foÙk ea=ky;
¼foÙkh; lsok,a foHkkx½
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 904.—dsUnzh; ljdkj] ,rn~}kjk] _.k olwyh vf/kdj.k] jkaph ds LFkku dks uhps nh xbZ lkj.kh ds dkWye 3 esa mfYyf[kr LFkku dh
txg lkj.kh ds dkWye 4 esa mfYyf[kr LFkku ij 24 Qjojh] 2014 ls uhps fn, x, fooj.k ds vuqlkj ifjofrZr djrh gS%—
Øe
_.k olwyh
og LFkku tgka
og LFkku tgka vf/kdj.k dke
lañ
vf/kdj.k
vf/kdj.k dke dj jgk
djsxk
gS
1-
_.k olwyh
cnzh ukjk;.k Hkou
_.k olwyh vf/kdj.k] izxfr
vf/kdj.k] jkaph
LVªhV] jkrw jksM] iksLV
lnu] ¼vkjvkjMh, fcfYMax½
vkfQl&gsgy] jkaph&
ikapoha eafty] dVpsjh jksM]
834005 ¼>kj[k.M½
iksLV vkfQl&thihvks] jkaph&834001
¼>kj[k.M½
[Qkñ lañ 20@5@2001&MhvkjVh]
jktho 'kekZ] voj lfpo
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- 11]
ubZ fnYyh, ekpZ 9—ekpZ 15] 2014] 'kfuokj@iQkYxqu 18—iQkYxqu 24] 1935
No. 11]
NEW DELHI, MARCH 9—MARCH 15, 2014, SATURDAY/PHALGUNA 18—PHALGUNA 24, 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)
908 GI/2014
(2409)
2410
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 24th February, 2014
S.O. 904.—The Central Government hereby notifies the change in the location of Debts Recovery Tribunal, Ranchi from
the place mentioned in column 3 to the place mentioned in column 4 in the table with effect from 24th February, 2014.
Sl.
Debts Recovery
Place where the Tribunal
Place at which the
No.
Tribunal
was functioning from
Tribunal will function from
(i)
Debts Recovery
Badri Narayan Bhawan
Debts Recovery Tribunal,
Tribunal, Ranchi
Street, Ratu Road, P.O.-
Pragati Sadan (RRDA
Hehal, Ranchi-834005
Building), 5th Floor,
(Jharkhand)
Kutchery Road, P.O.-GPO,
Ranchi-834001 (Jharkhand).
[F. No. 20/5/2001-DRT]
RAJIV SHARMA, Under Secy.
the Central Government with the consent of the State
Government of Kerala, Home (M) Department,
Thiruvananthapuram vide Notification G.O. (Ms.) No. 199/
2013/Home dated 16th August, 2013, hereby extends
powers and jurisdiction of the members of the Delhi Special
Police Establishment to the whole State of Kerala for
investigation of Crime No. 416/2013 under sections 120-B
and 406 of the Indian Penal Code, 1860 (Act No. 45 of 1860)
and section 65 of the Information Technology Act, 2000
(Act No. 21 of 2000) registered at Police Station
Kunnamangalam, District Kozhikkode, Kerala relating to
the alteration of marks of the Common Admission Test
(CAT) conducted for selecting candidates to the Indian
Institute of Management (IIM) across the country and
many other people involving large scale embezzlement of
money and tax evasion and attempts, abetments and
conspiracies in relation to the above mentioned offences.
[F. No. 228/80/2013-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 20 Qjojh] 2014
dkñvkñ 906.—dsanzh; ljdkj ,rn~}kjk fnYyh fo'ks"k iqfyl LFkkiu
vf/kfu;e] 1946 ¼1946 dk vf/kfu;e lañ 25½ dh /kkjk 6 ds lkFk
ifBr /kkjk 5 dh mi&/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,
dukZVd ljdkj ds x`g foHkkx ¼vijk/k½ caxykSj ds fnukad 29
vDrwcj] 2013 ds vkns'k lañ ,pMh 79 lhvksMh 2013 }kjk izkIr
lgefr ls vk;qDr] jkeuxj] puiêu 'kgjh fodkl izkf/kdj.k
chñ,eñ jksM] btwj] jkeuxj] dukZVd vkSj vU; xSj ljdkjh O;fDr;ksa
ds fo#) jkeuxj] puiêu 'kgjh fodkl izkf/kdj.k esa
9-90 djksM+ ¼ukS djksM+ vkSj uCcs yk[k½ #i, ds nqfoZfu;kstu rFkk
mi;ZqDr vijk/kksa ds iz;kl] nq"izsj.k vkSj "kM~;a= rFkk buds leku gh
vU; rF;ksa ls mRiUu vijk/k ;k vijk/kksa ds vUos"k.k ds laca/k esa
dkfeZd] yksd f'kdk;r ,oa isa'ku ea=ky;
¼dkfeZd vkSj izf'k{k.k foHkkx½
ubZ fnYyh] 20 Qjojh] 2014
dkñvkñ 905.—dsanz ljdkj ,rn~}kjk fnYyh fo'ks"k iqfyl LFkkiu
vf/kfu;e] 1946 ¼1946 dk vf/kfu;e lañ 25½ dh /kkjk 6 ds lkFk
ifBr /kkjk 5 dh mi&/kkjk ¼1½ ds }kjk iznÙk 'kfDr;ksa dks iz;ksx djrs
gq, dsjy jkT; ljdkj] x`g ¼,e½ foHkkx] fr#ouariqje ds fnukad
16 vxLr] 2013 dh vf/klwpuk thñvksñ ¼,e,l½ lañ 199@2013@x`g
}kjk izkIr lgefr ls ns'k Hkj ds Hkkjrh; izca/ku laLFkkuksa ¼vkbZvkbZ,e½
esa vH;fFkZ;ksa ds p;u gsrq lapkfyr lkekU; izos'k ijh{kk ¼dSV½ ds
vadksa esa Qsj&cny djus rFkk cM+h ek=k esa /ku ds xcu vkSj dj&oapu
esa lafyIr vusd vU; yksxksa vkSj mDr vijk/kksa ls lacaf/kr ;k buls
tqM+s iz;klksa] nq"izsj.kkvksa vkSj "kM~;a=ksa dk vUos"k.k djus ds laca/k esa
iqfyl Fkkuk dqUueaxye] ftyk dksthdksM] dsjy esa Hkkjrh; naM
lafgrk] 1860 ¼1860 dkvf/kfu;e la[;k 45½ dh /kkjk 120&[k vkSj
406 rFkk lwpuk izkS|ksfxdh vf/kfu;e] 2000 ¼2000 dk vf/kfu;e
la[;k 21½ dh /kkjk 65 ds rgr ntZ vijk/k lañ 416@2013 dh tkap
gsrq fnYyh fo'ks"k iqfyl LFkkiu ds lnL;ksa dh 'kfDr;ksa vkSj vf/kdkj
{ks= dk foLrkj laiw.kZ dsjy jkT; ij djrh gSA
[Qkñ lañ 228@80@2013&,ohMh&II]
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 20th February, 2014
S.O. 905.—.In exercise of the powers conferred by sub-
section (1) of Section 5 read with Section 6 of the Delhi
Special Police Establishment Act, 1946 (Act No. 25 of 1946),
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2411
iqfyl LVs'ku] btwj] jkeuxj] VkÅu lfdZy] jkeuxj ftyk] dukZVd
esa Hkkjrh; naM lafgrk 1860 ¼1860 dk vf/kfu;e la[;k 45½ dh
/kkjk 34] 409] 420] 468 vkSj 471 ds rgr ntZ fnukad 16-07-2013
dh izkFkfedh la[;k 0123@2013 dh tkap ds fy, fnYyh fo'ks"k
iqfyl LFkkiu ds lnL;ksa dh 'kfDr;ksa vkSj vf/kdkj {ks= dk foLrkj
lEiw.kZ dukZVd jkT; ij djrh gSA
[Qkñ lañ 228@8@2014&,ohMh&II]
jktho tSu] voj lfpo
New Delhi, the 20th February, 2014
S.O. 906—In exercise of the powers conferred by sub-
section (1) of Section 5 read with Section 6 of the Delhi
Special Police Establishment Act, 1946 (Act No. 25 of
1946), the Central Government with the consent of the
State Government of Karnataka, Home Department
(Crimes), Bangalore vide Order No. HD 79 COD 2013 dated
29th October, 2013, hereby extends the powers and
jurisdiction of the members of the Delhi Special Police
Establishment to the whole of the State of Karnataka for
investigation of FIR No. 0123/2013 dated 16.07.2013 under
sections 34, 409, 420, 468 and 471 of the Indian Penal
Code, 1860 (Act No. 45 of 1860) and other offences
registered at Police Station Ijoor, Ramanagara Town Circle,
Ramanagara District Karnataka against the Commissioner,
Ramanagara Channapattan Urban Development
Authority, B.M. Road, Ijoor, Ramanagara, Karnataka and
other private persons relating to misappropriation of
Rs. 9.90 crores (Rupees Nine Crores and Ninety Lakhs
only) in Ramanagara Channapattan Urban Development
Authority and attempts, abetments and conspiracies in
relation to or in connection with the above mentioned
offences and any other offence or offences arising out of
the same facts.
[F. No. 228/8/2014-AVD-II]
RAJIV JAIN, Under Secy.
miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;
¼miHkksDrk ekeys foHkkx½
Hkkjrh; ekud C;wjks
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 907.—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e ¼1½ ds [k.M ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~}kjk vf/
klwfpr djrk gS fd ftu Hkkjrh; ekudksa dk fooj.k uhps vuqlwph esa fn;k x;k gS os LFkkfir gks x, gaS%—
lkj.kh
Øe
LFkkfir Hkkjrh; ekud¼dksa½ dh
u;s Hkkjrh; ekud }kjk vfrØfer Hkkjrh;
LFkkfir frfFk
la[;k
la[;k] o"kZ vkSj 'kh"kZd
ekud vFkok ekudksa] ;fn dksbZ gks] dh
la[;k vkSj o"kZ
1-
vkbZ ,l 10524&¼Hkkx 3½%2005
—
fnlEcj] 2013
eSfMdy xSlksa ds lkFk iz;ksx gksus okys izS'kj jsxqysVj
Hkkx 3 flysaMj okYo ds lkFk ,dhd`r izS'kj jsxqysVj
2-
vkbZ ,l 10524&¼Hkkx 4½%2008
—
fnlEcj] 2013
eSfMdy xSlksa ds lkFk iz;ksx gksus okys izS'kj jsxqysVj
Hkkx 4% de izS'kj ds jsxqysVj
bl ekud dh izfr;ka Hkkjrh; ekud C;wjks] ekud Hkou] 9] cgknqj 'kkg t+Qj ekxZ] ubZ fnYyh&110002] ,oe~ {ks=h; dk;kZy;ksa % ubZ fnYyh]
dksydkrk] p.Mhx<+] psUubZ] eqEcbZ] rFkk 'kk[kk dk;kZy;ksa % vgenkckn] caxyq:] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgVh] gSnjkckn] t;iqj]
dkuiqj] ukxiqj] iVuk] iq.ks rFkk dksph esa fcØh gsrq miyC/k gSaA
[lanHkZ ,e ,p Mh@th&3-5]
,lñ fd'kksj dqekj] oSKkfud ^,Q* ,oa izeq[k ¼,e ,p Mh½
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
BUREAU OF INDIAN STANDARDS
New Delhi, the 24th February, 2014
S.O. 907.—In pursuance of clause (b) of sub-rule (1) of Rule 7 of the Bureau of Indian Standards Rules, 1987, the Bureau
of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the Schedule hereto annexed
have been issued :—
2412
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
SCHEDULE
Sl.
No. & Year of the
No. and year of Indian Standards, if any,
Date
No.
Indian Standards
superseded by the new Indian Standard
established
1.
IS/ISO 10524-3:2005 Pressure
Nil
December, 2013
Regulators for use with medical gases
Part 3: Pressure regulators integrated
with cylinder valves
2.
IS/ISO 10524-4: 2008 Pressure
Nil
December, 2013
Regulators for use with medical gases
Part 4: Low-Pressure regulators
Copy of this Standard is available for sale with the Bureau of Indian Standards, Manak Bhavan, 9, Bahadur Shah Zafar
Marg, New Delhi-110002 and Regional Offices: New Delhi, Kolkata, Chandigarh, Chennai, Mumbai and also Branch Offices:
Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur, Patna, Pune,
Kochi.
