late Shri Gabel Singh,
aged 26 years, (Date of Birth 08 April, 1984), unemployed,
r/o Village: Chitar, PO: Gangroo, Dist. Dehradun,
Uttrakhand:
On SA:
I tender in evidence my affidavit, which is Exb.
WW1/A. It is in Hindi. The same is correct. It may be read
in evidence in my case.
XXX by Ms. Meenakshi Aggarwal, A/R of the
management:
It is correct that I received letter dated 28.01.2004
copy of which is Exb. WW/M1. It is incorrect to suggest
that I am not entitled to appointment on compassionate
grounds as has been claimed by me this case.
Management in support of his case filed affidavit in his
evidence wherein he stated as follows:—
l. That the deponent is posted as Asstt.
Superintendent of Post Offices, Dehradun, Uttrakhand, as
such he well conversant with the facts of the case therefore
competent swear this affidavit.
2. I say that the present claim of the claimant is not
maintainable as no Industrial Dispute ever arose between
the claimant and management since the claimant has never
been in the employment of the management at any point of
time.
3. That in the present dispute, the claimant applied
for a compassionate appointment and the case was
considered by Circle Relaxation Committee for recruitment
but same was rejected on the plea that only one vacancy
was available and there was no provision of wait list. The
other cases were not considered on merit. The copy of
report of CRC is Exb. MW1/1.
4. That as per Office Memorandum No. 14014/23/99
EsTT(D) dated 03.12.1999 of Department of Personnel &
Training , the Nodal Ministry which administers the scheme
for such appointment, the committee meant for considering
the compassionate appointment cases should take into
account of availability of vacancy for such appointment
and it should be recommended appointment on
compassionate grounds only in a real deserving case and
only if a vacancy meant for appointment on compassionate
grounds will be available with a year that to within the
ceiling of 5% of direct recruitment quota.
5. That the deponent submitted that as per the policy
of Govt. on compassionate appointment, the same can be
provided only to fill upto 5% of vacancies that arises for
direct recruitment. However, the maximum time a person's
name can be kept under consideration for offering
compassionate appointment will be three years. After three
years, if compassionate appointment is not possible to be
offered to the applicant, his case will be finally closed and
will not be considered again.
6. That in the present case the name of claimant was
duly considered and rejected due to non-availability of
vacancy out of 5% quota. Hence the claim of the claimant
has no merit and is liable to be dismissed.
On 28.5.2013 affidavit of MW1 Sh. R.S. Khati, Asstt.
Superintendent Post Office, Dehradun Uttrakhand, was
tendered by management. Opportunity to cross-
examination was not availed on behalf of workman than it
was marked Nil.
Management closed its evidence.
I have heard the arguments on behalf of workman as
none on behalf of management present to argue the case. I
fixed 23.01.14 for Award. I afforded opportunity to
management to argue before date of Award.
Inspite of opportunity Ld. A/R for the management
not appeared upto 1:30 of 23.1.2014 to argue the case on
behalf of management nor any adjournment has been
sought on behalf of management in this old ID. No. 62/07.
In these circumstances I am proceeding to decide
the case on the basis of arguments of Ld. A/R for the
workman.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2093
In the light of contentions of Ld. A/R for the workmen
I perused the pleadings of Claim Statement, Written
Statement, and Rejoinder as well as evidence adduced on
behalf of the parties.
Questions of Determinations mentioned in schedule
of reference are as follows:—
"Whether the action of the management of the Chief
Post Master General, Dehradun, in denying
employment on compassionate ground to
Shri Gajender Singh S/o Late Shri Gabel Singh, is
legal and justified? If not, what relief the claimant is
entitled to?"
It is relevant to mention here that when reference is
made by Central Government for adjudication of reference
then there is presumption that it is a Industrial Dispute
which was referred for adjudication to Industrial Tribunal.
This principle has been laid down by their Lord Ship of
Hon'ble Supreme Court in case of workmen V/s. Hindustan
Lever Ltd. (1984)4 SCC 392 and in case of SK Verma V/s.
Mahesh Chand (1983)4 SCC 214.
Principle laid down by Hon'ble Supreme Court is
binding to all subordinate courts of India as per provisions
of article 141 of Indian Constitution.
Thus, there remains no doubt that Industrial Dispute
refers to this court comes within the ambit of Industrial
Dispute.
However, I am clarifying the following relevant
questions for determination which are involved in the
Instant Case.
1. Whether claimant is workman or not as per
provision of sec 2(k) Industrial Dispute Act, 1947?
2. Whether claimant is dependent of workman
Late Gabel Singh or not and being dependent he can file
claim petition or not ?
3. Whether claim of dependent of workman is not
maintainable u/s 36 Industrial Dispute Act?
4. Whether Claimant is elder son of workman
Late Sh. Gabel Singh?
5. Whether claimant, his other brother and sister
were minors at the time of death of workman Late Sh. Gabel
Singh and Late Smt. Lalita Devi wife of Workman?
6. Whether after becoming major claimant Gajendra
Singh filed claim petition for seeking job. On the ground of
sudden death of his father during his service tenure?
7. Whether vacancy occurred in Post Office due to
death of his Late father Sh. Gabel Singh Group-D permanent
employee, Vikas Nagar, Post Office, Dehradun, Uttrakhand?
8. Whether claimant is entitled for job for survival
of him and other family members who are unable to maintain
themselves as per service rule and settled law of Hon'ble
Supreme Court on the point of compassionate ground?
9. Whether he can be appointed against vacancy
occurred due to death of his father during his service tenure
who was Group-D permanent employee, Vikas Nagar, Post
Office, Dehradun, Uttrakhand?
10. Whether job to any family member of
Late Sh. Gabel Singh Group-D permanent employee, Vikas
Nagar, Post Office, Dehradun, Uttrakhand has been
provided by Post Office department of Dehradun on
compassionate ground for survival of family members of
his deceased employee?
11.Whether following flimsy, illogical, unwarranted,
illegal and baseless pleadings of management contained in
his written statement here sufficient to discard the claim of
job on compassionate ground by claimant and reject his
application:
(i) Claimant is not workman.
(ii) Industrial Dispute is not maintainable u/s 36 Industrial
Dispute Act, 1947.
(iii) Claimant is not workman as per provision of Sec 2(s)
I.D. Act 1947 so he is not entitled to file Industrial
Dispute for seeking job through Daak Karamchari
Chaturth Shedi Dehradun Prakhand.
(iv) Selection committee considered the application of
claimant on 15.12.2003. His name was not approved
on the grounds mentioned in para 9 of order.
(v) Name of the claimant was considered by department
for 5% of total existing vacancies.
12.Whether for disposal of application of claimant
rules in existence on the death workman shall be applicable
or rules of 1999 as pointed out by management shall be
applicable?
13.Whether principle laid down by Lord Ship of Delhi
High Court in writ petition No. +WP© 1564/2007 decided
on 26.7.2013 in case of the management of federation Vs.
The Government of NCT of Delhi and another is applicable.
Relevant question of determination No. 1, 2 and 3
each decided together.
It is admitted fact that claimant Sh. Gajendra Singh
being son is dependent of deceased workman
Sh. Gabel Singh.
Now it is to be decided whether claimant comes
within the ambit of workman.
It is not in dispute that Claimant is seeking job on the
ground of death of his father during his service tenure as
workman on compassionate ground hence claim is to be
decided on aforesaid basis so he will be cover-up as
2094
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
workman within the ambit of Sec 2(k) Industrial Dispute
Act.
Moreover for deciding the application of claimant it
was only required to decide that claimant is son of deceased
workman. Which is admittedly proved.
Moreover photocopy of Judgment of writ petition
No. +WP© 1564/2007 decided on 26.7.2013 in case of the
management of federation Vs. The Government of NCT of
Delhi and another by Hon'ble Delhi High Court following
the settled law of Hon'ble Supreme Court on the point of
compassionate ground of providing job to dependent of
deceased makes it crystal clear that job of compassionate
ground must be provided.
Questions of determinations No. 4 to 10 are proved
through evidence of Claimant. Nothing could be extracted
out in cross-examination of Claimant by Ld. A/R of the
management.
So far relevant question of determination No. 11 is
concerned objections are taken by management in its written
statement.
I want to mention that aforesaid grounds have not
been proved through its evidence by management.
Moreover those are apparently flimsy, illogical,
unwarranted, illegal, baseless and without substance. So,
on these counts application of claimant must not be rejected
although rejected.
In addition to it relevant question of determination
No. 12 is liable to be decided in favour of claimant because
his application must have been decided in the light of rule
in existence on the date of death of Workman.
On the basis of aforesaid discussion I am of
considered view that in the light of settled law of Hon'ble
Supreme Court and Hon'ble High Court of Delhi reference
made to this tribunal is liable to be decided in favour of
Claimant and against management.
Reference is accordingly decided in favour of
Claimant and against management.
Award is accordingly passed with direction to
management that Claimant be provided immediate suitable
job as per his qualification on compassionate ground after
the expiry of period of available remedy against this Award.
Dated:-23/l/2014
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 12 Qjojh] 2014
dkñvkñ 771.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj d`f"k fon~;u dsUnz
ds izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k
,oa Je U;k;ky; 1] eqEcbZ ds iapkV ¼lanHkZ la[;k lhthvkbZVh-1/45
dk 2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 05@02@2014
dks izkIr gqvk FkkA
[la. ,y-42012/12/2012-vkbZvkj (Mh;w)]
ihñ ds os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 12th February, 2014
S.O. 771.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT-1/
45 of 2012) of the Central Government Industrial Tribunal/
Labour Court No. 1, Mumbai now as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of Krishi Vidnyan Kendra, and their
workman, which was received by the Central Government
on 05/02/2014.
[No. L-42012/12/2012-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, MUMBAI
Present :
JUSTICE G.S. SARRAF, Presiding Officer
REFERENCE NO. CGIT-1/45 OF 2012
Parties:
Employers in relation to the management of
Krishi Vidnyan Kendra
And
Their workman (Rejendra Manik Raut)
APPEARANCES:
For the first party
:
Absent
For the Union
:
Absent
State
:
Maharashtra
Mumbai, dated the 2nd day of April, 2013
AWARD
1. This is a reference made by the Central Government
in exercise of its powers under clause (d) of sub section (1)
and sub-section (2A) of Section 10 of the Industrial
Disputes Act 1947. The terms of reference given in the
schedule are as follows:
Whether the action of the management of Krishi
Vidnyan Kendra, Shabari Krishi Prathisthan, Solapur
in forcing Shri Rajendra Manik Raut, Cook to submit
his resignation on 9.9.2007 is legal and justified? If
not, what relief the workman is entitled to?
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2095
2. The workman has not appeared inspite of service
of notice. No statement of claim has been filed on his behalf.
3. There is no pleading or proof with respect to the
point of dispute contained in the schedule.
4. In view of the above the workman is not entitled to
any relief.
Award is passed accordingly.
JUSTICE G.S. SARRAF, Presiding Officer
ubZ fnYyh] 12 Qjojh] 2014
dkñvkñ 772.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ tujy
esustj] ch,l,u,y] dsjyk VsfydkWe lfdZy ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa vkS|ksfxd vf/kdj.k dksYye ds iapkV ¼lanHkZ la[;k
4@2008½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 05@02@2014
dks izkIr gqvk FkkA
[lañ ,y-40012/161/2002-vkbZ vkj (Mh;w)]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 12th February, 2014
S.O. 772.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 4/2008)
of the Industrial Tribunal, Kollam now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The Chief General
Manager, BSNL, Kerala Telecom Circle and their workmen,
which was received by the Central Government on
05/02//2014.
[No. L-40012/161/2002-IR (DU)]
P. K. VENUGOPAL, Section Officer.
ANNEXURE
IN THE COURT OF INDUSTRIAL TRIBUNAL
KOLLAM
(DATED THIS THE 6th DAY OF NOVEMBER, 2013)
Present:
SRI E.K. BHASU,
INDUSTRIAL TRIBUNAL
INDUSTRIAL DISPUTE NO. 4/2008
(Old No. ID. 35/03)
Between:
The Chief General Manager : Management
BSNL, Kerala Telecom Circle,
Thiruvananthapuram
(Represented by Adv. Johnson Gomez
And C.R. Sudheesh)
And:
1.
The Circle Secretary,
: Union/Workman
Bharatiya Telecom Administrative
Offices Employees Union,
Class III & IV, Kerala Circle,
Office of the Chief General Manager,
Thiruvananthapunim
2.
The Circle Secretary,
Bharatiya Telephone Employees
Union,
Class III, Kerala Circle,
Office of the Chief General Manager,
Telecom, Kerala Circle,
Thiruvananthapuram
3.
The Circle Secretary,
Bharatiya Telephone Employees
LS & CL. IV, O/o the Chief General
Manager, Telecom, Kerala Circle,
Thiruvananthapuram
(Represented by Adv. K.R. Haridas)
REVISED AWARD
1. The Government of India, by Order No. L/40012/
161/2002-IR(DU) dated 29.08.2001, have referred this
Industrial Dispute for adjudication to this Tribunal.
2. The issue for adjudication is the following;
"Whether the action of the management of Bharat
Sanchar Nigam Ltd,, Kerala Circle in not implementing
the re-structured scheme in respect of Sr.Telecom
Operating Assistants in Kerala Circle with
retrospective effect though it was implemented in all
other Circle is justified? If not, to what relief the
workers involved are entitled to?"
3. The averments of the union in the claim statement
are briefly as follows:—
The Department of Tele Communication was
converted into a Government Company with effect from
01.10.2000 with the name "Bharat Sanchar Nigam Ltd."
(hereinafter for short BSNL) and has become the successor
Management. Even before the formation of BSNL, modern
technology was introduced at a very fast rate to enable the
employees to become attuned with the changing situation.
The restructuring of cadres was also initiated in Telecom
Department from the year 1990 onwards. Kerala Circle is
one of the 24 circles of the Telecom Department and all the
orders of the Department are also binding on Kerala Circle.
Kerala Circle is the first Telecom Circle in India with all its
exchanges fully automised. And also the Kerala Circle
became the Circle in India to induct new technology in all
its establishments. The employees accepted and began
working in the new technology area and restructuring
2096
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
started in the year, 1990. When the Government unilaterally
introduced the restructuring Scheme vide letter No. 27-4/
87-TE II (3) dated 16.10.1990, the posts in the restructured
cadres were formed automatically by conversion of pre-
structured cadres. The conversion was done in the ratio
2:1 by converting or surrendering 2 existing posts of
Telecom Operating Assistants for one post of Senior
Telecom Operating Assistant. The Department vide its letter
No. 27-4/8770-TE II (3) dated 16.10.1993 introduced the
above scheme and restructured pay scales was also given
to compensate for their skills utilized in the upgraded post.
4. As per Department of Telecom order 15-22/92-TEIl
dated 14.10.1993 and No-27-2/94 TE II (IV) dated 31,08.1994,
all officials who were to be granted officiating promotion
must actually working in the new technology area. But in
Kerala all employees were working in the new technology
since, 1990, as the Kerala Circle achieved full automisation
in. 1990.
5. The Senior Telecom Operating Assistants Scheme
which was introduced from 16.10.1990 on all India basis
was introduced in Kerala Telecom Circle from 09.09.1992
only. Though the employees who were working in Civil
and Electrical wing of Kerala Circle, were given promotion
as Senior Telecom Operating Assistants from 09.09.1992 as
per the direction of CGMT, Kerala Circle, similarly placed
Administrative, Traffic and Engineering employees were
not given the above promotion but it was given to them at
first only on 13.12.1996. The above order of Chief General
Manager, Kerala Circle is in violation of letters of
Department of Telecom, New Delhi dated 14.08.1993 and
31.08.1994, wherein it is stated that all the officers who
were performing the duties as restructured cadres were to
be granted officiating/adhoc promotion if they were actually
working in new technological area as specified in DOT, ND
Letter No.27-10/93 TE II dated 02.08.1994.
6. Though the Administrative, Traffic and
Engineering employees in Kerala Circle were given
officiating, promotion as Senior Telecom Operating
Assistants, with effect from 01.01.1994 actual benefits were
given only from 01.10.2000 vide CGMT Letter No. STA/40-
5/Rlgs/IV/2000 (Part III) dated 31.12.2001.
7. While the scheme was introduced as per the
guidelines of Department of Telecom, New Delhi, no reason
is assigned why it was not implemented in the case of
Administrative, Traffic and Engineering employees in
Kerala Circle, The action of the CGMT in denying the
benefits to the Senior Telecom Operating Assistants is
unilateral arbitrary and without any base and is against the
directions of the Department of Telecom, New Delhi. The
Senior Telecom Operating Assistants have been
discriminated not only against the counterparts elsewhere
but also against Civil, Electrical employees of Kerala Circle
to whom the above benefits were given with effect from
09.09.1992.
8. The action of BSNL is not justified in not
implementing the restructured scheme in respect of Telecom
Operating Assistants in Kerala Circle with retrospective
effect. They are entitled to get the benefits of restructured
scheme as it was made applicable in Electrical/Civil wing of
Kerala Circle with effect from 09.09.1992 and all other circles.
Hence prayed for an award that the Telecom Operating
Assistants in Kerala Circle are entitled to get all the benefits
of the restructured scheme with retrospective effect from
09.09.1992 and with all other consequential benefits.
9. The management very vehemently opposed the
claim of the union as follows:—
When the BSNL, Kerala Circle initiated its action to
process the officiating promotion in 1994, some of
the officials challenged the action before the Central
Administrative Tribunal, Ernakulam Bench in OA No.
1109 of 1994 on the ground that the department could
not enforce draft recruitment rules of Senior TOA
before it has been gazetted. The above Tribunal
ordered that until a Rule breaths in to life, it has no
force, so the drawing up of eligibility list and deputing
of officials for training based on the eligibility list
and empanelment of officials have come within the
purview of preparatory measures taken to implement
the Draft Recruitment Rules and such measures were
prevented by the order of the Administrative
Tribunal. Hence the Kerala Circle of the management
was not in a position to give officiating promotion to
fill the posts due to the reason that the creation of
Senior TOA by surrendering two posts of TOAs was
come to a standstill on the basis of the order of the
Administrative Tribunal. So the Kerala Circle has to
wait for the creation of posts till after the Recruitment
Rules of Senior TOA were notified on 17.06.1996.
10. In the meanwhile another OA No. 1388/95 was
filed by some applicants for a declaration that the applicants
were eligible for consideration to be promoted as Senior
TOA on officiating basis. The Central Administrative
Tribunal vide its judgment held that since the action in the
forms of the draft Recruitment Rules was prohibited by the
Tribunal in O.A. No. 1109 of 1994, the action of the Kerala
Circle in not acting as per the DOT order dated 31.08.1994
till the amended Recruitment Rules were gazetted on
17.06.1996, cannot be faulted. So the order dated 31.08.1994
of DOT could be implemented in the Circle with effect from
13.12.1996.
11. One Smt. Lathika G.Nair and 35 others filed an OA
No.396 of 2001 before CAT seeking that the posts in the
restructured cadres may be filled up by posting the
empanelled officials in the select panel on officiating basis
pending formal appointment after their selection and
training. While the above OA was pending the staff union
demanded to implement the Scheme with effect from
01.01.1994. Pursuant to the demand, a meeting was
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convened, in which it was decided to grant notional
officiating promotion as Senior TOA from 01.01.1994 and
the actual benefits to be given from 01.10.2000 and as such
BSNL Corporate Office issued order vide No.250-3/2001-
Pers- III, dated 03.12.2001.
12. The OA No. 396 of 2001 was disposed by the
CAT holding that the Tribunal will not be justifying in
interfering in the matter of implementing the order of
Government and further directed to the respondent to
dispose of the representation of applicant dated 22.02.2000
with respect to the extent of rules and regulations and to
take a decision within four months. The BSNL disposed of
the petition and intimated it vide their letter No.252-30/
2000/STN/Pers-III dated 03.01.2003 the above stand which
was taken in the agreement between the Management and
the union that the notional fixation can be given from
01.01.1994 and actual benefit from 01.10.2000.
13. For the above reason, there is no fault on the part
of the management in not implementing the restructured
scheme in respect of TOAs in Kerala Circle with
retrospective effect. Hence prayed for an award rejecting
the claim of the union upholding the contentions of the
management.
14. One witness has been examined on the side of
the union and marked Exhibits W1 to W7 and management
produced M1 to M3.
15. On the facts and evidence adduced from both
sides, this Tribunal passed an award on 29/1/2010 allowing
the claims of the union. Aggrieved by the award, the
management took up the matter in appeal before the Hon'ble
High Court of Kerala and that by judgment dated 2/1/2013
set aside the award and remitted back to this Tribunal for
fresh consideration. That is how this dispute is again before
this Tribunal.
16. The Hon'ble High Court while remanding the case
made the following observations at page 10 para 12 and 13
of the judgment.
12. "The next question to be considered is whether
there is any illegality in the order passed by the management
in respect of certain category of employees. Exhibits P7 to
P10 are produced to show that the management has
cancelled the benefit extended to Civil and Electrical
Department who were given the benefit of retrospective
promotion and monetary benefits with effect from
09.09.1992. In fact this matter was an issue before the
Tribunal as the Tribunal had raised certain points for
consideration, but apparently the issues had not been
framed by the Tribunal as a procedure and therefore if the
Tribunal was called upon to answer the issue referred on
the basis of the materials produced relating to the benefit
given to certain persons in Civil and Electrical wing of
Kerala Circle, definitely an opportunity should have been
granted to the Management to adduce evidence regarding
the reason why such benefits had been extended. The
materials available on record does not indicate that such
an opportunity was given to the Management. Hence I am
of the view that the Management was not given sufficient
opportunity to adduce evidence regarding the alleged
mistake committed by them. If as a matter of fact the cadre
change of members of Civil and Electrical wing was a mistake
and it was corrected by the department, apparently such
materials were not available before the Tribunal for
answering the reference. Therefore, 1 am of the view that
this is a matter which requires to be re-considered.
13. In regard to the contention that in the absence of
the members of the Union not working in the said post of
'Senior Telecom Operating Assistant' they were not entitled
for monetary benefits is also a matter to be considered by
way of evidence which is lacking in the present case. The
Tribunal has not considered his aspect at all. For that reason
also Exhibit P6 is liable to be set aside and the matter requires
to be reconsidered.
In that view of the matter this writ petition is allowed
as follows:—
Exhibit P6 order of the Tribunal is set aside. The
matter is remitted back to the Tribunal for fresh
consideration. The parties are free to file additional
pleadings and adduce fresh evidence in the mater
and the Tribunal shall consider and dispose of the
matter afresh and in the light of the observations
made above within in a period of six months from the
date of receipt of copy of this judgment".
17. After remand from the Hon'ble High Court, the
union hasn't filed any additional pleadings where as the
management has filed additional written objection and the
contentions are briefly stated as follows:—
18. Because of legal hurdles that arose from the
judgment of Hon'ble Central Administrative Tribunal,
Ernakulam in O.A No. 1109/94 and OA No. 1388/95 the
management could not continue the process of
restructuring. However the formalities were completed and
recruitment in the cadre of Sr. TOA was effected in Kerala
Circle w.e.f. 13/12/1996, which was the earliest possible date
ie after the notification of RR in the Gazette of India dated
29/6/1996 as per GSR No. 265 dated 17/6/1996. After the
formation of BSNL a meeting was held between Director
(HRD) and the Bharatiya Telecom Employees Federation
on 30/10/2001 to discuss the issue of giving of officiating
promotion to eligible officials in the cadre of Sr. TOAs in
Kerala Circle w.e.f. 01.01.1994 to place them at par with
other Telecom Circles. The management agreed in granting
notion officiating promotion from 01/01/1994 so that pay
fixation is done accordingly and actual benefits are given
from 1/10/2000 and orders were issued and accordingly
approval was issued to all units of Kerala Circle.
2098
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[PART II—SEC. 3(ii)]
19. It is further contended that the Works Clerks of
Civil/Electrical wing recruited prior to 1/10/1986 were
wrongly converted as Sr. TOA instead of TOA w.e.f.
9/9/1992 misinterpreting the DOT order 10-21/92-CSE dated
25/10/1996. When it was noticed, directions had been
issued for reviewing all the wrong restructuring done in
Civil Wing and to correct the errors. Accordingly all the
mistakes had been corrected by the Civil Wing and the
earlier erroneous orders of retrospective promotion to the
cadre of Sr.TOA w.e.f. 9/9/1992 were cancelled and revised
orders were issued in respect of each and every official. So
the unions cannot stake a claim for benefits based on
erroneous order which were later rectified by revised orders.
Therefore there is no fault on the part of the management
in not implementing the restructured scheme in respect of
TOAs in Kerala Circle with retrospective effect and as such
the prayers and claims of the unions are not allowable.
Hence prayed for an award rejecting the claims of the union
upholding the contentions of the management.
20. After the remand from the Hon'ble High Court,
the union examined one more witness as WW2 and marked
Exhibit W8. The management has examined Assistant
General Manager (HR) as MW1 and produced records and
marked Exhibits M4 to M25.
21. From the rival contentions and pleadings of parties
involved in this dispute, the issues that arise for
consideration are:—
(1) Whether there is any discrimination or partiality
effected in not implementing the restructured scheme in
the case of TOAs in Administrative, Traffic and
Engineering employees in Kerala Circle with effect from
09.09.1992 when it was effected in retrospective effect from
09.09.1992 in respect of employees of Civil and Electrical
wing of Kerala Circle.
(2) Whether the workers (TOAs) represented by the
union are entitled to get the benefits of restructured scheme
w.e.f. 09.09.1992, which was made applicable to employees
in electrical/civil wing of Kerala Circle of management?
22. The Point:—
It is not in dispute that BSNL has 24 circles all over
India and the Kerala Circle is one amongst them. The Kerala
Circle was the first circle in India with all its exchanges fully
automized and it is evidenced by Exhibit W1 letter No.
M(S)/TC/90-144/R dated 09/04/1990. The employees of
Kerala Circle have been working in the new technology
area from the year 1990 onwards without interruption. The
process of restructuring of cadres started in the year 1990
on the basis of automisation as per Exhibit W2 order No.27-
4/87-TE. II (3) dated 16/10/1990. The restructured cadres
were created by converting pre-structured cadres by
surrendering two existing TOAs for one post of Senior
TOA i.e. by adopting a ratio of 2:1 and it was introduced
with effect from 16/10/1990 in the department.
23. By Exhibits W3, W4 and W6, the management
made it clear that the employees who have been working in
the new technology area were to be granted adhoc
promotions in the restructured cadres and the employees
who were to be granted officiating adhoc placements in
the restructured cadres should have worked in the new
technology area. In the Kerala Circle all the employees
have been working in the new technology area from 1990
onwards, as the Kerala Circle had achieved full automisation
in all its establishment which aspect is evidenced from
Exhibit W1.
24. The learned counsel of the union submitted that
in Kerala Circle the promotions were effected to those
employees who were working in Civil and Electrical Wings
with effect from 09.09.1992 while it was introduced in the
Department with effect from 16/10/1990 which was proved
by Exhibit W6 & W7. But the other employees working in
other wings of the Kerala Circle were given officiating
promotions to the post of Senior Telecom Operating
Assistants notionally with effect from 01.01.1994 and the
actual financial benefits have been allowed only from
01.10.2000. It is further argued, in the above circumstances,
that the employees represented by the union are legally
entitled to get promotions to the post of Senior Telecom
Operating Assistants w.e.f. 09.09.1992 with full financial
benefits as in the case of those employees who are working
in Civil and Electrical wings who have been granted such
promotion with retrospective effect from 09.09.1992 as per
Exhibit W6 & W7 orders.
25. The learned counsel of the management resisted
the argument of the union by producing Exhibit M1 & M2
which were the judgments of the Hon'ble Central
Administrative Tribunal, Ernakulam. When the BSNL, Kerala
Circle initiated action to process the officiating promotion,
some of the employees challenged the action on the ground
that the Department could not enforce draft Recruitment
Rules of Senior TOA before it has been gazetted. The CAT
by its Exhibit M1 judgment ordered that until a Rule breaths
into life, it has no force. Hence the drawing up of eligibility
list, deputing officials for training based on eligibility and
empanelinent of officials come with in the purview of
preparatory measures taken to implement the Draft
Recruitment Rules and all such measures were prevented
by Exhibit M1 judgment of the Hon'ble Central
Administrative Tribunal. So the Kerala Circle could not
effect officiating promotions to fill up the posts, in the
result the creation of posts in the present case has to wait
till after the Recruitment Rules of Senior TOA were notified
in the gazette on 17/06/1996.
26. Even while Exhibit M1 & M2 judgments of the
CAT were in force, the management had implemented adhoc
promotions to the employees belonging to Civil and
Electrical Wings of Kerala Circle to the restructured posts
of Senior Telecom Operating Assistant w.e.f. 09/09/1992
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which is evidenced by Exhibit W6 & W7 promotion orders.
The management very vehemently contended and argued
that by Exhibit M15 order of Ministry of Communications,
Department of Telecom has ordered effective date of
implementation of TOA pattern extended to the clerical
staff of Telecom Civil Wing recruited prior to 01/01/1986,
from 09/09/1992. By Exhibit M16 order of Ministry of
Communication, Department of Telecom directed to create
post of Sr. TOA in Civil Wing as per requirement in terms
with the conditions laid down in the order. It is specifically
stated to Exhibit M14 that all orders will come in to force
with effect from 01/01/1994. Misconstruing Exhibit M14 to
M16 orders, the office of the Chief Engineer (Civil) violated
the above order without perceiving the substance in it and
issued Exhibit M17 erroneous order placing 13 officials in
the promotion cadre of Sr.TOA instead of placing them in
the grade of TOA. The mistake was subsequently noticed
by the Chief General Manager and thereupon reported by
Exhibit M18 letter to DDG (Pers), DOT, New Delhi. After
the Exhibit M18 letter, the Chief General Manager, BSNL,
Kerala Circle issued Exhibit M10 to the Chief Engineer Civil
Wing directing to rectify the mistake committed. Persuing
the direction of Exhibit M10, the promotions erroneously
granted as per Exhibit M17 was cancelled and fresh orders
issued granting regular promotions as Sr. TOA to eligible
employees as per Exhibits M19 and M20, The management
on the request of Bharatiya Telecom Employees Federation,
for extending the benefit of officiating promotions to eligible
officials in grade of Senior TOA in Kerala Circle w.e.f.
01/01/1994 to place them at par with other Telecom Circles,
considered in a meeting held between Director (HRD) and
representatives of the union and agreed the issue of
granting notional officiating promotions from 1/1/1994 for
the pay fixation and actual financial benefits from
1/10/2000 as per Exhibit M22 minutes. In pursuance of
Exhibit M22, Exhibit M8 and M9 were issued from the office
of BSNL Ltd,, to the competent authority in Kerala Circle
for grant of notional officiating promotions as Sr. TOA
from 1/1/1994 for pay fixation only and actual benefits from
1/10/2000.
27. It is in evidence that Exhibit W6 & W7 which
were erroneous orders, based on which the unions claim
their right of promotion as Sr.TOA and benefits w.e.f.
9/9/ 1992 were not in force. So the unions cannot stick on
Exhibit W6 & W7 for implementing the same to the members
of the union. The union and its members cannot claim the
promotions in the cadre of Sr. Telecom Operating Assistants
in Kerala Circle with retrospective effect as erroneous
orders, especially not in force cannot be implemented and
union cannot claim it as a right for promotion. The members
of the unions are eligible only for notional promotion from
1/1/1994 so that the pay fixation is done accordingly and
actual benefits from 1/10/2000.
28. In the result, I hold that the workmen represented
by the union in this dispute are not entitled to get promotion
to the post of Sr. TOAs with effect from 09/09/1992 with full
financial benefits with effect from that date as per Exhibit
W6 & W7 which were rectified and corrected as it were
erroneous orders, by the management.
29. An award is passed accordingly.
Declared in open court this the 28th day of
November, 2013.
E.K. BHASU, Industrial Tribunal, Kollam
APPENDIX
Witness examined on the side of the union
WW1
—
Sri. Devidas
WW2
—
Sri.Rajan Nair
Witness examined on the side of the Management
MW1
—
Sri. M. Krishnaswamy
Exhibits marked on the side of union
Exhibit W1
—
Order dated 9/4/1990
W2
—
Order dated 16/10/1990
W3
—
Order dated 14/10/1993
W4
—
Order dated 31 /8/1994
W5(1)
—
Order dated 2/8/1994
W5(2)
—
Order dated 9/9/1994
W6
—
Order dated 14/7/1998
W7
—
Order dated 2/1998
W8
—
Information under RTI Act 2005
dated 26/6/2013
Exhibits marked on the side of Management
Exhibit M1
—
Order in OA No 1109/94
M2
—
Order in OA No. 1388/95
M3
—
Order in OA No. 396/2001
M4
—
Letter dated 11/7/1991
M5
—
Copy order in OA No. 1109/94
M6
—
Copy of Recruitment Rules
dated 17/6/ 1996
M7
—
Copy of order in OA No.