[Ref. MHD/G-3.5]
S. KISHORE KUMAR, Scientist 'F' & Head (MHD)
ubZ fnYyh] 6 ekpZ] 2014
dkñvkñ 908.—vf/klwpuk la[;k dkñ vkñ 1795 fnukad 13 twu] 2007 ds vf/kxzg.k esa Hkkjrh; ekud C;wjks fu;e] 1987 ds fu;e 9 ds
mifu;e ¼1½ ds vuqlj.k esa Hkkjrh; ekud C;wjks uhps vuqlwph esa fn;s x;s fofHkUu izca/k i)fr izek.ku laca/kh ekud eqgj ds fMt+kbu rRdky
izHkko ls vf/klwfpr djrk gS%—
Øe
ekud eqgj dk fMt+kbu
izca/k i)fr dh
Hkkjrh; ekud dh la[;k
la[;k
fdLe~
1-
Hkkjrh; ekud C;wjks IS/ISO 9001
xq.krk izca/k i)fr
vkbZ,l@vkbZ,lvks 9001
Bureau of Indian Standard
2-
Hkkjrh; ekud C;wjks IS/ISO 50001
ÅtkZ izca/k i)fr
vkbZ,l@vkbZ,lvks 50001
Bureau of Indian Standard
[lUnHkZ ,e ,l lh Mh@2%1%3]
e/kqfydk izdk'k] miegkfuns'kd ¼ihih ,aM lh½
New Delhi, the 6th March, 2014
S.O. 908.— In supersession of Notification, No. S.O. 1795 dated 13th June, 2007 and in pursuance of sub-rule (1) of Rule
9 of the Bureau of Indian Standards Rules 1987, the Bureau of Indian Standards hereby notifies the Standard Mark for
various Management Systems Certification in accordance with the relevant Indian Standards as given in the schedule
below with immediate effect:
Sl.
Design of the Standard Mark
Type of Management
No. of the Indian
No.
System
Standards
1-
Hkkjrh; ekud C;wjks IS/ISO9001
Quality Management
IS/ISO 9001
Bureau of Indian Standard
System
2-
Hkkjrh; ekud C;wjks IS/ISO 50001
Energy Management
IS/ISO 50001
Bureau of Indian Standard
System
[Ref. MSCD/2:1:3]
MADHULIKA PRAKASH, Dy. Director, General (PP&C)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2413
ukxj foekuu ea=ky;
¼,,vkbZ vuqHkkx½
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 909.—Hkkjrh; foekuiÙku izkf/kdj.k vfèfu;e] 1994
¼1994 dk 55½ dh /kkjk 3 ds rgr iznÙk 'kfDr;ksa dk iz;ksx djrs gq,
dsUnz ljdkj] ukxj foekuu ea=ky; ds fuEufyf[kr vf/kdkfj;ksa dks
rRdky izHkko ls Hkkjrh; foekuiÙku izkf/kdj.k cksMZ esa fu;qDr djrh
gS%—
1- Jh izHkkr dqekj ¼vkb , ,l½( ukxj foekuu egkfuns'kd
dks Jh v#.k feJ ¼vkbZ , ,l½ ds LFkku ij Hkkjrh;
foekuiÙku izkf/kdj.k ds cksMZ esa insu lnL; ds :i esa( vkSj
2- Jh ,eñ dUuu] vkfFkZd lykgdkj] ukxj foekuu ea=ky;
dks Jh vkyksd flUgk] la;qDr lfpo] ukxj foekuu ea=ky;
ds LFkku ij Hkkjrh; foekuiÙku izkf/kdj.k ds cksMZ esa
va'kdkfyd lnL; ds :i esaA
[lañ ,oh&24015@5@2013&,,vkbZ]
lSÕ;n bejku vgen] voj lfpo
MINISTRY OF CIVIL AVIATION
(AAI SECTION)
New Delhi, the 21st February, 2014
S.O. 909.—In exercise of the powers conferred under
section 3 of the Airports Authority of India Act, 1994 (No.
55 of 1994), the Central Government hereby appoints
following Officers of Ministry of Civil Aviation on the Board
of Airports Authority of India with immediate effect:
1. Shri Prabhat Kumar (IAS), Director General of Civil
Aviation as Ex-officio Member on the Board of Airports
Authority of India vice Shri Arun Mishra (IAS); and
2. Shri M. Kannan, Economic Adviser, Ministry of Civil
Aviation as part-time Member on the Board of Airports
Authority of India vice Shri Alok Sinha, Joint Secretary,
Ministry of Civil Aviation.
[No. AV-24015/5/2013-AAI]
SYED IMRAN AHMED, Under Secy.
fo|qr ea=ky;
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 910.—dsanzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh; iz;kstuksa
ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi&fu;e ¼4½ ds
vuqlj.k esa fo|qr ea=ky; ds iz'kklfud fu;a=.kk/khu ikoj fxzM
dkjiksjs'ku vkWQ bafM;k fyfeVsM ds 400 dsoh midsUnz] 21 fdñehñ
ekbZy LVksu uSuhrky jksM] iksLV&vkVkekaMk] cjsyh&243202 ftlds
80 izfr'kr deZpkjho`an us fganh dk dk;Zlkèd Kku izkIr dj fy;k gS]
,rn~}kjk vf/klwfpr djrh gSA
[lañ 11017@10@2013&fganh]
jhrk vkpk;Z] la;qDr lfpo
MINISTRY OF POWER
New Delhi, the 24h February, 2014
S.O. 910.—In pursuance of Sub-rule (4) of Rule 10 of
the Official Language (use for official purpose of the union)
Rules, 1976, the Central Government hereby notify Limited
400 KV Substation, 21 KM. Mile Stone, Nainital Road, Post
: Attamanda, Bareilly-243202 of the Power Grid Corporation
of India Ltd. under the administrative control of Ministry
of Power, where 80% of the staff have acquired working
knowledge of Hindi.
[No.11017/10/2013-Hindi]
RITA ACHARYA, Jt. Secy.
LokLF; ,oa ifjokj dY;k.k ea=ky;
¼LokLF; ,oa ifjokj dY;k.k foHkkx½
ubZ fnYyh] 3 ekpZ] 2014
dkñvkñ 911.—tcfd Hkkjrh; fpfdRlk ifj"kn( la'kks/ku
v/;kns'k] 2013 dh /kkjk 3d dh mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq, fnukad 06 uoacj] 2013 dks Hkkjrh; fpfdRlk ifj"kn
dk iquxZBu fd;k x;k%
vkSj tcfd dsUnz ljdkj us Hkkjrh; vk;qfoZKku ifj"kn~ vf/kfu;e]
1956 ¼1956 dk 102½ dh /kkjk 3 dh mi&/kkjk ¼1½ ds [kaM ¼x½ ds
vuqlj.k esa iathd`r vk;qfoZKku Lukrd fuokZpu {ks=ksa ls lnL;ksa dk
fuokZpu fd;k vkSj fuEufyf[kr O;fDr dks bl vf/klwpuk ds tkjh
gksus dh frfFk ls pkj o"kks± ds fy, Hkkjrh; vk;qfoZKku ifj"kn~ ds lnL;
ds :i esa fuokZfpr fd;k x;k gSA
vr% vc mDr vf/kfu;e dh /kkjk 3 dh mi&/kkjk ¼1½ ds micaè
ds vuqlj.k esa dsUnz ljdkj }kjk Hkkjr ljdkj ds rRdkyhu LokLF;
ea=ky; dh fnukad 9 tuojh] 1960 dh vf/klwpuk la[;k dkñvkñ
138 esa fuEufyf[kr la'kks/ku fd, tkrs gSa( vFkkZr~%
Hkkjr ljdkj] LokLF; ,ao ifjokj dY;k.k ea=ky; dh fnukad
06 uoacj] 2013 dh vf/klwpuk la[;k dkñvkñ 3324 ¼v½ esa vafre
izfof"V rFkk rRlaca/kh izfof"V esa fuEufyf[kr dks tksM+k tk,xk] vFkkZr~%
Øeñ lañ
iathd`r fpfdRlk
fuokZfpr lnL; dk fooj.k
fuokZpu dh
Lukrd fuokZfpr
izfØ;k
{ks= dk uke
11-
v#.kkpy izns'k
Mkñ rkvks dkdh] esfMdy
fufoZjks/k
fo'ks"kK ¼lsysD'ku xzsM½]
fuokZfpr
fpfdRlk foHkkx] v#.kkpy
jkT; vLirky] ukgjykxqu]
v:.kkpy izns'k
[lañ oh- 11013@1@2013&,e bZ ih&I ¼oksy&II)]
vfer fcLokl] voj lfpo
2414
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ikn fVIi.kh% fnukad 9 tuojh] 1960 ds dkñvkñ 138 ds rgr
Hkkjr ds jkti= esa eq[; vf/klwpuk izdkf'kr dh xbZ Fkh vkSj Hkkjrh;
vk;qfoZKku ifj"kn ¼la'kks/ku½] f}rh; v/;kns'k] 2013 ¼2013 dk
11½ ds rgr vafre ckj la'kksf/kr fd;k x;k FkkA
MINISTRY OF HEALTH AND FAMILY WELFARE
(Department of Health and Family Welfare)
New Delhi, the 3rd March, 2014
S.O. 911.—Whereas on 06th November, 2013, the
Medical Council of India was re-constituted in exercise of
the powers conferred by sub-section (1) of section 3 A of
the Indian Medical Council (Amendment) Ordinance, 2013;
And whereas the Central Government, in pursuance of
clause (c) of sub-section (1) of section 3 of the Indian
Medical Council Act, 1956 (102 of 1956) has conducted the
election from the Registered Medical Graduate
Constituency and the following has been elected to be a
member of the Medical Council of India for four years with
effect from the date of issue of this notification.
Now, therefore, in pursuance of the provision of sub
section (1) of Section 3 of the said Act, the Central
Government hereby makes the following amendment in the
notification of the Government of India in the then Ministry
of Health number S.O. 138 dated the 9th January, 1960,
namely:—
In the notification of the Government of India in the
Ministry of Health & Family Welfare number S.O. 3324(E)
dated the 06th November, 2013, after the last entry and
entry relating thereto, the following shall be inserted,
namely:
S.
Name of the
Details of the
Mode of
No.
Registered
Elected Member
Election
Medical Graduate
Constituency
11.
Arunachal Pradesh
Dr. Tao Kaki, Medical
Elected
Specialist (Selection
(unopposed)
Grade), Department of
Medicine, Arunachal
State Hospital,
Naharlagun, Arunachal
Pradesh
[No. V. 11013/1/2013-MEP-I (Vol.II)]
AMIT BISWAS, Under Secy.
Foot Note : The principal notification was publish in the
Gazette of India vide number S.O. 138 dated the 9th January,
1960 and was last amended vide Indian Medical Council
(Amendment) Second Ordinance, 2013 (11 of 2013).
laLd`fr ea=ky;
ubZ fnYyh] 20 Qjojh] 2014
dkñvkñ 912.—dsanz ljdkj] jktHkk"kk ¼la?k ds 'kkldh; iz;kstuks
ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi fu;e ¼4½ ds
vuqlj.k esa laLd`fr ea=ky; ds varxZr vkus okys dk;kZy; Hkkjrh;
iqjkrRo losZ{k.k] p.Mhx<+ [k.M] dsanzh; lnu] Hkwry] lsDVj 9 ,]
p.Mhx<+] dks ftlesa 80 izfr'kr ls vf/kd deZpkfj;ksa us fganh
dk;Zlk/kd Kku izkIr dj fy;k gS] vf/klwfpr djrh gSA
;g vf/klwpuk jkti= esa izdk'ku dh rkjh[k ls izo`Ùk gksxhA
[Qk- la- 13016@1@2011&fganh]
Js;k xqgk] la;qDr lfpo
MINISTRY OF CULTURE
New Delhi, the 20th February, 2014
S.O. 912.—In pursuance of Sub-rule (4) of Rule 10 of
the Official Language (Use for official purposes of the
Union) Rules, 1976 the Central Govt. hereby notifies the
office of Archaeological Survey of India, Chandigarh Zone,
Kendriya Sadan, Ground Floor, Sector 9-A, Chandigarh
under Ministry of Culture wherein more than 80% staff
have acquired working knowledge of Hindi.
This noltification shall come into force from the date of
publication in the Official Gazette.
[F. No. 13016/1/2011-Hindi]
SREYA GUHA, Jt. Secy.
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 913.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wdks cSad 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'koj ds iapkV ¼lanHkZ lañ 33@2011½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 21-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12012@80@2010&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 21st February, 2014
S.O. 913.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 33/2011) of the Cent.
Govt. Indus. Tribunal-cum-Labour Court, Bhubaneswar as
shown in the Annexure, in the industrial dispute between
the management of UCO Bank and their workmen, received
by the Central Government on 21/02/2014.