1388/95
M8
—
Letter of BSNL dated 3/12/2001
M9
—
Copy of Letter of BSNL Circle
Office dated 31/12/2001
M10
—
Copy of letter of CGMT dated
31/7/2012
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
M11
—
Copy of letter of BSNL
Corporate Office, New Delhi
Dated 3/1/2003
M12
—
Copy of letter Notification
dated 30/ 10/2008
M13
—
Copy of order in OA No-396/
2001
M14
—
Copy of order dated 31/8/1994
M15
—
Copy of order dated 29/3/1995
M16
—
Copy of order dated 25/10/1996
M17
—
Copy of Office Order dated
14/7/1998
M18
—
Copy of DO Letter dated
5/1/2000
M19
—
Copy of order dated 4/9/2012
M 20
—
Copy or order dated 10/5/2013
M 21
—
Copy of office order dated
3/5/20 13
M 22
—
Copy of Minutes dated
30/1 0/2001
M 23
—
Copy of order and resolution
dated 3/3/2006
M 24
—
Copy of Corporate Office letter
dated 13/7/2010
M 25
—
Copy of office memorandum
dated 30/9/2000
Issued by the Government
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New Delhi, the 12th February, 2014
S.O. 773.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 01/2011)
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 Chief Engineer, H.Q. Central Command,
Lucknow, and their workmen, which was received by the
Central Government on 05/02/2014.
[No. L-13011/03/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (No.2) AT DHANBAD
Present :
SH. KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under
Section 10(1)(d) of the I.D. Act, 1947.
REFERENCE NO. 01 OF 2011
PARTIES :
The Gen. Secretary,
Bihar Area MESS Employees Union, CWE, Ranchi.
Vs. Chief Engineer,
H.Q. Central Command, Lucknow 226002.
APPEARANCES :
On behalf of the workman/ : Mr. Satyendra Ram,
Union
Rep. of the workman,
Ld. Advocate
On behalf of the :
Mr. Niranjan Kumar,
Management
Ld. Advocate
State : Jharkhand
Industry : Defence
Dated, Dhanbad, the 13th Jan., 2014
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on then under Sec.10(1)(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No.L-13011/
3/2010(IR(DU) dt. 28.12.2010.
SCHEDULE
"Whether the actions of the management of H.Q.
Commander Works Engineer, Military Engineer
Services, Dipatoli Cantt. Ranchi under the Chief
Engineer, H.Q. Central Command in transferring
Shri Mukund Ram, Civilian Motor Driver (Ordinary
Grade) from H.Q. CWE, Ranchi to GE Dipatoli, Ranchi
without following the 'Guidelines Management of
Gr. C&D posts of MES- Aug. 2007 and denial of
wages, DA Arrears, Annual increment to said
workman are legal and justified? To what relief the
workman is entitled to?"
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2101
2. Irrespective of unnecessary facts, the case of
sponsoring Bihar Area MES Employees Union for workman
Mukund Ram is that the workman MES/Army No. 13833720
was doing his bonafide duty at H.Q. Commander Works
Engineer (Military Engineer Services), Dipatoli Cantt,
Ranchi since his appointment as Civilian Motor Driver
(Ordinary Grade) there on 15.09.1997. As per the Letter No.
B/20148/PP/EIC(l) dt. 27th the August, 2007 of the Director
General (Pers.), MES, IHQ of MQD (Army), E-in C's Branch,
New Delhi, regarding the guidelines of Management Policy,
the Local Heads/Senior Most Authority Commander of
H.Q., CWE (MES), Ranchi for Ranchi Station has been
empowered for posting of the Group 'C' employees who
have been assigned to sensitive jobs, but not for that of
the Civilian Motor Driver from his one formation to another
under LTO Head, as his job not falls under the sensitive
cagtegory. According to the said policy of the Management
only the H.Q. Chief Engineer Central Command, Lucknow,
the Appointing Authority of Civilian Motor Driver, has
power to post/transfer the Civilian Motor Driver for better
utilization of his service in exigency. But the H.Q. CWE
(MES), Ranchi as per his Order No. 10534/EIC(2) dt. 30th
Jan., 2010 transferred the workman from H.Q. Ranchi to
G.E., Dipatoli by replacing him with another employee MES-
468674, Suraj Kumar as Mate (SS) MTD beyond any
category who is not an MT Driver but a Mazdoor, as clarified
by the letter dt. 2.3.2010 of the HQ, CWE (MES), Ranchi,
without specific ground in violation of the aforesaid
guidelines for the Management of Group 'C' & 'D' posts of
MES. Besides, Shri Munari Yadav, one of the Civilian Motor
Drivers, held on the strength of H.Q. CWE, Ranchi as per
the H.Q. CWE, Ranchi, Letter No. 10535/433/EIC(2) dt.
2.3.2010, has retired. Since there was neither decrease nor
increase in the authorized post of jobs at H.Q. CWE, Ranchi
or at G.E. Dipatoli respectively on 30th Jan., 2010 as a
compelling factor of exigency for the transfer of the workman
which is prejudiced/malafide. The comment of H.Q.
Commander Works Engineer (MES), Ranchi, in his letter
dt. 16.3.2010 that as per Para 47 of the E-in-C's Branch
Letter No. B/20148/PD/EIC(1) dt. 27th August, 2007, he has
power to make the posting within the station as done in the
present case is misinterpretative, as the Management Policy
under pares 47 and 57(d) empower him to carry out posting
under LTO in May/June of the year, but not in Jan, 2010 as
done with the workman.
3. Further it is alleged by the Union for the workman
that on the Movement Orders dt. 3.2.10 of the H.Q. CWE,
Ranchi, having been served upon the workman, he
submitted his representations on 12th, 20th Feb. and 15th
March, 2010 (Appendixes J-L respectively) through proper
channel to the Competent Authority, H.Q. CE, Central
Command, Lucknow, for availing of the facilities as under
Para 61 of the Management Policy, but it is still pending
even after lapse of more than a year. But the action of the
Management of H.Q. CWE, Ranchi, without waiting for a
decision of the competent authority, and in disregard to
the aforesaid guidelines of the Management Policy, was a
victimization for the workman, in course of commenting
upon the representations of the aggrieved workman, the
Management of HQ/CWE (MES) Ranchi after taking
consent from the Competent Authority, Lucknow, as per
the Latter's letter No. 901405/MTD/XIV/20/EIC(2) dt. 30th
June 2010 (Appendix-M) with its enclosures was submitted
to the Regional Labour Commissioner, Ranchi, as per its
letter dt. 7th July 2010. The decision of the Central
Command, Lucknow, as directed under its Para 2 to his
aforesaid letter dt. 30.6.10 has yet not been followed, so it
shows a malafide of the Management of H.Q. CWE, Ranchi.
It is alleged that while the workman, Civilian Motor
Driver (Ordinary Grade) showing his presence at his duty
place, H.Q. CWE, Ranchi till date, the Management of H.Q.
CWE, Ranchi put his attendance in CMD(OG) in suspended
mode after 6th Feb. 2010, and stopped his salary from March,
2010 onwards and payment of DA. Arrear from Jan. 2010
and Annual increment from July, 2010 rendering him and
his family members in penury. At last after the approach of
the workman to the Union in search of natural justice, the
Union found the detraction of the Management from legal
path to illegal track was due to the willful malice and creation
of Mr. A.K. Verma, the Admn Officer, dealing all the
personnel matter of the management towards the workman.
The representation dt. 15.4.2010 of the Union to the Central
Command, Lucknow, in that regard is still unresponded. At
raising the Industrial dispute before the R.L.C.(C), Dhurwa,
Ranchi, when the conciliation proceeding failed, it resulted
in the Reference for an adjudication for the reliefs as prayed.
4. The Union concerned in its rejoinder has
specifically denied the allegations of the O.P./Management
as false, fabricated and baseless, stating that posting/
transfer of a worker like the present workman is made in the
interest of Management, that too, on the basis of surplus
and deficiency of staff in GE Dipatoli. The allegations
against the workman are false. No Show Cause has been
served upon him. Availing of a leave is as per entitlement
of a worker to meet his requirement as and whenever arises.
Promotion to Sri Suraj Kumar to the Post of (SS) and posting
him in CDS is just for the personal benefits of the officer
concerned. He is driving the staff car more or less in
violation of the rules. The CWE has not submitted a clear
position before the RLC, Ranchi.
5. Whereas the case of the O.P./Management with
categorical denials is that ME/Army No. 13833720 Sri
Mukund Ram, M.T.D. (Ordinary Grade) was SOS from the
H.Q. on permanent posting to G.E., Dipatoli at about 300
meters away from the H.Q., CWE, Ranchi, against the nil
holding of M.T.D. GE, Dipatoli as per the H.Q. movement
Order No. 10022/MO/142/E1 C(1) dt. 03rd Feb., 2010 with
date of SOS on Feb., 16, 2010 (A.M.). The workman was
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the most Senior serving for 10 years at the H.Q. Ranchi to
run the vehicle of GE Dipatoli for daily requiremnt of vehicle
thereat. He submitted his representation on March, 15, 2010
against his posting after 36 days of the SOS date whereas
the representation is required to be made within 21 days
against the posting order as per the policy of Management
for Groups 'C' & 'D' personnel of the MES. On consideration
of his representation at appropriate higher level, it was
agreed with the decision of CWE, Ranchi, as per the H.Q.,
CWCC, Lucknow, Letter No. 9014405/MTD/X10/26/EIC(2)
dt Jul.30, 2010 as also communicated to him on Jul.6, 2011,
directing him to join the duty at his new unit. While serving
the Movement Order upon the workman, he was instructed
about his claim for the payment of his pay and allowance
for the month of Feb. 2010 and onward would be sustainable
only after his reporting for the duty to the new Officer, GE,
Dipatoli. But the workman has not reported for duty till
March 3, 2011. Hence his pay and allowance have not been
claimed by him at the new unit. The CWE is the Competent
Authority to post the staff from one office to other in the
situation as per Para 47 and 63 of the guidelines as per E-in-
C's Branch Letter No. 20148/PP/EIC(1) dt. Aug. 27, 2007
and the same has been approved by the HQ Chief Engineer,
Central Command and HQ. Chief Engineer, Jabalpur Zone
as per their Letters dt. June 20 and May 31, 2010
respectively.
6. The O.P./Management in its rejoinder has
specifically denied the allegations of the Union/workman,
and stated that Sri Suraj Kumar, Mate (SS)MTD was
transferred to CDS Ranchi in lack of MTD other there to
drive the vehicle held on the charge of CSD, RAnchi to
carry out daily work of collection of stores from the Railway
Station etc. Later on, he has willingly opted for driving the
Staff Car of H.Q. CWE, Ranchi. Accordingly the driving of
Staff Car of CWE as well as of the vehicle of CDS, Ranchi
by him whenever required was according to his laid down
duties as Mate (SS) MTD. The posting of the workman
from one office to another is as per existing policy. He was
not transferred under Local turnover from non sensitive to
sensitive appointment, rather he was transferred to GE,
Dipatoli in the interest of state against adjustment of Sur/
Def. at the station for which the CWE is the Competent
Authority as per Para 8 of the policy of the Management.
There is no violation of any guidelines as issued by E in
C's Branch for Management of Group C & D employees of
the MES. The workan is habitual to take leave frequently
due to personal and domestic problem. His behaviour is at
times arrogant with the Supervisory Staff. He has been
serving in the H.Q. since 1997. In order to cater for
deficiency; he has been transferred to GE Dipatoli where
only an MTD existed against the authorization of 05 MTD.
There is also no change of station and accommodation of
the workman, as GE Dipatoli only 300 Mtrs away from the
H.Q. There is no malafide since Mate (SS) MTD does not
exist in MES; the case has already been referred to the
Higher Authority for remedial action which is still awaited.
The decision of the CWE, Ranchi, was accepted by the
Higher Authority over the representation of the workman
as per Para 2 of the H.Q, CECC, Lucknow letter dt. May 31,
2010 which was communicated to him in person on July 6,
2010, directing him to join duty.
Besides, posting order is issued with the approval of
CWE Order., but not by the Admn. Officer in respect of
Group "C" & "D" employees. The Management as per its
letter dt. May 20, 2010 has represented before the R.L.C.
that the matter being non-industrial as the workman as non
industrial personnel comes not under the Industrial Dispute
Act. The posting order is cancellable only by the Higher
Authority. The workman has been already struck off the
strength of the H.Q. CWE, Ranchi on the very 6th Feb
2010, so his regular presence at the H.Q., CWE, Ranchi
does not rise. The department has no provision to pay the
salary with 18% interest. The workman has reported for
duty on 4th March, 2011, so the application being redundant
now is liable to be dismissed. So the applicant is not entitled
to any reliefs.
FINDING WITH REASONS
7. In the instant Reference, WW1 Mukund Ram, the
workman himself, WW2 Ram Jatan Ram, MCM, MES, Power
House, Depatoli, Ranchi for the Union, and MW1 Arvind
Kumar Singh, the Barack Store Officer cum Officiating A.O.
CWE, Ranchi for the O.P./Management have been
respectively examined.
On perusal of the pleading and evidences, oral and
documentary, of both the parties, it appears the undisputed
fact that the workman had been working as the Civilian
Motor Driver (CMD) (Ordinary Grade) at the H.Q. CWE,
Ranchi since his appointment on 15.09.1997. It is no doubt
incontrovercial that the post of petitioner workman as the
Civilian Motor Driver (Oral Grade) comes under the category
of Basic Category; for the transfer of this category, the
Chief Engineer is the Competent Authority, and the transfer
of basic category (internal) comes under the establishment
Unit, not outside, which applies to all categories industrial
and non-industrial etc. But the facts of the transfer of the
petitioner by the Local Authority and the Competency of
the Local Authority for it, etc., evolve as the main issues
for proper adjudication in the reference:
(I) Whether the transfer of petitioner workman by Local
Management/the H.Q. Commander Works Engineer
(CWE), Ranchi to GE, Dipatoli/Ranchi as per the
guidelines for the Management of Group 'C' 'D' MES
personnel is valid and
(II) Whether denial of the local Command to the payment
of wages, Arrears, Annual Increment to the workman
without the result of his representation from the H.Q.
Central Command concerned is justified.
¹Hkkx II—[k.M 3(ii)º
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2103
8. As to the first point there is no dispute the petitoner
workman while working as the C.M.D. (Ordinary Grade) at
the H.Q., CWE, Ranchi since his appointment in the year
1997, he was accordingly posted/trasferred from there to
GE, Dipatolia, and MES/468674 Shri Suraj Kumar, Mate (SS),
MTD from GE, Dipatoli to CDS, Ranchi vice versa as per
the letter dt. Jan 30, 2010 of the Local command, CWE
Ranchi (Extt. W.1=M1). No sooner had the workman got
his Movement Order dt. Feb. 3, 2010 (issued by Mr. A.K.
Verma, A.O.-I for CWE (Ext. W.3=M-1/1) than he submitted
his four representations dt. 12th and 20th Feb., 15th March
and 15th April, 2010 (Ext. W.4 series and Ext. 5 respectively)
all to the Chief Engineer, H.Q, Central Command, Lucknow
(through proper channel in that regard, so the workman's
representations were well within 21 days of the receipt of
posting order as under Para 61 of the Guidelines for
Management of Gr. 'C' 'D' Posts of MES (Ext. W.2). The fact
of rejection of the workman's representation as per the
letter dt. 30th June, 2010 of the Authority concerned (Ext.
M.2.) is considerable for assertion of the real facts in issue.
The letter of the Lt. Col.SO1(Pers.) for the Chief Engineer
addressed to the Chief Engineer, H.Q. Jabalpur Zone is
response to the representations of the workman dt. 20th
Feb. and 15 the March, 2010 reads parawise as such:
"Para 2 Parawise comments received vide your above:
ref letter has been discussed at appropriate level and
agreed to. You are informed/requested to issue
direction to CWE, Ranchi to call the individual in
person and explain the rule position/posting policy
for his satisfaction.
Para 3 However, as per Para 1(d) of comments, MES
468674 Shri Suraj Kumar is indicated as (Mate SS)
MTD. Kindly intimate the authority under which this
new trade has been created. No such category exists
in MES. You are therefore, requested to amend all
you records accordingly."
The letter dt. 30the June, 2010 of the Central Command
to the Chief Engineer, H.Q Jablapur zone indicates that the
parawise comments of the Zonal Command after discussion
at appropriate level were agreed to and the CWE Ranchi
was directed to call the individual in person and explain the
rule position/posting policy for his satisfaction. The OP/
Local Management has neither pleading nor proof whether
the instructions as stated by the Central Command were
carried out. The above letter also affirms the fact that 'No
such category as (Mate SS) MTD regarding MES 468674
Shri Suraj Kumar Exists in MES, so the local command was
directed to mend all his records accordingly.
9. The transfer of the workman concerned as per the
statement of MWI Arvind Kumar Singh, has taken place as
per the Administrative Order under the Guideless of
Management of Group 'C' & 'D' posts of MES governing all
the above group posts; though the petitioner who had to
join just on the following day 7th Feb. 2010 at the G.E.
Dipatoli, yet he joined there also most after one year in
march. 2011. The Administrative ground, one of the eight
contingencies as under Para 8 of the Guidelines warranting
transfer of personnel from one place to another, does not
justify it normally except in very special circumstances like
adjustment of surplus and deficiency ... exigencies of
service or as an administrative requirement which include
turn over posting as stipulated under para 52 and 53 of the
Guidelines. Obviously, the present reference has no case
of either surplus or deficiency. Even the Authorities
empowered for Local Turn Over (LTO) in exercise of their
power by virtue of Para 47 of the guidelines (Ext. W.2)
could not fairly follow the procedure of transfer regarding
the workman from H.Q CWE, Ranchi to G.E. (Garison
Engineer), Dipatoali as asserted the petitioner workman
Mr. Mukund Ram (WWI) and Ram Jatan Ram (WW2). The
transfer of the petitioner in the case prima facie appears to
be malafide, as it appears to be hastily effected but biasedly.
Transfering an employee is the prerogative of the employer
but it should not be actuated with malafide. Transfer of an
employee is an incident of service conditions and no
employee can have a right to remain at one place as held by
the Hon'ble Apex Court in the case of National Hydro-
Electric Power Corp. Ltd. Vs. Shri Bhagwans, (2001) 85CC
574:2001 LLR 1222(SC). But in view of willful violation of
the transfer of the petitioner, I feel proper to point out on
the other hand that is also settled law that the Court will be
slow in interfering with the transfer of employees except
where there is any malafide or violation of statutory rules
as held by the Hon'ble Supreme Court in the case of Chitra
Srivastava (MS) Vs. Govt. of National Capital Territory of
Delhi, (2004) 12 SCC 299, as also held by Hon'ble High
Court, Jharkhand in the case of Shambhu Paswan Vs.
Central Mine Planning & Design Institute Ltd., Kanke Road,
Ranchi 2004 LLR 75C (Jharkhand High Court). Therefore, it
is held that the transfer of the petitioner by the O.P./
Management being biased is undoubtedly improper and
invalid.
At the second point related to denial of wages etc.
The statement of Mr. Arvind Kumar Singh Barrack Store
Office-cum-Officiating A.O., CWE, Ranchi (MWI) reveals
the fact that as per the last line of the Movement Order (Dt.
3.2.2010-Ext. W.3= Ext.M.1/1) following the posting/transfer
MTD letter Dt. 30.01.2010 in respect of the petitioner/
workman (Ext.W.1=Ext.M.1), the pay for the month of Feb,
2010 would be claimed from the transferring Unit and next
pay for the month of March, 2010 would be claimed from
the transferee Unit (G.E,. Dipatoli). The present case has no
express rejection of the workman petitioner's
representations dt. Feb. 20 and Mar. 15, 2010 (Ext.W.4/1-2),
rather impliedly by the term "agreed to" so as per the Chief
engineer's letter dt. June, 30, 2010 (Ext. M, 2) nor any fact
nor a proof of its service to have been effected upon the
petitioner. The materials on the case record obviously
indicate hastily stoppage of his salary etc. from March
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
2010 during the pendency of his above relevant
representations, Hence, it is unjustified.
In the above circumstances, it stands obvious that
the transfer of the workman petitioner was punitive and
malafide effected by the incompetent authority in violation
of the Management policy. Therefore it is in the terms of
the Reference hereby.
ORDERED
That the Award be and the same is passed that the
actions of the Management of H.Q. Commander Works
Engineer, Militry Engineer Services, Dipatoli Cantt. Ranchi
under the Chief Engineer, H.Q., Central Command in
transferring Shri Mukund Ram, Civil an Motor Driver
(Ordinary Grade) from H.Q. CWE, Ranchi to CE, Dipatoli,
Ranchi without following the 'guidelines for Management
of Gr. C & D posts of MES Aug., 2007 and stoppage/denial/
stoppage of his wages etc. are neither legal nor justified.
Therefore the workman petitioner is entitled to his
reinstatement with due wages with consequential relief as
per now afresh Order of the H.Q. Central Command
concerned over it.
The Management is directed to implement the Award
within two months from the date of its receipt following the
publication of it in the Official Gazetted by the Government
of India, New Delhi.
KISHORI RAM, Presiding Officer
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[lañ ,y&40011@17@2004&vkbZ vkj ¼Mh ;w½]
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New Delhi, the 12th February, 2014
S.O. 774.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT-2/
23 of 2005) of the Central Government Industrial Tribunal/
Labour Court No.II, Mumbai now as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of Bharat Sanchar Nigam Ltd. and their
workmen, which was received by the Central Government
on 05/02/2014.
[No. L-40011/17/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
Present:
K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/23 of 2005
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF BHARAT SANCHAR NIGAM LTD.
The Telecom District Manager
BSNL
At Sawantwadi
Sindhudurg
M.S.
AND
THEIR WORKMEN,
The Vice President
Nhava Sheva Port & General Workers' Union
Port Trust Kamgar Sadan
Nawab Tank Road
Mazgaon
Mumbai-400 010.
APPEARANCES:
FOR THE EMPLOYER
:
Mrs. Neeta Masurkar,
Advocate.
FOR THE WORKMAN
:
Mr. J.H. Sawant,
Advocate,
Mumbai, dated the 11th November, 2013.
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No. L-40011/17/2004-IR (DU),
dated 06.12.2004 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 Telecom District Manager,
BSNL, Sindhudurg at Sawantwadi in not regularizing
the service of Sh. Umesh L. Hajare, Driver is legal
and justified? If not to what relief the workman is
entitled for?"
2. After receipt of the reference, notices were issued
to both the parties. I response to the notice, second party
union filed its Statement of Claim at Ex-7. According to the
union Workman Shri Umesh L. Hajare is serving with the
first party since 29/08/2001 as Driver. He is attending his
duties which are of permanent nature. He was selected for
the post of Driver after ascertaining his eligibility
qualification of his post of driver. His work is satisfactory.
¹Hkkx II—[k.M 3(ii)º
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2105
As provided under Industrial Employment (Standing
Orders) Act, 1946 as well as principle of equity he is
permanent workman. However the management has
deprived him from giving the status and privilege of
permanent workman. The management is thus guilty of
unfair labour practice under I.D. Act. The first party is paying
the wages to the workman at a very low rate. They are also
not giving other benefits in the nature of social security
measures including the benefit of provident fund,
insurance, leave, bonus, medical treatment etc. Other
workers including Shri Margaokar have been given
permanency in the employment to the post of Driver.
Whereas the same benefit and pay scale is not given to the
workman who is discharging the same duties. He has
requested the management. Ultimately he raised industrial
dispute before ALC (C). However, the conciliation failed.
Therefore ALC(C) made a report of Labour Ministry. Labour
Ministry has sent the dispute to this Tribunal. The union
therefore prays for declaration that action of the
management in not regularising is illegal. He also prays
that direction be given to the management to regularise the
service of the workman as a permanent employee of the
management in the capacity of Driver in the pay scale of
Rs. 3200-4900 right from 29/08/2001 with all consequential
benefits.
3. The first party resisted the statement of claim vide
its Written Statement at Ex-12. According to them the union
is not a registered union. The workman was also not member
of the said union at the relevant time. The first party is
Government undertaking. Therefore the reference is not
tenable. The workman under reference was engagd for a
short period for hourly driving assistance on various
intermittent occasions at agreed price. It was service
contract to a casual worker. Therefore the reference is not
tenable and the workman is not entitled for regularisation.
The dispute does not come under Section 2(k) of I.D. Act.
The first party is Government of India undertaking. There
is total ban imposed by Government for new recruitment
since 1982. Therefore the Court cannot issue direction to
recruit or regularise the services of the second party
workman. The second party is not workman as defined
under Section 2(s) of I.D. Act. He cannot be regularised for
want of facing eligibility criteria. He was not possessing
the same when he was engaged. An understanding was
given to him that his job was of temporary nature. Therefore,
he is not entitled to claim regularisation. His employment
was occasional engagement without following the
recruitment rules. It would amount to back door entry.
Therefore, his service cannot be regularised.
4. His appointment was not on regular basis. BSNL
has framed recruitment rules for the post of regular Driver
to fill up 50% of the total vacancy and remaining are to be
filled up by promotion by the persons belonging to Group
C & D. For all these reasons services of the workman cannot
be regularised and he is not entitled for permanent
employment therefore they pray that the reference be
dismissed with cost.
5. Second party filed their rejoinder at Ex-16 reiterating
the contentions taken in their statement of claim.
6. Following are the issues for my determination. I
record my fidnings thereon for the reasons to follow:
Sr.
Issues
Findings
No.
1.
Whether the second party is a
Yes.
'workman' and whether there exist
employer-employee relationship
between them?
2.
Whether there exists an industrial dispute? Yes.
3.
Whether the services of the workman
Yes.
under reference can be regularised as
permanent workmen?
REASONS
Issue No. 1 & 2:—
7. As both these issues are interlinked, in order to
avoid repetition of discussion they are discussed and
decided simultaneously. On the point of inter-se
relationship the first party contended that the workman is
not their employee. Therefore according to them, neither
he is workman nor there exist industrial dispute. According
to them the second party workman was engaged as and
when required for and on hourly basis as a daily wager
Driver. They have also contended that the workman was
engaged as contract worker. Therefore there exists no
employer-employee relationship between them. It is further
contended that the workman was not recruited by following
the recruitment process prescribed therefor. Therefore
neither he can be called employee of the first party not can
be absorbed in the service. In support of her argument the
Ld. adv. for the first party resorted to Apex Court ruling in
Secretary State of Karnataka & Ors. V/s. Uma Devi & Ors.
(2006) 4 SCC 1 wherein para 34 of the judgement on the
point the Hon'ble Court observed that;
"Therefore consistent with the scheme for public
employment, this Court while laying down the law
has necessarily to hold that unless the appointment
is in terms of the relevant rules and after a proper
competition among qualified persons, the same would
not confer any right on the appointee. If it is a
contractual appointment the appointment comes to
an end at the end of the contract. If it were an
engagement or appointment on daily wages or casual
basis, the same would come to an end when it is
discontinued. Similarly a temporary employee could
not claim to be made permanent on the expiry of his
2106
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
term of appointment. It has also to be clarified that
merely because a temporary employee or a casual
wage worker is continued for a time beyond the term
of his appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a
due process of selection as envisaged by the relevant
rules."
8. The Ld. adv. for the first party also resorted to
another Supreme Court ruling on the point in Accounts
Officer (A and I) APSRTC & Ors. V/s. K.V. Ramana & Ors.
AIR 2007 SC 1166 wherein the Hon'ble Court in para 7 of
the judgement observed that:
"Even if contract labourers or casual workers or adhoc
employees have worked for a long period, they
cannot be regularised dehors the rules for selection
as has been held in Uma Devi's case."
9. The Ld. adv. for the first party also cited another
Apex Court ruling in B.S. Minhas V/s. Indian Statistical
Institute (1983) 4 SCC 582 wherein on the point the Hon'ble
Court observed that:
"If the appointment itself is in infraction of the rules
or if it is in violations of the provision of the
Constitution, illegality cannot be regularised.
Ratification or regularisation is possible of an act
which is within the power and province of the
authority, but there has been some non-compliance
with procedure or manner which does not go to the
root of the appointment. Regularisation cannot be
said to be a mode of recruitment."
10. The Ld. adv. for the first party also cited another
Apex Court ruling in B.N. Nagarajan & Ors. V/s. State of
Karnataka & Ors. AIR 1979 SC 1676 wherein the Hon'ble
Court on the point of regularisation held that, when rules
framed under Article 209 of the Constitution of India are
enforced, no regularisation is permissible in exericse of
executive powers under Article 167 of the constitution in
contravention of the Rules. The Hon'ble Court in this
respect further held that, only something that is irregular
for want of compliance with one of the elements in the
process of selection which does not go to the root of the
process can be regularised. The Ld. adv. further argued
that once it is held that the workman is not employee of the
first party, irresistible conclusion that follows is that, the
Tribunal had no jurisdiction to entertain this dispute and
the same deserves to be dismissed.
11. In this respect the Ld. adv. for the second party
submitted that, the workman was called for and selected
for the post of Driver after ascertaining his eligibility and
qualification for the said post. According to him he was
appointed w.e.f. 29/08/2001 and since then he was driving
the vehicles of the first pary. The Ld. adv. further submitted
that the workman is very poor person and working sincerely
with the first party for a meagre amount of wages. The
workman has contended in para 8 of his cross examination
that advertisement was published, mentioning about new
vehicle and requirement of a new driver for the said vehicle.
He further says that he applied with the first party as per
the said advertisement. The Ld. adv. pointed out that the
workman has neither maintained the o/c of the application
nor kept with him the paper of advertisement. That does
not mean that he was not recruited and appointed for the
post of driver. In his cross examination in para 8 of Ex-23
the workman has also contended that driving test was taken
while selecting him.
12. In this respect the Ld. adv. for second party
pointed out that, the workman has produced the log book
of the vehicle to show that he has worked with the first
party as a Driver since 2001 continuosly. The Ld. adv.
pointed out that till 2004 the workman was working as a
direct employee of the first party. In 2004 the first party
introduced contractor. However, the workman has denied
the suggestion that he was simply contract worker of
Anand Shraddha Contractor. In this respect the Ld. adv.
submitted that the first party who is a Govt. undertaking is
taking disadvantage of poverty and ignorance of the poor
people. He submitted that there was advertisement. In
response thereto workman has applied for the post of
Driver. He was called for interview. His driving test was
taken. He was selected and appointed as a Driver. Due to
poverty and ignorance neither he maintained any document
nor first party has given any document to him. In this
respect I would like to point out that the plea and evidence
of the second party is consistent. As against this the case
of the first party is not consistent. It is pleaded in written
statement that the second party workman was engaged on
hourly and as and when required basis. They also
contended that since 2004 the workman is a contract worker.
In his cross examination at Ex-23 it was suggested that he
has not worked since 2001 continuously. The workman
has denied the said suggestion. In his cross examination
the workman says that driving test was taken before
selecting him. He further says that he has no proof on that
point.
13. In this respect I would like to point out that while
appointing a technical person like Driver, it is quite obvious
for the employer to take his driving test. At least driver is
not expected to be appointed without driving test. The
workman is poor and poorly literate person, who was
working with the first party for a very meagre amount to
meet the two ends. He is working as a Driver since 2001.
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2107
From his evidence and the reply in his cross examination it
appears that he was selected by the competent authority
as a Driver and was working with the first party since 2001.
Neither any appointment order was given to him nor he
has maintained any document except the copy of log book.
There is no reason to doubt the copy of log book the
workman has produced, to show that he was working with
the first party. In the circumstances it cannot be said that
the workman was engaged on hourly basis and as and
when required for. It appears that there was advertisement.
The workman had applied and was called for. His interview
and driving test was taken. After examing his capability as
a driver, he was appointed in the year 2001. It appears that
after 2003 the first party seems to have played mischief and
called tenders and since 2004 the workman was shown as a
contract worker. Apparently it is seen that the service
contract was bogus and mere camouflage to deprive the
workman from getting the benefit of permanency. It amount
to unfair labour practice by the management. Furthermore
the workman has worked continuously for more than 240
days in a calendar year and his services cannot be
terminated without following the procedure laid down under
Section 25 F of the Industrial Disputes Act. He gets
protection of 25F of I.D. Act. The management has not
followed the conditions laid down thereunder.
14. In the circumstances I hold that the rulings referred
herein above by the Id. adv. of the first party are not
attracted to the set of facts of the present case as it is seen
that the workman was duly appointed by the first party. In
case any irregularity it would not come in his way as has
been observed by Hon'ble court in the last ruling referred
here in above.
15. It appears that the officials of the first party have
taken disadvantage of the need, ignorance and poverty of
the workman. It is exploitation of poor class, as workman
was working for meagre amount to meet the two ends and
it is for years together. It is one of the reasons, poor
becoming poorer in our country. Recently Hon'ble Apex
court has also taken serious note of such type of
exploitation of poor class in our country. On the point the
ld. adv. for the second party referred the said Apex Court
ruling in Bhilwara Dugdh Utpadhak Sahakari S. Ltd. V/s.
Vinod Kumar Sharma & Ors. 2011 III CLR 386 (SC) wherein
the Hon'ble Court has taken care of all such circumstances
and observed that:
"Labour Statutes were meant to protect the
employees/workman because it was realised that the
employers and the employees are not on an equal
bargaining position. Hence protection of employees was
required so that they may not be exploited. However this
new technique of subterfuge has been adopted by some
employers in recent years in order to deny the rights of
workmen under various labour statutes by showing that
the concern workmen are not their employees but are the
employees/workmen of a contractor, or that they are merely
daily wage or short term or casual employees. When infact
they are doing the work of regular employees. This court
cannot countenance such practice anymore. Globalisation/
liberalisation in the name of growth cannot be at the human
cost of exploitation of workers."
16. In the case at hand the version of the first party is
unacceptable that the workman was casual worker engaged
on hourly and as and when required basis. The version of
the first party is also not acceptable that the workman was
a contract worker since 2004. It appears that the workman
is working with the first party as a Driver since 2001.
Though he was selected and appointed as Driver they had
not given him the wages of the regular driver. It cannot be
said that he was appointed without following the procedure.
He had worked for about 3 years for meagre amount. The
work of Driver cannot be said casual or temporary. It is
work of permanent nature. The workman says in his
evidence that there was advertisement. He had applied
and was called for interview. His driving test was taken
there after he was selected for the post. There is no reason
to discard the version of the workman, especially as he has
worked for more than 3 years. In the circumstances I hold
that the workman was recruited by the first party as a Driver.
He had worked continuously for about 3 years with the
first party. In the light of above Apex Court ruling I hold
that the workman is entitled to be regularised in the service.
Accordingly I decide the issue No. 1 in the affirmative that
the second party is a workman and there exist employer
employees relationship between the parties. As a result I
also decide the issue No. 2 in the affirmative that, there
exist industrial dispute. In the light of the above discussion
I also decide issue No. 3 in the affirmative that, the workman
is entitled to be regularised in the service of the first party
as driver. Thus I pass the following order.
ORDER
The reference is allowed with no order as to cost.
1. The action of the management in not regularising
the services of the workman is hereby declared illegal and
improper.
2. The management is directed to regularise the
services of workman after the probation period of 2 years
from the date of his initial date of appointment on
29/08/2001 and give him pay and allowances at par with
regular employees with all consequential benefits.
3. Management is directed to pay the difference in
pay and allowance from the date of his regularisation i.e.
from 28/08/2003 till this date.
Dated : 11.11.2013
K. B. KATAKE, Presiding Officer
2108
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 12 Qjojh] 2014
dkñvkñ 775.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr lapkj
fuxe fyfeVsM ds izca/kra= ds lac) fu;kstdks vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,o Je U;k;ky;] 2] eqEcbZ ds iapkV ¼lanHkZ la[;k
lhthvkbZVh&2@25 dk 2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 05@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40011@19@2004&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 12th February, 2014
S.O. 775.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGIT-2/
25 of 2005) of the Central Government Industrial Tribunal/
Labour Court No.II, Mumbai now as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of Bharat Sanchar Nigam Ltd. and their
workmen, which was received by the Central Government
on 05/02/2014.
[No. L-40011/19/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT
K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/25 of 2005
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF BHARAT SANCHAR NIGAM LTD.
The Telecom District Manager
BSNL
At Sawantwadi
Sindhudurg
M.S.
AND
THEIR WORKMEN,
The Vice President
Nhava Sheva Port & General Workers's Union
Port Trust Kamgar Sadan
Nawab Tank Road
Mazgaon
Mumbai-400 010.
APPEARANCES:
For The Employer
: Mrs. Neeta Masurkar, Advocate
For The Workman
: Mr. J.H. Sawant, Advocate
Mumbai, dated the 11th November, 2013.
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No. L-40011/19/2004-IR (DU),
dated 06.12.2004 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 Telecom District
Manager, BSNL, Sindhudurg at Sawantwadi
in not regularizing the service of Sh. Anand
Vasudeo Parab, Driver is legal and justified? If
not to what relief the workman is entitled for?"
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 Workman Shri Anand Vasudeo Pareb is serving with
the first party since 22/07/2002 as Driver. He is attending
his duties which are of permanenet nature. He was selected
for the post of Driver after ascertaining his eligibility
qualification of his post as driver. His work is satisfactory.
As provided under Industrial Employment (Standing
Orders) Act 1946 as well as principle of equity he is
permanent workman. However the management has
deprived him from giving the status and privilege of
permanent workman. The management is thus guilty of
unfair labour practice under I.D. Act. The first party is paying
the wages to the workman at a very low rate. They are also
not giving other benefits in the nature of social security
measures including the benefit of provident fund,
insurance, leave, bonus, medical treatment etc. Other
workers including Shri Margaonkar have been given
permanency in the employment to the post of Driver.
Whereas the same benefit and pay scale is not given to the
workman who is discharging the same duties. He has
requested the management. Ultimately he raised industrail
dispute before ALC (C). However the conciliation failed.
Therefore ALC(C) made a report of Labour Ministry. Labour
Ministry has sent the dispute to this Tribunal. The union
therefore prays for declaration that action of the
management in not regularising is illegal. He also prays
that direction be given to the management to regularise the
service of the workman as a permanent employee of the
management in the capacity of Driver in the pay scale of
Rs. 3200-4900 right from 27/07/2001 with all consequential
benefits.
3. The first party resisted the statement of claim vide
its Written Statement at Ex-12. According to them the union
is not a registered union. The workman was also not member
of the said union at the relevant time. The first party is
Government undertaking. Therefore the reference is not
tenable. The workman under reference was engagd for a
short period for hourly driving assistance on various
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2109
intermittent occasions at agreed price. if was service
contract to a casual worker. Therefore the reference is not
tenable and the workman is not entitled for regularisation.
The dispute does not come under Section 2(k) of I.D. Act.
The first party is Government of India undertaking. There
is total ban imposed by Government for new recruitment
since 1982. Therefore the Court cannot issue direction to
recruit or regularise the services of the second party
workman. The second party is not workman as defined
under Section 2(s) of I.D. Act. He cannot be regularised for
want of facing eligibility criteria. He was not possessing
the same when he was engaged. An understanding was
given to him that his job was of temporary nature. Therefore
he is not entitled to claim regularisation. His employment
was occasional engagement without following the
recruitment rules. It would amount to back door entry.
Therefore his service cannot be regularised.
4. His appointment was not on regular basis. BSNL
has framed recruitment rules for the post of regular Driver
to fill up 50% of the total vacancy and remaining are to be
filled up by promotion by the persons belonging to Group
C & D. For all these reasons services of the workman cannot
be regularised and he is not entitled for permanent
employment therefore they pray that the reference be
dismissed with cost.
5. Second party filed their rejoinder at Ex-16 reiterating
the contentions taken in their statement of claim.
6. Following are the issues for my determination. I
record my fidnings thereon for the reasons to follow:
Sr.
Issues
Findings
No.
1.
Whether the second party is a
Yes.
'workman' and whether there exist
employer-employee relationship
between them?
2.
Whether there exists an industrial dispute?
Yes.
3.
Whether the services of the workman
Yes.
under reference can be regularised as
permanent workmen?
REASONS
Issue No. 1 & 2:—
7. As both these issues are interlinked, in order to
avoid repetition of discussion they are discussed and
decided simultaneously. On the point of inter-se
relationship the first party contended that the workman is
not their employee. Therefore according to them, neither
he is workman non there exist industrial dispute. According
to them the second party workman was engaged as and
when required for and on hourly basis as a daily wager
Driver. They have also contended that the workman was
engaged as contract worker. Therefore there exists no
employer-employee relationship between them. It is further
contended that the workman was not recruited by following
the recruitment process prescribed therefor. Therefore
neither he can be called employee of the first party non can
be absorbed in the service. In support of her argument the
Id. adv. for the first party resorted to Apex Court ruling in
Secretary State of Karnataka & Ors. V/s. Uma Devi & Ors.
(2006) 4 SCC 1 where in para 34 of the judgement on the
point the Hon'ble Court observed that;
"Therefore consistent with the scheme for
public employment, this Court while laying
down the law has necessarily to hold that
unless the appointment is in terms of the
relevant rules and after a proper competition
among qualified persons, the same would not
confer any right on the appointee. If it is a
contractual appointment the appointment
comes to an end at the end of the contract. If it
were an engagement or appointment on daily
wages or casual basis, the same would come
to an end when it is discontinued. Similarly a
temporary employee could not claim to be made
permanent on the expiry of his term of
appointment. It has also to be clarified that
merely because a temporary employee or a
casual wage worker is continued for a time
beyond the term of his appointment, he would
not be entitled to be absorbed in regular service
or made permanent, merely on the strength of
such continuance, if the original appointment
was not made by following a due process of
selection as envisaged by the relevant rules."
8. The Ld. adv. for the first party also resorted to
another Supreme Court ruling on the point in Accounts
Officer (A and I) APSRTC & Ors. V/s. K.V. Ramana & Ors.
AIR 2007 SC 1166 wherein the Hon'ble Court in para 7 of
the judgement observed that:
"Even if contract labourers or casual workers
or adhoc employees have worked for a long
period, they cannot be regularised dehors the
rules for selection as has been held in Uma
Devi's case."
9. The Ld. adv. for the first party also cited another
Apex Court ruling in B.S. Minhas V/s. Indian Statistical
Institute (1983) 4 SCC 582 wherein on the point the Hon'ble
Court observed that:
"If the appointment itself is in infraction of the
rules or if it is in violations of the provision of
the Constitution, illegality cannot be
regularised. Ratification or regularisation is
possible of an act which is within the power
and province of the authority, but there has
been some non-compliance with procedure or
2110
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
manner which does not go to the root of the
appointment. Regularisation cannot be said to
be a mode of recruitment."
10. The Ld. adv. for the first party also cited another
Apex Court ruling in B.N. Nagarajan & Ors. V/s. State of
Karnataka & Ors. AIR 1979 SC 1676 wherein the Hon'ble
Court on the point of regularisation held that, when rules
framed under Article 209 of the Constitution of India are
enforced, no regularisation is permissible in exercise of
executive powers under Article 167 of the constitution in
contravention of the Rules. The Hon'ble Court in this
respect further held that, only something that is irregular
for want of compliance with one of the elements in the
process of selection which does not go to the root of the
process can be regularised. The Ld. adv. further argued
that once it is held that the workman is not employee of the
first party, irresistible conclusion that follows is that, the
Tribunal had no jurisdiction to entertain this dispute and
the same deserves to be dismissed.
11. In this respect the Ld. adv. for the second party
submitted that, the workman was called for and selected
for the post of Driver after ascertaining his eligibility and
qualification for the said post. According to him he was
appointed w.e.f. 22/07/2002 and since then he was driving
the vehicles of the first pary. The Id. adv. further submitted
that the workman is very poor person and working sincerely
with the first party for a meagre amount of wages. The
workman has contended in para 8 of his cross examination
that advertisement was published, mentioning about new
vehicle and requirement of a new driver for the said vehicle.
He further says that he applied with the first party as per
the said advertisement. The Id. adv. pointed out that the
workman has neither maintained the o/c of the application
nor kept with him the paper of advertisement. That does
not mean that he was not recruited and appointed for the
post of driver. In his cross examination in para 8 of Ex-23
the workman has also contended that driving test was taken
while selecting him.
12. In this respect the Ld. adv. for second party
pointed out that, the workman has produced the log book
of the vehicle to show that he has worked with the first
party as a Driver since 2002 continuously. The Id. adv.
pointed out that till 2004 the workman was working as a
direct employee of the first party. In 2004 the first party
introduced contractor. However the workman has denied
the suggestion that he was simply contract worker of
Anand Shraddha Contractor. In this respect the Id. adv.
submitted that the first party who is a Govt. undertaking is
taking disadvantage of poverty and ignorance of the poor
people. He submitted that there was advertisement. In
response thereto workman has applied for the post of
Driver. He was called for interview. His driving test was
taken. He was selected and appointed as a Driver. Due to
poverty and ignorance neither he maintained any document
nor first party has given any document to him. In this
respect I would like to point out that the plea and evidence
of the second party is consistent. As against this the case
of the first party is not consistent. It is pleaded in written
statement that the second party workman was engaged on
hourly and as and when required basis. They also
contended that since 2004 the workman is a contract worker.
In his cross examination at Ex-23 it was suggested that he
has not worked since 2002 continuously. The workman
has denied the said suggestion. In his cross examination
the workman says that driving test was taken before
selecting him. He further says that he has no proof on that
point.
13. In this respect I would like to point out that while
appointing a technical person like Driver, it is quite obvious
for the employer to take his driving test. At least driver is
not expected to be appointed without driving test. The
workman is poor and poorly literate person, who was
working with the first party for a very meagre amount to
meet the two ends. He is working as a Driver since 2002.
From his evidence and the reply in his cross examination it
appears that he was selected by the competent authority
as a Driver and was working with the first party since 2002.
Neither any appointment order was given to him nor he
has maintained any document except the copy of log book.
There is no reason to doubt the copy of log book the
workman has produced, to show that he was working with
the first party. In the circumstances it cannot be said that
the workman was engaged on hourly basis and as and
when required for. It appears that there was advertisement.
The workman had applied and was called for. His interview
and driving test was taken. After examining his capability
as a driver, he was appointed in the year 2002. It appears
that after 2003 the first party seems to have played mischief
and called tenders and since 2004 the workman was shown
as a contract worker. Apparently it is seen that the evidence
contract was bogus and mere camouflage to deprive the
workman from getting the benefit of permanency. It amout
to unfair labour practice by the management. Furthermore
the workman has worked continuously for more than 240
days in a calendar year and his services cannot be
terminated without following the procedure laid down under
Section 25F of the Industrial Disputes Act. He gets
protection of 25F of I.D. Act. The management has not
followed the conditions laid down thereunder.
14. In the circumstances I hold that the rulings referred
herein above by the Id. adv. of the first pary are not attracted
to the set of facts of the present case as it is seen that the
workman was duly appointed by the first party. In case any
irregularity it would not come in his way as has been
observed by Hon'ble court in the last ruling referred here in
above.
15. It appears that the officials of the first party have
taken disadvantage of the need, ignorance and poverty of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2111
the workman. It is exploitation of poor class, as workman
was working for meagre amount to meet the two ends and
it is for years together. It is one of the reasons, poor
becoming poorer in our country. Recently Hon'ble Apex
court has also taken serious note of such type of
exploitation of poor class in our country. On the point the
Id. adv. for the second party referred the said Apex Court
ruling in Bhilwara Dugdh Utpadhak Sahakari S. Ltd. V/s.
Vinod Kumar Sharma & Ors. 2011 III CLR 386 (SC) wherein
the Hon'ble Court has taken care of all such circumstances
and observed that;
"Labour Statutes were meant to protect the
employees/workman because it was realised
that the employers and the employees are not
on an equal bargaining position. Hence
protection of employees was required so that
they may not be exploited. However this new
technique of subterfuge has been adopted by
some employers in recent years in order to
deny the rights of workman under various
labour statutes by showing that the concern
workmen are not their employees but are the
employees/workmen of a contractor, or that
they are merely daily wage or short term or
casual employees. When infact that are doing
the work of regular employees. This court
cannot countenance such practice anymore.
Globalisation/liberalisation in the name of
growth cannot be at the human cost of
exploitation of workers."
16. In the case at hand the version of the first party
is unacceptable that the workman was casual worker
engaged on hourly and as and when required basis. The
version of the first party is also not acceptable that the
workman was a contract worker since 2004. It appears
that the workman is working with the first party as a Driver
since 2002. Though he was selected and appointed as
Driver they had not given him the wage of the regular
driver. It cannot be said that he was appointed without
following the procedure. He had worked for about 2 years
for meagre amount. The work of Driver cannot be said
casual or temporary. It is work of permanent nature. The
workman says in his evidence that there was
advertisement. He had applied and was called for interview.
His driving test was taken there after he was selected for
the post. There is no reason to discard the version of the
workman, especially as he has worked for more than 2
years. In the circumstances I hold that the workman was
recruited by the first party as a Driver. He had worked
continuously for about 2 years with the first party. In the
light of above Apex Court ruling I hold that the workman
is entitled to be regularised in the service. Accordingly I
decide the issue No. 1 in the affirmative that the second
party is a workman and there exist employer-employee
relationship between the parties. As a result I also decide
the issue No. 2 in the affirmative that, there exist industrial
dispute. In the light of the above discussion I also decide
issue No. 3 in the affirmative that, the workman is entitled
to be regularised in the service of the first party as driver.
Thus I pass the following order.
ORDER
The reference is allowed with no order as to cost.
1. The action of the management in not regularising
the services of the workman is hereby declared illegal and
improper.
2. The management is directed to regularise the
services of workman after the probation period of 2 years
from the date of his initial date of appointment on
22/07/2002 and give him pay and allowances at par with
regular employees with all consequential benefits.
3. Management is directed to pay the difference in
pay and allowance from the date of his regularisation i.e.
from 21/07/2004 till this date.
Date: 11/11/2013
K.B. KATAKE, Presiding Officer
ubZ fnYyh] 12 Qjojh] 2014
dkñvkñ 776.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr lapkj
fuxe fyfeVsM ds izca/kra= ds lac) fu;kstdks vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,o Je U;k;ky;] 2] eqEcbZ ds iapkV ¼lanHkZ la[;k
lhthvkbZVh&2@24 dk 2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 05@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40011@18@2004&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 12th February, 2014
S.O. 776.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGIT-2/
24 of 2005) of the Central Government Industrial Tribunal/
Labour Court No.II, Mumbai now as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the management of Bharat Sanchar Nigam Ltd. and their
workmen, which was received by the Central Government
on 05/02/2014.
[No. L-40011/18/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
2112
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT :
K. B. KATAKE B.A. L.L.M. , Presiding Officer
REFERENCE NO. CGIT-2/24 of 2005
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF BHARAT SANCHAR NIGAM LTD.
The Telecom District Manager
BSNL
At Sawantwadi
Sindhudurg
(M.S.)
AND
THEIR WORKMEN,
The Vice President
Nhava Sheva Port & General Workers's Union
Port Trust Kamgar Sadan
Nawab Tank Road
Mazgaon
Mumbai-400 010.
APPEARANCES:
FOR THE EMPLOYER
: Mrs. Neeta Masurkar, Advocate
FOR THE WORKMAN : Mr. J.H. Sawant, Advocate,
Mumbai, dated the 11th November, 2013.
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No. L-40011/18/2004-IR (DU),
dated 06.12.2004 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 Telecom District
Manager, BSNL, Sindhudurg at Sawantwadi
in not regularizing the service of Shankar P.
Mhapankar, Driver is legal and justified? If
not to what relief the workman is entitled for?"
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 Workman Shri Sankar P. Mhapankar is serving
with the first party since 4/06/1996 as Driver. He was selected
for the post of Driver after ascertaining his eligibility and
qualification of his post as driver. He is attending his duties
of permanent nature. His work was satisfactory. As provided
under Industrial Employment (Standing Orders) Act 1946
as well as principle of equity he is permanent workman.
However the management has deprived him from giving
the status and privilege of permanent workman. The
management is thus guilty of unfair labour practice under
I.D. Act. The first party is paying the wages to the workman
at a very low rate. They are also not giving other benefits
in the nature of social security measures including the
benefit of provident fund, insurance, leave, bonus, medical
treatment etc. Other workers including Shri Margaokar have
been given permanency in the employment to the post of
Driver. Whereas the same benefit and pay scale is not given
to the workman who is discharging the same duties. He
has requested the management. Ultimately he raised
industrial dispute before ALC (C). However the conciliation
failed. Therefore ALC(C) made a report of Labour Ministry.
The Central Labour Ministry has sent the dispute to this
Tribunal. The union therefore prays for declaration that
action of the management in not regularising is illegal. He
also prays that direction to the management to regularise
the service of the workman as a permanent employee of the
management Driver in the pay scale of Rs. 3200-4900 right
from 4/6/1996 with all consequential benefits.
3. The first party resisted the statement of claim vide
its Written Statement at Ex-12. According to them the union
is not a registered union. The workman was also not member
of the said union at the relevant time. The first party is
Government undertaking. Therefore the reference is not
tenable. The workman under reference was engaged for a
short period for hourly driving assistance on various
intermittent occasions at agreed price. it was service
contract to a casual worker. Therefore the reference is not
tenable and the workman is not entitled for regularisation.
The dispute does not come under Section 2(k) of I.D. Act.
The first party is Government of India undertaking. There
is total ban imposed by Government for new recruitment
since 1982. Therefore the Court cannot issue direction to
recruit or regularise the services of the second party
workman. The second party is not workman as defined
under Section 2(s) of I.D. Act. He cannot be regularised for
want of eligibility criteria. He was not possessing the same
when he was engaged. An understanding was given to
him that his job was of temporary nature. Therefore he is
not entitled to claim regularisation. His employment was
occasional engagement without following the recruitment
rules. It would amount to back door entry. Therefore his
service cannot be regularised.
4. His appointment was not on regular basis. BSNL
has framed recruitment rules for the post of regular Driver
to fill up 50% of the total vacancy and remaining are to be
filled up by promotion from the employees belonging to
Group C & D. For all these reasons services of the workman
cannot be regularised and he is not entitled for permanent
employment therefore they pray that the reference be
dismissed with cost.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2113
5. Second party filed their rejoinder at Ex-16 reiterating
the contentions taken in their statement of claim and denied
the contents in the W.S.
6. Following are the issues for my determination. I
record my fidnings thereon for the reasons to follow:
Sr.
Issues
Findings
No.
1.
Whether the second party is a
Yes.
'workman' and whether there exist
employer-employee relationship
between them?
2.
Whether there exists an industrial dispute?
Yes.
3.
Whether the services of the workman
Yes.
under reference can be regularised as
permanent workmen?
REASONS
Issue No. 1 & 2:—
7. As both these issues are interlinked, in order to
avoid repetition of discussion they are discussed and
decided simultaneously. On the point of inter-se
relationship the first party contended that the workman is
not their employee. Therefore according to them, neither
he is workman not there exist industrial dispute. According
to them the second party workman was engaged as and
when required for and on hourly basis as a daily wager
Driver. They have also contended that the workman was
engaged as contract worker. Therefore there exists no
employer-employee relationship between them. It is further
contended that the workman was not recruited by following
the recruitment process prescribed therefore. Therefore
neither he can be called employee of the first party not can
be absorbed in the service. In support of her argument the
Id. adv. for the first party resorted to Apex Court ruling in
Secretary State of Karnataka & Ors. V/s. Uma Devi & Ors.
(2006) 4 SCC 1 wherein in para 34 of the judgement on the
point the Hon'ble Court observed that;
"Therefore consistent with the scheme for
public employment, this Court while laying
down the law has necessarily to hold that
unless the appointment is in terms of the
relevant rules and after a proper competition
among qualified persons, the same would not
confer any right on the appointee. If it is a
contractual appointment the appointment
comes to an end at the end of the contract. If it
were an engagement or appointment on daily
wages or casual basis, the same would come
to an end when it is discontinued. Similarly a
temporary employee could not claim to be
made permanent on the expiry of his term of
appointment. It has also to be clarified that
merely because a temporary employee or a
casual wage worker is continued for a time
beyond the term of his appointment, he would
not be entitled to be absorbed in regular
service or made permanent, merely on the
strength of such continuance, if the original
appointment was not made by following a due
process of selection as envisaged by the
relevant rules."
8. The Ld. adv. for the first party also resorted to
another Supreme Court ruling on the point in Accounts
Officer (A and I) APSRTC & Ors. V/s. K.V. Ramana & Ors.
AIR 2007 SC 1166 wherein the Hon'ble Court in para 7 of
the judgement observed that:
"Even if contract labourers or casual workers
or adhoc employees have worked for a long
period, they cannot be regularised dehors the
rules for selection as has been held in Uma
Devi's case."
9. The Ld. adv. for the first party also cited another
Apex Court ruling in B.S. Minhas V/s. Indian Statistical
Institute (1983) 4 SCC 582 wherein on the point the Hon'ble
Court observed that:
"If the appointment itself is in infraction of
the rules or if it is in violations of the provision
of the Constitution, illegality cannot be
regularised. Ratification or regularisation is
possible of an act which is within the power
and province of the authority, but there has
been some non-compliance with procedure
or manner which does not go to the root of
the appointment. Regularisation cannot be
said to be a mode of recruitment."
10. The Ld. adv. for the first party also cited another
Apex Court ruling in B.N. Nagarajan & Ors. V/s. State of
Karnataka & Ors. AIR 1979 SC 1676 wherein the Hon'ble
Court on the point of regularisation held that, when rules
framed under Article 209 of the Constitution of India are
enforced, no regularisation is permissible in exericse of
executive powers under Article 167 of the constitution in
contravention of the Rules. The Hon'ble Court in this
respect further held that, only something that is irregular
for want of compliance with one of the elements in the
process of selection which does not go to the root of the
process can be regularised. The Id. adv. further argued
that once it is held that the workman is not employee of the
first party, irresistible conclusion that follows is that, the
Tribunal had no jurisdiction to entertain this dispute and
the same deserves to be dismissed.
11. In this respect the Id. adv. for the second party
submitted that, the workman was called for and selected
for the post of Driver after ascertaining his eligibility and
qualification for the said post. According to him he was
2114
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
appointed w.e.f. 4/06/1996 and since then he was driving
the vehicles of the first pary. The Id. adv. further submitted
that the workman is very poor person and working sincerely
with the first party for a meagre amount of wages. The
workman has contended in para 8 of his cross examination
that advertisement was published, mentioning about new
vehicle and requirement of a new driver for the said vehicle.
He further says that he applied with the first party as per
the said advertisement. The Id. adv. pointed out that the
workman has neither maintained the o/c of the application
nor kept with him the paper of advertisement. That does
not mean that he was not recruited and appointed for the
post of driver. In his cross examination in para 8 of Ex-20
the workman has also contended that driving test was taken
while selecting him.
12. In this respect the Id. adv. for second party
pointed out that, the workman has produced the log book
of the vehicle to show that he has worked with the first
party as a Driver since 1996 continuously. The Id. adv.
pointed out that till 2004 the workman was working as a
direct employee of the first party. In 2004 the first party
introduced contractor. However the workman has denied
the suggestion that he was simply contract worker of
Anand Shraddha Contractor. In this respect the Id. adv.
submitted that the first party who is a Govt. undertaking is
taking disadvantage of poverty and ignorance of the poor
people. He submitted that there was advertisement. In
response thereto workman has applied for the post of
Driver. He was called for interview. His driving test was
taken. He was selected and appointed as a Driver. Due to
poverty and ignorance neither he maintained any document
nor first party has given any document to him. In this
respect I would like to point out that the plea and evidence
of the second party is consistent. As against this the case
of the first party is not consistent. It is pleaded in written
statement that the second party workman was engaged on
hourly and as and when required basis. They also
contended that since 2004 the workman is a contract worker.
In his cross examination at Ex-20 it was suggested that he
has not worked since 1996 continuously. The workman
has denied the said suggestion. In his cross examination
the workman says that driving test was taken before
selecting him. He further says that he has no proof on that
point.
13. In this respect I would like to point out that while
appointing a technical person like Driver, it is quite obvious
for the employer to take his driving test. At least driver is
not expected to be appointed without driving test. The
workman is poor and poorly literate person, who was
working with the first party for a very meagre amount to
meet the two ends. He is working as a Driver since 1996.
From his evidence and the reply in his cross examination it
appears that he was selected by the competent authority
as a Driver and was working with the first party since 1996.
Neither any appointment order was given to him nor he
has maintained any document except the copy of log book.
There is no reason to doubt the copy of log book the
workman has produced, to show that he was working with
the first party. In the circumstanes it cannot be said that
the workman was engaged on hourly basis and as and
when required for. It appears that there was advertisement.
The workman had applied and was called for. His interview
and driving test was taken. After examining his capability
as a driver, he was appointed in the year 1996. It appears
that after 2003 the first party seems to have played mischief
and called tenders and since 2004 the workman was shown
as a contract worker. Apparently it is seen that the evidence
contract was bogus and mere camouflage to deprive the
workman from getting the benefit of permanency. It amount
to unfair labour practice by the management. Furthermore
the workman has worked continuously for more than 240
days in a calendar year and his services cannot be
terminated without following the procedure laid down under
Section 25F of the Industrial Disputes Act. He gets
protection of 25F of I.D. Act. The management has not
followed the conditions laid down thereunder.
14. In the circumstances I hold that the rulings referred
herein above by the Id. adv. of the first party are not
attracted to the set of facts of the present case as it is seen
that the workman was duly appointed by the first party. In
case any irregularity it would not come in his way as has
been observed by Hon'ble court in the last ruling referred
here in above.
15. It appears that the officials of the first party have
taken disadvantage of the need, ignorance and poverty of
the workman. It is exploitation of poor class, as workman
was working for meagre amount to meet the two ends and
it is for years together. It is one of the reasons, poor
becoming poorer in our country. Recently Hon'ble Apex
court has also taken serious note of such type of
exploitation of poor class in our country. On the point the
Id. adv. for the second party referred the said Apex Court
ruling in Bhilwara Dughd Utpadhak Sahakari S. Ltd. V/s.
Vinod Kumar Sharma & Ors. 2011 III CLR 386 (SC) wherein
the Hon'ble Court has taken care of all such circumstances
and observed that;
"Labour Statutes were meant to protect the
employees/workman because it was realised
that the employers and the employees are not
on an equal bargaining position. Hence
protection of employees was required so that
they may not be exploited. However this new
technique of subterfuge has been adopted by
some employers in recent years in order to
deny the rights of workman under various
labour statutes by showing that the concern
workman are not their employees but are the
employees/workman of a contractor, or that
they are merely daily wage or short term or
casual employees. When infact that are doing
the work of regular employees. This court
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2115
cannot countenance such practice anymore.
Globalisation/liberalisation in the name of
growth cannot be at the human cost of
exploitation of workers."
16. In the case at hand the version of the first party
is unacceptable that the workman was casual worker
engaged on hourly and as and when required basis. The
version of the first party is also not acceptable that the
workman was a contract worker since 2004. It appears
that the workman is working with the first party as a Driver
since 1996. Though he was selected and appointed as
Driver they had not given him the wages of the regular
driver. It cannot be said that he was appointed without
following the procedure. He had worked for about 8-9
years for meagre amount. The work of Driver cannot be
said casual or temporary. It is work of permanent nature.
The workman says in his evidence that there was
advertisement. He had applied and was called for interview.
His driving test was taken there after he was selected for
the post. There is no reason to discard the version of the
workman, especially as he has worked for more than 8-9
years. In the circumstances I hold that the workman was
recruited by the first party as a Driver. He had worked
continuously for about 8-9 years with the first party. In
the light of above Apex Court ruling I hold that the
workman is entitled to be regularised in the service.
Accordingly I decide the issue No. 1 in the affirmative
that the second party is a workman and there exist employer
employees relationship between the parties. As a result I
also decide the issue No. 2 in the affirmative that, there
exist industrial dispute. In the light of the above
discussion I also decide issue No. 3 in the affirmative
that, the workman is entitled to be regularised in the
service of the first party as driver. Thus I pass the following
order.
ORDER
The reference is allowed with no order as to cost.
1. The action of the management in not regularising
the services of the workman is hereby declared illegal and
improper.
2. The management is directed to regularise the
services of workman after the probation period of 2 years
from the date of his initial date of appointment on 04/06/1996
and give him pay and allowances at par with regular
employees with all consequential benefits.
3. Management is directed to pay the difference in
pay and allowance from the date of his regularisation i.e.
from 23/06/1998 till this date.
Date: 11/11/2013
K.B. KATAKE, Presiding Officer
ubZ fnYyh] 12 Qjojh] 2014
dkñvkñ 777.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMikVZesaVy
dSaVhu] egkuxj VsyhQksu fuxe fyfeVsM ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 2] eqEcbZ ds
iapkV ¼lnHkZ la[;k lhthvkbZVh-2/2 of 2003) dks izdkf'kr djrh gS
tks dsUnzh; ljdkj dks 05@02@2014 dks izkIr gqvk FkkA
[la- ,y-42025/03/2014-vkbZvkj (Mh;w)]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 12th February, 2014
S.O. 777.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGIT-2/
2 of 2003) of the Central Government Industrial Tribunal/
Labour Court No. II, Mumbai now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Departmental Canteen,
Mahanagar Telephone Nigam Ltd, and their workman, which
was received by the Central Government on 05/02/2014.