[No. L-12012/80/2010-IR (B-II)]
RAVI KUMAR, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2415
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
BHUBANESWAR
Present:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour Court,
Bhubaneswar.
INDUSTRIAL DISPUTE CASE No. 33/2011
Date of Passing Award-17th October 2013
Between:
The Branch Manager,
UCO Bank, Jamsuli Branch,
Po. Jamsuli, Dist. Balasore, Orissa
.... 1st Party-Management.
(And)
Their workman Shri Jnana Ranjan Jena,
S/o Late Bhaban Chandra Jena,
Vill. Po. Jamsuli, P.S. Singla,
Dist. Balasore, Orissa
.... 2nd Party-Workman.
Appearances:
Shri R.N. Chand
... For the 1st Party -
Auth. Representative.
Management.
None.
... For the 2nd Party
Workman.
AWARD
An industrial dispute existing between the employers
in relation to the management of UCO Bank, Jamsuli Branch
and their workman has been referred to this Tribunal by
the Government of India in the Ministry of Labour
exercising the powers under clause (d) of sub-section (1)
and sub-section (2A) of Section 10 of the Industrial
Disputes Act vide its letter No. L-12012/80/2010-IR (B-II)
dated 27.05.2011.
2. The matter under dispute has been given under the
Schedule of the aforesaid letter which reads as follows:—
"Whether the action of the UCO bank, Jamsuli Branch,
Balasore in terminating the services of Shri Jnana Ranjan
Jena, Ex-Workman/Employee of UCO Bank, Jamsuli
Branch w.e.f. 01.09.2009 by ignoring the provisions of
Industrial Disputes Act, 1947 is justified? What relief
the workman is entitled to?"
3. The 2nd Party-workman has alleged that he was
engaged as a Clerk-cum-Computer Operator in UCO Bank,
Jamsuli Branch, Balasore in the month of January, 2004 by
the then Branch Manager on a monthly salary of Rs. 2000.
Since the date of his appointment he had been performing
his duties sincerely, honestly and diligently in the said
branch. His salary was increased first from Rs. 2000/ to Rs.
2500 and then to Rs. 3000 per month on satisfactory
performance. But suddenly the Branch Manager in order
to deprive him from statutory benefits and privileges
illegally and arbitarily did not allow him to perform his duties
from 1st Sept., 2009 and verbally terminated his services.
But before termination of his service he was neither given
any prior notice nor any retrenchment compensation. This
act of termination of service by the Branch Manager is
highly illegal and arbitrary and also contrary to the
mandatory provisions of the Industrial Disputes Act, 1947.
The 2nd Party-workman personally approached the Branch
Manager for his reinstatement, but he avoided to consider
his grievance. Therefore he sent a letter to the Branch
Manager with a copy to the Chairman, UCO Bank, Head
Office, Calcutta and Regional Manager, UCO Bank, Cuttack.
But all of them remained silent over the matter. Thereafter
he approached the Regional Labour Commissioner (Central),
Bhubaneswar with a complaint to intervene in the matter.
Despite repeated efforts by the Regional Labour
Commissioner (Central), Bhubaneswar no settlement could
be arrived at. Consequently a failure report was sent to the
Government on which this reference was made. Therefore
the 2nd Party-workman is entitled to reinstatement of
service with full back wages and continuity in service and
other consequential service benefits.
4. The 1st Party-Management in reply to the allegations
of the 2nd Party-workman has submitted that the instant
reference is neither maintainable in law nor has any merit
whatsoever for the purpose of industrial adjudication. The
alleged engagement of the 2nd Party-workman was not in
accordance with the policy of the recruitment, criteria of
engagement of personnel to the sanctioned posts and
availability of all the salary, allowances and benefits as are
applicable to the Bank employees. No rules, policy and
procedure were followed at the time of engagement of the
2nd Party-workman. Thus the restraint put by the Bank for
non-continuance of such illegal process cannot be
construed as a case of retrenchment/termination of service
by way of refusal of employment as is explicit from the
undisputed facts of the case. The 2nd Party-workman was
engaged on some job, which was required to be performed
by the Branch Manager/Officer of the Bank himself. The
2nd Party-workman appears to have been engaged at the
personal level of the Branch Manager to cater to the
computerized operations of the Branch. However such an
engagement was not only without the knowledge of the
competent and higher authority of the Bank, but also the
same was without following due procedure of recruitment
in the Bank. Neither any advertisement for such a post in
the Jamsuli Branch was published nor the disputant was
ever employed against any defined post whatsoever. At
no point of the time the 2nd Party-workman was on the pay
rolls of the Bank. His services, if any, were temporary and
2416
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
casual in nature which was never based on a proper
selection process as recognized by the relevant rules and
procedure. Since no valid or proper appointment or
recruitment of the disputant was made by the 1st Party-
Management the question of depriving him of any statutory
benefits and privileges with verbal direction of termination
of service is thoroughly misconceived. There has been no
violation of any provision of the Industrial Disputes Act,
1947 as erroneously alleged by the 2nd Party-disputant. In
case of public employments, any appointment de hors due
process of selection envisaged by the constitutional scheme
confers no right on the appointee.
5. On the basis of the pleadings of the parties, following
issues were framed:—
ISSUES
1. Whether the action of the UCO Bank, Jamsuli
Branch, Balasore in terminating the services of
Shri Jnana Ranjan Jena, Ex-Workman/Employee
of UCO Bank, Jamsuli Branch w.e.f. 01.09.2009 by
ignoring the provisions of Industrial Disputes Act,
1947 is justified?
2. What relief the workman is entitled?
6. The 2nd Party-workman did not adduce any oral
evidence in support of his claim. He has filed certain
documents in the shape of xerox copies along with his
statement of claim, but those documents have neither been
proved in evidence nor exhibited. Hence they cannot be
legally read in evidence.
7. On the other hand the 1st Party-Management has
filed sworn affidavit of Shri Rabindra Nath Chand in
evidence along with three documents in the shape of
photostat copies.
8. It is worth mentioning here that the 2nd party-workman
has never appeared before this Tribunal. Even he has sent
his statement of claim through post. This shows that how
much he is interested in his case. Viewing his continuous
absence the case was set exparte against him on 2.4.2013.
FINDINGS
ISSUE No.1
9. As the 2nd Party-workman has failed to appear before
this Tribunal/Labour Court and to adduce any oral evidence
even to prove the documents filed by him along with his
statement of claim, the claim of the 2nd Party-workman
remains without evidence. The 1st Party-Management on
the other hand has alleged and also shown through its
uncontroverted evidence of its witness Shri Rabindra Nath
Chand that the 2nd Party-workman was never appointed
as per the recruitment rules, policy and procedure existing
in the Bank. Therefore he cannot claim any right to the
post alleging his termination as illegal. The 2nd Party-
workman was allegedly engaged by the then Branch
Manager of the 1st Party-Management in his personal
capacity without any sanction or approval of the competent
authority. Consequently his disengagement cannot be said
to amount to termination of his services. He was, at no
point of time, on the pay roll of the Bank. The Branch
Manager, who engaged the 2nd Party-workman was
punished for his unauthorized and illegal act in appointing
the 2nd Party-workman.
10. In view of the exparte evidence of the 1st Party-
Management its action in terminating the services of Shri
Jnana Ranjan Jena, ex-workman/employee with effect from
1.9.2009 is held to be fully justified. This issue is accordingly
decided in the affirmative and against the 2nd Party-
workman.
ISSUE No. 2
11. Since the 2nd party-workman has failed to prove his
case and the action of the management has been held to be
valid and justified the 2nd Party-workman is not entitled to
any relief.
12. Reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 914.— vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj nsuk cSad 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;
cSaxyksj ds iapkV ¼07@2002½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 21-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12012@180@2001&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 21st February, 2014
S.O. 914.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 07/2002) of the
Cent.Govt.Indus.Tribunal-cum-Labour Court Bangalore as
shown in the Annexure, in the industrial dispute between
the management of Dena Bank and their workmen, received
by the Central Government on 21-02-2014.
[No. L-12012/180/2001-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
: 9th April 2013
PRESENT
: Shri S.N. Navalgund, Presiding Officer
C.R. No. 07/2002
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2417
I Party
II Party
Sh. D.N. Narase Gowda,
The Managing Director,
No. 11/1, 1st Cross,
Dena Bank, Sona Towers,
15th Main, Srinagar,
1st Floor, 71, Millers Road,
BANGALORE-560 050
BANGALORE-560 052
Appearances :
1 Party
: Sh. Muralidhara
Advocate
11 Party : Sh. Ramesh Upadhayay
Advocate
AWARD
1. The Central Government by exercising the powers
conferred by Clause (d) of Sub-section (1) of Sub-section
2A of the Section 10 of the Industrial Disputes Act, 1947
has referred this dispute vide Order No. L-12012/180/2001-
IR(B-II) Dated 24.01.2002 for adjudication on the following
schedule:
SCHEDULE
"Whether the action of Dena Bank is justified in
dismissing Shri D.N. Narase Gowda, Clerk from the
services of the Bank? If not, what relief the workman is
entitled to?"
2. On receipt of the reference this tribunal while
registering it is in CR 07/2002 after securing the presence
of both the sides receiving their pleadings, since the
1 Party counsel conceded the Domestic Enquiry held against
the 1 Party by the II party being Fair and Proper after hearing
the arguments of the learned advocates appearing for both
sides my learned predecessor by Award dated 29.11.2004
while upholding the finding of the Enquiry Officer the charge
of misappropriation of Rs. 14565.00 being proved against
the1 Party, taking into account the length of 26 years of
service rendered by the 1 Party and observing that his
service with unblemished reduced the punishment of
Dismissal to one of Removal from Service with
Superannuation benefits such as Pension, Gratuity, PF etc.
Being aggrieved by this Award the management as well as
the workmen approached the Hon'ble High Court of
Karnataka in W P 17282/2005 and 21414/2005 and the
Hon'ble High Court disposed off both the Writ Petitions
by Common Order dated 15.09.2009 dismissing the Writ of
the Workman and allowing Writ of the Management and
thereby set aside the Award so far it relates to the
modicifiation of the punishment and remitted back the
matter to this tribunal for reconsideration relating to the
punishment. Aggrieved by the said order of the single judge
both preferred Writ Appeals in W A Nos. 3526/2010 and
3629/2010 and the Hon'ble Division bench dismissed both
the Appeals by Order dated 23.10.2010.
3. In view of the above narrated facts the only point that
now remains for my consideration is whether the
punishment imposed by the II party against the 1 party
Dismissing him from Service is disproportionate to the
misconduct proved against him?
4. On appreciation of the misconduct proved against
the 1 Party of stealing four cheques aggregating to
Rs. 14565.00 and fraudulently encashing them which
amounts to a gross misconduct and the previous
disciplinary action against him the record of which is at
Page 1 to 3 of the Enquiry File, with the arguments addressed
by learned advocate for both sides my finding on the above
point is in the Negative for the following reasons:
REASONS
5. The learned advocate appearing for the II party while
referring to the Bio-Data and Previous Disciplinary Action
against the 1 Party copy of which is produced along with
the list of documents dated 09.08.2004 urged for similar
acts on the part of the 1 party he did not improve in his
conduct and as the charge of stealing four cheques totally
amounting to Rs. 14565.00 and fraudulently encashing them
being highly unbecoming of a Bank Official and it is not
safe to continue him in service the punishment imposed
Dismissing him from Service being Just and Proper there is
nothing for interference by this court. Interalia, the learned
advocate appearing for the 1 Party submitted that since 1
Party joined the service of II party on 01.04.1972 and served
the II party over a period of 26 years and under
Memorandum of Settlement dated 10.04.2002 between the
Banks represented by the Indian Banks Association and
their Workmen as represented by the All India Bank
Employees' Assoication, National Confederation of Bank
Employees, Indian National Bank Employees' Federation,
an Employee found guilty of misconduct under Sub-clause
(b) to Clause (6) can even by ordered for Removal from
Service with superannuation benefits i.e. Pension Provident
Fund and Gratuity the earlier Award passed by this tribunal
reducing the punishment of dismissal with removal from
service with consequential benefits is just and proper and
same may kindly to maintained.
6. No doubt under Settlement referred to by the learned
advocate appearing to the I party dated 10.04.2002
subsequent to the present reference under clause 6 an
employee found guilty of gross misconduct may :
a. be dismissed without notice; or
b. be removed from service with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the Rules
or Regulations prevailing at the relavant time and
without disqualification from futher employment;
or
c. be compulsorily retired with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratutity as would be due otherwise under the Rules
or Regulations prevailing at the relevant time and
without disqualification from futher employment;
or
2418
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
d. be discharged from service with superanuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the Rules
and Regulations prevailing at the relevant time
and without disqualification from future
employement.
but in each and every case the gross misconduct proved
against the employee has to be taken into consideration.