[No. L-42025/03/2014-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT :
K.B. KATAKE, Presiding Officer
MISCELLENEOUS APPLN. NO. CGIT-2/2 OF 2003
IN
Ref. CGIT-2/1 OF 1990
PARTIES:—
Andheri Telephone Exchange
Departmental Canteen
Mahanagar Telephone Nigam Ltd.
Andheri Departmental Canteen
Andheri (W)
Mumbai 400 058
...Applicant
V/s.
Mr. Ramchandra Moolya
Building No. 44, Room No. 203
Manisha Nagar
Four Bungalow
Versova, Andheri (W)
Mumbai 400 058.
...Opposite Party
2116
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
APPEARANCES:
For the Applicant
: Mr. V. Narayanan, Advocate.
For the Opposite Party : Mr. M.B. Anchan, Advocate.
Mumbai, dated the 25th March, 2013.
JUDGEMENT
This application is filed by the management of MTNL
to set aside the exparte order passed by this Tribunal on
01/10/2002 in Ref. CGIT-2/1 of 1990. According to them, on
the date of passing exparte award i.e. 1/10/2002, though
Ms. Shah, advocate for the management was not present,
Mr. G.A. Sawant, JTO was present before the Tribunal and
it is mentioned in para 2 of the award that Shri G.A. Sawant
had appeared but had disappeared at the time when the
matter was taken up for hearing. Applicant management
also prays for condonation of delay in filling this application
within the period of one month. According to them as their
Id counsel required written explanation of Shri G.A. Samant
as to what happened when he attended this Tribunal and
the same was submitted to him only on 6/5/2003 as he had
undergone eye operation. Therefore the applicant prays
that delay in filing this application be condoned. They also
pray that the exparte order be set aside and the reference
be taken on board to its original stage.
2. Notices were issued to both the parties and the matter
was fixed for say of the opposite party. The opposite party filed
his say on the application at Ex-7. According to him the
application is misconceived and they prayed to reject the same
with cost. Thereafter the matter was fixed for hearing. Today,
advocate for the opposite party Union filed an application Ex-
16 stating that since the workman had expired and his legal
heirs are not interested, the union does not want to pursue the
reference. Therefore he prayed to dispose of this application.
3. Since the opposite party does not want to pursue
the reference, I think it proper to dispose of the application.
Thus I pass the following order.
ORDER
The application is disposed of as the opposite party
union does not want to pursue the reference.
Date: 25.03.2013
K.B. KATAKE, Presiding Officer/Judge
ubZ fnYyh] 12 Qjojh] 2014
dkñvkñ 778.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tokgj uoksn;
fon~;ky; ds izca/kra= ds lac) fu;kstdks vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS?kksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky; 2] eqEcbZ ds iapkV ¼lnHkZ la[;k
lhthvkbZVh-2/51 dk 2007) dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 05@02@2014 dks izkIr gqvk FkkA
[la- ,y-42012/47/2007-vkbZvkj (Mh;w)]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 12th February, 2014
S.O. 778.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGIT-2/
51 of 2007) of the Central Government Industrial Tribunal/
Labour Court No. II, Mumbai now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of Jawahar Navodaya
Vidyalaya, and their workman, which was received by the
Central Government on 05/02/2014.
[No. L-42012/47/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT :
K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/51 OF 2007
Employers in Relation to the Management of Jawahar
Navodaya Vidyalaya
The Principal
Jawahar Navodaya Vidyalaya
At & Post Khedgaon
Tal. Dindori
Nasik (MS).
AND
THEIR WORKMAN
Shri Deoram Pandurang Kawale
Village Bhopegaon
Tal. Dindori
Nasik (MS).
Appearances:
For the Employer
: Ms. Neeta Masurkar, Advocate.
For the Workman
: Ms. Sheetal V. Kanakia, Advocate.
Mumbai, dated the 15th July, 2013
AWARD
1. The Government of India, Ministry of Labour &
Employment by its Order No. L-42012/47/2007 - IR (DU)
dated 12/10/2007 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
Jawaharlal Navodaya Vidyalaya, Nashik in
terminating the services of their workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2117
Shri Deoram Pandurang Kawale w.e.f.
27/01/1995 is legal and justified? If not, to
what relief the workman is entitled to?''
2. After receipt of the reference, notices were issued
to both the parties. In response to the notice the second
party workman filed his statement of claim at Ex-5.
According to the workman he was appointed by the first
party as Watchman he was (Chowkidar) w.e.f. 17/03/1992.
He was doing his duties in the establishment of School.
His consolidated salary was Rs. 600 p.m. His services were
quite satisfactory and without blemish and no complaint
was made against him by anybody. However the first party
has terminated his services on and around
04/07/1994 without any notice, therefore, workman
approached Dy. Labour Commissioner, Nashik. Settlement
had taken place and again he was taken back in the
employment of first party since 23/11/1994. He served there
upto 27/01/1995. However they did not pay him salary,
therefore the workman made an application dated
11/05/1995 to the authorities for payment of his salary.
However they did not pay his dues. They terminated his
services from 27/01/95 without any reason and without
service of any notice. As he was not allowed to join his
duties, he served the first party with legal notice dated 28/
07/1995 through his advocate. The first party sent their
reply dated 14/08/1995. The workman denies all the
allegations therein Workman has also filed complaint to
ALC (C) Mumbai stating his grievance. On his report the
Labour Ministry sent the reference to this Tribunal. The
workman submits that his services were illegally terminated.
Therefore he prays for declaration that his termination from
services be declared illegal and bad in law. He also prays to
direct the first party to reinstate him in the services with
continuity of service and full back-wages and consequential
benefits. He also prays for cost of the litigation.
3. The first party management resisted the statement
of claim vide its written statement at Ex-8. According to the
first party there is inordinate and unexplained delay of 13
years in raising the industrial dispute. Therefore the
reference is hit by delay and laches and deserves to be
dismissed. It is further contended that the engagement of
second party was for a specific short intermediate period
on part time daily wages. Neither he was never taken on
the establishment of first party nor question of termination
of his service arose as he was a mere daily wager. The first
party has fully paid the wages of second party of the period
of which he had worked with it. Neither the second party
was recruited by following the recruitment process, nor he
was employee of the first party. Therefore services of
second party who had worked for a short period as a daily
wager cannot be regularized. The Apex Court has laid down
the law to that effect. They denied that second party was
appointed as Watchman (Chowkidar) at Jawahar Navodaya
Vidhyalaya w.e.f. 17/03/1992. They denied that he was doing
his duties in the establishment of the School and his
consolidated salary was Rs. 600/- p.m. They denied that
services of second party were satisfactory and
unblemished. According to them second party was engaged
just as a stop gap arrangement. His services came to an
end on appointment of regular person. They denied that
on termination of his services on 09/07/1994 he approached
Dy. Labour Commissioner, Nashik. They denied that there
was settlement and he was taken in the employment of the
School since 23/11/1994. They denied that they did not
pay salary to the second party, therefore he made application
to the authorities of the School for his salary and dues.
They denied that his services were terminated orally and
illegally on 27/01/1995 and that since then he was not
allowed to sign the muster roll. They denied all the contents
in the statement of claim and pray that the reference
deserves to be dismissed.
4. Following are the issues framed by my Ld.
Predecessor at Ex-12 for my determination. I record my
findings thereon for the reasons to follow:
Sr.
Issues
Findings
No.
1.
Is this reference tenable?
Yes
2.
Whether the second party establishes
his relationship with party?
Yes
3.
Whether the Claim of the workman
deserves to be rejected for inordinate
delay and latchces?
No
4.
Whether alleged termination is legal?
No
5.
Is 2nd party entitled for any relief?
As per order
below
6.
What Order?
As per order below
REASONS
Issues Nos. 1 & 2:—
5. It is the case of the first party that the second
party workman was not their employee therefore the
reference is not tenable. It is the case of the first party that,
second party workman was never appointed as a Night
Watchman as he has been alleged in the statement of claim
and in the affidavit. According to them he was a daily wager
engaged for a very short period by way of stop gap
arrangement. In this respect it is pertinent to note that the
fact is not disputed that the second party has worked as a
night watchman. According to the second party he has
worked as night watchman since 17/03/1992 till 04/07/1994.
According to him thereafter his service was terminated
and as per the direction of Dy. Labour Commissioner, Nashik
matter was settled and he was reinstated on 23/11/1994.
However they did not pay his salary and again orally
terminated his services from 27/01/1995. In this respect I
would like to point out that though the first party has denied
2118
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
that workman had worked with them from March 1992 to
July 1994 as a night watchman, they have not given any
specific period during which the second party was working
with them. As they have not denied that the second party
had worked with them as a night watchman, may as a daily
wager or temporary employee. Therefore the specific period
given by the workman for which he had worked can squarely
be accepted. In short the second party workman had worked
with the first party as a night watchman from March 1992
to July 1994. He may be daily wager or casual employee.
The fact remains that he was employee of the first party for
the above referred period. In the circumstances version of
the first party is devoid of merit that the second party was
not their employee and the reference is not tenable.
Accordingly I decide these issues No. 1 & 2 in the
affirmative.
Issue No. 3:—
6.They have further contended that, there is
inordinate delay of 13 years in raising the industrial dispute.
Therefore the reference is hit by delay and laches. In this
respect fact is not disputed that the workman was
discharged or discontinued from service since January 1995
and the workman has raised the industrial dispute at a very
late stage and the Order of Reference is dated 12/10/2007.
According to the first party there is delay of 13 years as the
workman has raised the dispute at a very late stage. In this
respect according to the workman after his illegal termination
he served with the first party a legal notice 28/7/1995 and
the first party replied the same by its reply dated 14.08.1995.
In his additional affidavit at Ex-14 the second party further
contended that in the same year i.e. in the year 1995 he
approached the School Tribunal Nahsik by filing Appeal
no. 41/1995. The first party has raised dispute of jurisdiction.
The School Tribunal decided the point of jurisdiction in
favour of the second party. Therefore first party filed a writ
petition no. 6014/96 before Hon'ble Bombay High Court.
Meanwhile in December 1996 Central Government by
notification directed transfer of all pending suit etc. before
various courts in respect of employees of Jawahar
Navodaya Vidhyalaya to Central Administrative Tribunal.
Accordingly the first party was allowed to withdraw the
writ petition by its order dated 16/08/2002. By an order dt.
04/10/2004 the School Tribunal Nashik also returned the
Appeal memo to the second party for presenting the same
before competent authority. The second party filed OA no.
832/2004 before Central Administrative Tribunal, Mumbai
for redressal of his grievances. The Tribunal after hearing
the parties held that it is not empowered to decided the
dispute and directed the second party to approach
appropriate Court. Thereafter the second party approached
Dy. Labour Commissioner, Nashik and sought for his
intervention in the matter. He also directed the second party
to approach appropriate authority. Thereafter in October
2005 he made application to Dy. C.L.C., (C) at Mumbai. He
referred the matter to Ministry. Thereafter by order dated
12/10/2007 the Ministry sent the reference to this Tribunal.
In the circumstances the Ld. adv. for the second party
rightly submitted that the delay was caused due to
intermediate litigations between the parties.
7. According to the Ld. adv. the second party being
a rustic villager and illiterate person could not get proper
advice. Therefore he had filed appeal before School Tribunal,
then matter was taken to High Court then as per Government
Circular it was pending for certain period before Central
Administrative Tribunal and finally the matter reached to
RLC (C) who sent it to Labour Ministry, Government of
India in the year 2007. In the circumstances neither it can
be said delay, nor it can be said any deliberation on the part
of the second party. In this respect further I would like to
point out that for raising the industrial dispute no specific
limitation is prescribed in the law. In the circumstances and
in the light of the aforesaid history of litigations, I come to
the conclusion that though there is delay in sending the
reference, the reference is not hit by delay and laches.
Accordingly I decide this issue no. 3 in the negative.
Issue No. 4:—
8. In this respect according to the first party the
workman was engaged as a daily wager for a very short
period and by way of stop gap arrangement. Therefore
according to them discontinuation of his services would
not amount to termination as he was never their employee
as such. In this respect as it is discussed in issue no. 1 & 2
above that though first party has admitted that second
party had worked as their night watchman, they have not
given the specific period for which second party worked
for them. On the other hand the first party has vaguely
contended in their written statement and affidavit as well
that the second party had worked with them for a very
short period. As against this the second party has given
specific period stating that he had worked with the first
party w.e.f. 17/03/1992 till 04/07/1994. In the light of vague
contention of the first party the specific plea of the second
party in respect of the period can be accepted. Furthermore
the second party has also produced on record the certified
xerox copy of the letter of his appointment dated
08/05/1992 issued by the Principal of the first party. In this
respect the first party had raised objection to exhibit this
letter. However according to the second party the original
letter and other documents were lost while he was travelling
in an Auto rickshaw. He had also lodged a police complaint
about the same. He has also examined the Special Executive
Magistrate who has attested the true copy. As the original
document was lost, permission can be granted to produce
the secondary evidence. Therefore (Ex-36) the letter of
appointment can be exhibited and read in evidence. It shows
that the second party was appointed as a Watchman in the
establishment of the first party for the pay of Rs. 600 p.m.
9. The other evidence in this respect is that, the workman
had given a notice to the first party and the advocate of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2119
first party replied the same. The said notice reply dated
14/08/1995 sent by first party through their advocate is on
record with list Ex-13/4. This reply was sent to the notice of
the second party dated 28/07/1995. Though contents in the
notice reply are denied by the first party in their pleadings,
they have not denied the fact that they received the notice
and the same was replied by their advocate. In this notice
reply on behalf of the first party it is contended that the second
party was engaged as a night watchman on daily wages basis.
It was further contended in the notice that he was never
discharging his duties satisfactorily and on many occasions
he was found sleeping while on duty and remained absent
without prior intimation and his behaviour towards ladies staff
members was doubtful and he was unnecessarily interfering
in the affairs of others etc. In this notice reply it is further
contended that putting continuous service of 2 & ½ years
does not entitle him to be a permanent employee of the first
party and he was not entitled to be reinstated with back wages.
In the written statement, law and case law is pleaded
unnecessarily. However it is not specifically denied that the
workman had not served continuously for more than 2 & ½
years as has been alleged in the statement of claim. In this
backdrop from the pleadings and evidence on record it is clear
that the workman was engaged by the first party to work as a
night watchman and he had worked continuously for more
than 240 days in a calendar year.
10. In this respect the Id. adv. for the first party
submitted that though the workman had worked more than
240 days he is not entitled to be regularized in service as a
permanent employee as his initial appointment was not in
accordance with the rules. She pointed out that the workman
had admitted in his cross at Ex-14 & 14-A that neither there
was any advertisement for the recruitment of watchman,
nor he has come through Employment Exchange which is
the procedure laid down for recruiting employees in the
Government Institutes. Therefore she submitted that the
workman cannot claim regularization in the service. In
support of his argument, the Id. adv. resorted to Apex Court
ruling in Secretary, State of Karnataka & Ors. V/s Uma Devi
& Ors. AIR 2006 SC 1806 wherein the Hon'ble Court held
that, merely because a temporary employee or casual worker
is continued for more than 10 years beyond the term of his
appointment, he would not be entitled to be absorbed in
regular service or made permanent if the original
appointment is made de hors rules or the constitutional
scheme of public emplpoyment. The Ld. adv. for the first
party also cited the following rulings:
(1) State of Haryana & Anr Vs.Tilak Raj & Ors. AIR
2003 SC W 3382
(2) Ashwin Kumar V/s. State of Bihar AIR 1997 SC
1628
(3) State of Karnataka V/s. Chandrashekhar 2009 (3)
SC ALE 653
(4) C. Balachandran V/s. State of Kerala 2009 3 SCC
79
In all these cases the Hon'ble Court held that, such
employees engaged to ad-hoc appointment or back door
entry without following the procedure are not entitled to
be regularized in the permanent service in the public
undertaking.
11. In the case at hand the point is not for
regularization in the service. The question before me is
whether the termination of the workman is legal and proper?
Though such an employee is directed to be reinstated in
the service, that does not mean that, he is directed to be
regularized in the service. On the point Apex Court ruling
can be resorted to in Hindustan Petroleum Corporation
Ltd. V/s. Ashok Ranghba Ambre 2008 (2) SCC 717 wherein
the Hon'ble Court held that, even though it was held by the
Tribunal that the termination is illegal, being in violation of
Section 25 F and the employee was ordered to be reinstated
and the said order was confirmed by the High Court, he is
not entitled to the status of permanent employee, when he
was appointed earlier on ad-hoc and temporary basis.
Reinstatement does not mean conferring permanent status.
12. In the case at hand from the facts and
cirumstances on record it is revealed that the second party
workman was temporarily appointed as watchman by way
of stop gap arrangement till appointment of permanent
night watchman. Neither he was daily wager nor appointed
by following procedure for appointment of night watchman.
From the above discussions it is also clear that the workman
had worked for 2 & 1/2 years continuously and he was
getting monthly pay from the first party. In this back drop
I come to the conclusion that, as workman has worked
continuously for more than 240 days he was entitled to
protection under Section 25-F of the I.D. Act. In short I
hold that, though the workman is not entitled for
regularization he is well entitled to the protection under
Section 25-F of the I.D Act as the management has not
followed the procedure for retrenchment. Neither
retrenchment notice was served on the workman nor notice
pay and retrenchment compensation was paid to him. In
the circumstances I hold that the termination of the workman
is illegal. Accordingly I decided this issue no. 4 in the
negative.
Issue no. 5
13. The workman herein has sought for the relief of
reinstatement with full back wages. In respect of back
wages the Ld. Adv. for the first party submitted that 'no
work no pay' is the settled principle of law. Therefore, full
back wages cannot be granted to the workman. In respect
of reinstatment I would like to point out that, in the above
referred Apex Court ruling in the case of Hindustan
Petroleum Corporation Ltd. referred (supra), the Hon'ble
Court held that, though the workman is reinstated, he
cannot be regularized in service as he was appinted without
following the procedure prescribed for the appointment as
referred herein above. Furthermore in the case at hand the
management has contended that they have already filled
2120
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
up the post of night watchman after following procedure
prescribed, therefore, the said post is now not vacant. In
the circumstances the management can terminate his
services at any time by following the procedure prescribed
under Section 25-F of the I.D. Act. Therefore, to avoid
complications and further litigations, in the interest of
justice, instead of reinstatement I think it proper to direct
the first party to pay the retrenchment compensation to
the tune of Rs. 50,000 and notice pay Rs. 2,000 as
contemplated under Section 25-F of the I.D. Act with
interest thereon from the date of his termination till the
date of actual payment of the amount. Accordingly I decide
this issue and proceed to pass the following order:
ORDER
(i) The reference is partly allowed with no order as
to cost.
(ii) The termination of workman is hereby declared
unjust and illegal.
(iii) Instead of reinstatement, the first party is directed
to pay retrenchment compensation to the tune of
Rs. 50,000 and notice pay of Rs. 2,000 with interest
thereon @ 10% from the date of termination till
the date of payment of amount.
Date: 15.07.2013
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 13 Qjojh] 2014
dkñvkñ 779.—dsUnz ljdkj] jktHkk"kk ¼la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ¼;Fkkla'kksf/kr] 1987½ ds
fu;e 10 ds mi&fu;e ¼4½ ds vuqlj.k esa] Je vkSj jkstxkj ea=ky;
ds iz'kkldh; fu;a=.kk/khu fuEufyf[kr dk;kZy;ksa dks] ftuds 80
izfr'kr ls vf/kd deZpkfj;ksa us fgUnh dk dk;Zlk/kd Kku izkIr dj
fy;k gS] ,rn~}kjk vf/klwpfr djrh gS%
01- 'kk[kk dk;kZy;] deZpkjh jkT; chek fuxe] ek;kiqjh] fnYyh
02- deZpkjh jkT; chek fuxe] vkn'kZ vLirky] ukedqe]
jkaph] >kj[kaM
03- mi {ks=h; dk;kZy;] deZpkjh jkT; chek fuxe] tkya/kj
[lañ bZ&11017@1@2006&jkñHkkñuhñ]
vfuy dqekj [kkph] la;qDr lfpo
New Delhi, the 13th February, 2014
S.O. 779.—In pursuance of Sub-Rule (4) of Rule 10
of the Official Languages (Use for official purposes of the
Union) Rules, 1976 (as amended, 1987) the Central
Government hereby notifies following offices under the
administrative control of the Ministry of Labour &
Employment, more than 80% Staff whereof have acquired
working knowledge of Hindi:—
01. Branch Office, Employees' State Insurance
Corporation. Mayapuri, Delhi
02. Model Hospital, Employees' State Insurance
Corporation, Namkum, Ranchi, Jharkhand
03. Sub Regional Office, Employees' State Insurance
Corporation, Jalandhar.
[No. E-11017/1/2006-RBN]
A. K. KHACHI, Jt. Secy.
ubZ fnYyh]13 Qjojh] 2014
dkñvkñ 780.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lqifjUVsaMsUV vkWQ+
iksLV vkWfQl~l] fMikVZesaV vkWQ+ iksLV] twukx<+ ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
vgenkckn ds iapkV ¼lanHkZ la[;k CGITA 58@2005½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 05@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@09@2005&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 13th February, 2014
S.O. 780.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGITA
58/2005) of the Central Government Industrial Tribunal
Court, Ahmedabad now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Superintendent of Post Offices,
Department of Post, Junagadh and their workman, which
was received by the Central Government on 05/02/2014.
[No. L-40012/09/2005-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-2,
AHMEDABAD
PRESENT :
Binay Kumar Sinha,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad, Dated 6th November, 2013
Reference (CGITA) No. 58/2005
The Superintendent of Post Offices
Department of Post,
Junagadh Division,
Junagadh-362001
.....First Party
AND
Their Workman
Shri P.P. Aparnath,
R/o Chorvad-362250
At Nagnath Temple,
West Darwaja, Taluka Malia Hatina
Dist.-Junagadh
....Second Party
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2121
For the First Party
: Shri P.M. Rami, A.G.P. (Labour &
Industrial Court)
For the Second Party : None
AWARD
The Central Government/Ministry of Labour, New
Delhi vide its Order No. L-40012/9/2005 - IR(DU) dated
11.07.2005 in exercise of powers conferred by clause (d) of
sub-section (1) and sub-section (2A) of Section 10 of the
Industrial Dispute Act, 1947 referred the dispute for
adjudication to this tribunal on the terms of reference in
the Schedule:
SCHEDULE
"Whether the action of the management of
superintendent of post offices, Junagadh
division in dismissing the services of Shri P.P.
Aparnathi, EDA Kukasavada with effect from
05.07.1999 is legal and justified? If not, what
relief the workman concerned is entitled to?"
2. Notice issued to the parties. The workman appeared
and execute power (Vailpatra) in favour of Shri Hitesh D.
Kathrotiya, Advocate on 22.1.2005 (Ext. 3) and the 1st party
also appeared by executing Vakilpatra in favour of Shri P.M.
Rami, Advocate (AGP) on 27.02.2007 (Ext.4). Thereafter
workman (S.P.) did not file statement of claim in spite of number
of adjournment whereas the 1st party filed its written statement
Ext. 6 on 06.08.2008 and its copy furnished to the S.P.'s lawyer
Shri H.D. Kharitia, Advocate. The 2nd party did not appear in
the case. His lawyer Shri Kathrotia was informed on 01.03.2012
to file statement of claim when on that date the 1st party file
pursis (Ext.9) to dismiss the reference.
3. The case of the 1st party is that the workman (S.P.)
was appointed on 17.08.1990 as E.D.A on contractual basis
terminated at any time. The workman received money of
Rs. 400 each for payment to the right person of two money
orders but instead of paying to both M.O. amount to the
receiver, he himself signed on their behalf in token of receipt
of M.O. by name as receiver and witness to Shri Chakubhai
Mithabhai and Shri Jamalbhai Mithabhai and thus the
workman by doing false signatures as per volume-6 of
chapter-13 under the section disobeyed the Acts of the
year Extra Departmental Agent of the post Department. He
was given memo of commiting the offence and in written
reply workman accepted all allegations. Then by order dated
05.07.1999 the workman was terminated from the services.
On these ground prayed to dismiss the reference.
4. The workman (2nd party) failed to submit
statement of claim and left doing pairvi in the case and
also left to attend the court. His lawyer did not also attend
the court and did not submit S/c in spite of direction. So,
there is reason to believe that the 2nd party has lost interest
in this case and did not want to make contest in this
reference against his termination from the services as E.D.A.
5. So, in the circumstances, the term of reference as
per Schedule is answered in favour of the 1st party
(Employer) that the action in dismissing the services of the
workman Shri Aparnath w.e.f. 05.07.1999 is justified. The
S.P. is not entitled to any relief.
The reference is accordingly dismissed.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 13 Qjojh] 2014
dkñvkñ 781.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mk;jsDVj] us'kuy
C;wjks vkWQ+ lksby losZ ,.M ySaM ;wt+ Iykfuax ¼bafM;u dkSafly vkWQ+
,xzhdYpjy fjlpZ½] ukxiqj ds izca/kr= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] ukxiqj ds iapkV
lanHkZ la[;k lhthvkbZVh@,uthih/02@2006 dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 05@02@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@118@1995&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 13th February, 2014
S.O. 781.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
NGP/02/2006) of the Central Government Industrial
Tribunal/Labour Court, Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of the The Director, National
Bureau of Soil Survey & Land Use Planning (ICAR),
Nagpur and their workman, which was received by the
Central Government on 05/02/2014.
[No. L-42012/118/95-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/02/2006
Date: 08.04.2013.
Party No. 1
: The Director, National Bureau of Soil
Survey and Land Use Planning (Indian
Council of Agricultural Research), Shankar
Nagar, Amravati Road, Nagpur.
Versus
Party No. 2
: Shri Madhukar Ramji Wahane R/o. Bajaj
Nagar, ICAR Complex, Nagpur.
2122
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
AWARD
(Dated: 08th April, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of National Bureau of Soal Survey and Land
Use Planning (Indian Council of Agricultural Research)
and their workman, Shri Madhukar Wahane, for
adjudication, as per letter No. L-42012/118/95-IR(DU), dated
03.02.2006, with the following schedule:
"Whether the action of the management of
National Bureau of Soil Survey & Land Use
Planning (Indian Council for Agriculture
Research), Nagpur in terminating the services
of Shri Madhukar S/o Shri Ramji Wahane w.e.f.
19.07.1988 is justified? If not, to what relief the
workman is entited?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Madhukar
Wahane, ("the workman" in short), filed the statement of
claim and the management of National Bureau of Soil
Survey and Land Use Planning (Indian Council of
Agricultural Research), ("Party No. 1" in short) filed its
written statement.
The case of the workman is that he is a workman and
party no. 1 is an industry as per the definitions of the Act
and he came to be appointed by party no. 1 as a driver as
per order dated 28.01.1987 in the pay scale of Rs. 950-Rs.
1400 and he worked continuously without any break for
about 18 months from the date of his initial appointment
and completed more than 240 days of continuous service
with clean and unblemished service record and his services
were deemed to be regularized and he was deemed to be a
permanent employee, but to his surprise, on 19.07.1988, he
received a communication from party no. 1, whereby he
was informed that his services were terminated with
immediate effect, in accordance with the terms and
conditions no. 6 of the Memorandum dated 29.01.1987
(wrongly mentioned as 19.01.1987 in the statement of claim)
and as he had completed more than 240 days of continuous
service, it was mandatory for party no. 1 to comply with the
provisions of section 25-F of the Act, before termination of
his services and as the mandatory provisions of section
25-F of the Act were not complied with and neither one
month's notice nor one month's pay in lieu of the notice
nor retrenchment compensation was paid to him, his
termination is invalid and he is entitled for reinstatement in
service with continuity. It was further pleaded by the
workman that no seniority list as required under section 81
was published before his termination and juniors were kept
in service, so his termination from service is arbitrary and
colorable exercise of employer's right and party no.1
violated the provisions of section 25-F, 25-G and 25-H of
the Act and after termination of his services, he made
several representations to party no. 1 and requested to
take him back in service, since his termination was illegal
and he was jobless, but no heed was paid to his
representations, so he was constrained to raise the
Industrial dispute. The workman has prayed for his
reinstatement in service with contiunity and full back
wages.
3. The party no. 1 in the written statement has pleaded
inter-alia that it is not an "industry" as defined under
section 2 (j) of the Act and as such, the reference is not
maintainable and it is purely a research institute which
comes on research on land and soil and the knowledge so
acquired is used for the benefit of public and such
knowledge is not sold in the market and there is no profit
motive behind it and it serves as a regal function and as
such, it is not an industry and the Tribunal has no
jurisdiction to adjudicate the reference and as such
preliminary objection goes to the very root of the
jurisdiction of the Tribunal, it is necessary to decide the
said objection at first, before deciding the reference on
merits.
It is further pleaded by the party no.1 that Government
of India had imposed ban on recruitment and there were no
sanctioned post available to fulfill the requirement of the
department and since there was dire need of driver, the
said post had to be filled up by recruitment of casual
workers and as such, the workman, who had a regular
driving licence was offered the post of driver in a temporary
capacity vide memorandum dated 29.01.1987 in the pay
scale of Rs. 950-20-1150-EB-25-1400, on the terms and
conditions stated there in and accordingly on compliance
of the conditions, he was appointed vide letter dated
25.02.1987, w.e.f. 05.02.1987 and he was appointed on
probation for 2 years in a temporary post and during the
period of his probation, the workman got involved in a
road accident on 02.04.1988, while driving office jeep No.
MTE-3570 and dashed the vehicle against the State Road
Transport Bus bearing no. MTE-6863 and due to the rash
and negligent driving of the workman, the jeep of the
Department got damaged and for the purpose of preliminary
enquiry, a committee was constituted vide office order dated
23.05.1988 and the members of the committee met on
04.07.1988 for conducting the enquiry and the workman
was present in the enquiry and the committee enquired
into the details of the accident and recorded the statement
of the workman and on the basis of the oral statement and
admission of the workman about his negligence and rash
driving, the competent authority decided not to continue
the workman in service and terminated him with immediate
effect vide office order dated 19.07.1988, in terms of the
condition no. 6 of the memorandum of offer No. 771/4 dated
29.01.1987.
¹Hkkx II—[k.M 3(ii)º
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2123
It is further pleaded by party no. 1 that the workman
had not completed his probationary two years period of
service satisfactorily and as such, there was no question
of his regularisation and no order regularizing his services
was issued to him and the workman had not completed 240
days of work as alleged and there was no need for it to
follow the provisions of section 25-F of the Act and it has
its own service conditions in its bye laws, which are
applicable to its permanent and temporary employees and
according to its bye laws, the Central Civil Services
(Classification, Control and Appeal) Rules of the
Government of India shall apply to its employees and as
the workman was employed on temporary basis, the Central
Government services (Temporary Service) Rules, 1965 were
applicable to him and the services of the workman were
terminated in terms of clause 6 of the memorandum of offer
which stated that, "6-His/Her appointment may be
terminated without assigning any reasons by one month's
notice on either side under Rule-5 of the Central
Government Services (Temporary Service) Rules, 1965.
During the period of probation however the appointing
authority may terminate service of appointee without the
notice and without the payment of salary in lieu thereof"
and in view of the said conditions, the termination of the
services of the workman was legal and proper and the
workman is not entitled to any relief.
4. In order to prove their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence. The workman has examined himself
as a witness in support of his case. In his examination-in-
chief, which is on affidavit, the workman has reiterated the
facts mentioned in the statement of claim.
In his cross-examination, the workman has admitted
that initially, he was engaged as a casual labour in NBSS
and as per the appointment letter, Ext. M-I, he was appointed
as a temporary driver and on 02.04.1988, the jeep bearing
registration number MTE-3579, which he was driving, met
with an accident and there was a departmental enquiry
against him for causing the accident and basing on the
result of the enquiry, his services were terminated on
19.07.1988 and his services were terminated during the
period of probation.
5. One Mr. Chandrakant K. Karche has been examined
as a witness from the side of the party no. 1 and in his
examination-in-chief, which is on affidavit, this witness has
also reiterated the facts mentioned in the written statement.
In his cross-examination, this witness has admitted that he
was not involved in any way either in the appointment or
in the termination of the workman and he was not a part of
the enquiry held against the workman in any capacity and
he has no personal knowledge about the dispute raised by
the workman and his knowledge about the case is based
on the documents relating to the same and the services of
the workman were terminated due to the accident caused
by him and no charge sheet was issued by the management
against the workman.