In the instant case the misconduct proved against the I
party being that of stealing four cheques totally
amounting to Rs. 14565.00 and fraudulently encashing
them cannot be a matter to raise sympathy in favour of
the I party since he had served the Bank over a period of
26 years. It reveals from his Bio-Data furnished by the
management that as back as 11.06.1976 there was a
complaint from Staff Training Centre (STC) of borrowing
money fromTrainees; a complaint from one Puttanna in
the year 1978 taking money from him promising a job in
the Bank; issuing seven cheques without sufficient
balance in the account; issuing token against SB Cheque
for Rs. 14000.00 though there was no sufficient balance in
the account and for all these acts he was after issuing
show cause notice and reciving reply was either Warned
or Censured.These acts on the part of I party suggest
that since all along a lenient view was taken by the Bank
relating to his financial misdeeds he was encouraged and
this time he went to the extent of stlaling four cheques
amounting to total sum of Rs. 14565.00 and fraudulently
encashing them which on due enquiry found to have been
proved is not a matter to be viewed leniently to impose a
lesser punishment provided for anact of gross-
misconduct. Under the circumstances for the present
misconduct proved againts the I party of stealing four
cheques totally amounting to Rs. 14565.00 and
fraudulently encashing them he did not deserve any other
lesser punishment than the Dismissal from Service which
is imposed by the Disciplinary Authority and affirmed by
the Appellate Auhtority and that I find no reason to
interfere in the same. In the result, I pass the following
Order:
ORDER
The Reference is Rejected holding that the action of the
Dena Bank in dismissing Shri D. N. Narse Gowda, Clerk
from the services of the Bank is legal and justified.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 9th April 2013)
S.N. NAVALGUND, Presiding Officer.
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 915.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ;wdks cSad 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;
cSaxyksj ds iapkV ¼81@1991½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 21-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12012@208@91&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 21st February, 2014
S.O. 915.—In pursurance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. 81/1991) of the
Cent.Govt.Indus.Tribunal-cum-Labour Court Bangalore as
shown in the Annexure, in the industrial dispute between
the management of UCO Bank and their workmen, received
by the Central Government on 21/02/2014.
[No. L-12012/208/91-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEUXRE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIUBNAL-CUM-LABOUR COURT,
BANGALORE
Dated
: 18th September, 2013
PRESENT
: Shri S.N. NAVALGUND,
Presiding Officer
C.R. No. 81/1991
I Party
II Party
Shri D. Shankar Prabhu,
The Divisional Manager,
S/o D Krishna Murthy,
UCO Bank,
Ex LB Deposit Collector,
Divisional Office,
C/o V Sripad, No. 74-43,
Kempegowda Circle,
Ganagarpet, Raichur-584101
Bangalore-9
Appearances:
I Party
: Sh. V. Sripad,
Advocate
II Party
: Sh. K. Prabhakar Rao,
Advocate
AWARD
1. The Central Government vide order No. L-12012/208/
91-IR(B-II) dated 14.11.1991 in exercise of the power
conferred by clause (d) of sub-section (1) and sub-section
(2A) of Section 10 of the Industrial Disputes Act, 1947 (14
of 1947) made this reference for adjudication with the
following schedule:
SCHEDULE
"Whether the action of the management of UCO Bank
in terminating the services of Shri Shankar Prabhu,
Deposit Collector is justified? If not, to what relief is the
workman entitled"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2419
2. On receipt of the reference while registering it in CR
81/1991 when notices were issued to both the sides the I
party workman filed his claim statement on 10.12.1991
claiming that he who was appointed by the II Party at its
Raichur branch as Laghu Bachat Pigmy Deposit Collector
from 14.11.1978 rendered good and efficient service
honestly and by his hard work developed the said scheme
and earned a good reputation in the society but
unfortunately the II Party suddenly temporarily stopped
the said scheme on 31.12.1983 with a malafide intention to
spoil his life and did not allow him to collect the deposits
until 15.02.1991 he made several requests to reinstate him
into service but no response was shown and that he who
was earning commission of Rs. 1,200.00 per month being
deprived of the said earnings his termination/Obstruction
in his service by the II party be declared as Erroneous,
illegal and direction be issued to pay him Rs. 1,200.00 p.m.
since from the date of termination/obstruction from
31.12.1983 till his reinstatement. The II party through its
counter statement filed on 17.07.1992 opposed this claim
of the I Party contending that the I Party who claims
termination of his agency on 31.12.1983 having raised this
dispute after a lapse of eight years in 1991 it is liable to be
rejected on this ground of delay itself. It is further
contended the I Party being engaged as Agent to collect
the Deposits under the Laghu Bachat Yojana Scheme is
not a workman as defined under Section 2(s) of the ID Act
and that his allegation that he was discharging his duties
sincerely and honestly are false and that he was found to
be very irresponsible unattentive and irregular in
maintaining upto date account of depositors and was also
not remitting the amount in time and infact for about six
months he did not make any deposit to the ban even though
he had collected deposits from the Pigmy Account Holders
and when enquiries were made it revealed that he had
defrauded the account holders as also the bank by utilising
the amount collected by him and when he was asked to
furnish a detailed account on 19.01.1984 he gave the details
and conceded having misappropriated a sum of Rs. 21850.00
in his own handwriting. It is further contended on I Party
furnishing such details it obtained from him an indeminity
bond along with his brother B Lakshmikant on 10.02.1984
and thereafter when the matter was under investigation by
the vigilance department the I Party through his letter dated
29.11.1984 gave authorisation for sending confirmation to
Laghu Bachat Account Holders. It is further contended
the Divisional Manager, Bangalore by his letter dated
02.02.1981 had instructed the Branches not to introduce
Laghu Bachat Yogana Scheme in new branch and not to
appoint any new agents in Branches which are in force and
when the misappropriation by the I Party came to light he
abandoned his work and stopped visiting the bank almost
for a period one year period prior to 1984 and in this view of
the matter the Lagu Bachat Yojana has been discontinued
from 19.01.1984. Thus it is contended the I Party who had
misappropriated the amount collected by him from the
Pigmy account holders to the tune of Rs. 21850.00 on his
own abandoned the agency and that after eight years
suppressing all these facts having come up with this dispute
after a long delay of eight years the reference is liable to be
rejected.
3. On the above pleadings my learned predecessor while
receiving the evidence of I Party and of Rajgopal Hebbar,
Officer for the II party as WW 1 and MW 1 and in the
cross-examination of WW 1 by way of confrontation
exhibiting letter written by I Party to II Party for being
appointed as Pigmy Agent; the letter of appointment issued
to the I Party; letter of acceptance given by the I Party
dated 22.11.1978; letter of the I Party stating that there was
a delay in collected the deposits from the customers dated
21.12.1982; I Party letter accepting lapses on his part with
regard to the complaints made by the customers dated
08.09.1983; I Party letter accepting misappropriation of
Rs. 21,850.00 relating to the customers dated 19.01.1984;
the list of the customers furnished by I Party with amount
collected from them; Doorvani Paper dated 13.04.1984
containing publication given by the bank cautioning the
public not to make transaction with the I Party; Indemnity
Bond executed by the I Party dated 10.02.1984; signature
of the I Party brother Sh. Laxmikanth; letter written by the
I Party requesting the bank to adjust the expenses incurred
with regard to the security deposit of the customers dated
29.11.1984; letter of the I Party requesting the bank to
transfer the security deposit to the fixed deposit dated
29.11.1984; letter of the I Party requesting the bank to
transfer the bank security deposit to his brother's account
dated 09.02.1984; letter written by the I Party to the II Party
dated 21.11.1984; Indemnity Bond executed by the I Party
in favour of the bank dated 10.02.1984 for the II Party as Ex.
M-1 to Ex. M-15 respectively and Laghu Bachat Yojana
(Modified) Scheme as Ex. M-16 in the evidence of MW 1
and Appointment of I Party as Laghu Bachat Yojana Agent
as Ex. W-1 in the evidence of WW 1 after hearing the
arguments of both sides by his award dated 17.01.1994
accepting the contention of the II Party that I Party is not a
workman as defined under Section 2(s) of the ID Act without
going into the contention of the II Party that I Party had
misappropriated the amount collected by him from the
Pigmy Account Holders and on his own abandoned the
collection of deposits rejected the reference. When the
said Award was challenged before the Hon'ble High Court
of Karnataka by the I Party in WP No. 28637/1994 the Hon'ble
High Court by order dated 29.07.1998 set aside the said
award holding that in view of the decision of that court in
WP No. 21359/1989 wherein similarly placed workman
employed by the Karnataka Bank are held as Workmen
within the ambit of Section 2(s) of ID act remitted back the
matter for fresh disposal in relation to other disputes.
4. After the order of Hon'ble High Court in WP No.
286347/1994 again this tribunal by registering it in its original
number on hearing fresh arguments on the same evidence
2420
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
adduced earlier by award dated 23.11.2001 directed the
management to regularise the services of the I Party as per
the directions of the Hon'ble Supreme Court of India. When
this award was challenged by the II Party before the Hon'ble
High Court of Karnataka in WP No. 12219/2002 (L-TER)
the Hon'ble High Court by order dated 06.07.2006 while
observing 'in the counter statement though it is specifically
pleaded the claim of the I Party is barred by delay of eight
years the same is not considered and even the evidence
adduced by both the sides on the alleged misconduct
pleaded by the II Party being not considered the award is
not sustainable' set aside the award and remanded back for
fresh disposal keeping all questions open for consideration.
5. Pursuant to the order of the Hon'ble High Court in
WP No. 12219/2002 this tribunal again taking the reference
in its original number on hearing the fresh arguments
addressed by the learned advocates appearing for both
sides on the same evidence adduced earlier by award dated
03.04.2007 directed the II Party/Management to pay a sum
of Rs. 150000.00 to the I Party workman towards full and
final settlement. When this award was again challenged by
the II Party/Management before the Hon'ble High Court of
Karnataka in WP No. 14471/2007 (L-TER), the Hon'ble High
Court by order dated 18.03.2013 while observing that Ex.
M-1 to Ex. M-16 are marked in the evidence of WW 1 and
they are marked through the management witness MW 1.
The entire cross-examination of WW 1 is in relation to the
charge levelled against him. But MW 1 in his examination-
in-chief has not whispered a word with regard to the
misconduct. There is some gap in the evidence of MW 1
and WW 1 and further between the pleadings and the
evidence. In the circumstances learned counsel for the
petitioner bank submits that an opportunity may be
provided to the petitioner to substantiate the charge before
the labour court and that it is settled position of law that if
there is no enquiry or a defective enquiry is conducted the
management is to be provided with an opportunity to lead
evidence before the labour court. In the instance case in
the absence of evidence on record, I am of the opinion that
the impugned award passed by the labour court is to be set
aside and the matter requires to be remanded and no
reasoning being assigned by the labour court on what
basis compensation of Rs. 150000.00 is arrived at while
allowing the writ petition set aside the said award dated
03.04.2007 and remanded the matter for fresh disposal in
accordance with law after providing opportunities to both
the parties within six months from the date of receipt of
copy of the order.
6. The learned advocate for the I Party on 12.04.2013
when produced the copy of the order passed in WP No.
14471/2007 (L-TER) re-registering the reference in the original
number when notice was issued to II Party Sh. K. Prabhakar
Rao, advocate filed vakalat for the II Party and requested to
grant time to lead evidence. The learned advocate appearing
for the II Party on 29.07.2013 while filing the affidavit of
Sh. Uday Narayan, former Assistant Manager of the Raichur
Branch examined him on oath as MW 2 and got affirmed Ex.
M-1 to Ex. M-15 which were exhibited earlier in the evidence
of WW 1 by way of confrontation and since the learned
advocate appearing for the I Party while cross-examining
MW 2 made a submission that he has no further evidence to
lead the matter was when posted for arguments counsel for
I Party filed his written arguments and counsel for II Party
addressed his oral arguments on 12.08.2013.