6. Before delving into the merit of the matter, I think it
necessary to mention the admitted facts in the case. The
admitted facts are that the workman was appointed as a
driver on probation of two years as per the memorandum
dated 28/29.01.1987, Ext. M-I, issued by party no. 1 and the
workman worked continuously till 19.07.1988 and his
services were terminated vide order dated 19.07.1988, Ext.
M-II. It is also not disputed that on 02.04.1988, the jeep
bearing registration no. MTE-3579 met with an accident,
while the workman was driving the same and that a
committee was formed by the party no. 1 for conducting an
enquiry into the accident of jeep MT-3579 driven by the
workman and on 04.07.1988, the said committee conducted
the enquiry and held that the accident took place only due
to non-compliance of the prescribed speed limits by the
workman, as per Ext. M-XIII. It is also not disputed that
before termination of the services of the workman, the
mandatory provisions of section 25-F of the Act were not
complied with.
6. At the time of argument, it was submitted by the
learned advocate for the workman that it is clear from clause
5 of the memorandum, Ext. M-I that the workman was
appointed as a driver against a permanent post, as he was
directed to remain on probation for a period of two years
and the workman worked continuously from 29.01.1987 as
a driver with party no. 1 till 19.07.1988, when his services
were terminated and even though, no charge sheet was
submitted against the workman, there was a departmental
enquiry in regard to the accident of the jeep MTE-3579
driven by the workman, on 02.04.1988 and it is clear from
the proceedings of the said enquiry, Ext-M-XIII that there
was no finding that the accident took place due to any rash
and negligent driving of the workman and moreover there
is nothing in the order of termination, Ext. M-II that the
services of the workman were terminated on the basis of
the report of the facts findings committee constituted to
make the enquiry against the workman. It was further
submitted by the learned advocate for the workman that
the workman had completed more than 240 days of
continuous service before termination of his services, but
his services were terminated by party no.1 without giving
one month's notice or on one month's pay in lieu of the
notice or retrenchment compensation, which are mandatory
as per the provisions of section 25-F of the Act and due to
non-compliance of the mandatory provisions of the Act,
the termination of the services of the workman is invalid
and the same amounts to retrenchment and the workman is
not gainfully employed, after termination of his services
and therefore, he is entitled for reinstatement in service
with continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the party no. 1 that the party no. 1 is not an industry as
defined u/s. 2(j) of the Act and as such, the reference is not
2124
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
maintainable and is therefore is liable to be answered in the
negative. It was further submitted by the learned advocate
for party no. 1 that the workman was appointed as a driver
in a temporary capacity vide the memorandum, Ext. M-I, on
the terms and conditions stated therein and during the
period of probation, the workman got involved in a road
accident on 02.04.1988, while driving the office jeep No.
MTE-3579 and for the purpose of making a preliminary
enquiry, a committee was constituted and the said committee
found that the accident took place due to the rash and
negligent driving of the workman, so the competent
authority decided not to continue the workman in service
and terminated his services with immediate effect and vide
order dated 19.07.1988, Ext. M-II, the services of the
workman were terminated in terms of clause-6 of the
memorandum dated 29.01.1987, Ext. M-I and as the
termination of the services of the workman was according
to the Statutory Rules, the same is legal and proper and the
workman is not entitled to any relief.
In support of such contentions, the learned advocate
for the party No. 1 placed reliance on the decisions reported
in AIR 1997 SC-1855 (Physical Research Laboratory Vs
K.G. Sharma) and (1997) 4 SSC-391 (Himanshu Kumar
Vidyarthi Vs. State of Bihar and orders).
8. In view of the stands taken by the parties, the
first question requires to be considered is as to whether,
the party No. 1 is an industry as defined under section 2 (j)
of the Act.
In this regard, I think it apropos to mention about
the judgement of the Hon'ble Apex Court reported in AIR
1978 SC 548 (Bangalore Water Supply Vs. Sewerage Board).
In the above judgment, the Hon'ble Apex Court have held
that:—
"S.2 (j)— "Industry—Meaning and scope of what
the term includes and excludes Tests and guidelines for
such inclusion and exclusion indicated- Charitable
Institutions, Clubs, Educational Institutions,
Municipalities, Research Institutes, Co-operative Societies,
Establishment of Liberal Profession, if industry- Agencies
and departments of Government engaged in any non-
sovereign functions when deemed to be industry
indicated—Complex of services—Some qualifying for
exemptions and some not—Tests.
"Industry" as defined in the sub-section has wide
import.
Where there is (i) Systematic activity (ii) Organised
by cooperation betwwen employer and employee (the direct
and substantial element is chimerical) and (iii) for the
production and/or distribution of goods and services
calculated to satisfy human wants and wished (not spiritual
or religious but inclusive of material things or services
geared to celestial bliss), prime facie, there is an industry
in the enterprise.
Absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint, private or
other sector.
The true focus is functional and the decisive test is
the nature of the activity with special emphasis on the
employer employee relations."
Taking into consideration the pleadings of the parties
regarding the activities and functions performed by party
No. 1 and applying the principles enunciated by the
Hon'ble Apex Court in the judgement as mentioned above,
it is found that part No. 1 is an "industry" as definded
under section 20(j) of the Act.
9. Admittedly, the workman worked continuously for
more than 240 days prior to the termination of his services.
It is also found that the punishment of termination from
services was not imposed as a punishment against the
workman and there was never any charge sheet against
the workman and there was also never any enqiry against
him, basing on any charge sheet. There is also no material
on record to show that basing on the result of the
preliminary enquiry, any order was passed by the competent
authority to terminate the services of the workman. The
order, Ext. M-II, under which the services of the workman
were terminated also does not show that the services of
the workman were terminated as it was found by the
committee that the accident of the office jeep was caused
due to he rash and negligent driving of the workman. Ext.
M-II shows that the termination of the services of the
workman was as per clause-6 of the memorandum, Ext. M-I.
Clause-6 of Ext. M-I shows that services of the workman
could be terminated without the notice and without the
payment of salary in lieu thereof. But as the said clause is
against the mandatory provisions of the Act, the same is
not tenable, As the termination of the services of the
workman was without compliance of the mandatory
provisions of section 25-F of the Act, the same amounts
to retrenchment and is held to be illegal.
10. Now, the question remains for considerations as
to what relief or reliefs the workman is entitled. Though it
was submitted by the learned advocate for the workman
that the appointment of the workman was against a
permanent vacancy in view of clause-5 of Ext. M-I, it is
found from Ext. M-I itself that the appointment of the
workman was against a temporary post of driver and not
against a permanent post. The termination of the workman
from services took place on 19.07.1988, about 25 years
back. Keeping in view the principles settled by the Hon'ble
Apex Court in number of decisions including in the decision
reported in 2010(8) SCALE (Incharge officer and another
Vs Shankar Shetty) and taking into consideration the
facts the circumstances of the case in hand, in my
considered view, instead of reinstatement in service,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2125
monetary compensation of Rs. 50,000/- would meet the
ends of justice. Hence, it is ordered:—
ORDER
The action of the management of National Bureau of
Soil Survey & Land Use Planning (Indian Council for
Agriculture Research), Nagpur in terminating the services
of Sri Madhukar S/o Shri Ramji Wahane w.e.f. 19.07.1988 is
unjustified. The workman is entitled to monetary
compensation of Rs. 50,000 (Rupees fifty thousand only).
The workman is not entitled to any other relief. The party
No. 1 is directed to pay the monetary compensation
of Rs. 50,000/- (Rupees fifty thousand only) to the workman
within 30 days of the publication of the award in the Official
Gazette.
J.P. CHAND, Presiding Officer,
ubZ fnYyh] 13 Qjojh] 2014
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[lañ ,y&40012@30@2006&vkbZvkj ¼Mh;w½]
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New Delhi, the 13th February, 2014
S.O. 782.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D No. CGIT/
NGP/81/2006) of the Central Government Industrial
Tribunal/Labour Court, Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The General Manager,
Telecom, Nagpur and their workman, which was received
by the Central Government on 05/02/2014.
[No. L-40012@30@2006-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/81/2006
Dated: 15.05.2013
Party No. 1 (a) : The General Manager (Telecom),
Telecom Bhavan, Zero Miles, Civil lines,
Nagpur-440001.
Party No. 1 (b) : The General Manager, Telecom Project
(R.E.), Telephone Exchange Building,
R.T.T.C. Campus, Seminary Hills,
Nagpur-6
Versus
Party No. 2
: Shri Ramdatta, S/o Shri Rajdeo Yadav,
R/o C/o Rashmi Kirana Stores,
Azad Chowk, Rajiv Nagar,
Hingna Road, Nagpur
AWARD
(Dated: 15th May, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act"in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Telecom and their workman, Shri Ramdatta
R. Yadav, for adjudication, as per letter No. L-40012/30/
2006-IR(DU) dated 16.10.2006, with the following
schedule:
"Whether the action of the management of
General Manager, Telecom Project (R.E.)
Nagpur in terminating the services of their
workman, Shri Ramdatta Yadav w.e.f. 7.12.1988
is legal and justified? If not, to what relief the
workman is entitled to?"
2. On receipt of the reference, parties were notices
to file their respective statement of claim and written
statement in response to which, the workman, Shri Ramdatta
Yadav ("the workman" in short) filed the statement of
claim and the management of Telecom ("Party No. 1" in
short) filed their written statement.
The case of the workman is that he was employed as
a casual labourer by the part No. 1 for construction of the
workshop laying down of pipes, for maintenance of cables
and for doing other jobs on 01.07.1987 and his appointment
was against a clear and vacant post and he worked from
01.07.1987 to 07.12.1988 and from the date of his
appointment, he worked continuously with party No. 1
and completed more than 240 days of work in a calender
year, but he came to be laid off, by the party no. 1 by notice
dated 07.12.1988, without payment of lay off compensation.
It is further pleaded by the workman that party No. 1 with
mala fide intention prepared a seniority list on 18.11.1991
in order to defeat his claim and falsely remarked in the said
seniority list against his name as, "left the job on his own
accord"and he had never left the job on his own accord
and as such, he along with some others preferred Original
Application No. 163/1993 through the union, 'The Nagpur
Casual Labourers' Union", before the Central Administrative
Tribunal, Bombay Bench at Nagpur ("the CAT" in short)
2126
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
assailing the said list and claiming certain directions
including of providing work as per seniority list and the
said petition was disposed of on 02.11.1999 by the CAT
with a direction to the party No. 1 to consider and decide
the representations to himself and the union and the
union, "Nagpur Telecom Casual and Permanent Labour
Union" had filed Original Application No. 609/1994 before
the CAT and the said application was disposed of on
17.09.1998 by the CAT with the direction to the party No. 1
to pass a speaking and reasoned order in respect of the
representations submitted by himself and the other
applicants and in the said original application, by order
dated 10.02.2000, direction was given by the CAT to
himself and the other applicants to give individual
representtion to party No. 1 and to consider such
applications by party No. 1 within three months. It is further
pleaded by the workman that after his oral termination, he
did not receive any communication from party No. 1 and
his representations were never decided by the party No.
1 and he was under the impression that his illegal
termination was challenged in the original application filed
in the CAT and it was only in May, 2005, he came to know
that his illegal termination was not challenged and under
such circumstances there was delay in raising the dispute.
The further case of the workman is that he had
rendered continuous and uninterrupted service with the
party No. 1 in a calender year and though he presented
himself for work practically every day after 07.12.1998, he
was not provided with any work and party No. 1 orally
terminated his services .w.e.f. 01.01.1989 and termination
of his services is illegal, arbitrary and malafide amounting
to unfair labour practice and party No. 1 neither gave the
notice of retrenchment nor paid any wages in lieu of the
notice or the retrenchment compensation and the party no.
1 did not display the seniority list prior to his retrenchment
and his termination is in violation of the provisions of
sections 25-F, 25-G, 25-H and 25-N of the Act. Prayer has
been made by the workman to declare the action of the
party No. 1 to be illegal and unjustified and to reinstate
him in service with full back wages and consequential
benefits.
3. The party No. 1 in their written statement have
pleaded inter-alia that the workman was engaged on
01.07.1987 as a casual labourer for a specific work and for
specific period with a condition that his services would be
depended upon the completion of the project and he was
never appointed against any vacant or permanent post
and the workman did not work continuously from 01.07.1987
to 07.12.1988 and he did not complete 240 days of work in
one calendar year and by letter dated 07.12.1988, the
workman was intimated about the status of the works
available in R.E. Division and the project work of R.E.
Division was completed on 30.06.1990 and the workman
was never laid off and he left the job on his own accord,
before completion of the project work and therefore question
of paying lay off compensation does not arise at all and the
directions given by the CAT were duly observed by them
and the union representing the workman filed cases before
the CAT bearing Original Application No. 163/1993, 609/
1994 and C.P. No. 25/1999 and the said cases were disposed
of by the CAT with directions that individual representation
should be filed by every applicant pointing out the
anomalies in the seniority list of casual labourers and the
department should pass a speaking and reasoned order in
respect of the representations within three months and
accordingly, the workman submitted his representation and
on 19.05.2000, the said representation was rejected by
speaking order by them and the reasons stated by the
workman regarding the delay are not bona fide and it is not
true to say that the workman presented himself practically
every day after 07.12.1998 and he was not provided with
work and he left the work without any prior permission and
intimation and the engagement of the workman as a casual
labourer for a specific project work and for a specific period
and as he was never appointed as per Recruitment Rules or
against any sanctioned post and such facts were duly
intimated to the workman and he was every well aware
about the actual status of the work and as such, he has no
right, much less legal right to claim any appointment or
reinstatement to the post and as the engagement was
temporary on daily wages, no right was bestowed on him
and his services were liable to be discontinued at any
point to time and the workman is not entitled to any relief.
4. In support of their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence. The workman has examined himself
as a witness in support of his case. One Shri Gopal Badole,
has been examined as a witness by the party No. 1.
5. In his examination-in-chief, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim. However, in his cross-examination,
the workman has stated that he was engaged by BSNL as
a casual labourer and his engagement was for laying of
underground cable and no appointment order was issued
by the BSNL and by notice dated 07.12.1988, Ext. W-II, he
was intimated that he would be laid off, after the
completion of the on-going construction and the project
in which he was working was to be completed by
30.06.1990 and he himself and some other casual workers
had approached the CAT through the union in O.A. No.
599/1990 and in that O.A., BSNL was directed to prepare
a combined seniority list of casual labourers and to
provide work to the casual labourers according to the
seniority list and as per the direction of the CAST, BSNL
prepared the combined seniority list, Ext. W-III of the
casual labourers and his name was at serial No. 804 in the
said seniority list and as per the direction of the CAT, he
filed his representation on 25.02.2000 and his
representation was rejected by BSNL as per order dated
19.05.2000. The workman has further admitted that he
worked with BSNL till 31.12.1988.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2127
6. The witness for the party No. 1 in his evidence on
affidavit has also reiterated the facts mentioned by the
party No. 1 in the written statement. In his cross-
examination, the witness has stated that the workman was
engaged under Railway Electrification Project and the said
project was to continue till 1990 and as per the order of the
CAT in O.A. No. 599/1990, the Telecom department prepared
a seniority list of the casual workers, Exhibit W-III and the
name of the workman was at serial No. 804 of the said list
and in the remarks column against the name of the workman
"left job on his own accord" has been mentioned.
7. During the course of argument, it was submitted
by the learned advocate for the workman that the workman
worked from 01.07.1987 to 07.12.1988 continuously and
completed more than 240 days of continuous service, but
in violation of the mandatory provisions of Law, the
workman was laid off by an order passed on 07.12.1988 and
the management had wrongly marked the workman as "left
job on his own accord" in the seniority list and therefore,
the workman is entitled for reinstatement in service with
full back wages and consequential benefits.
In support of the contentions, the learned advocate
for the workman placed reliance on the decisions reported
in 2005 III CLR 250 (Lalchand Vs Industrial Court), 2008 I
CLR 429 (Neeranjan Cinema Vs Prakash Chandra Dubey)
and 2002 I CLR 132 (Pancham Singh Vs State of Haryana &
another).
8. Per contra, it was submitted by the learned
advocate for the party No. 1 that the workman was engaged
as a casual labourer for a psecific project and for a specific
period and the workman has admitted such facts in his
cross-examination and the workman was not appointed as
per Recruitment Rules or against any sactioned post and
there was a settlement between the workman and the
management before the ALC and as per the said settlement,
the workman attended duty for one day and as the workman
left the job on his own accord, before completion of project
work, the question of paying lay of compensation does
not arrive and the workman was not terminated form the
serivces w.e.f. 01.01.1989 and no legal right was vested
upon the workman to claim appointment or reinstatement
in service as he was never appointed as per recruitment
rules or against any sanctioned post and the reference is
belated reference and no explanation has been given by
the workman for the delay and on this said count the
reference is liable to be answered in negative and the
workman has not produced to show that he had worked for
240 days in one calendar year and as such, there is no
question of violation of Section 25 F of of the Act and for
that the workman is not entitled for any relief.
9. On perusal of the statement of claim, written
statement and evidence, both oral and documentary
adduced by the parties, it is found that the workman worked
240 days in the preceding 12 months from the alleged date
of termination of service. Hence, I do not find any force in
the contention raised by the learned advocate for the Party
No. 1 that the workman did not complete 240 days of service
in one calendar year.
10. According to the claim of the workman and so
also as per that schedule of the reference, the services of
the workman were terminated by order dated 07.12.1988.
The so called termination order dated 07.12.1988 has been
marked as Exhibit W-II. On perusal of Exhibit W-II, it was
found that the same is actually not a layoff notice, but the
same was a notice by the Party No. 1 of a possible layoff
due to completion of the on going project. In the said notice,
it was intimated to the workman that the construction work
in which the workman was working was going to be
completed and there was no likelihood of additional work
and the workman would be laid off after the completion of
ongoing construction work under A.E.T. (R.E.), Nagpur.
The workman was further intimated by the said notice that
his services might again be required at the time of
dismantlement work in Nagpur-Pandhurna Section and as
such to keep in touch with the office for future development.
In the statement of claim in paragraph 3, the
workman has mentioned that on 07.12.1998, he was served
with a notice of lay off by the management. The said
statement apparently appears to be not correct, as
because, the layoff notice was dated 07.12.1988 and was
not of 07.12.1998 as mentioned by the workman. In
paragraph 1 of the statement of claim, the workman has
mentioned that he worked continuously from 01.07.1987
till 07.12.1988. However, in paragraph 10 of the statement
of claim, the workman has mentioned that the management
orally terminated his services w.e.f. 01.01.1989. In his corss-
examination, the workman has admitted that that he worked
with BSNL till 31.12.1988. On perusal Exhibit W-I, the
personal record of employment-cum-muster roll, which
has been produced by the wrokman, it is found that the
workman worked with the Party No. 1 from 01.07.1987 till
31.012.1988 and not from 01.07.1987 to 07.12.1988 as
claimed by the workman. So, it is clear from the materials
on record that the workman was not terminated from the
services on 07.12.1988 or 01.01.1989 as claimed by him.
From the materials on recrord and the discussions made
above, it is clear that the services of the workman were
not terminated vide notice dated 07.12.1988 as mentioned
in the schedule of reference. It is also clear from the
materials on record that the workman did not come to
work in view of the notice dated 07.12.1988. It is found
from the materials on the record that the engagement of
the workman was on casual basis as a daily wager and his
appointment was not made according to the recruitment
rules of Party No. 1 and his engagement was for a specific
project till completion of the said project. It is also clear
that the workman in view of the notice dated 07.12.1988
left the work on his own accord before completion of the
project. Hence, there was no question of compliance of
2128
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
the provisions of Section 25-F of the Act. The schedule
of reference as made by the Govt. seems not to be correct.
As the facts and circumstances of the case in hand
are quite different from the facts and circumstances of the
cases referred in the decisions cited by the learned advocate
for the workman, with respect, I am of the view that the said
decisions have not direct application to this case.
Hence it is ordered:
ORDER
The reference is answered in the negative and against
the workman. The workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 13 Qjojh] 2014
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[la- ,y&40012@28@2006&vkbZ vkj ¼Mh;w½]
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New Delhi, the 13th February, 2014
S.O. 783.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (I.D. No. CGIT/
NGP/82/2006) of the Cent. Govt. Indus. Tribunal Labour
Court, Nagpur now as shown in Annexure, in the Industiral
Dispute between the employers in relation to management
of The General Manager, Telecom, Nagpur and their
workman, which was received by the Central Government
on 05/02/2014.
[No. L-40012/28/2006-IR(DU)].
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/82/2006
Date: 15.05.2013
Party No. 1 (a)
: The General Manager (Telecom),
Telcom Bhavan, Zero Miles, Civil Lines,
Nagpur-440001.
Party No. (b)
: The General Manager,
Telecom Project (R.E.)
Telephone Exchange Building,
R.T.T.C. Campus, Seminary Hills
Nagpur-6.
Versus
Party No. 2
: Shri Brajesh Kumar Tripathi,
S/o shri Rajaram Tripathi,
R/o, Plot No. 73, Radhanand Nagar,
Besa Road, Nagpur.
AWARD
(Dated: 15th May, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of Section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Telecom and their workman, Shri Brajesh
Kumar, for adjudication, as per letter No. L-40012/28/2006-
IR(DU) dated 20.10.2006, with the following scheduled:—
"Whether the action of the management of
General Manager, Telecom Project (R.E.)
Nagpur in terminating the services of their
workman, Shri Brajesh Kumar w.e.f. 7.12.1988
is legal and justified? If not, to what relief the
workman is entitled to?"
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman, Shri Brajesh
Kumar ("the workman" in short) filed the statement of claim
and the management of Telecom (Party No. 1" in short)
filed their written statement.
The case of the workman is that he was employed as
a casual labourer by the Party No. 1 for construction of the
workshop. Laying down of pipes, for maintenance of cables
and for doing other jobs on 01.07.1987 and his appointment
was against a clear and vacant post and he worked from
01.07.1987 to 07.12.1988 and from the date of his
appointment, he worked continuously with party No. 1
and completed more than 240 days of work in a calendar
year, but he came to be laid off, by the party No. 1 by notice
dated 07.12.1988, without payment of lay off compensation.
It is further pleaded by the workman that party No. 1 with
malafide intention prepared a seniority list on 18.11.1991 in
order to defeat his claim and falsely remarked in the said
seniority list against his name as, "left the job on his own
accord" and he had never left the job on his own accord
and as such, he along with some others preferred Original
Application No. 163/1993 through the union, 'the Nagpur
Casual Labourers' Union", before the Central Administrative
Tribunal, Bombay Bench at Nagpur ("the CAT" in short)
assailing the said list and claiming certain directions
including of providing work as per seniority list and the
said petition was disposed of on 02.11.1999 by the CAT
with a direction to the party No.1 to consider and decide
the representations of himself and the union and the union,
"Nagpur Telecom Casual and Permanent Labour Union"
had filed Original Application No. 609/1994 before the CAT
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2129
and the said application was disposed of on 17.09.1998 by
the CAT with the direction to the party No. 1 to pass a
speaking and reasoned order in respect of the
representations submitted by himself and the other
applicants and in the said original application, by order
dated 10.02.2000, direction was given by the CAT to himself
and the other applicants to give individual representation
to party No. 1 and to consider such applications by party
no. 1, within three months. It is further pleaded by the
workman that after his oral termination, he did not receive
any communication form party No. 1 and his
representations were never decided by the party No. 1 and
he was under the impression that his illegal termination
was callanged in the original application filed in the CAT
and it was only in May, 2005, he came to know that his
illegal termination was not challenged and under such
circumstances there was delay in raising the dispute.
The further case of the workman is that he had
rendered continuous and uninterrupted service with the
party No. 1 in a calendar year and though he presented
himself for work practically every day after 07.12.1988, he
was not provided with any work and party No. 1 orally
terminated his services w.e.f. 01.01.1989 and termination of
his services is illegal, arbitrary and mala fide amounting to
unfair labour practice and party No. 1 neither gave the
notice of retrenchment nor paid any wages in lieu of the
notice or the retrenchment compensation and the party
No. 1 did not display the seniority list prior to his
retrenchment and his termination is in violation of the
provisions of sections 25-F, 25-G, 25-H and 25-N of the Act.
Prayer has been made by the workman to declare the action
of the party No. 1 to be illegal and unjustified and to
reinstate him in service with full back wages and
consequential benefits.
3. The party no. 1 in their written statement have
pleaded inter-alia that the workman was engaged on
01.08-1987 as a casual labourer for a specific work and for a
specific period with a condition that his services would be
depended upon the completion of the project and he was
never appointed against any vacant or permanent post
and the workman did not work continuously from 01.8.1987
to 07.12.1998 and he did not complete 240 days of work in
one calendar year and by letter dated 07.12.1988, the
workman was intimated about the status of the works
available in R.E. Division and the project work of R.E.
Division was completed on 30.06.1990 and the workman
was never laid off and he left the job on his own accord,
before completion of the project work and therefore question
of paying lay off compensation does not arise at all and the
directions given by the CAT were duly observed by them
and the union representing the workman filed cases before
the CAT bearing Original Application No. 163/1993, 609/
1994 and C.P. No. 25/1999 and the said cases were disposed
of by the CAT with directions that individual representation
should be filed by every applicant pointing out the
anomalies in the seniority list of casual labourers and the
department should pass a speaking and reasoned order in
respect of the representations within three months and
accordingly, the workman submitted his representation and
on 19.05.2000, the said representation was rejected by
speaking order by them and the reasons stated by the
workman regarding the delay are not bona fide and it is not
true to say that the workman presented himself practically
everyday after 07.12.1988 and he was not provided with
work and he left the work without any prior permission and
intimation and his case was reconciled in the office of ALC,
Nagpur and as a result of the reconciliation and settlement
dated 06.03.1990, the workman was taken back on duty
and he was sent to the working party vide letter dated
12.03.1990 and he worked for only one day and remained
absent thereafter without prior permission and intimation
and the engagement of the workman as a casual labourer
for a specific project work and for a specific period and as
he was never appointed as per Recruitment Rules or against
any sanctioned post and such facts were duly intimated to
the workman and he was very well aware about the actual
status of the work and as such, he has no right, much less
legal right to claim any appointment or reinstatement to
the post and as the engagement was temporary on daily
wages, no right was bestowed on him and his services
were liable to be discontinued at any point of time and the
workman is not entitled to any relief.
4. In support of their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence. The workman has examined himself
as a witness in support of his case. One Shri Gopal Badole,
has been examined as a witness by the party No. 1.
5. In his examination-in-chief, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim. However, in his cross-examination, the
workman has stated that he was engaged by BSNL as a
casual labourer and his engagement was for laying of
underground cable and no appointment order was issued
by the BSNL and by notice dated 07.12.1988, Ex. W-II, he
was intimated that he would be laid off, after the completion
of the on-going construction and the project in which he
was working was to be completed by 30.06.1990 and he
himself and some other casual workers had approached
the CAT through the union in O.A. No. 599/1990 and in
that O.A., BSNL was directed to prepare a combined
secniority list of casual labourers and to provide work to
the casual labourers according to the seniority list and as
per the direction of the CAT, BSNL prepared the combined
seniority list, Ext. W-III of the casual labourers and his
name was at serial No.816 in the said seniority list and as
per the direction of the CAT, he filed his representation on
25.02.2000 and his representation was rejected by BSNL as
per order dated 19.05.2000 and after rejection of his
representation, he approached the ALC and there was a
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[PART II—SEC. 3(ii)]
settlement and the management of BSNL agreed to take
him back in service and as per the said settlement, he
attended duty for one day and he has not mentioned either
in his statement of claim nor in his affidavit that he was not
allowed to work by the management. The workman has
further admitted that he worked with BSNL till 06.03.1990.
6. The witness for the party no. 1 in his evidence on
affidavit has also reiterated the facts mentioned by the
party no. 1 in the written statement. In his cross-examination,
the witness has stated that the workman was engaged
under Railway Electrification Project and the said project
was to continue till 1990 and as per the order of the CAT in
O.A. No. 599/1990, the Telecom department prepared a
seniority list of the casual workers, Exhibit W-III and the
name of workman was at serial No. 816 of the said list and
in the remarks column against the name of the workman
"left job on his own accord" has been mentioned.
7. During the course of argument, it was submitted
by the learned advocate for the workman that the workman
worked from 01.07.1987 to 07.12.1988 continuously and
completed more than 240 days of continuous service, but
in violation of the mandatory provisions of Law, the
workman was laid off by an order passed on 07.12.1988 and
the management had wrongly marked the workman as "left
job on his own accord" in the seniority list and therefore,
the workman is entitled for reinstatement in service with
full back wages and consequential benefits.
In support of the contentions, the learned advocate
for the workman placed reliance on the decisions reported
in 2005 III CLR 250 (Lalchand Vs Industrial Court), 2008 I
CLR 429 (Neeranjan Cinema Vs Prakash Chandra Dubey)
and 2002 I CLR 132 (Pancham Singh Vs State of Haryana &
another).
8. Per contra, it was submitted by the learned advocate
for the party no. 1 that the workman was engaged as a
casual labourer for a specific project and for a specific
period and the workman has admitted such facts in his
cross-examination and the workman was not appointed as
per recruitment Rules or against any sanctioned post and
there was a settlement between the workman and the
management before the ALC and as per the said settlement,
the workman attended duty for one day as the workman
left the job on his own accord, before completion of project
work, the question of paying lay of compensation does
not arrive and the workman was not terminated from the
services w.e.f. 01.01.1989 and no legal right was vested
upon the workman to claim appointment or reinstatement
in service as he was never appointed as per recruitment
rules or against any sanctioned post and the reference is
belated reference and no explanation has been given by
the workman for the delay and on this said count the
reference is liable to be answered in negative and the
workman has not produced to show that he had worked for
240 days in one calender year and as such, there is no
question of violation of Section 25-F of the Act and for that
the workman is not entitled for any relief.
9. On perusal of the statement of claim, written
statement and evidence, both oral and documentary
adduced by the parties, it is found that the workman worked
240 days in the preceding 12 months from the alleged date
of termination of service. Hence, I do not find any force in
the contention raised by the learned advocate for the Part
No.1 that the workman did not complete 240 days of service
in one calendar year.
10. According to the claim of the workman and so
also as per the schedule of the reference, the services of
the workman were terminated by order dated 07.12.1988.
The so called termination order dated 07.12.1988 has been
marked as Exhibit W-II. On perusal of Exhibit W-II, it was
found that the same is actually not a layoff notice, but the
same was a notice by the Party No. 1 of a possible layoff
due to completion of the ongoing project. In the said notice,
it was intimated to the workman that the construction work
in which the workman was working was going to be
completed and there was no likelihood of additional work
and the workman would be laid off after the completion of
ongoing construction work under A.E.T. (R.E.), Nagpur.
The workman was further intimated by the said notice that
his services might again be required at the time of
dismantlement work in Nagpur-Pandhurna Section and as
such to keep in touch with the office for future development.
In the statement of claim in paragraph 3, the workman
has mentioned that on 07.12.1998, he was served with a
notice of lay off by the management. The said statement
apparently appears to be not correct, as because, the layoff
notice was dated 07.12.1988 and was not of 07.12.1998 as
mentioned by the workman. In paragraph 1 of the statement
of claim, the workman has mentioned that he worked
continuously from 01.07.1987 till 07.12.1988. However, in
paragraph 10 of the statement of claim, the workman has
mentioned that the management orally terminated his
services w.e.f. 01.01.1989. In his cross-examination, the
workman has admitted that he worked with BSNL till
06.03.1990. On perusal Exhibit W-I, the personal record of
employment-cum-muster roll, which has been produced
by the workman, it is found that the workman worked with
the Party No. 1 from 01.08.1987 till 31.05.1990 and not from
01.07.1987 to 07.12.1988 as claimed by the workman. So, it
clear from the materials on record that the workman was
not terminated from the services on 07.12.1988 or 01.01.1989
as claimed by him. From the materials on record and the
discussions made above, it is clear that the services of the
workman were not terminated vide notice dated 07.12.1988
as mentioned in the schedule of reference. It is also clear
from the materials on record that the workman did not come
to work in view of the notice dated 07.12.1988. It is also
clear from the materials on record that in view of the
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2131
settlement between the workman and the Party No. 1 before
the ALC, the workman was taken back in service and he
worked for only one day and thereafter he remained absent.
From the materials on record and the discussions made
above, it is clear that the services of the workman were not
terminated vide notice dated 07.12.1988 as mentioned in
the schedule of reference. It is also clear from the materials
on record that the workman did not come to work in view of
the notice dated 07.12.1988. It is found erom the materials
on the record that the engagement of the workman was on
casual basis as a daily wager and his appointment was not
made according to the recruitment rules of Party No. 1 and
his engagement was for a specific project till completion of
the said project. It is also clear that the workman in view of
the notice dated 07.12.1988 left the work on his own accord
before completion of the project. Hence, there was no
question of compliance of the provisions of Section 25-F
of the Act. The schedule of reference as made by the Govt.
seems not to be correct.