7. The contention of the II Party the I Party was being
appointed as a Commission Agent under its Laghu Bachat
Yojana Scheme on an agreement to pay commission on the
deposits collected by him he is not a workman as defined
under Section 2(s) of ID act do not now survive for
consideration since the award passed by this tribunal dated
17.01.1994 on the sole ground that I Party cannot be a
workman as defined under Section 2(s) of the ID Act being
set aside by the Hon'ble High Court of Karnataka in WP
No. 28637/1994 holding that Pigmy Agents are the workman
as defined under Section 2(s) of the ID Act and moreover
the Award passed by the Hyderabad Tribunal in the case
of The workmen of Syndicate Bank and others vs. Indian
Banks Association holding the Pigmy Agents as Workmen
being upheld by the Hon'ble Supreme Court which is
reported in AIR 2001 SC 946 the Pigmy Agents of various
banks are workmen as defined under Section 2(s) of ID Act
is a settled law. Moreover, having regard to the above
position the learned advocate appearing for the II Party
now having not urged this contention raised in the counter
statement in my view the question whether I Party is a
workman or not as defined under Section 2(s) of the ID Act
does not now remain for consideration.
8. Since there is no dispute on the letter/application
written by the I Party to the II Party dated Nil which is
marked as Ex. M-1 he being appointed as Agent for
collection of Laghu Bachat deposits under Laghu Bachat
Yojana of the II Party as per Ex. M-2 and I Party giving his
acceptance to the said offer of appointment as per Ex. M-3,
in view of the specific contention of the II Party that the
reference is bad for eight years delay in raising the dispute
from the alleged date of his termination and that the I Party
on complaints by the Pigmy Depositors agreed having
misappropriated a sum of Rs. 21850.00 and abandoned the
agency on his own and it has not terminated his agency
the points that remains for consideration are:
Point No. 1: Whether the dispute raised by the I Party
alleging his termination on 31.12.1983 after eight years in
the year 1991 is maintainable?
Point No. 2: If yes, whether the II Party proved the I
Party misappropriating a sum of Rs. 21850.00 collected by
him from the Pigmy Account holders and on his own
abandoning the agency and that it did not terminate his
Agency?
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2421
Point No. 3: What order?
9. On appreciation of the pleadings, oral and
documentary evidence placed on record by both the sides
in the light of the arguments put forward for them my finding
on Point No. 1 is in the Negative, Point No. 2 in the
Affirmative and Point No. 3 as per the final order for the
following
REASONS
10. Point No. 1: The I Party who claims in the claim
statement suddenly the Laghu Bachat Yojana was
temporarily stopped on 31.12.1983 by the II Party and then
onwards he was not allowed to collect the deposits thereby
he claims that his agency was terminated from 31.12.1983.
Further, in Para 6 of the claim statement alleging he has
approached the II Party since from the date of termination/
obstruction i.e., 31.12.1983 to 15.02.1991 and requested for
reinstatement into the service appears to be claiming that
till 15.02.1991 he was requesting to reinstate him in service,
but except his allegation in the claim statement and
statement in his self swearing affidavit nothing is placed
on record that from 31.12.1983 onwards till 15.02.1991 he
was making request to reinstate/restore his agency, it is
very hard to believe that he kept on making request from
31.12.1983 onwards till 15.02.1991 to reinstate him or to
restore his agency. Though there is no specific provision
restricting the period for raising the dispute in the ID act as
held in the Division Bench decision of the Hon'ble High
Court of Karnataka in the case of Telecom District Manager
and others vs. A. A. Angali and others reported in AIR
2000 Kar 2963 relied on by the learned advocate appearing
for the II Party because law does not prescribe any time
limit for the appropriate government to exercise its power
under Section 10 of the Act, it is not that this power can be
exercised at any point of time and to revive matter which
have since been settled, the relevant para in which decision
reads as under "Law does not prescribe any time limit for
the appropriate Government to exercise its power under
Section of the Act. It is not that this power can be exercised
at any point of time and to revive matters which had since
been settled. Power is to be exercised reasonably and in a
rational manner. There appears to us to be no rational basis
on which the Central Government has exercised powers in
this case after lapse of about seven years or order
dismissing the respondent from service. At the time
reference was made no industrial dispute existed or could
be even said to have been apprehended. A dispute which
is stale could not be the subject matter of reference under
Section 10 of the Act. As to when a dispute can be said to
be stale would despond on the facts and circumstances of
each case. When the matter has become final, it appears to
us to be rather incoggruous that the reference be made
under Section 10 of the Act in the circumstances like the
present one. In fact it could be said that there was no
dispute pending at the time when the reference in question
was made. The only ground advanced by the respondent
was that two other employees who were dismissed from
service were reinstated. Under what circumstances they
were dismissed and subsequently reinstated is nowhere
mentioned. Demand raised by the respondent for raising
Industrial Dispute was ex facie bad and incompetent". In
view of the above said decision it was for the I Party to
explain the eight years delay in raising this dispute and as
already adverted to by me above no proper explanation is
being pleaded and proved except his bald statement in the
claim statement and self swearing affidavit that till 15.02.1991
he kept on requesting to reinstate him in service, I have
arrived at conclusion of answering this point in the
Negative.
11. Point No. 2: In fact in view of my finding on Point
No. 1 in the Negative the consideration of this point does
not survive. However presuming that first point is answered
in the affirmative i.e., mere delay in raising the dispute is
not fatal for the reference, let me now proceed to consider
the aspect covered in the second point. It is borne out from
the evidence recorded in this matter that I Party who
examined himself on 27.11.1992 just affirmed what he has
stated in his claim statement without any whisper about
the allegations of misappropriation made against him. But
in his cross-examination he who has admitted that he has
studied upto SSLC can read and write in English and
Kannada and also Ex M-4 is a letter written by him wherein
he has stated that due to his ill-health he could not attend
for daily collection as well as Ex M-6 and Ex M-7 wherein in
his own handwriting he has written having misutilized a
sum of Rs. 21850.00 collected from six months, to his
convenience further states that he has only put his
signatures to these letters. Further though he admits his
signatures to the indemnity bond executed by him
conveniently states that he has simply put his signature
without knowing the contents therein. Further he also
admits Ex M-10 and Ex M-11 bears the signature of himself
and his brother and again to his convenience he claims
that he signed them without understanding the contents
there in. Though the I Party was aware of the Public Notice
issued by the II Party in the Raichur Vani Daily dated
13.04.1984 having cautioned the public not to transact with
him he having remained silent in his claim statement on
this aspect and simply come forward in the cross-
examination when these documents were confronted to
him he having put his signatures without knowing contents
which is unbelievable. In the background of this when it is
contended one year prior to 1984 I Party stopped collecting
the deposits and abandoned the agency it probabilizes the
I Party having conveniently choosing date of termination
by 31.12.1983. Under the circumstances, the I Party who
unequivocally admitted through his letter at Ex Ex M-6 and
Ex M-7 having misutilized an amount of Rs. 21850.00
collected from the Pigmy Account Holders as contended
by the II Party must have abandoned his agency by around
31.12.1983 and by afterthought after eight years with an
ulterior motive suppressing the real facts raised this dispute
2422
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
for wrongful gain is probable and acceptable. In the result,
I have arrived at conclusion of answering this point in the
affirmative.
12. Point No. 3: In view of my finding on Point No. 1 and
2 the reference is liable to be Rejected on the ground that
the I Party who misappropriated a sum of Rs. 21850.00
collected from the Pigmy Account Holders on his own
having abandoned the agency and is not terminated by
the II Party with an after thought after eight years having
raised this dispute without properly explaining the delay is
not entitled for any of the reliefs claimed by him. Hence, I
pass the following
ORDER
The Reference is Rejected holding that the I Party having
misappropriating a sum of Rs. 21850.00 collected from the
Pigmy Account Holders on his own having abandoned the
agency and is not terminated by the II Party is not entitle
for any relief.
(Dictated to U.D.C. transcribed by him, corrected and
signed by me on 18th September, 2013)
S.N. NAVALGUND, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
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FkkA
[lañ ,y&29011@107@2002&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 916.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 84/2009) the 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 Tamil Nadu Minerals Limited and their
workman, which was received by the Central Government
on 17/2/2014.
[No. L-29011/107/2002-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Thursday, the 16th January, 2014
PRESENT: K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 84/2009
(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 Tamil Nadu Minerals Ltd. and their
workmen)
BETWEEN
The General Secretary
: Ist Party/Petitioner Union
Salem Mavatta Kanima Niruvana Uzhiyar
Sangam, CITU Office
Rajaganapathy Nagar
Mettur Dam-646401
AND
The Chairman-cum-
: 2nd Party Respondent
Managing Director
Tamil Nadu Minerals Ltd.
Kamarajar Salai, Chepauk
Chennai-5.
APPEARANCE :
For the 1st Party/
:
M/s. V. Ajoy Khose
Petitioner Union
&
S. Manoharan,
Advocates
For the 2nd Party/
:
M/s S. Sekar, Advocate
Management
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-29011/107/2002-IR(M)
dated 12-13/11/2009 referred the following Industrial
Dispute to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the demand of the Salem Mavatta Kanima
Niruvana Uzhiyar Sangam (CITU) apart from Bonus for
all the employees irrespective of the ceiling prescribed
under the Payment of Bonus Act, 1965, an ex-gratia of
25% for the year 2001-2002 is just and legal? What relief
the workmen concerned are entitled to?
2. On receipt of the Industrial Dispute this Tribunal has
numbered it as ID 84/2009 and issued notices to both sides.
Both sides entered appearance through their respective
counsel and filed claim and counter statements respectively.
3. The averments in the Claim Statement in brief are as
below:
The First Party is a Trade Union Under the Trade Union's
Act and is espousing the cause of workmen employed by
the 2nd Party which is a Company wholly owned by the
Government of Tamil Nadu. It is making huge profit every
year by exporting black granite stones to various countries.
The second Party was able to earn such profit only because
of the hard work of its workmen. The First party had
demanded 25% bonus and ex=gratia to all the employees
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2423
of the Second Party for the year 2001-2002 without reference
to salary ceiling or the maximum limit for payment of bunus.
Since the Second Party did not call the First party for talks
the dispute has been raised by the First Party. The Tamil
Nadu Govt. had issued separate orders for the workers
employed in Tamil Nadu Electricity Board. State owned
Transport Corporations. Civil Supplies Corporations, etc.
and directed that bonus is payable to all workers whose
wages are regulated through wage settlements without any
reference to the salary ceiling of Rs. 3.500/- as provided in
the Payment of Bonus Act. The workers employed by the
Second Party are paid wages on the basis of wage
settlements like transport workers, etc. The action of the
Second Party is not extending 25% bonus and ex-gratia to
the workmen for the year 2001-2002 is unjustified and illegal.
The Second Party shall be directed to pay bonus @ 20%
and ex-gratia of 5% without reference to salary ceiling,
with interest.
4. The Second Party has filed Counter Statement
contending as follows:
The Second Party is a government company carrying
on mining operation in various parts of the State. The
Second Party being one of the Govt. undertakings, payment
of bonus will have to be made as per the Payment of Bonus
Act and in accordance with the State Government orders.
Accordingly, the Second Party had sanctioned bonus to
all eligible workers at the maximum rate of 20% of their
salary as per Payment of Bonus Act for the year 2001-2002.
The Govt. has clarified by order No. 349 dated 22.10.2002
that the order of the governemnt for payment of bonus will
not be applicable to transport corporations, electricity
boards, civil supply corporations, etc. The First Party
cannot claim bonus on par with the above corporations.
There is no provision to sanction ex-gratia payment where
maximum 20% bonus was declared. The Second Party has
sanctioned bonus for the year 2001-2002 to all eligible
workers whose salary or wages did not exceed Rs. 3,500/-
per month at the maximum rate of 20%. The First Party is
not entitled to any relief.
5. The evidence in the case consists of oral evidence of
WW1 and documents marked as Ext. W1 to Ex.W12 and
Ext.M1 to Ex.M6.
6. The points for consideration are :
(i) Whether the employees of the 2nd Respondent
are entitled to bonus for the year 2001-2002
irrespective of the ceiling prescribed under the
Payment of Bonus Act and Ex-Gratia payment of
5% ?
(ii) What is the relief to which the concerned workmen
are entitled?
The Points
7. The only claim of the First Party, the workers union
representing the workers of the Second Party is that for the
year 2001--2002, the workers are entitled to Bonus without
reference to the salary ceiling and that the Second Party
should be directed to pay bonus to all its employees @
20% and ex-gratia of 5% without reference to salary ceiling
and maximum ceiling. The First Pary has written Ex.W1
letter to the Second Party making the demand of bonus
and ex-gratia for the year 2001-2002 without reference to
the ceiling limit prescribed on the salary. Since this has
been turned down the industrial Dispute was raised by the
First Party.
8. The stand of the Second Party is that it being one of
the Govt. Undertakings bonus is payable as per the
provisions of Payment of Bonus Act and in accordance
with the State Govt. orders. It is stated by the Second Party
that it has sanctioned bonus for the year 2001-2002 to all
the eligible workers @ 20% of their salary as per the
Payment of Bonus Act. It is stated in the Counter Statement
of the Second Party that though apart from the First Party
Union other unions representing the workers also had made
the same claim, they have subsequently withdrawn the
claim when the factual position was explained to them.
9. There is no dispute for the First Party that the workers
have received bonus as per the Bonus Act and on the
basis of the order of the Government.
10. The counsel for the First Party has stated in the
notes of arguments submitted that earlier the Govt. of Tamil
Nadu used to issue orders for Payment of Bonus not based
on any profit or productivity. It is also stated that though
salary ceiling is fixed under Section-2(13) of Payment of
Bonus Act, the Govt. used to issue orders to pay bonus to
all the employees without reference to the salary ceiling
fixed under Secton-2(13) of Payment of Bonus Act. However,
no such previous orders are produced on behalf of the
First Party. According to the counsel though during the
year 2001-2002 the salary ceiling was Rs. 3,500/- in the year
2007 the salary ceiling was increased to Rs. 10,000/- with
effect from 01.04.2006. The argument of the counsel is that
as per the practice, though the workmen have been getting
more than Rs. 3,500/- per month as salary, during the year
2001-2002, they should be paid bonus as if their salary was
Rs. 3,500/- or below.
11. The above submission of the counsel itself would
show that during the year 2001-2002, the employees who
obtained more than Rs. 3,500/- as salary, are not eligible for
bonus under the Act and under the order. Merely because
subsequently, in the year 2007, the salary ceiling has been
raised, the First Party now cannot contend that they were
entitled to bunus irrespective of the ceiling fixed for the
year 2001-2002.
12. One contention that is raised in the Claim Statement
is that the Govt. has issued separate orders for the workers
employed in the Electricity Board. Transport Corporations,
Civil Supplies Corporations, etc. and directed that bonus
be paid to those workers whose wages are regulated through
2424
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
wage settlements without any reference to the salary ceiling
of Rs. 3,500/-. It seems the Government by order dated
22.10.2002 has made it clear that except the above three
corporations, the employees of all other corporations or
undertaking of the Tamil Nadu Govt. shall be strictly
governed only by the Payment of Bonus Act. Thus it is
clear that for the workers including the workers of the
Second Party, bonus was payable only if they came within
the prescribed salary ceiling. Those workers who are eligible
have already received their bonus and ex-gratia. There is
no substance in the claim advanced by the First Party. I
find that the First Party is not entitled to any relief.
13. In view of my discussion above, 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 16th January, 2014).
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the Ist Party/Petitioner :
WW1, Sri K. Vijayan
For the 2nd Party/
:
None
Management
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
26.09.2002
Demands given by the Ist party
Union to the 2nd Party
Ex.W2
24.10.2002
First Party letter the Conciliation
Officer
Ex.W3
22.10.2002
G.O. Ms. No. 214 issued by
Transport Department
Ex.W4
24.10.2002
(Per) B.P. (Ch) No. 212 issued by
TNEB
Ex.W5
20.10.2003
G.O. Ms. No. 127 issued by
Transport Department
Ex.W6
17.10.2006
B.P. (Ch).No. 207 issued by TNEB
Ex.W7
20.11.2002
Failure report
Ex.W8
09.04.2003
Declined the refer the dispute for
adjudication
Ex.W9
15.05.2003
First party letter to the
Government to reconsider the
Matter.
Ex.W10
07.08.2009
Order in WP No. 20435/2003
Ex.W11
12.11.2009
Reference for adjudication
Ex.W12
1995 to 2002 Balance Sheet of TAMIN
On the Management's side
Ex.No.
Date
Description
Ex.M1
26.09.2002
Letter from the Salem Mavatta
Kanima Niruvana Uzhiyar Sangam
(CITU).
Ex.M2
22.10.2002
G.O. No. 349 Finance (BPE)
Department
ExM3
31.10.2002
Tamilnadu Dessiya Minerals
Paniyalar Sangam (INTUC)
Ex.M4
11.11.2002
Leter No. 25262/MME2/21002-2
from the Industries (MME2)
Department
Ex.M5
09.04.2003
Letter No. L-29011/107/2002-IR(M)
from the Under Secretary,
Government of India, Ministry
of Labour, New Delhi
Ex.M6
09.12.2002
Letter No. 24292/IRI/2002
addressed to the Secretary to
Government of India, Ministry of
Labour, New Delhi.
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New Delhi, the 21st February, 2014
S.O. 917.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 150/2011) of the
Central Government Industrial Tribunal/Labour Court No.1,
Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Airport Authority of India and their
workman, which was received by the Central Government
on 17/2/2014.
[No. L-11011/8/2008-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No. 150/2011
The All India President,
AAI Mazdoor Sangh,
Flat No. 166, DDA-SFS Flats,
Sector-I, Dwarka,
New Delhi-110075
....Workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2425
Versus
The Chairman,
Airport Authority of India,
A Block, Rajiv Gandhi Bhawan,
Safdarjung Airport,
New Delhi-110092.
....Management
AWARD
Airport Authority of India (in short the Authority) was
created in 1994 by an Act of Parliament by way of merger of
erstwhile International Airports Authority of India and
National Airports Authority. After merger of aforesaid two
authorities and creation of the Authority an expert committee
was set up to evolve principals of integration of seniority
and other related issues of employees of the Authority.
Recommendation of the said committee was partly
implemented by the Authority. Various committees were
constituted thereafter to frame common recruitment and
promotion guidelines. Steps were taken by the Authority
to restructure cadres of its employees, to remove
discrepancies and anomalies in pay structure and provide
better promotion avenues.
2. The Authority negotiates with a recognized union to
carve out better wages and benefit structures for its
employees. In order to grant recognition to a union, election
by secret ballot is conducted. Election by secret ballot was
held on 23.10.2002 to determine majority character of a union
as a sole bargaining agent. The Airports Authoirty
Employees Union (hereinafter referred to as the union) was
declared as a majority union and recognition was granted
to it by the Authority, for a period of five years. In the year
2007 too the union obtained majority votes in secret ballot
election. The Airport Authority of India Mazdoor Sangh
(hereinafter referred to as the sangh) lost the aforesaid two
elections. The Authority did not allow the sangh to
represent entire body of workmen, when steps were taken
to formulate wage and benefit structures for its employees.
Knowing well that it had no numerical support, the sangh
raised a dispute before the Concillation Officer, relating to
relaxation in qualification and trade test while filling
vacancies by way of promotion from amongst the
employees of the Authority in consonance with recruitment
and promotion rules and memorandum of understanding
arrived at between the Authority and the union. Since the
Authority contested the claim as well as right of the sangh
to raise policy issues in resident entire body of workmen,
conciliation proceedings ended into a failure. On
consideration of failure report, submitted by the
Conciliation Officer, the appropriate Government referred
the dispute to the Central Govt. Industrial Tribunal No. 2,
New Delhi, for adjudication, vide order No. L-11011/8/2008-
IR(M), New Delhi dated 15.04.2009, with following terms:
"Whether the demand of the union regarding relaxation
in qualification, trade test while filling up the vacancies
on seniority basis a incorporated in R & P and MOU is
just and legal? What relief is the union entitled to and
from which date?"
3. Corrigendum was issued by the appropriate Govt.
vide order No. L-110011/8/2008-IR(M) New Delhi dated
5.10.2009 substituting All India President of the sangh as
party to the dispute instead of the Vice President of the
sangh.
4. Claim statement was filed on behalf of the sangh
pleading therein that it is a trade union regisgered under
the Trade Union Act, 1926 and as such has a right to raise
dispute, which affects the workmen. It has been claimed
that the Industrial disputes Act 1947 (in short the Act)
does not prohibit the sangh from raising a dispute which
affects rights of the workmen. The sangh pleads that the
Authority had issued order for restructuring of various
cadres of Ministerial, stenographic, housekeeping and
Airport Hostess etc. in the ratio of 4:3:3, vide letter dated
23.06.2005. In the said order clusters have not been
introduced so far except in the cadre of fire and motor
transport discipline. The Authority has prescribed
educational qualification as graduate with two year relevant
experience in cargo, electronics, Hindi, material
management, operation and personnel discipline for direct
recruitment to the post of Assistant (N.E.5 scale), a base
level post of group C in pre-revised scale, which adversely
affects promotional avenues of group D employees for
that post. Two years relevant experience, in the field of
ATC, Civil, CP&MS, electrical, economics, finance, Hindi,
land management, law, medical, material management, motor
transport, operational, personnel, public relation and
housekeeping disciplines was prescribed for the post of
Senior Assistant (N.E.6 scale) which adversely affects
promotional avenues of group D employees. Educational
qualification of engineering degree or graduate with post
graduate diploma, in ATM, comunication, civil, electrical,
equipment/technical, information technology, architecture,
airport operation, personnel, law, public relatin, economic
planning, finance, commercial land management, cargo,
housekeeping, horticulture, fire, cartography and
electronics disciplines was prescribed for the post of Junior
Executive (E-1 scale) which also adversely affects
promotional avenues of group C employees. Above
educational qualification and experience for the posts,
referred above, were subsequently incorporated in
Recruitment and Promotion Guidelines 2005. The Authority
issued letter dated 15.03.2007 and asserted that
restructuring was made subject to the conditions
incorporated in Recruitment and Promotion Guidelines. It
emerged that no relaxation in qualification and trade test
was to be given to the employees. The Aurhority
discriminated the employees in the cadres like engineering
motor transport, E&M and fire etc. and thus grossly
violated the provisions of Articles 14 of the Constitution
of India. Benefit of exemption from passing trade test/
written examination has been provided to ministerial cadre
vide letter dated 4/6.10.2005.
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[PART II—SEC. 3(ii)]
5. The sangh pleads that the Authority had ignored
cause of weaker sections and largely affected various
cadres in group D when it issued orders from restructuring
of various cadres in ministerial, stenographic,
housekeeping, airport hostess, engineering, motor
transport, E&M, and fire etc. Though the employees,
covered under restructuring orders dated 27.4.2006,
15.3.2007 and 31.5.2007, get equal wages, allowances,
overtime allowance and perks etc. with the employees of
ministerial cadres but their hours of work, weekly off and
holidays are different than the employees of ministerial
cadres. Job specifications for employees working in various
cadres of engineering, motor transport, E&M and fire etc.
have not been formulated by the Authority, which make
them to perform similar nature of work as performed by
employees of superior categories. The Authority has
approved common recruitment and promotion regulations
for executives and non-executives without giving notice,
as required under section 9-A of the Act, since increase in
qualification and addition of criteria of passing trade test
amount of change in their service conditions. Erstwhile
employees of civil aviation department, absorbed in the
service of the National Airport Authority, were also brought
under the purview of common recruitment and promotion
regulations, without formulating any training capsule for
them. In recruitment and promotion regulations process of
supersession has been restored, which is against the policy
of the Government of India.
6. The sangh project that the Authority had arbitrarily
chosen two different dates of implementation for
restructuring of cadres, one for ministerial, stenographic,
housekeeping and airport hostess while the other for
engineering, motor transport, E&M, and fire discipline etc.
This way the Authority has discriminated employees of
group C and D, who are largely affected. Discriminatory
restructuring policy of the Authority had caused resentment
amongst a large section of workmen. The Authority had
not allowed the sangh to present its views on restricting
policy, referred above. The sangh has a right to represent
its members before the Authority, in respect of recruitment
and promotion policy formation. The sangh claims that the
Authority may be commanded to grant relaxation in
qualification and trade test while filling up vacancies on
seniority basis, pursuant to recruitment and promotion
regulation and memorandum of understanding arrived at
between the Authority and the union.
7. The claim was demurred by the Authority pleading
that the sangh is not competent to challenge policy decision,
regarding recruitment and promotion regulations, framed
by it. The sangh had lost election by secret ballot, held in
the year 2002 and 2007, for grant of majority status to a
union. The sangh is an unrecognized union, not competent
to raise an industrial dispute on issues relating to general
employees, which has been settled by way of negotiation
with the union. The Authority pleads that group D
employees has not been adversely affected by its
recruitment and promotion policies. On the contrary posts
for promotion have been increased. Age relaxation has also
been granted to them. Their career growth has been
increased. The Authority asserts that a committee was
constituted for restructuring of cadres and removal of
anomalies in ministerial, stenographic, housekeeping
cadres and upgradation of employee in higher scales w.e.f.
1.4.96. The committee recommended restructuring of four
cadres in the ratio of 40:30:20 in N.E. 5, N.E. 6, N.E. 8 and
N.E. 9 scales. Induction level in N.E. 6 scale was in the ratio
of 60:40 in both the divisions except the engineering cadres.