As the facts and circumstances of the case in hand
are quite different from the facts and circumstances of the
cases referred in the decisions cited by the learned advocate
for the workman, with respect, I am of the view that the said
decisions have no direct application to this case.
Hence it is ordered:
ORDER
The reference is answered in the negative and against
the workman. The workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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New Delhi, the 13th February, 2014
S.O. 784.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGIT/
NGP/62/2002) of the Central Government Industrial tribunal/
Labour Court, Nagpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of the Sr. Supdtt. of Post Offices,
Department of Post, Amravati and their workman, which
was received by the Central Government on 05/02/2014.
[No. L-40012/105/96-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/62/2002
Date: 14.08.2013.
Party No. 1
: The Sr. Suptd. of Post Offices,
Amravati Division, Amravati (M.S.)
Versus
Party No. 2
: Shri K.S. Jadhav, C/o. Shri Laxman
Mankar, Juna Diara, Ward No. 27,
Shanivar Peth, Warud, Tah. Warud,
District: Amravati (M.S.)
AWARD
(Dated: 14th August, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government had referred the industrial
dispute between the employers, in relation to the
management of Post Office and their workman, Shri K.S.
Jadhav, for adjudication, to CGIT-Cum-Labour Court,
Jabalpur as per letter No. L-10012/105/96-IR (DU) dated
16.01.1998, with the following schedule:—
"Whether the action of the management of Sr.
Suptd. of Post Offices, Amravati in terminating
the services of Shri K.S. Jadhav is legal and
justified? If not, to what relief the workman is
entitled and from what date?"
The case was subsequently transferred to this
Tribunal for adjudicatio in accordance with law.
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri K.S. Jadhav,
("the workman" in short), filed the statement of claim and
the management of Post Office, ("Party No. 1" in short)
filed their written statement.
The case of the workman as presented in the
statement of claim is that he was appointed as an Extra
departmental delivery Agent w.e.f. 12.07.1979 with party
no. 1 and subsequently, he was appointed as the Branch
Post Master w.e.f. 30.06.1981 at Tembhurkheda Branch Post
Office in the District of Amravati and his salary was
Rs. 1050/- per month and after serving for about 14 to 15
years, he had to proceed on leave for his ill health and he
had been advised by the doctors to take long treatment for
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
diseases of Hernia and Psychiatric complaints and as the
said ailments were very expensive, the same put him under
mental pressure and financial difficulties and his superior
officer, the SD1, Morshi, Shri Dekate advised him not to
take leave on medical ground, but to resign from the job
temporarily for some days and that he would be again taken
back in service and he being an illiterate and innocent
servant, relied upon the said advice and tendered his
resignation on 09.03.1994 and to his great surprise, he
received two communications from party no. 1 as per letter
dated 27.01.1995 and letter dated 30.01.1995 and in the first
letter, it was intimated that his put-off case was revoked by
the administration and in the second letter, he was informed
about the acceptance of his resignation and he was at a
loss to understand as to why and how, those two letters
being of quite different in nature and bearing two different
dates were sent to him in one envelope and the said facts
showed the intentional ill motive of party no. 1 and the
action of party no. 1 was a patent predetermined malafide
act and was done with ulterior motive by flagrant
contravention of the office procedure and Rules and Shri
Dekate was instrumental to drive him out from office, by
giving wrong advice and the per-forced resignation is not
legal and the same was taken from him by fraud and can be
treated as a forged document in the eye of law and as he
was in service for nearly 15 years, he had acquired the
status of a permanent employee and the conferment of
permanent status on him guaranteed security of service
and his removal from services abruptly and arbitrarily and
in violation of the principles of natural justice, without
giving any notice, show cause or pay in lieu of notice is
unjustified and therefore, he is entitled for reinstatement in
service.
3. The party no. 1 in the written statement has pleaded
inter-alia that the reference is outside the jurisdiction of
the Tribunal as the Hon'ble Apex Court in their judgment
dated 02.02.1996 in Civil Appeal No. 3385/86, arising out of
SLP(C) No. 587-588 of 1992 have held that the department
of post is not an "industry" and its employees are not
"workman" under the provision of the Act.
The party no. 1 after denying the allegations that,
"The workman had to proceed on leave for his ill health
and doctors had advised him to take long treatment for
decease of Hernia and psychiatric complaints" has pleaded
that the certificates dated 17.02.1994 and 27.02.1994 did
not specify as to how long the workman was required to
take rest and the certificates issued by two different doctors
do not bear the date on which they were issued. It is further
pleaded by party no.1 that the workman was working in the
capacity of Extra-departmental Branch Post Master,
Tembhurkheda Branch office and was governed by Extra
Departmental Conduct and Service Rules and the workman
did not obtain any sanction for leave or approval for
arranging any substitute from any authority as per the
DG's instructions and he handed over the charge of the
branch post master to some unauthorized person and
remained unauthorized absent for the period from
05.02.1994 to 08.03.1994 and the said period of absence
was treated as unauthorized absence and no pay and
allowance were paid to him and the workman is SSC passed
and he cannot be said to be an illiterate person and he had
already rendered 14 years of service and was well aware
with the service Rule and it is absolutely absurd and
unbelievable that the workman tendered his resignation
on the advice of his superior officer and on the contrary,
the workman embezzled the money received by him from
the depositors and on the complaint of the depositors, an
enquiry was initiated against him and pending enquiry, he
was put off duty on 10.03.1994 and the same was further
confirmed by the appointing authority on 18/21.03.1994
and when the enquiry was in progress, fearing the
consequences including putting off duty, the workman sent
his unconditional resignation dated 09.03.1994 by post to
the SDI, Morshi, who forwarded the same to the Appointing
Authority i.e. Senior Suptd. of Post Offices, Amravati
Division, Amravati and the resignation tendered by the
workman was not accepted immediately, as the enquiry
was in progress and the workman brought to its knowledge
about the settlement of the claim of the depositors by
paying them the money and after completion of the enquiry,
the put off duty order was revoked, vide memo dated
27.01.1995 and the resignation of the workman dated
09.03.1994 was accepted vide memo dated 30.01.1995 and
the workman handed over the charge of the Extra
departmental Branch Post Master on 02.02.1995 and he
stood relieved from services on 02.02.1995 and there was
no ill motive on its part and the resignation was never
obtained by fraud and the same was never per forced and
the workman had enough time to withdraw his resignation
and it cannot be said that no opportunity was given to him
in terms of principles of natural justice and the workman
after four years has come with the case, which is nothing
but only to harass it and there being no merit in the
statement of claim, the same is liable to be dismissed and
the workman is not entitled to any relief.
4. In order to prove their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence.
The workman has examined himself as a witness in
support of his case, whereas, one Shri Abarao Kashiram
Ingle, an Asstt. Suptd. Post Offices has been examined as
a witness on behalf of the party no. 1.
5. In his examination-in-chief, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim. He has further stated that realizing that
party no. 1 may victimize him by way of accepting his
resignation letter dated 09.03.1994, he gave an application
dated 21.05.1994 and requested to cancel his resignation
and to treat the same to be withdrawn and therefore, the
acceptance of his resignation vide order dated 30.01.1995
is illegal.
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In his cross-examination, the workman has admitted
that the post master is expected to get the leave sanctioned,
before proceeding on leave and he proceeded on leave
from 05.02.1994 to 07.02.1994 and then from 17.02.1994 to
01.03.1994 and his leave was not sanctioned on both the
occasions, before his proceeding on leave. The workman
has further admitted that an enquiry was pending against
him for misappropriation of Government Fund and he was
placed on put off duty i.e. he was suspended during the
enquiry. The workman in his cross-examination has further
admitted that on 09.03.1994, he gave resignation letter in
his own handwriting and the same was sent directly to the
sub-division office, Morshi and Ext.-M3 is his resignation
letter dated 09.03.1994, which was written and signed by
him and his suspension was revoked by the order dated
27.01.1995 as per Ext. M4 and his resignation was accepted
by the management as per Ext.-M5 and he handed over
charge on 02.02.1995 as per in report, Ext.-M6. It is also
admitted by the workman that he cannot assign any reason
for not mentioning about the withdrawal of his resignation
by letter dated 21.05.1994 and Ext.-M7 is his representation
by registered post to the Department requesting to take
him back in service.
6. The witness for the party no. 1 has also reiterated
the facts mentioned in the written statement, in his
examination-in-chief, which is on affidavit. Though this
witness has been cross-examined at length, nothing of
substance has been brought out to disbelieve his evidence.
Rather, in the cross-examination, suggestions were given
to the witness that the workman submitted his
unconditional resignation and the resignation of the
workman was accepted by the authorities by memo dated
30.01.1995 and such suggestions were admitted to be true
by the witness. This witness has also further stated that
the delay in accepting the resignation was due to pendency
of investigation against the workman for embezzlement of
government money.
7. At the time of argument, it was submitted by the
learned advocate for the workman that during the whole
period of service of about 16 years of the workman, no
charge sheet or show cause notice was issued against him
and there was also never any departmental enquiry against
him and his entire service record was clean and unblemished
and as he was ill, on 05.02.1994, he handed over the charge
of the post office to an authorized substitute and submitted
sick leave application with medical certificate first from
05.02.1994 and 07.02.1994 and then from 17.02.1994 to
08.03.1994, but he was not granted sick leave and was
treated as unauthorized absent and the Suptd. of Post
Offices, Morshi, Shri Dhakate by taking advantage of his
mental as well as physical illness, forced him to submit his
resignation on 09.03.1994, with the assurance that his
resignation would not be accepted and he would be allowed
on duty after some time and the workman was on put off
duty w.e.f. 10.03.1994 for enquiry regarding alleged
misappropriation of government money and when the
workman became fit for duty, he submitted letter dated
21.05.1994 for withdrawal of his resignation and though
management received the letter of withdrawal, refused to
give any acknowledgment and the service of the workman
was terminated on the basis of false and fabricated charge
of misappropriation of government money under the cover
of accepting his forced resignation by the management
and no charge sheet was issued against the workman and
no enquiry was conducted against him and the workman
was not given any notice or notice pay in lieu of the notice
and retrenchment compensation in violation of the
provisions of Sections 25-F and 25-G of the Act and the
termination of the services of the workman is against the
principles of natural justice and the case of the workman is
an illegal victimization and in view of the submission of the
withdrawal letter dated 21.05.1994, it can be held that the
resignation dated 09.03.1994 was not in operation and was
treated as withdrawn and cancelled and the workman is
entitled for reinstatement in service with continuity and
full back wages.
8. Per contra, it was submitted by the learned advocate
for the party no. 1 that the statement of claim has been filed
by the workman only claiming reinstatement in service and
the workman in his cross-examination has admitted about
the initiation of the enquiry for misappropriation of money
and during the pendency of the enquiry, the workman
submitted his resignation on 09.03.1994 voluntarily and
after revocation of put off duty, the resignation of the
workman was accepted on 30.01.1995 and charge was
handed over by the workman voluntarily without any
protest as per the document, Ext.-M6 and the contention
of the workman that he had withdrawn his resignation has
not been proved by the workman, hence question of
termination does not arise at all and hence, the reference is
to be answered in the negative and the reference vide order
dated 16.03.1998 is a belated reference and in view of the
settled law that belated claim of reference is to be dismissed
and therefore, on this count also, the reference is to be
answered in negative.
9. Before delving into the merit of the case, I think it
proper to deal with the objection raised by party no. 1 that
the department of post is not an industry and its employees
are not workman, under the provisions of the Act, so the
reference is outside the jurisdiction of the Tribunal.
In this regard, I think it proper to refer to the decision
of the Hon'ble Apex Court reported in AIR 1998 SC 656
(G.M. Telecom Vs. A Srinivasa Rao) (a bench of three Hon'ble
Judges). The Hon'ble Apex Court in the above mentioned
judgment haveover ruled the earlier judgment of the Hon'ble
Apex Court in which, it was held that postal department is
not an industry. Applying the principles laid down by the
Hon'ble Apex Court in the decision reported in AIR 1998
SC-656 (Supra) and (1978) 2 SCC-213 (Bangalore Water
2134
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Supply and Sewerage Board Vs. V. Rajappa) to the present
case in hand, it is held that the department of post is an
industry and its employees are workman. So, the objection
raised by the party No. 1 on that score fails.
10. In this case, after going through the materials on
record including the pleadings, evidence, both oral and
documentary and after taking into consideration the
submissions made by the learned advocate for the parties,
it is found that the workman was working as the Extra
Departmental Branch Post Master of Temburkheda branch
post office and while an enquiry was pending against him
for misappropriation of government fund and he was on
put off duty, he submitted his resignation by letter dated
09.03.2004, which was written and signed by him and he
sent the same directly to the sub-divisional office, Morshi
by post and his put off order was revoked by order dated
27.01.1995 and his resignation was accepted by the
management on 30.01.1995 and the workman handed over
the charge of the post office on 02.02.1995 (as per the own
admission of the workman in the cross-examination and
the documents, Exts M-3 to M-6).
10. According to the workman, he was forced to
submit the resignation by Shri Dhekate, the SDI of Morshi
and though he had submitted the application dated
21.05.1994 to cancel his resignation and to treat the same
as withdrawn, no action was taken on the same and inview
of the same, his removal from services is illegal, unjustified
and against the principles of natural justice.
11. At this juncture, I think it proper to mention that
it is well settled by the Hon'ble Courts in a number of
decisions that evidence tendered in court should be based
on claim statement and court have be alert on this and
inconsistent stand of party in court will not bring in any
result.
In this case, in the entire statement of claim, the
workman has no where whispered a single word about
withdrawal of his resignation by letter dated 21.05.1994.
For the first time, in his evidence filed on affidavit before
this Tribunal, the workman mentioned about submission
of the letter for withdrawal of his resignation by letter dated
21.05.1994 and that too without filing any copy of such
letter. In his evidence also, the workman did not mention as
to when, as to how and to whom, he gave the letter dated
21.05.1994. In his examination-in-chief, he has only
mentioned that "I further realized that the respondent may
victimize me by way of accepting my resignation letter dated
09.03.1994, which was taken by force and coercion.
Therefore, I gave application dated 21.05.1994 and requested
to cancel his resignation letter dated 09.03.1994 and treated
it as "withdrawn".
In his cross-examination, the workman has stated
that he personally had gone to the Divisional Office for
withdrawing the resignation and he must have the copy of
the withdrawal letter and he has no reason as to why it is
not on record and he handed over the resignation to the Sr.
Suptd., Shri Raut and there was no reason for not accepting
the letter and he did not send the same by post again and
he did not complain to the higher authority about refusal
as well as withdrawal of resignation.
After going through the evidence of the workman
and the documents on record, it is clear that the workman
has failed to show that he was forced to give the resignation
or that he had submitted the letter dated 21.05.1994 to the
authority for withdrawal of his resignation. If, actually, the
workman had been forced to give the resignation and he
had submitted the letter dated 21.05.1994 for withdrawal of
his resignation, then he would not have given the charge
of his post on 02.02.1995 without any protest or raising
any objection. If, actually the workman had submitted the
letter dated 21.05.1994 to party No. 1, then he would have
definitely pleaded such an important fact in the statement
of claim. It is clear from the materials on record that the plea
of the workman that he had submitted the application dated
21.05.1994 for withdrawal of the resignation is an
afterthought to suit his claim.
It is clear from the materials on record and the
discussions made above that the workman voluntarily
submitted his resignation on 09.03.1994 and the party
No. 1 rightly accepted the resignation on 30.01.1995. As
this is a case of acceptance of the voluntary resignation of
the workman, there is no question of giving him any pre-
notice or notice pay in lieu of notice or retrenchment
compensation. Hence, it is ordered:—
ORDER
The reference is answered in negative and against
the workman. The workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 13 Qjojh] 2014
dkñvkñ 785.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lhfu;j lqifjUVsUMsUV
vkWQ+ iksLV vkWfQl] fMikVZesaV vkWQ+ iksLV] ukxiqj ds izca/kra= ds
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vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je
U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k lhthvkbZVh@,uthih/07/
2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 05@02@2014 dks
izkIr gqvk FkkA
[lañ ,y&40012@124@2004&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 13th February, 2014
S.O. 785.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. CGIT/
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2135
NGP/07/2005) of the Central Government Industrial
Tribunal/Labour Court, Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The Sr. Supdtt. of Post
Offices, Department of Post, Nagpur and their workman,
which was received by the Central Government
on 05/02/2014.
[No. L-40012/124/2004-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/07/2005
Date: 31.07.2013.
Party No. 1
: The Sr. Supdtt. Of Post Offices,
Department of Post, Nagpur
Nofussil Division, Dhantoli,
Nagpur.
Party No. 2
: Shri Govind T. Shivankar,
R/o Juna Futala, Near Hanuman Mandir,
Amravati Road, Nagpur (M.S.).
AWARD
(Dated: July, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of Section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Department of Post and their workman,
Shri Govind Tukaram Shivankar, for adjudication, as per
letter No. L-40012/124/2004-IR(DU) dated 04.01.2005, with
the following schedule:—
"Whether the action of the management of
Department of Post, Nagpur (MS) in awarding
the punishment of dismissal from services vide
order dated 08.10.1985 to Shri Govinda Tukaram
Shivankar, Ex-Departmental Post Master,
Mokhebardi Branch Post Office, is justified? If
not, to what relief is the workman is entitled?"
2. On receipt of the reference, parties were noticed to
file their respective statement of claim and written statement,
in response to which, the workman Shri Govinda Tukaram
Shivankar, ("the workman" in short) filed the statement of
claim and the management of Department of Post ("party
No. 1" in short) filed the written statement.
The case of the workman as presented in the
statement of claim is that he came to be appointed as a
branch post master at Mokheburdi Sub-post Office of
Nagpur District on 23.12.1978 and while he was working as
such, on 13.09.1983, the Assistant Superintendent of post
offices inspected the Post Office at Mukherburdi and found
a sum of Rs. 3,277.75 missing and as such, a report was
lodged against him in the police station, Waltur and case
under Section 409, 467, 471 of the Indian Penal Code was
registered against him and police filed three cases against
him in the court of the Chief Judicial Magistrate at Nagpur
and in all the three cases, he was acquitted by orders dated
27.05.2002, 28.05.2002 and 29.05.2002 and during the
pendency of the trial of the criminal cases, due to the
persuasion of Party No. 1, his father deposited the amount
of Rs. 3,277.75 with Party No. 1, without his knowledge and
consent, on the assumption that he (workman) would be
saved from possible trouble. The further case of the
workman is that the claim of Party 1 that he did not attend
the departmental enquiry and that his father was a witness
for the prosecution in the enquiry is false and his father is
illiterate and signatures of his father were taken on blank
paper by Party No. 1, with false promise that his service
would be protected and the Party No. 1 conducted the
enquiry ex-parte, in violation of the principles of natural
justice. It is further pleaded by the Party No. 1 that after his
acquittal in the criminal cases, on 13.03.2003, he made a
representation to the Party No. 1 praying for his re-
instatement and refund of the amount of Rs. 3,277.75, which
was deposited by his father, but there was no response
from the Party No. 1 and the contention of Party No. 1 that
the court while acquitting him, did not direct for his
reinstatement in service is quite wrong, as a criminal court
cannot give such direction and it is settled law that if an
employee is acquitted of criminal charges, he is entitled to
be reinstated in service with all consequential benefits and
as the Party No. 1 did not accept his prayer for reinstatement,
he approached the Labour Commissioner (Central) for
conciliation and upon failure of conciliation, the case has
been referred to the Tribunal for adjudication.
The workman has prayed to answer the reference in
his favour and against the Party No. 1.
3. The Party No. 1 in their written statement have
pleaded inter-alia that the workman did not work as Branch
Post Master of Mokheburde up to 30.08.1983 and while
working as the Branch Post Master of Mokheburde Branch
Office, he absconded with office cash of Rs. 877.75p since
22.08.1983 and the then Assistant Superintendent of post
offices investigated into the matter and during the
investigation, it was found that on 22.08.1983, the workman
left the post office with the cash and then remained absent
and he had misappropriated government money to the tune
of Rs. 3,277.75p and therefore, a complaint was lodged
against him at the police station of Waltur for
misappropriation of S.B/R.D. amount and after completion
of investigation, police filed charge-sheet against the
workman in the court of Umrer and later on, the cases were
transferred to the court of Chief Judicial Magistrate, Nagpur
and the workman was acquitted by the court, because the
prosecution witnesses, who were the residents of
2136
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Mokheburde village, did not support the prosecution case.
It is further pleaded by Party No. 1 that father of the workman
was aware of the fact that his son was absconding from
duty with government money, hence he credited the
amount of Rs. 3,277.75p voluntarily and they had never
persuaded him to deposit the amount and disciplinary
action under Rule 8 of E D A (Conduct and Service) Rules,
1964 was instituted against the workman on 02.04.1985 and
he was charge- sheeted for absconding with office cash of
Rs. 877.75p since 22.08.1983 and the charge- sheet was
delivered to the workman on 16.04.1985, but he did not
reply to the charge sheet, so an enquiry officer was
appointed on 16.06.1985 to enquire into the charges and
the Enquiry Officer started the enquiry proceedings, but
the workman did not attend the enquiry proceedings, hence
the Enquiry Officer conducted the enquiry ex-parte and
there was no irregularity or illegality in the enquiry and
after due enquiry and recording the statement of witnesses,
the Enquiry Officer held the charges leveled against the
workman to have been proved on the basis of documentary
and oral evidence produced during the course of the enquiry
and the enquiry was finalized on 08.10.1985 and the
workman was dismissed from service with immediate effect
from 08.10.1985 and the copy of the punishment order as
delivered to the workman on 24.10.1985 as per
acknowledgement available on records and the workman
did not prefer any appeal before the Competent Authority
for redressal of his grievances.
Party No. 1 has further pleaded that they did not
receive any representation dated 13.03.2003 submitted by
the workman and criminal case and departmental enquiry
are different matters and the charges in the criminal case
and departmental enquiry were different and the charges
in the departmental enquiry was proved on the basis of the
documentary and oral evidence and an appropriate
punishment was awarded against the workman keeping in
view the gravity of the charge and as such, the workman
cannot be reinstated in service.
4. As this is a case of dismissal of the workman from
services after conducting of a departmental enquiry, the
validity of the enquiry was taken up as a preliminary issue
for consideration and by order dated 12.11.1012, the
departmental enquiry was held to be legal proper and in
accordance with the principles of natural justice.
5. At the time of argument, it was submitted by the
learned advocate for the workman that in the departmental
enquiry, the charge has not been established and proved
and bare perusal of the enquiry report will reveal that it is
illegible and consists of two pages only and the enquiry
officer has not recorded the statement and documents have
not been exhibited and it is settled position of law that the
Tribunal cannot travel beyond the scope of the reference
and the Tribunal has to either answer the reference in
affirmation or in negative and the issue about delay and
latches cannot be raised and after the enquiry was over,
management did not issue any show cause notice to the
workman calling upon his comments on the so called
enquiry and its report and non-issuance of show cause
notice after conducting enquiry was not only illegal, but
also took away his rights of giving his say on the enquiry
report and as such, the enquiry is vitiated and the dismissal
order needs to be set aside and the workman is entitled for
reinstatement in service, full back wages and all other
consequential benefits.
6. In reply, it was submitted by the learned advocate
for the party No. 1 that vide order dated 12.11.2012, it has
already been held by the Tribunal that the departmental
enquiry held against the workman is legal, proper and in
accordance with the principles of natural justice and there
is no evidence on record to show that the punishment
imposed on the workman does not commensurate to the
charges levelled against him and in absence of such
evidence, it can be held that the punishment is proper,
legal and justified and the workman was holding a public
post and discharging public duty and misappropriation of
amount shakes the confidence of the public at large and
considering the proved misconduct in a properly held
departmental enquiry, the punishment of dismissal of the
workman from services is justified and the workman is not
entitled to any relief.
7. During the course of argument (in the written notes
of argument) much stress was given by the learned advocate
for the workman regarding the acquittal of the workman in
the criminal cases instituted against him. It was submitted
that the charge levelled in the departmental enquiry and
the charge in the criminal cases were one and the same and
thus no enquiry could have been conducted by the
management, as it would have disclosed the nature of the
defence of the workman and upon acquittal from criminal
cases, the workman represented for his reinstatement, but
no fruitful result was yielded and the stand of the
management that the workman has been acquitted but not
exonerated holds no water and in view of the acquittal of
the workman in the criminal cases, he should have been
reinstated in service.
8. At this juncture, it is to be mentioned that while
considering the preliminary issue, the question of initiation
of the departmental proceeding during the pendency of
the criminal case against the workman was considered and
it was held that the charges levelled against the workman
in the departmental enquiry and criminal cases were not
one and the same and the departmental proceedings and
criminal case can proceed simultaneously, as there is no
bar in their being conducted simultaneously.
So far the question of considering of the reinstatement
of the workman after his acquittal in the criminal cases is
concerned, I think it proper to mention the well settled
principles in this regard by the Hon'ble Apex Court as
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2137
reported in (2012) I SCC-442 (Karnatak S.R.T.C. Vs. M.V.
Vittal). The Hon'ble Apex Court have held that:—
"Held, question of considering reinstatement
after decision of acquittal or discharge by a
complaint Criminal Court arises only and only
if dismissal from services was based on
conviction by criminal court in view of
provisions of Art. 311(2) second proviso (a) of
constitution or analogous provisions in
statutory rules applicable in a case. In case
where enquiry is independent of criminal
proceedings, acquittal in criminal court as of
no help. Even if a person stands acquittal in a
criminal court, domestic enquiry can be held,
since standard of proof required in a domestic
enquiry and that in a criminal case are
different."
In the case in hand, the dismissal of the workman
was not based on his conviction in the criminal case. The
enquiry was independent of the criminal proceedings. So
the acquittal of the workman in the criminal case is of no
help to him.
9. Before delving in to the merit of the matters, it is to
be mentioned here that it is well settled by the Hon'ble
Apex Court in a series of decisions that the jurisdiction of
the Tribunal to interfere with the disciplinary matters for
punishment cannot be equated with an appellate jurisdiction
and the Tribunal cannot interfere with the findings of the
enquiry officer or the competent authority where they are
not arbitrary or utterly perverse and if there has been an
enquiry consistent with the rules and in accordance with
the principles of natural justice, what punishment would
meet the ends of justice is a matter exclusively within the
jurisdiction of the competent authority and if the penalty
can be lawfully imposed and is imposed on the proved
misconduct, the Tribunal has no power to substitute its
own discretion for that of the authority.
Keeping in view the above settled principles, now,
the case in hand is to be considered.
After perusing the material on record including the
papers of the departmental enquiry and taking into
consideration the submissions made by the learned
advocates for the parties, it is found that the enquiry officer
has arrived at the conclusions by analyzing the evidence
adduced in the departmental proceeding systematically and
so also in a rational manner. The findings of the enquiry
officer are based on the materials on record of the enquiry
proceedings and not on any extraneous consideration. It
is also found that this is not a case of no evidence or that
the findings of the enquiry officer are based on no evidence.
The findings of the enquiry officer are not as such, which
could not have been reached by a prudent man on the
materials available on record. Hence, the findings of the
enquiry officer cannot be said to be perverse.
10. So, for the proportionality of the punishment is
concerned, it is found that serious and grave misconduct
of misappropriation of money has been proved against the
workman in a properly conducted departmental enquiry
and therefore, there is no question of consideration of the
past record of the workman. The punishment of dismissal
from services imposed against the workman cannot be said
to be shockingly disproportionate to the serious
misconduct proved against him. Hence, there is no scope
to interfere with the punishment imposed against the
workman. Hence, it is ordered:—
ORDER
The action of the management of Department of Post,
Nagpur (MS) in awarding the punishment of dismissal from
services vide order dated 08.10.1985 to Shri Govinda
Tukaram Shivankar, Ex-Departmental Post Master,
Mokhebardi Branch Post Office, is justified. The workman
is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 14 Qjojh] 2014
dkñvkñ 786.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k jsyos
izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k pSUubZ
ds iapkV ¼lanHkZ la[;k 60@2011½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 14-02-2014 dks izkIr gqvk FkkA
[lañ ,y&41012@36@2011&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th February, 2014
S.O. 786.—In pursuance of Section 17 of the
Indutrial Disputes Act,1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 60/2011 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Chennai
as shown in the Annexure, in the industrial dispute between
the management of Southern Railway and their workmen,
received by the Central Government on 14.02.2014.
[No. L-41012/36/2011-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Thursday, the 30th January, 2014
Present: K.P. Prasanna Kumari, Presiding Officer
Industrial Dispute No. 60/2011
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
2138
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of Southern Railway and their workman]
BETWEEN
Smt. K. Jalaja
1st Party/Petitioner
AND
1.
The Divisional Railway Manager (Personnel)
Park Town, Office of the General Manager
Southern Railway
Chennai-600001
2.
The Finance Advisor and
2nd party/2nd
Chief Acctts. Offr.
Respondent
Office of the G.M., Park Town,
Southern Railway
Chennai-600001
APPEARANCE
For the 1st Party/Petitioner : Sri G. Elangovan, Advocate
For the 2nd Party/1st
: Shri P. Srinivasan, Advocate
and 2nd Management
AWARD
The Central Government, Ministry of Labour and
Employment vide its Order No. L-41012/36/2011-IR(B-I) dated
27.07.2011 referred the following Industrial Dispute to this
Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of
Southern Railway in imposing the penalty of
compulsory retirement from service w.e.f.
06.09.2000 on Smt. K. Jalaja vide their order
dated 12.03.2001, is leval and justified? To what
relief the workman is entitled?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 60/2011 and issued notice to both
sides. Both sides have entered appearance through their
counsel and have filed their claim and counter statement
respectively.
3. The averments in the Claim Statement in brief are
these:
The petitioner had joined the service of the Railways
as Junior Accounts Clerk in the Southern Railways on
03.07.1978. She was promoted to the post of Head Cleark in
1985. This post was later re-designated as Accounts
Assistant. Due to health problems the petitioner had to
undergo treatment and had been absent from work. The
Railways had initiated departmental action for her absence.
A farce of an enquiry was conducted after setting the
petitioner ex-parte. On the basis of the report of the enquiry
the petitioner was removed from service. On appeal the
punishment was modified to Compulsory Retirement. The
petitioner challenged the order before the Central
Administrative Tribunal, Madras bench. The Tribunal found
that the enquiry was not conducted in fair and proper
manner and directed reinstatement of the petitioner. The
petitioner joined duty on 16.11.2002 on the basis of the
direction of the Central Administrative Tribunal. The
Railways again proceeded against the petitioner for her
absence and a charge sheet was issued against her. An ex-
parte enquiry was against conducted against the petitioner
and she was found guilty. The Disciplinary Authority
dismissed the petitioner from service on the basis of the
enquiry report on 23.07.2007. The appeal filed by the
petitioner was also dismissed. On 09.10.2006 the petitioner
had applied for Voluntary Retirement on medical grounds
after her service for more than 25 years. But it was not
accepted. The action of the railways against the petitioner
is arbitrary, vindictive and against principles of natural
justice. The punishment imposed on the petitioner is harsh
and excessive. The charges leveled against her were not
proved. The Respondent may be directed to initiate
conciliation under the industrial Disputes Act and settle
the matter by recalling their records and permit the petitioner
to retire from service voluntarily.
4. The Respondent has filed Counter statement
contending as follows:
The petitioner was appointed in the Railways as Clerk
Grade-II and not as Junior Accounts Assistant. The
petitioner was a habitual absentee from work and was
intentional defaulter of bank loans availed by her without
the knowledge of the Administration. On financial
transactions of the petitioner having been brought to the
notice of the Railways, action has been taken up under the
Railway Servants (Discipline and Appeal) Rules besides
reporting to the State Police Authorities. Charge Sheet was
issued to the petitioner for unauthorized absence from
07.05.1997 to 05.05.1998 and 07.01.2000 to 28.02.2000 and
for entering into financial transactions with a number of
private and public sector banks without permission. Enquiry
was conducted against the petitioner and she was removed
from service based on the enquiry report. On appeal by the
petitioner the penalty was modified as Compulsory
Retirement on humanitarian grounds. The petitioner had
challenged the order before the Central Administrative
Tribunal and the Tribunal had directed her reinstatement
in service. However, the Tribunal had permitted the Railways
to conduct enquiry in accordance with law. The petitioner
was reinstated in service on the basis of the direction of
the Central Administrative Tribunal Subsequently,
departmental enquiry was conducted against her in
compliance with the prescribed procedure. Even though
notice of enquiry was given to the petitioner, she has not
turned up for the enquiry. All the notices sent to her were
returned with the endorsement that the addressee is not in
the address. To a reminder sent to the petitioner, she had
replied stating that she was not well. In the new address
given by her in this letter also she was asked to attend the
enquiry. This was also returned as she was not in the
address. Ultimately, enquiry had to be conducted ex-parte
¹Hkkx II—[k.M 3(ii)º
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2139
as the petitioner did not turn up for the enquiry. Based on
the enquriy report the penalty of dismissal from service
w.e.f. 23.07.2007 was imposed on the petitioner. The appeal
filed against this has been rejected. The petitioner is not
entitled to any relief. The petiton is to be dismissed.