An Anomaly Committee was constituted vide order dated
05.07.2005. In its report dated 07.12.2005 the committee
opined that date of implementation may be decided by the
Authority. Accordingly the Authority decided to implement
the report of the committee w.e.f. 01.08.2001 since
memorandum of understanding was signed by the
Authority with the union on 21.07.2001.
8. The Authority pleads that keeping in view that orders
forming clusters were issued for certain categories like
motor transport, fire and engineering etc., hence it was
decided that the employees would be required to obtain
competency certificate/pass trade test where required on
the current date. However benefit of passing such trade
test/competency certificate was to be given from
retrospective date, the date from which official became
eligible for promotion under the proposed restructuring
policy. Where an employee has already been given FCS
benefit in any particular post/cluster, it was held to be
personal to him. Dual benefit under FCS and restructuring
policy was not admissible to an employee. Matter of
implementation of restructuring of engineering cadres was
approved for rationalization w.e.f. 01.01.1997, subject to
implementation of recruitment and promotion guidelines.
No relaxation in qualification and trade test was to be given.
No discrimination of any sort was made in that regard.
9. The Authority projects that prior to implementation
of restructuring of various cadres in ministerial,
stenographic, housekeeping, airport hostess and various
cadres of engineering, motor transport, E&M and fire etc.
40% posts in all group D, in pre-revised scale of Rs. 2400-
3330, were upgraded to next pre-revised scale of Rs. 2550-
3660 to remove stagnation. Qualified group D employees
in N.E. 3 scale possessing requisite qualification would be
given opportunity for appointment to N.E. 4 scale against
20% vacancies to be filled by direct recruitment, subject to
qualifying written/trade test. Further group D employees
in N.E. 3 scale are eligible for placement in N.E. 4 scale on
grant of selection grade on completion of 6 years service.
Promotion under FCS is entirely different from regular
promotion. Persons promoted against FCS scheme have to
carry out same duties and functions, which were performed
by him earlier to the promotion. There are no reasons for
imparting any specific training capsule to the employees
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2427
of the Authority, on being implementation of promotional
and recruitment policy. Recruitment and promotion policy,
which has been implemented in the best interest of the
organization provide better career opportunities to all
employees working with the Authority.
10. Restructuring benefits have been extended to
ministerial, stenographic, housekeeping and air hostess
discipline retrospectively w.e.f. 01.04.1996 notionally.
Financial benefits have been extended to them w.e.f.
23.6.2005. Restructuring benefits to engineering, E&M, fire
and motor transport disciplines etc. have been extended
w.e.f. 01.01.1997 notionally on the recommendation of
another committee and financial benefits have been released
in their favour w.e.f. 27.4.2006. No discrimination was done
while granting benefits to the employees of the above
cadres. Group D employees have not been ignored in their
upgradations. Career progression for them is provided
under recruitment and promotion regulations. Employees
in N.E. 8 and N.E. 9 scales have been granted benefits
under FCS as well as promotion on regular basis, subject
to meeting eligibility criteria and seniority. Inequalities in
various cadres have been removed. The Authority pleads
that relaxation in qualification and trade test, to fill up
vacancies in various cadres, have been done to provide
career growth to employees working in various grades.
The dispute raised by the sangh is not legally tenable. It
has been claimed that the claim put forward by the sangh
may be dismissed, being devoid of merits.
11. Vide order No. Z-22019/6/2007-IR(C-II) New Delhi
dated 30.03.2011 the case was transferred to this Tribunal
for adjudication by the appropriate Government.
12. To discharge onus resting on the sangh, Shri
Harinder Tiwari entered the witness box. With the
permission of the Tribunal he testified facts again with a
view to adduce additional evidence. Shri V.B. Sharma, Senior
Manager, was brought in the witness box by the Authority.
His cross examination remained incomplete and he was
never produced again to face rigors of cross examination.
Since effective opportunity was not given to the sangh to
purify testimony of Shri Sharma by an ordeal of cross
examination, hence his testimony cannot be read in the
matter. Shri Balbir Singh, General Manager, was also
examined on behalf of the Authority. No other witness was
examined by either of the parties.
13. None came forward on behalf of the sangh to advance
arguments. Ms. Sujata Kashyap, authorised representative,
advanced arguments on behalf of the Authority. Written
submissions were also filed by the Authority. 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.
14. At the outset Ms. Kashyap argued that the sangh
lost secret ballot elections, conducted for determination of
majority status of the union. In referendum held in the year
2002 and 2007, the sangh lost elections. The union won
elections in the year 2002 and 2007. The union was declared
as a sole bargaining agent and the Authority granted
recognition to the union, to raise all issues relating to its
general employees. The Authority had discussed issues
relating to general employees and signed memorandum of
understanding with the union. Ms. Kashyap argued that
the sangh has no right to raise policy issues, relating to
service conditions of general employees of the Authority.
15. In his testimony Shri Harinder Tiwari made a candid
admission that in the year 2002 the sangh lost secret ballot
election, conducted to determine majority status of a union,
for grant of recognition as a sole bargaining agent on behalf
of general employees of the Authority. He could not dispute
that in the year 2007 too the sangh lost referendum
conducted for election of a union as sole bargaining agent
to represent general employees of the Authority. Out of
facts conceded by Shri Harinder Tiwari it became evident
that the sangh lost elections twice and could not attain
majority status for recognition as a sole bargaining agent
to raise issues relating to service conditions of general
employees of the Authority.
16. Whether the sangh, which is an unrecognized union,
can raise issues of policy, relating to service conditions of
general employees of the Authority? For an answer to this
proposition law laid by the Apex Court in Food Corporation
of India case [1995 (71) FLR 278] is to be taken note of. In
that case Food Corporation of India and the unions,
representing the workmen in the establishment of Food
Corporation of India, have agreed to follow "secret ballot
system" for assessing the representative character of the
trade unions. The Apex Court laid down as to how the
method of secret ballot should be tailored to yield correct
results. The Court ruled therein that the union/unions
obtaining the highest numbers of votes in the process of
election shall be given recognition by the Food Corporation
of India for a period of five years, from the date of
conferment of the recognition.
17. In All Orissa State Bank Officers case [1999 (1) DLR
271], Orissa High Court rules that a recognized union, who
has numerical support to represent and to speak on behalf
of all workmen, has a right to represent the entire body of
workmen. An unrecognized union has no right to represent
the entire body of the workmen, but it may speak for or
represent workmen, who are its members individually or as
a group. In case of any conflict between demands of
recognized union and demand of an unrecognized union
the management can accept views of the recognized union
but the management cannot deny or refuse to entertain
any representation from or to enter into any dialogue or
discussion with an unrecognized union in respect of
grievances of any individual workman or a group of
workmen belonging to the unrecognized union. Relying
on the precedent in Balmer Lawrie Workers Union (AIR
1985 SC 311) the High Court ruled that acceptance of a
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[PART II—SEC. 3(ii)]
demand on discussion over a demand is not the one and
the same thing. Right of raising grievance and discussion
is a fundamental right, which cannot be taken away totally.
The High Court noted observation of the Apex Court in the
precedent, referred above, with profit, which observations
are extracted thus:
"....Forming an Association is entirely independent
different from its recognition. Recognition of a union
confers rights, duties and obligations. Non-conferring
of such rights, duties and obligations on a union other
than the recognized union does not put it in an inferior
position nor the charge of discrimination can be
entertained. The members of a non-recognised
association can fully enjoy their fundamental freedom
of speech and expression as also to form the association.
The Legislature has in fact taken note of the existing
phenomenon in trade unions where there would be
unions claiming to represent workmen in an undertaking
or industry other than recognized union. Section 22 of
1971 Act confers some specific rights on such non-
recognised unions, one such being the right to meet
and discuss with the employer the grievances of
individual workman. The Legislature has made a clear
distinction between individual dispute affecting all or a
large number of workmen. In the case of even an
unrecognized union it enjoys the statutory right to meet
and discuss the grievance of an individual workman
with the employer. It also enjoys the statutory right to
appear and participate in a domestic or departmental
enquiry in which its member is involved. This is statutory
recognition of an unrecognized union. The exclusion is
partial and the embargo on such unrecognized union or
individual workman to represent workmen is in the large
interest of industry, public interest and national interest.
Such a provision could not be said to be violative of
fundamental freedom guaranteed under Art. 19(1)(a) or
19(1)(c) of the Constitution."
18. As emerge out of the law laid above, an unrecognized
union is not entitled to be treated at par with a recognized
union. The Authority cannot indulge in any kind of undue
discrimination, to take sides and indulge in any activity
designed to harass or disrupt one union and to promote
another union. It cannot deliberately pursue a policy
designed to create a situation which makes fundamental
right of formation of an association and freedom of
expression nugatory or illusionary. The Authority has
certain discretion in and while exercising such discretion,
it has to act fairly, honestly and in the interest of the
organization, without violating the fundamental rights and/
or other statutory rights of the employees or the sangh.
The Authority should be careful to ensure that none of its
act amounts to oppression of the sangh nor its members at
the instance or under undue pressure of the union.
19. Whether the sangh has been able to project that the
Authority had failed to recognize its statutory rights? In
his affidavits Ex.WW1/A and Ex.WW1/B, Shri Harinder
Tiwari raises issues affecting entire body of the workmen,
working in the establishment of the Authority. He does not
raise an individual dispute. It has not been asserted in
affidavits that the sangh tried to meet and discuss
grievances of an individual workman or group of workmen
with the Authority. In these two affidavits, Shri Tiwari
nowhere claims to assert a statutory right to appear and
participate in domestic enquiry in which member(s) of the
sangh is/are involved. There is an embargo on the sangh
to represent entire body of workmen, in the establishment
of the Authority, in large interest of the industry, public
interest and national interest. The sangh has not been able
to project that the Authority has accorded undue benefit
to the union. No case has been brought to light that the
Authority deliberately pursued a policy to curtail
fundamental right of formation of an association. No
instances have been brought to light to give an inference
that the Authority indulged in any activity designed to
harass or disrupt the sangh and to promote the union. The
sangh had failed to establish that by way of negotiation of
the union for formation of policy of restructuring service
conditions for general employees, the Authority has not
acted fairly, honestly and in the interest of the organization.
The sangh could not project that the Authority acted in an
arbitrary and unreasonable or unfair manner or exercised
power in a colourable manner, when it restructured wage
and other benefits for its employees. Therefore, it is evident
that the sangh has not been able to project a case to strike
down policy of the Authority, when it restructured wage
and other benefits for its general employees. The sangh
could not point out any statutory right to raise a dispute,
in respect of memorandum of understanding arrived at
between the Authority and the union, which reshapes wage
and benefits for general employees. I am of the considered
opinion that the sangh has no right to raise the dispute for
adjudication.
20. How a dispute affecting an employee or a group of
employees can be raised? For an answer provisions of the
Act are to be construed. The appropriate Government, on
being satisfied that an industrial dispute exists or is
apprehended, may refer it to an Industrial Tribunal for
adjudication, enacts clause (d) of sub-section (I) of section
10 of the Act. Therefore, the appropriate Government has
to satisfy that an industrial dispute exists or apprehended
between the workmen and their employer. Consequently,
definition of the word "industrial dispute" is to be
appreciated. Clause (k) of section 2 of the Act defines the
word "industrial dispute" in the following manner.
"(k) industrial dispute means any dispute for difference
between the employers and employers or between
employers and workmen or between workmen and workmen,
which is connected with the employment or non-
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2429
employment or the terms of employment or with the
conditions of labour, of any persons".
21. The definition of the work "industrial dispute"
referred above can be divided into four parts viz. (i) factum
of dispute, (ii) parties to the dispute, viz (a) employers and
employers, (b) employers and employees or (c) workmen
and workmen, (3) subject matter of the dispute, which
should be connected with (i) employment or non-
employment , or (ii) terms of employment, or (iii) conditions
of labour of any person, and (iv) it should relate to an
"industry".
22. The definition of the word "industrial dispute" is
worded in wide terms and unless it is narrowed by the
meaning given to the word "workman" it would seem to
include all "employers", "all employments" and all
"workmen" whatever nature of the scope of the
employment may be. Therefore except in the case where
there can be dispute between the employer and employers
and workmen and workmen, one of the parties to an
industrial dispute must be an employee or a class of
employees. The first point, therefore, to be noted, perhaps
self evident, is that the phrase "employer and workman,
the plural may include singular on either side, or any
permutation of singular, the mesculine including the
feminine. In order, therefore, to determine as to whether a
controversy or difference or a dispute is an "industrial
dispute" or not it must be determined whether the workman
concerned or workmen sponsoring his case satisfy the
conditions of clause (s) of section 2 of the Act. Here in the
case, there is no dispute that the employers of the group
"C" and "D" working in the establishment of the Authority
are workmen within the meaning of clause (s) of section 2
of the Act.