5. The evidence in the case consists of the oral
evidence of WW1, MW1 and documents marked as Ex.
W1 to Ext. W51 and Ext.M 1 to Ext. M24.
6. The points for consideration are:
(i) Whether the punishment imposed on the
petitioner is legal and justifield?
(ii) What is the relief to which the petitioner is
entitled?
The Points
7. The petitioner, a railway employees had been
proceeded against departmentally for the unauthorized
absence from duty and also due to her financial transactions
by way or borrowing from financial institutions without
disclosing them to the employer. The report of the enquiry
was aginst the petitioner and she was dismissed from
service by order dated 23.07.2007. The appeal and revision
filed by her were dismissed. The petitioner has raised the
Industrial Dispute and consequently it has been referred
to this Tribunal for adjudication.
8. The petitioner was proceeded against on an earlier
occasion for the same charges and she was removed from
service by the Disciplinary Authority on her finding guilty.
On appeal preferred by her, the punishment has been
modified to one of Compulsory Retirement on her
approaching the CAT challenging this order, the CAT held
that the enquiry against her was not conducted in fair and
proper manner. The Tribunal had directed that she should
be reinstated in service with back wages. At the same time
the Tribunal made it clear that the employer is at liberty to
proceed against the petitioner complying with the
prescribed procedure. In accordance with the order of the
CAT the petitioner was reinstated in service and her back
wages were paid also. At the same time, the Railways, her
employer again initiated proceedings against her by issuing
Charge Sheet. An enquiry was conducted and she was
found guilty of the charges a second time. It was
consequently she was dismissed from service. The present
reference is on the basis of the dispute raised by her
challenging the second order of dismissal. The petitioner
has stated that the second enquiry conducted against her
also was not in fair and proper manner. She has stated in
her Claim Statement that the entire action of the Railway
"is arbitrary, vindictive and contrary to principles of natural
justice."
9. Though a contention regarding the fairness of the
enquiry is seen raised in the Claim Statement, this is not
seen pursued subsequently. The petitioner has not called
upon this Court to enter a finding regarding the question
of fairness of the enquiry before the matter has been
considered on merits. The case was proceeded as if there
is no challenge regarding the fairness of the enquiry at all.
10. On perusing the enquiry file which has been
produced before this Court and marked as Ext. M40, it could
be seen that there was no reason for the petitioner to make
any challenge on this ground also. The enquiry is seen
conducted fairly and properly. It is seen from the enquiry
file that the enquiry was proceeded ex-parte. A perusal of
the enquiry file reveals the repeated efforts made by the
Enquiry Officer to reach the petitioner so that the enquiry
could be conducted in her presence, with sufficient
opportunity to her to meet the proceedings. What is to be
made out from the record is that though the petitioner was
reinstated in service and has rejoined duty she has
subsequently absented herself without information to the
employer. The Enquiry Officer seems to have sent several
letters to the petitioner asking her to report for facing
enquiry. The first letter informing her of the enquiry that
was to take place on 14.10.2004 was returned undelivered
with the endorsement by the postal authorities that she is
not in the address. It is clear that the letter was sent in the
address that was furnished by the petitioner as the
residential address. The Enquiry Officer has then asked
the employer to verify the records and furnish the correct
address. Having been assured that the address to which
communication was sent was correct, he has sent another
registered letter and this was also returned with the
endorsement that the party has left. In the meanwhile, the
Administration has forwarded to him a copy of letter sent
by the petitioner showing another address. The Enquiry
Officer has then proceeded to send a letter to th petitioner
in this address given in her letter. The petitioner seems to
have received this and has sent a telegram stating that she
is ill and is advised bed rest and is unable to attend the
enquiry. Her telegram was followed by a letter, again, stating
her inability to attend the enquiry because of her health
condition. However, she did not find it necessary to enclose
a medical certificate alongwith the letter. The Enquiry
Officer had again sent registered letter informing her that
the enquiry is fixed on 29.04.2005. However, this letter was
returned with the endorsement that the addressee has left.
Inspite of this, the Enquiry Officer has again postponed
the enquiry and has sent registered letter to her again. Two
more such registered letters were addressed and these also
met with the same fate. Ultimately, the Enquiry Officer had
no other option but to proceed with the enquiry ex-parte.
He had commenced the ex-parte enquiry on 30.06.2005.
Thus it could be seen that every precaution has been taken
by the Enquiry Officer to see that the petitioner has the
opportunity to contest the proceedings initiated against
her. Though it was the second enquiry initiated consequent
to the challenging of the first one and the administrative
tribunal ordering ex-enquiry, the petitioner had not taken it
in the seriousness that was required.
2140
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
11. On going through the file of the enquiry
proceedings, it could be seen that even though the enquiry
was an-exparte one, the management had placed all the
relevant documents and examined the required witnesses
before the Enquiry Officer. In all 6 witnesses were examined
to prove the charges against the petitioner.
12. What actually were the charges alleged against
the petitioner? The first charge is that she had
unauthorizedly absented from duty from 07.05.1997 to
05.05.1998 and again from 07.01.2000 to 28.02.2000. The
second charge is that she entered into financial transctions
with several financial institutions and failed to intimate the
transaction entered into by her to the Railway
Administration, though the rules required it. The last charge
is that she has borrowed Rs. 1.00 lakh from a private
individual and have issued a cheque and this cheque has
been dishonoured resulting in a criminal case having been
filed against her.
13. Regarding the absence of the petitioner from duty,
a perusal of the Claim Statement itself would show that the
petitioner does not have a specific case regarding her
absence. She has stated in the Claim Statement that she
was suffering from health problems and consequently she
have been absent for some time. She has not stated whether
she had applied for leave and leave has been sanctioned or
whether she was absent unauthorizedly as alleged by the
Respondent. The relevant Attendance Registers were
marked before the Enquiry Officer and the Officer Incharge
of the registers were examined also. These registers and
the evidence showed that the petitioner was anuthorizedly
absent from 07.05.1997 to 30.06.1997, 01.09.1997 to
14.11.1997 and from 07.01.2000 to 28.02.2000. however, the
documents showing her absence from 17th November, 1997
to April 1998 were not produced. On the basis of this the
Enquiry Officer has found that the charge of unauthorized
absence is partially proved. The Enquriy Officer has reached
this finding based on the document and also the evidence
of the witnesses. There is no reason to differ from this
finding of the Enquiry Officer.
14. The witness examined as SW5 before the Enquiry
Officer and the documents marked through him had revealed
that the petitioner had financial transaction with some
financial institutions. It was revealed by SW5 that
intimation regarding this transactions were not given by
the petitioner to the Administration. So this charge also
was justifiably found by the Enquiry Officer to be proved.
15. Regarding the last charge, the non-bailable arrest
warrant issued against the petitioner in the criminal case
initiated against her for offence under Section-138 of
Negotiable Instruments Act has been produced and marked
before the Enquiry Officer. It could be seen that the financial
transactions entered into were without any intimation to
the employer though she was bound to do so. In the
circumstances there is no reason to vary from the finding
entered by the Enquiry Officer in this respect also.
16. In fact the petitioner seems to be not much
bothered about the findings entered by the Enquiry Officer
on enquiry. She is bothered about the punishment imposed
on her consequent to the report of the enquiry only. The
prayer of the petitioner in the Claim Statement is that orders
may be passed for her retirement from service with attendant
benefits. While the enquiry proceedings were going on
the petitioner seems to have written to the Respondent for
permission for voluntary retirement on medical grounds.
This seems to have been rejected.
17. The only question that now remains for
consideration is whether the punishment that was imposed
on the petitioner is too harsh and not in proportion to the
nature of the offence that was committed by her. In this
respect the very nature of the offence that are alleged
against her are to be considered. The main charge against
the petitioner is that she had been unauthorizedly absent
from duty for a long period. The petitioner, who did not
contest the enquiry or produce any documents in
justification of her absence has produced some documents
before this Court showing that she was having some illness.
It seems, even before she joined service, she had an open
heart surgery, as revealed from Ext. W2. As seen from Extn.
W10 she had another surgery in 2000 by which her uterus
was removed. For the offence of unauthorized absence of
a person who had been in continuous service for more
than 25 years one need not face the punishment of removal
from service itself. The other charge against the petitioner
is that she was entering into financial transactions without
intimation to the Administration. Certainly, she seems to
have been mismanaging her financial affairs. Even if this is
taken into account she need not meet the fate of a dismissal
from service. From the very charge it is seen that the total
amount of loan availed by the petitioner from the different
financial transactions comes to less than Rs. 35,000/-. Then
there is the amount of One Lakh borrowed by her resulting
in a criminal case having been initiated against her. But the
major penalty of dismissal from service need not have been
imposed on her on this account also.
18. In fact initially also the petitioner was proceeded
against for the same charges consequent to which she was
dismissed from service. However, earlier the petitioner
though removed from service by the Disciplinary Authority,
this order has been modified by the Appellate Authority to
one of Compulsory Retirement from service. This previous
order itself would show that Compulsory Retirement itself
is a sufficient punishment for the offences committed by
the petitioner. Probably because she had challenged the
previous order and succeeded in getting an order of
reinstatement, the concerned authorities had refused to
consider her request to modify the order and reduce the
rigour of the order by converting into one of compulsory
retirement thus providing her some means of sustaining
herself also. This fact also constrains me to find that the
punishment imposed on the petitioner is somewhat harsh
¹Hkkx II—[k.M 3(ii)º
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2141
and is liable to be modified. I find that Compulsory
Retirement will be punishment in proportion to the offences
committed.
19. Accordingly, the punishment imposed on the
petitioner is modified and is converted into Compulsory
Retirement from service w.e.f. 23.07.2007. The petitioner
will be entitled to pensionery and other benefits from
23.07.2007.
(Dictated to the P.A. transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 30th January, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
: WW1, Mrs. K. Jalaja
For the 2nd Party/1st & 2nd Management : MW1, Sri N.
Vijayraghavan
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
27.09.1978
Appointment Order
Ex. W2
15.02.1978
RH/PER-Open Heart Surgery Report
Ex. W3
29.12.1999
Scan Report
Ex. W4
05.01.2000
Advocate Notice-K Perumal Swamy
Ex. W5
25.01.2000
Leave Letter
Ex. W6
01.02.2000
Leave Letter
Ex. W7
10.02.2000
Private Medical Certificate
Ex. W8
19.01.2000
Arrest Warrant, NBW
Ex. W9
10.01.2000
Recall Intimation
Ex. W10
01.03.2000
Railway Medical Certificates of
Operation
Summay
(Uterus
Removal)
28.02.2000
to
15.04.2000
Ex. W11
12.03.2001
Charge Sheet
Ex. W12
18.08.2000
Charge Sheet
Ex. W13
06.09.2000
Penalty Advice Charges
Ex. W14
25.04.2001
Revision Petition
Ex. W15
31.10.2002
CAT Order to GM/S. Railway
Ex. W16
06.11.2002
CAT Order to FA & CAO/MAS
Ex. W17
04.10.2002
CAT Judgement Order
Ex. W18
18.11.2002
Re-Appointment Order
Ex. W19
14.12.2002
Railway Medical Certificates
Ex. W20
16.12.2002
Re-joining report
Ex. W21
17.01.2003
Monthly Salary
Ex. W22
25.03.2003
Charge Sheet
Ex. W23
31.03.2003
Charge Sheet
Ex. W24
16.04.2003
Charge Sheet
Ex. No.
Date
Description
Ex. W25
09.05.2003
Charge Sheet
Ex. W26
10.06.2003
Enquiry Officer-Information
Ex. W27
29.08.2003
Karnataka Bank Letter—Reply
Ex. W28
16.09.2003
Arrears of Pay—Reminder
Ex. W29
28.10.2003
Arrears of Pay-55% Order
Ex. W30
25.09.2004
Railway Medical Certificate
Ex. W31
23.07.2007
Railway letters received Residential
address
Ex. W32
04.07.2007
Railway Employees Co. Op. Credit
Society Letter
Ex. W33
21.03.2005
Enquiry Information Letter
Ex. W34
09.10.2006
VRS—Letter
Ex. W35
29.12.2006
VRS—Reply
Ex. W36
12.07.2007
Charge Sheet
Ex. W37
21.07.2007
Charge Sheet—Reply
Ex. W38
10.08.2007
Removal Order
Ex. W39
20.08.2007
Appeal Order
Ex. W40
23.08.2007
Termination Order
Ex. W41
24.09.2007
Appeal Reply
Ex. W42
26.02.2003
Karnataka Bank-Pass Book Xerox
Ex. W43
21.07.2011
Karnataka Bank-Receipts
Ex. W44
02.02.1999
Sriram Chits of Inv. Ltd. Closure Letter
Ex. W45
21.12.2010
Asstt. Labour Commission—Reply
FA/CAO/MAS
Ex. W46
04.03.2011
Asstt/ Labour Commission—Reply
Ex. W47
02.02.2011
Asstt/ Labour Commission—Reply
Ex. W48
01.04.2011
Asstt/ Labour Commission—Reply
Ex. W49
27.07.2011
Govt. of India, Ministry of
Labour—Order
Ex. W50
05.08.2011
Govt. of India, Ministry of
Labour—Order
Ex. W51
30.08.2011
Karnataka Bank Closure Letter
On the Management's side
Ex. No.
Date
Description
Ex. M1
-
Initial Appointment Order
Ex. M2
-
Complaint letters from PSBs/Pvt.
Banks/NBFCs received from SDGM
& CVO/Vigilance Department/
Southern Railway
Ex. M3
-
Standard
Form-5
(Charge
Memorandum) with Charges of
imputation dated 17.03.2003
Ex. M4
-
Penality imposed by Disciplinary
Authority dated 06.09.2000
Ex. M5
-
Appeal to Appellate Authority/
Revision Authority and disposal
dated 12.03.2001
Ex. M6
-
Hon'ble Tribunal's orders dated
06.11.2002
2142
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
Ex. No.
Date
Description
Ex. M7
-
Orders of reinstatement dated
06.11.2002 and record for payment
of arrears
Ex. M8
-
Letter to the charged official (CO)
for Preliminary Inquiry dated
30.09.2004,
03.11.2004
and
09.12.2004
Ex. M9
-
Reminders to the CO dated
24.12.2004 and 04.02.2005
Ex. M10
-
Letters to CO advising non-
acceptance of Voluntary Retirement
dated 29.12.2006
Ex. M11
-
Letters to CO for attending to main
inquiry dated 15.04.2005
Ex. M12
-
Letters/Reminders to CO for inquiry
dated 03.05.2005 and 20.05.2005
Ex. M13
-
Letter for CO before ex-parte final
chance dated 15.06.2005
Ex. M14
-
Inquiry report by Inquiry Officer
dated 02.03.2006
Ex. M15
-
Penality
imposed
by
the
Disciplinary
Authority
dated
23.07.2007
Ex. M16
-
Appeal by the CO to the Appellate
Authority dated 20.08.2007
Ex. M17
-
Disposal of Appeal by the Appellate
dated 19.08.2007
Ex. M18
-
CO's appeal to Revision Authority
dated 05.01.2007
Ex. M19
-
Disposal by Revision Authority
dated 25.08.2007 and 21.07.2009
Ex. M20
-
Complaint to City Crime Branch/
Economic Offence/Egmore by Dy.
CAO/General/S. Railway dated
24.05.2007,
23.07.2007
and
30.07.2007
Ex. M21
-
Replies on various dated to ALC (C)/
Chennai for conciliation meetings
dated 21.12.2010, 02.02.2011,
28.02.2011 and 01.04.2011
Ex. M22
-
Reply to Railway Board w.r.t.
Ministry of Labour, New Delhi
dated 28.06.2011
Ex. M23
-
Copy of the Ex-employee's Service
Register
showing
regular
absenteeism since 1995
Ex. M24
-
Ex-Employees'
statement
to
ALC(C) Chennai wherein she has
accepted that she was arrested and
remanded by City Police, Economic
Offences Wing/Chennai
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New Delhi, the 14th February, 2014
S.O. 787.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 808/
2004) of the Central Government Industrial Tribunal - cum
Labour Court Ahmedabad, as shown in the Annexure in
the Industrial Dispute between the management of Western
Railway and their workman, received by the Central
Government on 14/02/2014
[No. L-41012/101/2003-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
Binay Kumar Sinha,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad,
Dated: 12th December, 2013
Reference: (CGITA) No-808 of 2004
Reference ITC No: 20/2003 (Old)
1.
The Divisional Railway Manager,
Western Railway, Divisional Office,
Pratap Nagar, Baroda-390004
2.
The Divisional Railway Manager,
Western Railway, Ahmedabad
....First Party
AND
Their Workman
Shri Mansukh Chhena
Through the General Secretary, P.R.K.P.
E-209, Sarvotam Nagar, Behind New Rly Colony,
Sabarmati, Ahmedabad
...Second Party
For the 1st Party No. 1: Shri Rajesh Singh Thakur,
Advocate
For the 1st Party No. 2: None
For the 2nd party
: Shri Raghuvir Singh Sisodia,
General Secretary, (P.R.K.P.)
AWARD
The Central Government/Ministry of Labour, New
Delhi vide its Order No. L-41012/101/2003-IR(B-I) dated
30.06.2003 in exercise of powers confered by clause (d) of
¹Hkkx II—[k.M 3(ii)º
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2143
sub-section (1) and sub-section (2A) of Section 10 of the
Industrial Disputes Act, 1947, referred the dispute for
adjudication to the Industrial Tribunal, Baroda on the terms
of reference in the schedule:
SCHEDULE
"Whether the action of the management of
divisional Railway Manager, Western Railway,
Baroda, in removing from services to Shri
Mansukh Chenna, with effect from 23.01.2001
after imposing the penalty is justified? If not,
what relief the workman is entitled for and since
when?
2. The case of the (2nd party) as per statement of
claim dated 21.12.2004 is that Mansukhbhai Chenna was
Rly employee and working at Dhrangadhara Rly Station
under station superintendent as box boy coming under
jurisdiction of DRM (W.R), Vadodara. He was S.C. employee
and was office bearer of western Railway employees Union
from 1993. Once station Sptd. Dhrangadhara directed
Gateman Harijan Vanker and Mulji Pitamber to work as
running room safaiwala to which they refused to work and
they were threatened by station suptd. then both employee
approached to Mansukhbhai Chenna that station supt. Is
not taking them on duty. Then Mansukh approached to
station suptd. regarding such complaint of those two
employee. But station supt. abused Mansukh and get him
out. Other employees tried to understand S.S. but he
challenged them and called unpartiamentry languages
Bhangi Mansukh files complaint in court on 23.04.1993
vide 24/93 under SC/ST Act. Further case is that there was
notice for filling up vacancy of ticket collector post and
Mansukh and three other Rly. Employee of Dhrangadhara
station-namely Jayendra B. Shukla, Ravind D. Joshi and
Hembhai R. filled form for the post of T.C. and written test
for the post of T.C. was scheduled on 03.06.1995 for this
notice received by station superintendent Dhrangadhara.
But station suptd. did not call Mansukh who was on duty
on 02.06.1995 and did not issue him memo as well as pass
for appearing in written test of T.C. at Vadodara on
03.06.1995, but other employees were given memo and pass.
Mansukh approached to station supdt. for issuing memo
and pass but he was abused by station superintendent
and drove out Mansukh forcibly. Mansukh wrote complaint
in SC/ST complaint book at Dhranghadhara station. Later
on due to ailment of parents and elder brother and for
meeting expenses in treatment, Mansukh applied for from
P.F. but P.F. advance was not received by him till 23.08.1995
in spite of assurance given by the station suptd. Due to
non-availability of money from P.F. advances the parents
and elder brother of Mansukh died one after another for
want of purchase of medicine for proper treatment.
Thereafter Mansukh gave notice in September,1995 to
Divisional Personnel Officer and Divisional Operating
Manger W.R. Vadodara to go on hunger strike after one
month along with family. Even after expiry of one month no
reply received from Rly. Administration, then workman
Mansukh Chhena sat on 04.10.1995, in front of station
suptd.'s office on hunger strike. After three days of hunger
strike, Divisional Safety officer, Vadodara, came to
Dhranghadhara and threatened to Mansukh Chhena to
call off hunger strike otherwise he will be removed from the
services. Due to three days hunger strike his family was
sent to Hospital for treatment in Ambulance sent by
Collector, Surendranagar. Thereafter on coming to
Dhrangadhara of Divisional Personnel Officer, Vadodara
and on his giving assurance in writing, Mansukh left hunger
strike on 06.10.1995. But in spite of written agreement it
was not implemented by the Rly. Administration Mansukh
was harassed in false in criminal case and on trial he was
acquitted. The Rly. Administration became adamant to
punish him due to continuing of making complaint by
Mansukh and he was transferred to Palej as per letter no.
ET/2A/310/ ET-M/127 dated 01.11.1996. But when transfer
order received by station superintendent Mansukh was
not taken on duty. He also requested to cancel his transfer
order but of no avail and he was hand to mouth due to non-
receipt of payment. Thereafter a chargesheet SFS No. E308/
OPg/P dated 17.04.1999 was issued showing his
unauthorised absent from duty. Enquiry was conducted in
biased manner and without giving proper opportunity he
was removed from service which has caused suffering to
him and his family economically, mentally and socially. The
action of the Rly. Administration is illegal, improper and
unjust. On these scores relief has been sought for declaring
removal of Mansukh illegal, improper and unjust, for his
reinstatement with full back wages and consequential
benefits with interest, cost and compensation.
3. lnspite of long pendency of the case for submitting
written statement by the 1st party No. 1 from 02.02.2005
(since after filing of statement of claim on 21.12.2004) no
written statement has been filed even on entrustment for
conducting case of the 1st party executing powers in favour
of Shri Rakesh Sharma, Advocate on 02.02.2005 then in
favour of Shri Jatin J. Vakil, Advocate, Baroda on 13.05.2010
and lastly in favour of Shri Thakur Rajesh singh , Advocate
on 03.07.2012.
4. Since 01.04.2003, New Rly. Division of Ahmedabad
came into existence and Dhrangadhara Rly. Station came
under jurisdiction of D.R.M., Ahmedabad so on filing of a
pursis Ext. 9 dated 02.12.2011, D.R.>M. Ahmedabad was
impleaded as 1st party No. 2 in the statement of claim by
order passed below Ext. 9 and notice was issued to D.R.M.
Ahmedabad for appearance, but 1st party No. 2 neither
appear, nor filed Vakilpatra in favour of any Advocate of
Railway Panel not filed written statement.
5. The concerned workman Mansukhbhai Chhena
filed his affidavited examination in chief vide Ext. 7 and its
copy received by Shri R.P. Sharma, then Railway Advocate
on 07.10.2011. Thereafter Mansukh was cross examined by
Shri R.P. Sharma Rly. Advocate for 1st party No. 1 on
2144
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
13.01.2012. The 2nd party (Union) filed documents with list
Ext. 10 and its copy furnished to 1st party No. 1 Advocate
on 14.01.2012. The documents were taken in Exts —M-10/a
to 10/M . The 2nd party closed its stage of evidence on
15.02.2012 vide Ext. 11. Thereafter case was being adjourned
for leading evidence by the lst party. Thereafter on pursis
of 2nd party (Ext. 15) the stage of the 1st party to lead
evidence was ordered to be closed on 22.02.2013. Therafter,
on the pursis filed by Shri Rajesh Singh Advocate for the
1st party No. 1 on 12.03.2013 (Ext. 16) stage to lead evidence
by the 1st party was ordered to be reopened by passing
order below Ext. 16. Then 1st party No .1 examined its
witness Mrs. Indira N. Patel, Chief Office Suptd. D.R.M.
office, Vadodara on 12.03.2013 (vide Ext. 17) was also cross
examined by Shri R.S. Sisodia, G.S. P.R.K.P. (2nd party)
thereafter on filing of pursis (Ext. 18) on 23.08.2013 the
stage of evidence of Railway side (1st party) was closed
and arguments of both sides were heard.
6. In view of rival contention of the parties—statement
of claim and oral and documentary evidence of 2nd party
vis-a-vis oral evidence of a witness of the 1st party No. 1,
the following issues are taken up for consideration:
ISSUES
(I) Is the reference maintainable?
(II) Has the 2nd party valid cause of action in this
case?
(III) Whether the management of the 1st Party validly
conducted the departmental enquiry against the
delinquent workman Mansukh Chhena observing
all the norms of principles of natural justice?
(IV) Whether the order of punishment dated 23.01.2001
as to removal from the services of Mansukh
Chhena on the misconduct of unauthorised
absence is justified or is shockingly
disproportionate to the gravity of misconduct?
(V) To what relief Mansukh Chhena is entitled for in
this case?
FINDINGS
7. ISSUE NO. III & IV:- The workman Mansukh
Chhena deposed in his oral evidence (Ext.7) that he was
appointed as Box boy on 19.11.1984 and till before
23.01.2001 he worked with the 1st party employer and he
completed more than 240 days in every Calendar year. But
on 23.01.2001, the 1st party employer has illegally and
arbitrarily terminated his service without giving him
opportunity of hearing. He was drawing salary in the scale
of Rs. 750-940 at the time of termination, but he was not
given any notice, no departmental inquiry has properly
been conducted and the 1st party employer has imposed
extreme punishment of removal which is against the
principles of natural justice. He further deposed that his
promotion was ignored even being most senior whereas
his juniors have been granted promotion and have been
posted as T.T.E. he started agitation against the
management of the 1st party and after giving due notice he
went on hunger strike. He also raised industrial dispute for
denying the benefit of promotion before the A.L.C. (C)
Adipur cum conciliation officer and the dispute was seized
before the conciliation officer cum Regional Labour
Commissioner. But during the pendency of conciliation
preceding the 1st party employer transferred him from
Dhrangadhara to Palej. Since the dispute was pending and
he was on leave. The dispute could not be resolved and
conciliation officer submitted failure report to the
appropriate Government but the appropriate government
rejected the dispute for adjudication and when he came to
know that the dispute has not been referred for adjudication
he resumed duty, and so no question of unauthorised
absent. But in order to victimise him 1st party issued show
cause notice treating him unauthorisedly absent from duty.
His further evidence is that since dispute was pending as
conciliation proceeding was going on so no question for
attending the duty since industrial dispute would not
survive. During the intervening period the 1st party treated
him unauthorisedly absent and issued chargesheet without
appointing any presenting officer or inquiry officer and
conducted the departmental inquiry and thereafter imposed
the punishment of removal. That no reasoning has been
recorded by the inquiry officer and the charges of
unauthorised absent has not been proved. His past service
was blotless and this aspect was not considered and
imposed extreme punishment of removal which is illegal
and unwarranted. His further evidence is that he is
unemployed and have no source of income and his elder
brother and other relative maintain him and his family
members. In cross examination by the lawyer of the
1st party it has come that in the year 1996, he was doing
service at Dhrangadhara as box boy, presently, he is living
at native house. In the year 1995 he filed application before
L.E.O. Adipur raising dispute for not granting promotion
to him by railway Dept. and that he has written in application
as to his quarrel with station superintendent Dhrangadhara.
He futher deposed vide para 8 that station suptd. informed
him that as per order of D.R.M. he has been removed from
the service. He also stated that he had been transferred
from Dhrangadhara to Palej. He did not obtain transfer
memo and he did not go to join at Palej. He denied that of
his own will he abandoned the service and left to go on
service duty. He deposed that Rly Dept. removed him from
service but copy of order has not been given to him.
8. The workman/Union has submitted as many as
13 documents to support the case. Ext. 10/a is letter dated
02.06.1995 of S.S. DHR which go to show four staff including
the workman Mansukh Chhena (Box boy) were instructed
to appear in the written test of T.C. at D.R.M. office
Vadodara on 03.06.1991 at 10 a.m. but the station suptd.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2145
Dhrangadhara released only three staff giving duty post
but Mansukh Chhena was not released, no duty pass was
given to him to appear in the T.C. exam on 03.06.1995. Ext.
M-10/b is letter dated 23.09.1995 of D.R.M. Office Vadodara
addressed to Mansukh Chhena Box boy, Dhrangadhara
with reference to hunger strike notice/letter dated 23.09.1995
of Mansukh on the points that his application for P.F.
advance had been sanctioned for Rs. 6000 and if he had
not received the amount he can contact with cashier,
Dhrangadhara. Regarding the next allegation as to not
giving of opportunity to appear in the T.C. exam at
Vadodara, it has been replied that Station Suptd.,
Dhrangadhara had also released you from duty with duty
pass but due to your own negligence you did not appear in
T.C. examination and remained absent. This is contradictory
reports of the Office of D.R.M. Vadodara since as per Ext.
10/a Station Superintendent had released only three staff
giving them duty passes and had denied to release
Mansukh by not issuing duty pass by his letter dated
02.06.1995. The 1st party has not filed any documents to
show that S.S. Dhrangadhara had actually issued duty pass
to Mansukh along with three other staff Hemu, Ravindra
and Jaynandan Shukla. Ext. 10/c is letter dated 29.09.1995
with reference to letter of Mansukh dated 23.09.1995 that
his notice to sit on hunger strike from 04.10.1995 is illegal
and as per letter dated 28.09.1995 (Ext. 10/c) all the issues
has been clarified. But it has been seen that the matter
regarding release of Mansukh with duty pass is not
corroborated as per letter of S.S. Dhrangadhara dated
02.06.1995 (Ext. 10/a). Ext. 10/d is letter dated 05.10.1995 of
Shri B.K. Parmar, President SC/ST association
Dhrangadhara branch to Rly administration to stand in
support of grievances of Mansukh Chhena against the
biased action of S.S. Dhrangadhara, Shri K.K. Dave, Clerk
Shri P.M. Upadhyaya and T.I. Shri S.S. Tomar. Ext. M-10/e
is memorandum of compromise between Rly administration
and employee arrived at on 06.10.1995. Workman Mansukh
called off hunger strike at 20.40 hrs on such settlement that
impartial inquiry will be made for reason in not sanctioning
of his P.F. advance, to ascertain the staff liable in this regard
and that impartial inquiry will be conducted in not informing
to Mansukh regarding T.C. exam on 03.06.1995 timely and
not releasing him timely and the staff at fault will be booked
for proper action and the period from 04.10.1995 to 06.10.1995
was treated as special case of leave due etc. Ext. 10/f is
letter dated 28.06.1996 as to promotion of employee to
which 2nd party workman is claiming that his juniors have
been promoted. Ext.10/g is letter of D.R.M (E) Baroda dated
03.07.1997 to ALC (C), Adipur on the subject. Industrial
Dispute between the management of G.M. , D.R.M., W.R.,
Vadodara and P.R.K.P. which go to show that workman
Mansukh Chhena have been transferred from
Dhrangadhara to Palej on complaint of Shri Dilip Singh
Bhura member of Parliament, Lok Sabha along with
complaint of All India Guards Council due to mishandling
and abusing and assaulting to Shri Rajesh Agrawal, Guard.
Ext. 10/H is transfer memo dated 09.04.1997 of S.S.
Dhrangadhara as to no further order of retention or
cancelation of transfer of transferee Mansukh and
representation of Mansukh to S.S Dhrangadhara raising
question of his transfer during pendency of conciliation
proceeding before conciliation officer. Ext. 10/1 is
application/representation of the Union (P.R.K.P) on its
letter head to ALC (C) Adipur (Kutch) on the issue of
industrial dispute with reference to letter dated 03.07.1997
and 27.07.1997 of D.R.M. (E) Vadodara. Ext. 10/j is dated
18.04.1998 of Station Superintendent Dhrangadhara
regarding statement of Cadre and actually staff working at
Dhrangadhara Rly. Station in which the name of workman
Mansukh Chhena is at SI. No. 34 with remarks showing
transferred to Palej but till date absent from 09.12.1996 to
till date (18.04.1998). Ext. 10/K is letter dated 21.04.1998 of
Divisional Office, Vadodara to A.L.C. (Central), Adipur
(Kutch) intimating that there exist no vacancy under SS/
DHG at present and so Mansukh has to carry out his
transfer to Palej. This clearly go to show that when the
Industrial dispute had been seized before conciliation officer
regarding promotion matter, workman Mansukh was
transferred from Dhrangadhara to Palej on complaint of
guard and also on recommendation of member of Parliament
whereas Railway rules says that on recommendation of
M.P. no railway employee can be transferred. Ext. 10/N is
copy of criminal case chargesheet against workman
Mansukh, on the basis of police complaint of guard.
Dhrangadhara and acquittal order passed by Addl. Chief
Judicial Magistrate, Dhrangadhara. That go to show that
in the alleged complaint of guard. Mansukh was acquitted
of charges u/s 332, 323, 504, 405, 114 IPC.
9. It has been argued on behalf of the 2nd party on
the basis of Ext. 10/J that when S.S. Dhrangadhara had
relieved workman Mansukh from 09.12.1997, then how
standard From V dated 17.04.1999 Ext. 10/L was issued
showing absenteeism of Mansukh from duty place
Dhrangadhara from 09.12.1996 to 14.03.1999 totalling 830
days absent from duty. The contention of 2nd party is not
tenable that S.F.V. should be issued as to his absenteeism
from Palej rather than from Dhranghadhara. But it has to be
borne in mind that transfer memo dated 09.04.1997
(Ext. 10/H) was issued to Mansukh directing to join at Palej,
but in fact Mansukh did not carry out his transfer and
remained agitated the matter through Union P.R.K.P. and
so Mansukh cannot be treated as relieved from
Dhrangadhara.
10. Now coming to propriety of domestic enquiry as
per SFV (Ext. 10/L). This is memorandum of charge sheet
issued to Mansukh, box boy, Dhrangadhara attached with
articles of charge (schedule I and to unauthorised absence
from duty place and schedule II detail of allegation from
09.12.1996 to 31.12.1996 - 23 days
From 01.01.1997 to 31.12.1997 - 365 days.
From 01.01.1998 to 31.12.1998 - 365 days
2146
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
From 01.01.1999 to 14.03.1999 - 73 days total 830 days
of unauthorised absence from duty.
11. It is case of the 2nd party (Union) that principle
of natural justice was not followed in conducting enquiry
against workman Mansukh. The Union/workman as per
his oral evidence Ext. 7 has challenged the validity of
the domestic enquiry held against him that without
issuing notice to him, directly S.F.V. was issued without
intimating names of presenting officer and inquiry officer
and also names of witnesses and documents and also
not giving opportunity to defend himself. The witness
of the 1st party namely, Smt. Indira N. Patel, Chief Office
Suptd., Vadodara, D.R.M. office has deposed vide Ext.
17 at para 3 that on 30.12.2000 Mansukh was given
chargesheet by Divisional Operating Manager,
Ahmedabad. Her such evidence in against the actual
state of affairs. As per copy of S.F.V. (Ext.10/L) submitted
by 2nd party which was issued on 17.04.1999 by
Vadodara Rly. Management and not by Ahmedabad. She
also stated that all relevant paper of departmental
enquiry shall be filed but no enquiry papers has been
filed on behalf of the 1st party. Only copy of details of
charges of absenteeism was issued by Divisional
Operating Manager, Ahmedabad. But documents of
appointment of presenting officer, inquiry officer and
enquiry proceedings and statement of management
witnesses, supporting the chargesheet have not been
filed to meet the challenge of the 2nd party that valid
departmental inquiry was conducted. The 1st party
witness at para - 13 during cross examination admitted
that no Railway employee can approach political leader
or high Railway officer for writing recommendation letter.
The witness gave evasive reply to question that
Mansukh was falsely implicated in criminal case by S.S.
DHR and Rail guard who got recommendation letter
written by M.P. Shri Dilip Singh Bhuria for transfer of
Mansukh in this way that she has no idea in this regard.
This witness has not supported vide para 15 that charge
sheet was served on Mansukh and Mansukh was called
in inquiry sitting, Mansukh was supplied copy of inquiry
report and also not supported that on proper notice he
was removed from service. The witness admitted the
document Ext. 10 series filed by the 2nd party but failed
to support proper and valid departmental inquiry held
against Mansukh. No documents has been filed though
it was asserted that the relevant documents shall be
filed. Vide para-17 the management witness has admitted
that no previous record regarding service of Mansukh
has been filed. The witness admitted that Mansukh had
not earlier been served with charge sheet of
unauthorised absent. The witness has shown ignorance
that during proceedings the parents, wife and daughter
of Mansukh died one after another. The management
witness without submitted relevant inquiry papers has
deposed vide para 9 that punishment order or removal
from services of Mansukh is justified.
12. On consideration of the evidence discussed in
the foregoing paras, I am of the considered view that no
valid and proper departmental enquiry was conducted
against delinquent workman Mansukh by the 1st party,
and the principles of natural justice was not followed. Thus
issue No. III is decided against the 1st party.
13. From the oral and documentary evidence adduced
on behalf of the 2nd party I find the delinquent workman
had suffered a lot at the hands of Station Manager,
Dhranghadhara in not allowing him to appear in T.C. exam
at Vadodara on 03.06.1995, not intimating him, though he
was also among one of candidate with three others to
appear in the examination. More so, by not providing
Mansukh the money of P.F. advance for meeting treatment
of his ailing parents, wife as facing acute financial scarcity,
and also not giving him promotion etc. and more so, sitting
on hunger strike and callng off hunger strike on settlement
with administration of Vadodara and not taking proper
action against the liable railway employee in preventing
him from appearing in T.C. exam and not intimating and
disbursing to sanction amount of money of P.F. to him
when he was in dire necessity appear to have caused much
mental agony to Mansukh and that also adding fire as to
his transfer to Palej when conciliation matter was seized
before A.L.C. (C) and R.L.C. (C) and in that course death of
his parents, wife and daughter due to financial crisis and
not enabling him to provide proper treatment to them
causing tremendous mental agony to him for his
absenteeism. But such absenteeism does not appear to be
intentional in view of the above circumstances. But the
Disciplinary Atuhority of the 1st party failed to consider
these aspects and imposed punishment of removal from
service with effect from 23.01.2001 which shocks the judicial
conscience of this Tribunal that a permanent and regular
staff workman Mansukh have been inhumanly treated to
eliminate him by way of economic death by the weapon of
extreme punishment of removal from service on alleged
unauthorised absent which has not been proved to be
intentional. So in such view of the matter this tribunal by
invoking the powers under Section 11A of the Industrial
Disputes Act, 1947 holds that the order of punishment
dated 23.01.2011 as to removal from the service, on the
misconduct of unauthorised absent is not at all justified
since the same is shockingly disproportionate to the gravity
of misconduct. So the order of punishment dated 23.01.2001
is hereby set aside.
14. Thus ISSUE NO. (IV) is also decided against the
1st party.
15. ISSUE NO. I & II:- In view of findings to issue
No. III and IV in the foregoings, I further find and hold that
the reference is maintainable and the 2nd party has valid
cause of action in this case.
16. ISSUE NO. V:- The concerned workman Shri
Mansukh Chhena is entitled for his reinstatement in service
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2147
with continuity of service and consequential benefits with
60% back wages.
Thus the reference is allowed. No order of cost.
The 1st parties are directed to implement the award
within 60 days of receipt of the copy of award failing which
the back wages will carry interest @ 9% P.A.
Let two copies of award be sent to the appropriate
Government for publication u/s 17 of the I.D. Act.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 14 Qjojh] 2014
dkñvkñ 788.—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj nf{k.k
jsyos izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] psUubZ ds iapkV ¼lanHkZ la[;k 85@2013½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 14@02@2014 dks izkIr gqvk FkkA
[lañ ,y&41011@65@2013&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th February, 2014
S.O. 788.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 85/2013 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Chennai
as shown in the Annexure in the Industrial Dispute between
the management of Southern Railway and their workmen,
received by the Central Government on 14/02/2014.
[No. L-41011/65/2013-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Monday, the 3rd February, 2014
Present : K.P. PRASANNA KUMARI, Presiding Officer
INDUSTRIAL DISPUTE No. 85/2013
(In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10 of
the Industrial Disputes Act, 1974 (14 of 1947), between the
Management of Southern Railway, Madurai and their
workman)
Between:
The Division Secretary,
:
1st Party/Petitioner
All India Loco Running Staff Association
Old No. E/210, New No. 98 Santhanam Road
TVS Nagar
Madurai-3
AND
1.
The Divisional Railway Manager
2nd party/1st Respondent
Southern Railway
Madurai Division
Madurai-10
2.
The Senior Division Machanical Engineer
Southern Railway
2nd Party/2nd Respondent
Madurai Division
Madurai-10
1.
The Senior Division Personnel Officer
Southern Railway
2nd Party/3rd Respondent
Madurai Division
Madurai-10
2.
The Chief Operation Manager
Southern Railway
2nd Party/4th Respondent
Egmore
Chennai-3
Appearance:
For the 1st Party/Petitioner : M/s C. Arun Kumar,
Advocate
For the 2nd Party/1st, 2nd, : M/s K. Muthamil Raja,
3rd & 4th Respondent
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-41011/65/2013-IR(B-1)
dated 19.09.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the Management of Sourthern
Railway, Madurai is justified in punishing
S/Sri M. Narayanan, R.M. Gandhi and
C. Ramesh Kumar, Ramasamy and
Poovarajan causing heavy monetary loss and
affecting their future promotions? To what
relief are the workmen entitled?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 85/2013 and issued notice to both
sides. Both sides have entered appearance through their
counsels.
3. After appearance of the petitioner, the case was
being repeatedly posted for filing Claim Statement.
Howeever, the petitioner as well as the counsel were
continously absent. The petitioner has not cared to file
the Claim Statement. The petitioner seems to be not
interested in prosecuting the case. In the absence of any
material on the sides of the petitioner the case is only to
be closed.
2148
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
In the result the ID is closed. The reference is
answered against the petitioner.
(Dictated to the P.A. transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 3rd February, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
For the 1st Party/Petitioner
: None
For the 2nd Party/1st & 2nd Management
: None
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
N/A
On the Management's side
Ex. No.
Date
Description
N/A
ubZ fnYyh] 14 Qjojh] 2014
dkñvkñ 789.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj nf{k.k jsyos
izca/kra= ds lac) ds fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]
psUubZ ds iapkV ¼lanHkZ la[;k 13@2011½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 14@02@2014 dks izkIr gqvk FkkA
[lañ ,y&41011@97@2009&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 14th February, 2014
S.O. 789.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 13/2011 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Chennai
as shown in the Annexure in the Industrial Dispute between
the management of Southern Railway and their workmen,
received by the Central Government on 14/02/2014.
[No. L-41011/97/2009-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Friday, the 31st January, 2014
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 13/2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of the Industrial Disputes Act, 1947 (14 of 1947),
between the Management of Southern Railway and their
workman)
BETWEEN
The Divisional Secretary
:
1st Party/Petitioner
All India Station Masters Association
15, Patel Street, Nehru Nagar,
Chromepet
Chennai-600045
AND
The General Manager
: 2nd Party/Respondent
Southern Railway
Park Town, NGO Annexe
Chennai-600003
APPEARANCE:
For the 1st Party/Petitioner
: M/s. N. Shanmugasundaram,
Augustus Babu Authorized
Representatives
For the 2nd Party/Management : M/s.
P.
Srinivasan,
Advocates
A W A R D
The Central Government, Ministry of Labour &
Employment vide its Order No. L-41011/97/2009-IR(B-I)
dated 18-02-2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the demand of the All India Station
Masters Association, Chennai Division to
treat the inpatient/outpatient treatment
period, for any ailment in the course of
periodical medical examination procedure,
as period spent on duty is legal and justified?
To what relief the Association is entitled?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 13/2011 and issued notice to both
sides. Both sides have entered appearance through their
counsel and have filed their claim and counter statement
respectively.
3. The averments in the Claim Statement in brief are
these:
The First Party is a registered Trade Union. The
employees of the Second Party including the station
Masters had to undergo periodical medical examination.
Station Masters are classified as A2 for the purpose of
medical examination because of vision test required in the
interest of public safety. They are to appear for medical
examination at the termination of every four years calculated
from the date of appointment until they attain the age of
45 years, then every two years until the age of 55 years and
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2149
thereafter annually until superannuation from service. Apart
from periodical medical examination at the time specified
above, they are also to undergo medical examination if
they have undergone treatment of operation of eye unless
they have been treated by a Railway Medical Officer and
also in case they are absent from duty for a period in excess
of 90 days. The employing department is responsible for
the punctual appearance of the railway employee before
the appropriate medical examiner for the purpose of
periodical and other medical examination. The concerned
medical examiner is authorized to issue either the fit
certificate or the unfit certificate as the case may be. There
is no fule in the Indian Railway Medical Manual authorizing
the Medical Officer to issue sick certificate when a railway
employee produces proper form for periodical medical
examination. The railway employees in service are examined
periodically to ensure that they continue to be fit for their
job and also to detect any deterioration in health with a
view to correcting them. To arrive at the conclusion whether
an employee is fit or unfit the Medical Officer gives
treatment to be employees either as inpatient or as
outpatient, depending upon the severity of the illness which
is detected during the course of periodical medical
examination. The interval from the time the employee
appears for periodical medical examination and the medical
officer arrives at the conclusion regarding the fitness or
unfitness of the employee is to be treated as duty. This
provision in the Railway Medical Manual is not adhered to
by the Medical Officers of Chennai Division of the Southern
Railway. The Claim Petition is preferred because of
continuous refusal to adhere to the provision in the medical
manual regarding duty as stated above. This is against the
note to Paragraph-524 of the Railway Medical Manual. The
Second Party is liable to treat the period taken by the
Medical Officer to decide the fitness or the unfitness of the
employees on periodical medical examination as duty. An
order may be passed accordingly.
4. The Second Party has filed Counter Statement
contending as follows:
The claim is not maintainable either in law or on
facts. The petitioner is only an association and not a
recognized union. They have no reight to repesent the
whole Station Masters. The periodical re-examination of
serving railway employees is provided under Paragraph-514
of Indian Railway Medical Manual. When the railway
employee is sent for medical examination, his interest is
alos involved. The periodical medical examination is similar
to that of a health check-up which is available to a particular
class of employees whereas it is not extended to certain
other class of employees. Periodical Medical Examination
is done to ensure the safety of the public as well as for the
safety of employees themselves. It cannot be treated as
only for the inteest of the administration. Paragraph-524 of
the Railway Medical Manual states how the period of
absence of railway employees sent for periodical medical
examination is to be treated. The examination is to be
completed within three days and only when the railway
doctor is not able to come to a conclusion within a period
of three days, the entire period required by the doctor to
come to a conclusion is to be treated as duty. A railway
employee is granted 20 days of sick leave and 30 days
leave on average pay every year and this is accumulated
every year. When a r ailway employee is treated in hospital
for sickness, even though this is when he is sent for
speriodical medical examination, the period beyond three
days cannot be treated as duty. The mecial examination is
certainly in the interest of the employee. By this facility he
is restored to normal health condition. When an employee
is granted 30 days of Earned Leave and 20 days of Half
Earned Leave every year with facility of accumulating the
same during his entire service, treating the period beyond
three days for periodical medical examination as duty is
unjust and unreasonable. The prayer in the Claim Statement
is very vague and frivolous. The First Party is not entitled
to any relief.
5. The evidence in the case consists of oral evidence
of WW1 to WW5 and MW1 and documents marke as
Exts. W1 to Ext. W31 on the side of the First Party.
6. The points for consideration are:
(i) Whether the claim of the First Party to treat the
inpatient/outpatient treatment period in the course
of periodical medical examination as duty is legal
and justified?
(ii) What is the relief, if any to which the First Party
is entitled?
The Points
7. The Industrial Dispute is raised by the Divisional
secretary of All India Station Masters Association, Chennai
Division on behalf of the Station Masters of Chennai
Division. Certain classes of employees of the Second Party
including the Station Masters are subjected to periodical
medical examination while they are in service. For the
purpose of such examination they are classified into
different categories. The Station Masters are placed under
the category A2. Apart from undergoing medical
examination before entering in service the Station Masters
and such other classes of employees of the Second Party
are to undergo periodical medical examination as stated
above. Such medical examination will be done once in every
foru years until the age of 45 years, once in every two
years after that, until the age of 55 years and then annually
until supernnuation. The Association seems to have raised
the dispute regarding the manner in which period taken for
treatment during periodical medical examination is to be
treated, alongwith other claims. The Government has
referred the dispute regarding the period of treatment during
periodical medical examination alone. This Tribunal is asked
to adjudicate on the demand of the First Party to treat the
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THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
inpatient outpatient treatment period for any ailment in the
course of periodical medical examination as duty.
8. The Second Party has raised a Preliminary objection
in the counter statement that the association is not
competent to raise the dispute. The contention raised is
that is in only an association and not a registered union.
This contention is seen referred in the written argument
filed on behalf of the First Party also. However, there is no
legal basis for this contention of the Second Party. It is
sufficient that the dispute is raised on behalf of a sufficient
number of employees, representing the employees. It need
not be by the Registered Union. So this preliminary
objection by the Second Party is only to be rejected.
9. The First Party who is the Secretary of the
Association has given evidence a WW1. He has stated in
his Affidavit that if sickness in the course of medical
examination is being attended to ascertain to continue in
the post the period spent on such treatment constitute
period of medical examination.
10. WW2 is an Assistant Station Master under the
Southern Railway. On his attaining the age of 45 years he
was directed to appear for periodical medical examination
for every 2 years. On his appearing before the Medical
Officer for periodical medical examination on 05.04.2011 as
directed he was diagnosed with cataract on both eyes and
had to undergo surgery. He was operated on his right eye
on 29.04.2011 and left eye on 28.06.2011. He was declared
fit for duty on 23.08.2011. For the period from 05.04.2011 to
23.08.2011 he was treated as sick. Though he had given a
representation to treat the period as duty, his representation
was not disposed. He had produced the movement card
showing that he was sent for periodical medical examination
on 05.04.2011 and he was issued medical certificate of fitness
on 23.08.2011. These are marked as Ext. W10 and Ext. W11
respectively.
11. WW3 another employee of the Second Party,
also working as Station Master was directed to appear
before the Medical Officer for periodical medical examination
on 23.06.2008. He was diagnosed with hypertension. He
was directed to the Railway Hospital, Perambur. At Perambur
medicines were prescribed and he was directed back to
Railway Medical Officer. According to this witness, he was
forcefully kept under sick list during the period though he
had refused to sign the sick certificate. He had submitted a
representation which was turned down. According to this
witness, the very purpose of periodical medical examination
is to ascertain whether the employee is fit for the post he is
holding and also to treat him for any disease detected
during periodical medical examination According to him,
though there is no rule stating that he should be kept under
the sick list in case of illness during the periodical medical
examination, he was kept in this manner.
12. WW4 is the Chief Health Director of the Southern
Railway and WW5 is the Chief Medical Superintendent of
the Southern Railway WW4 has stated that if an employee
is found ill during periodical medical examination, the
Medical Officer is to treat the employee. She stated that
the Railway Medical Manual does not specify the period
during which the treatment is to be made. She stated that it
is in the interest of the employee and in the interest of
public that the employee is treated. She stated that if the
examinees are found having illness like diabetes,
hypertension, etc. they have to be put under sick list and
such period of sickness cannot be treated to be as duty.
She has added that the manual does not specify whether
to place the employee or not in the sick list and that it is the
discretion of the doctor. WW5 has been examined to prove
Ext. W12 issue by her predecessor. The patient referred in
Ext.W12 was detected with hypertension on periodical
examination and was put under sick list from 26.03.2008 to
11.04.2008.
13. MW1 who is the Asstt. Peronnel Officer of
Southern Railway has given evidence in support of the
Second Party. According to him only three days can be
treated as duty during periodical medical examination as
this is enough to conclude the examination. Only in cases
where examination could not be completed due to
administrative reasons, the time spent beyond three days
can be treated as duty. Where the employee is found to
have some disease which needs treatment he is to be
admitted in the Railway Hospital and the period spent for
treatment is to be counted as leave. If sick leave is granted
on this ground, the period cannot be treated as duty.
14. The intention is examining WW2 and WW3 seems
to have been to bring out the fact that though these two
had been treated for some aliment during periodical medical
examination, the period of such treatment has not been
considered as duty but as sick leave only. WW4 and WW5
are probably brought in to have enlightenment in the
manner in which the periodical medical examination and
threatment of the ailment during the time was being done.
15. The Indian Railway Medical Manual is the magna
carta regarding medical examination of the candidated for
employment as well as the persons who are already in the
employment of the Second Party. Ext. W1 is the extract of
the relevant portions from the Railway Medical Manual. It
separately specifies how a candidate is to undergo
examination and how periodical medical examination of the
concerned employees should be done. Paragraph-514 of
the manual states that the employees in Class A1, A2, A3,
B1 and B2 required to appear for periodical re-examination
during specified intervals. Employees coming under
category A1, A2 and A3 (the Station Masters come under
category A2), are to undergo examination at the termination
of period of 4 years calculated from the date of appointment
untill they attain the age of 45 years and then every 2 years
untill the age of 55 years and thereafter annually until the
conclusion of the service. Proviso-F to Paragraph-514 states
that employees coming under categories A1, A2 and A3
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2151
should be sent for special medical examination in the
interest of safety if they had undergone treatment or
operation for eye from a medical practitioner other than
Railway Medical Officer and also in case one was absent
from duty for a period in excess of 90 days. paragraph
515(3) states that the onus of sending the candidate or a
railway employee for medical examination is that of the
employee department. The department will be responsible
for the punctual appearance of the railway employee
particularly the operating staff concerned with train passing
duties, before the authorized medical examiner. The relieving
of the employee for the purpose of examination need not
be exactly the date when the re-examination falls due but it
will be the month in which this fall due.
16. The bone of contention between the parties if
Paragraph-524 of the Manual which specifies the manner
in which the period of absence of railways employees sent
for periodical medical re-examination is to be treated. This
states that the time spent in journey to and from the actual
medical examination is to be treated as duty. It is further
stated that the time taken by the examining medical
authority to come to a decision in the matter is to be treated
as duty. In case the examining authority is not quite sure of
the decision to be taken he has to refer the employee to the
Chief Medical Director and he is to give a decision. In such
cases also the period upto the announcement of the decision
is to be treated as duty.
17. The entire dispute between the parties is regarding
the interpretation of the note give to paragraph-524. This
states that periodical examination of an employee should
invariably be completed in three days. If further states that
if a railway doctor is not able to come to a conclusion
within a period of three days, the entire period required for
the doctor to come to a conclusion regarding the
examination should be treated as duty. There is a rider that
the time taken by the employee to procure spectacles or
any willful delay by the employee should not be treated as
period on duty.
18. On periodical medical examination an authorized
medical office is bound to issue certificate stating either
that the person is fit for the job or that he is unfit in the
prescribed forms of certificates. There is provision for
appeal against the finding of medical examiner to rule out
the possibility of error of judgment in the decision.
19. Thus, ongoing through Paragraph-521 of the
Manual it could be seen that there are two options for the
medical office, either to give a certificate of fitness or a
certificate stating that the employee is unfit for the job.
Once a person is declared unfit for the job he cold not
continue in the job. There is no provision for issuing a
certificate stating the an employee is temporarily unfit to
continue in the job. He should be wither fit or will be unfit.
There seems to be no via medic also far as persons in
service are concerned. It is not that the Second party is
unaware of a condition in which a person will be temporarily
unfit for the job. Paragraph-525 states about temporary
unfitness of individuals appointed straightway. However,
it is not applicable to the persons who are in continuous
service.
20. On interpretation of the note to Paragraph-524 it
could be seen that nowhere it is stated that if a person is
found suffering from any ailment during periodical medical
examination and is found temporarily unfit to handle his
job, he is to be sent for treatment and is to be made fit for
this job. At the same time, it is not also stated that a person
who is found temporarily unfit because of his particular
ailment which may be handicap for him for doing his job for
a particular time should be issued a certificate of unfitness
and sent away by the medical examiner. So what is the
option available in such cases? The answer to the dispute
is dependent on this. It is contended by the first Party that
if they are to undergo treatment during the period of
medical examination before they are issued with a sickness
certificate, this period is to be treated as if they are on duty,
which according to them is the interpretation to be given
to note to Paragraph-524of the Manual. On the other hand,
the contention raised by the Second Party is that only in
case there is administrative delay on the part of the medical
officer in examining the person and issuing the certificate,
the period is to be treated as duty. Incase of ailment and
consequent treatment the period is to be treated as period
of sickness and the employee is entitled to take leave that
is eligible. In support of this contention, it is pointed out
that an employee is having 20days sick leave annually and
30 days leave of other kinds also which he is at liberty to
avail during such contingencies.
21. In fact on a perusal of the note to Paragraph-524,
it could be seen that it lacks clarification regarding the
manner in which a person having ailment during period of
medical examination is to be treated. It is for the Railways
to make necessary amendment to the note and clarify the
matter. Probably it would be better if it is specified that the
person under going examination is to be treated to be
temporarily unfit for duty until he recovers and this period
of treatment is to be treated as sick leave or other leave just
like incase of treatment of illness during a period other
than the period other than the period of medical
examination. But so far as there is no such provision in the
Manual, the note to Paragraph-524 is to be interpreted in a
manner beneficial to the employee. As pointed out on behalf
of the First Party it is in the interest of the employer and
also in the interest of the public, the Second Party being
establishment dealing with transport of man and goods,
that the employee is kept fit for duty. Probably it was keeping
this in mind that the note to Paragraph-524 was
incorporated. What is stated in the note is that if the Railway
doctor is not able to come to a conclusion within a period
of three days, the entire period required for the doctor to
2152
THE GAZETTE OF INDIA : MARCH 1, 2014/PHALGUNA 10, 1935
[PART II—SEC. 3(ii)]
come to a conclusion regarding the examination should be
treated as duty. Nowhere it is stated that only in case of
administrative delay on the part of the Medical Officer, the
period beyond three days should be treated as duty. On
the other hand, if a literal interpretation is given to this
sentence, the only interpretation that could be given is
that the period in between the date on which the employee
had approached the medical officer for periodical
examination and the date on which fitness certificate is
issued has to be treated as duty. Accordingly, the first
Party is entitled to relief to this extent.
22. It is directed that the period starting from the date
on which the employee has approached the medical officer
for Periodical Medical Examination to the date of issuance
of the certificate shall be treated as duty.
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 31st January, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/
:
WW1, Sri R. Sethumadhavan
Petitioner Association
WW2, Sri U. Shajahan
WW3, Sri DSM Agastas Babu
WW4, Dr. S. Lalitha
WW5, Dr. Sulochana A. Rajani
For the 2nd Party/
:
MW1, Sri T.R. Mukunthan
Management
Documents Marked:
On the petitioner's side
Ex. No.
Date
Description
Ex.W1
Extract of Indian Railway
Medical Manual
Ex.W2
15.04.2009
Information furnished by Chief
Health Director/PIO (Medical)/
Southern Railway
Ex.W3
23.04.2010
Information furnished by Chief
Medical
Superintendent/
Chennai Division/Southern
Railway/Chennai Egmore
Ex.W4
29.06.2010
Information furnished by Chief
Medical
Superintendent/
Chennai Division/Southern
Railway/Chennai Egmore
Ex.W5
18.07.2008
CPO/MAS Ir.No. PR/75/P/
Vol.VII dated 05.02.2002 (PBC
No. 13/2002
Ex.W6
30.11.2011
Copy of OA No. 1038/2009 of
Central Administrative Tribunal
Madras Bench/Chennai
Ex.W7
-
Copy of the extract containing
Para-105 and Para-113 of IREM
Ex.W8
26.07.2011
Copy of letter issued by the
Chief Medical Director to Chief
Medical superintedent/RH/
TVC
Ex.W9
05.04.2011
Copy of the movement card for
employees sent for Periodical
Medical Examination (PME)
Ex.W10
-
Annexure to Ex. W9
Ex.W11
23.08.2011
Copy of the Fitness Certificate
issued by Sr. Divisional
Medical Officer, Tambaram
Ex.W12
26.03.2008
Copy of the movement card for
PME
Ex.W13
-
Copy
of
the
doctos's
prescription issued to WW3
Ex.W14
11.04.2008
Copy of the Sick and Fitness
Certificate
Ex.W15
12.04.2008
Copy of the representation by
WW3 to Sr. CMO/MS
Ex.W16
02.04.2009
Copy of the form of application
for obtaining information under
RTI Act.
Ex.W17
02.07.2009
Copy of the reply sent by the
Chief Medical Superintendent
to the representation
Ex.W18
26.03.2010
Copy of the decision of the
Central
Information
Commission
Ex.W19
-
Movement card for employee
sent for PME
Ex.W20
08-05-2009
Information furnished by PIO/
CMS/GOC
Ex.W21
26.06.2012
WP 19111 of 2001 of Hon'ble
HighCourt/Madras
Ex.W22
12.03.2009
OA No. 295/2008 of Hon'ble
CAT/Ernakulam Bench
Ex.W23
15.01.2008
OA No. 224/2007 of Hon'ble
CAT/Ernakulam Bench
Ex.W24
26.06.2009
CP(C) No. 46/2009 in OA No.
295/2008 of Hon'ble CAT/
Ernakulam Bench
Ex.W25
09.07.2012
Information furnished by PIO/
Dy. CMD/S.Rly
Ex.W26
24.07.2012
Corrigendum issued by PIO/
Dy.CMD/S/Rly
Ex.W27
27.06.2012
RTI Application
Ex.W28
23.07.2012
Information furnished by PIO/
CMS/MS
alongwith
application and supporting
document
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 1] 2014@iQkYxqu 10] 1935
2153
Ex.W29
25.06.2012
Application u/s RTI
Ex.W30
27.03.2012
Letter issued by CMS/MS to
CMD/MAS
Ex.W31
04.04.2012
Letter issued by CMS/MS to
DSM Agastas Babu
On the Management's side
Ex. No.
Date
Description
Nil
ubZ fnYyh] 17 Qjojh] 2014
dkñvkñ 790.—tcfd eSllZ vj¯on fyfeVsM- [dksM la[;k
thts@271 ds varxZr vgenkckn {ks= esa] ¼,rnqijkUr izfr"Bku ds
:i esa lanfHZkr½ us deZpkjh Hkfo"; fufè ,oa izdh.kZ micaè vfèfu;e]
1952 ¼1952 dk 19½ ¼,rnqijkUr vfèfu;e ds :i esa lanfHkZr½
dh èkjk 17 dh mi&èkjk ¼1½ ds [k.M ¼d½ ds varxZr NwV ds fy,
vkosnu fd;k gSA
2- vkSj tcfd dsUnzh; ljdkj ds fopkj esa] va'knku dh njksa
ds lacaè esa mDr izfr"Bku ds Hkfo"; fufè fu;e mDr vfèfu;e dh
èkjk 6 esa fofu£n"V fu;eksa dh rqyuk esa deZpkfj;ksa ds fy, de
mi;qDr ugha gSa vkSj depkjh mDr vfèfu;e vFkok deZpkjh Hkfo";
fufè ;kstuk ] 1952 ¼,rnqijkar ;kstuk ds :i esa lanfHkZr½ ds varxZr
lâ'k Lo:i ds fdlh vU; izfr"Bku esa deZpkfj;ksa ds lacaè esa nh
tkus okyh vU; Hkfo"; fufè izlqfoèkvksa dk Hkh ykHk mBk jgs gSaA
3- vr% vc] dsUnzh; ljdkj] mDr vfèfu;e dh èkjk 17 dh
mi èkjk ¼1½ ds [k.M ¼d½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,
bl lacaè esa le;≤ ij fofu£n"V 'krks± ds v/;èhu] mDr izfr"Bku
dks 1-4-2012 ls vxyh vfèlwpuk rd mDr ;kstuk ds lHkh micèksa
ds izHkko ls NwV iznku djrh gSA
[lañ ,l&35015@8@2013&,l,l&II]
lqHkk"k dqekj] voj lfpo
New Delhi, the 17th February, 2014
S.O. 790.—Whereas M/s. Arvind Limited [under
code no. GJ/271 in Ahmedabad region] (hereinafter referred
to as the establishment) has applied for exemption under
clause (a) of sub-section (1) of section 17 of the employees'
Provident Funds and Miscellaneous Provisons Act, 1952
(19 of 1952) (hereinafter referred to as the Act).
2. And whereas in the opinion of the Central
Government, the rules of the provident fund of the said
establishment, with respect to the rates of contribution are
not less favourable to employees therein than those specified
in section 6 of the said Act and the employees are also in
enjoyment of other provident fund benefits provided under
the said Act or under the Employees' Provident Funds Scheme.
1952 (hereinafter referred to as the Scheme) in relation to the
employees in any other establishment of similar character.
3. Now, therefore, in exercise of the powers conferred
by clause (a) of sub-section (1) of section 17 of the said
Act and subject to the conditions specified in this regard
form time to time, the Central Government, hereby, exempts
the said establishment from the operation of all the
provisions of the said Scheme with effect from 1-4-2012
until further notification.
[No. S-35015/8/2013-SS-II]
SUBHASH KUMAR, Under Secy.
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.