23. In Kyas Construction Company (Pvt.) Ltd. [1958 (2)
LLJ 660] Apex Court ruled that an industrial dispute need
not be a dispute between the employer and his workman
and that the definition of the expression "industrial dispute"
is wide enough to cater a dispute raised by the employer's
workman with regard to non-employment of others, who
may not be employed as workman at the relevant time. The
Apex Court in Bombay Union of Journalist [1961 (II) LLJ
436] has observed that in each case in ascertaining whether
an individual dispute has acquired the character of an
industrial dispute, the test is whether at the date of
reference, the dispute was adopted by the union of the
workmen of the employer against whom, the dispute is
raised by an individual workman or by an appreciable
number of workmen. In order, therefore, to convert an
individual dispute into an industrial dispute, it has to be
established that it has been taken up by the union of
employees of the establishment or by an appreciable
number of the employees of the establishment. As far as
union of the workmen of establishment itself is concerned,
the problem of espousal by them generally presents little
difficulty, since such workmen who are members of such
unions generally have a continuity of interest with an
individual employee who is one of their fellow workman.
But difficulty arise when the cause of a workman, in a
particular establishment is sponsored by a union which is
not of the workmen of that establishment but is one of
which membership is open to workmen of their
establishment as well as in that industry. In such a case a
union, which has only microscopic number of the workmen
as its member, cannot sponsor any dispute arising between
the workmen and the management. A representative
character of the union has to be gathered from the strength
of the actual number of co-workers sponsoring the dispute.
The mere fact that a substantial number of workmen of the
establishment in which the concerned workman was
employee were also members of the union would not
constitute sponsorship. It must be shown that they were
connected together and arrived at an understanding by a
resolution or by other means and collectively submitted
the dispute.
24. The expression "industrial disputes" has been
construed by the Apex Court to include individual disputes,
because of the scheme of the Act. In Raghu Nath Gopal
Patvardhan [1957(1) LLJ 27] the Apex Court rule as to what
dispute can be called as an industrial dispute. It was laid
thereon that (1) a dispute between the employer and a
single workman cannot be an industrial dispute, (2) it can
not be per-se be an industrial dispute but may become if it
is taken up by a trade union or a number of workmen. In
Dharampal Prem Chand [1965 (1) LLJ 668] it was commanded
by the Apex Court that a dispute raised by a single workman
cannot become an industrial dispute unless it is supported
either by his union or in the absence of a union by
substantial number of workmen. Same law was laid in the
case of Indian Express Newspaper (Pvt.) Limited [1970 (1)
LLJ 132]. However in Western India Match Company [1970
(II) LLJ 256], the Apex Court referred the precedent in Drona
Kuchi Tea Estate's case [1958 (1) LLJ 500] and ruled that a
dispute relating to "any person becomes a dispute where
the person in respect of whom it is raised is one in whose
employment, non employment, terms of employment or
conditions of labour, the parties, dispute for a direct or
substantial interest".
25. What a substantial or considerable number of
workmen would be in a given case, depend on particular
facts of the case. The fact that an "industrial dispute", is
supported by other workmen will have to be established
either in the form of a resolution of the union of which
workman may be member or of the workmen themselves
who support the dispute or in any other manner. From the
mere fact that a general union, at whose instance an
"industrial dispute" concerning an individual workman is
referred for adjudication, has on its roll a few of the workmen
of the establishment as its members, it cannot be inferred
that the individual dispute has been converted into an
"industrial dispute". The Tribunal has therefore, to consider
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[PART II—SEC. 3(ii)]
the question as to how many of the fellow workman actually
espoused the cause of the concerned workman by
participating in the particular resolution of the union. In
the absence of a such a determination by the Tribunal, it
cannot be said that the individual dispute acquired the
character of an industrial dispute and the Tribunal will not
acquire jurisdiction to adjudicate upon the dispute.
Nevertheless, in order to make a dispute an industrial
dispute, it is not necessary that there should always be a
resolution of substantial or appreciable number of workmen.
What is necessary is that there should be some express or
collective will of a substantial or an appreciable member of
the workmen treating the cause of the individual workman
as their own cause. Law to this effect was laid in P.
Somasundrameran [1970 (1) LLJ 558].
26. It is not necessary that the sponsoring union is a
registered trade union or a recognized trade union. Once it
is shown that a body of substantial number of workmen
either acting through a union or otherwise had sponsored
the workman's cause, it is sufficient to convert it into an
industrial dispute. In Pardeep Lamp Works [1970 (1) LLJ
507] complaints relating to dispute of ten workmen were
filed before the Conciliation Officer by the individual
workmen themselves. But their case was subsequently
taken up by a new union formed by a large number of co-
workmen, if not a majority of them. Since this union was
not registered or recognized, the workmen elected five
representatives to prosecute the cases of ten dismissed
workmen. Thus cases of the dismissed workmen were
espoused by the new union, yet unregistered and
unrecognized. The Apex Court held that the fact that these
disputes were not taken up by a registered or recognized
union does not mean that they were not "Industrial dispute".
27. It is not expedient that same union should remain
incharge of that dispute till its adjudication. The dispute
may be espoused by the workmen of an establishment,
through a particular union for making such a dispute an
"industrial dispute", while the workman may be represented
before the Tribunal for the purpose of section 36 of the Act
by a member of executive or office bearer of another union.
The crux of the matter is that the dispute should be a dispute
between the employer and his workmen. It is not necessary
that the dispute must be espoused or conducted only by a
registered trade union. Even if a trade union ceases to be
registered trade union during the continuance of the
adjudication proceedings that would not affected the
maintainability of the order of reference. Law to this effect
was laid by the High Court of Orissa in Gammon India
Limited [1974 (II) 34]. For ascertaining as to whether an
individual dispute has acquired character of an individual
dispute, the test is whether on the date of the reference the
dispute was taken up as supported by the union of the
workmen of the employer against whom the dispute is raised
by the individual workman or by an appreciable number of
the workman. In other words, the validity of the reference
of an industrial dispute must be judged on the facts as
they stood on the date of the reference and not necessarily
on the date when the cause occurs. Reference can be made
to a precedent in Western India Match Co. Ltd. [1970 (II)
256].
28. Above propositions relate to a dispute affecting an
individual or a group of workmen, who may be members of
the sangh. However, a dispute relating to rights of entire
body of workmen is placed on different pedestal than a
dispute affecting an individual or a group of workmen, who
may be members of an unrecognized union. As pointed out
above, an unrecognized union has no right to represent
entire body of the workmen. In the dispute under reference,
the sangh cannot raise a dispute relating to its right to speak
for or represent entire body of workmen. It is not a case,
wherein the sangh wants to have a dialogue in respect of
grievances of any individual workman or a group of workmen
belonging to it. Acceptance of a demand, raised by the union
and discussion over it is not one and the same thing. The
sangh cannot raise a demand with a view to represent entire
body of workmen. Thus, it is evident that the sangh has no
right to raise the dispute. It emerge out of the records that
the sangh had acted with a view to pursue its election
strategy for referendum to be held in the year 2012.
29. Memorandum of Understanding, proved as Ex.MW2/
W2, was arrived at between the Authority and two unions
pursuant to orders passed by a civil court. Memorandum
of Understanding dated 31.07.2001 was arrived at on wage
revision. Order dated 13.08.2001 was issued pursuant to
the said Memorandum of Understanding. Memorandum of
Understanding was again arrived at between the Authority
and the union in the year 2005. Restructuring of various
cadres of ministerial, stenographic, housekeeping, airport
hostess, engineering, motor transport, E&M and fire etc.
disciplines were done by the Authority pursuant to above
Memorandum of Understanding entered into between it
and the union. FCS Schemes were also part of recruitment
and promotion guidelines, issued by the Authority,
pursuant to settlements between it and the union.
Therefore, decisions taken by the Authority in restructuring
policy were in consonance with the settlements so arrived
at between the union and the Authority. Recruitment and
Promotion Regulations 2005, clarification issued to those
regulations in the year 2008 and pay fixation benefits
granted in February 2012 were also part of the aforesaid
settlement and Memorandum of Understanding arrived
between the Authority and the union.
30. In view of foregoing discussions, it is evident that
the sangh has no right to raise issues in respect of policy
decisions relating to wage structure and other benefits,
taken by the Authority pursuant to settlements arrived at
between the Authority and the union. The sangh cannot
raise a demand seeking relaxation in qualification and trade
test while filling up of vacancies on seniority basis, as
incorporated in Recruitment and Promotion Guidelines 2005
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2431
and Memorandum of Understanding arrived at between
the Authority and the union. Claim put forward by the
sangh was a part of its election strategy. When the sangh
lost referendum in December 2012, it opted to abandon the
proceedings. These facts make it apparent that the dispute
was raised by the sangh with a view to persuade body of
workmen as a class to grant numerical support to it in
referendum held in December 2012. Except the said election
strategy, the sangh knew that it has no right to raise such
a dispute. The claim put forward by the sangh has no legal
basis, hence liable to be discarded. Claim statement, put
forward by the sangh is hereby brushed aside. An award is
passed in favour of the Authority and against the sangh. It
be sent to the appropriate Government for publication.
Dated: 20.01.2014
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 918.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjr isVªksfy;e
dkjiksjs'ku fyfeVsM ¼jsQkbujh½ ds izcaèra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky; 2] eqEcbZ ds iapkV
¼lanHkZ la[;k 63@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
17@2@2014 dks izkIr gqvk FkkA
[lañ ,y&30012@15@2010&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 918.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 63/2010) of the Central
Government Industrial Tribunal/Labour Court No. 2,
Mumbai now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Bharat Petroleum Corporation Limited and
their workman, which was received by the Central
Government on 17/2/2014.
[No. L-30012/15/2010-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT :
K.B. KATAKE, Presiding Officer
Reference No. CGIT-2/63 of 2010
Employers in Relation to the Management of Bharat
Petroleum Corporation Ltd.
The General Manager (HR)
BPCL (Refinery)
Mahul, Chembur
Mumbai-400 074
And
Their Workmen
Shri Gulab Genu Gadankush
Mangal Kalash Complex
Mangal Deep Society
A-Type, A-Wing, Room No. 105
MIDC Road, Cholegaon
Thakurley (E)
Distt. Thane-421 201
Appearances:
For the Employer
: Mr. R.S. Pai, Advocate.
For the Workmen
: Mr. J.H. Sawant, Advocate
Mumbai, dated the 11th March, 2013.
AWARD Part-I
The Government of India, Ministry of Labour &
Employment by its Order No. L-30012/15/2010-IR (M), dated
16.11.2010 in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section 2 (A) of Section 10
of the Industrial Disputes Act, 1947 have referred the
following industrial dispute to this Tribunal for
adjudication:
"Whether the action of the management of BPCL, Mahul
dismissing Shri Gulab Genu Gadankush w.e.f. 18/6/2009
is legal and justified? To what relief the workman is
entitled?"
2. After receipt of reference from Ministry, notices were
issued to both the parties. In response to the notice, the
second party workman has filed his statement of claim at
Ex-7. According to him he was permanent employee of first
party working in a capacity of General Operative. The first
party by order dated 29/12/2008 suspended the scond party
alleging falsely that on 23/12/2008 at about 13.20 hours
they observed the second party was found in compromising
position and indulging in unnatural sex with a dog publicly
on the first floor terrace behind Ruby Hall in Learning
Centre. The first party served the second party with charge-
sheet dated 14/01/2009 repeating the same allegations made
in the suspension order. It is alleged that two employees
have witnessed the incident. The second party has denied
the charges by his reply dated 21/01/2009. At the instance
of the officers of the first party the workman was implicated
falsely in the case. The Inquiry Officer conducted the inquiry
in English. The second party was not acquainted with
English language. One of the office bearers of the union
who was not trained in handling departmental inquiry
properly was made available to defend the second party as
his defence representative. He has not represented the
second party properly. He asked some unwanted questions
to the witnesses in their cross examination. The second
party in his evidence has stated the truth that he was
2432
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
suffering from illness and he has undergone bypass
surgery and a value has been fitted in his heart. He was
taking treatment for his swollen legs on 13/12/2008. On
13/12/2008 after lunch he went to the terrace and he was
applying ointment on the boils on his legs. He was alone
and there was no dog. He returned to the office and
attended his work of delivering letters etc. Being heart
patient, he cannot indulge in sex activities as has been
alleged. The incident is totally fabricated. The witnesses
of second party also deposed before IO that the allegations
made against the second party are not true. The members
of the family of second party are much disturbed due to the
allegations and inquiry against the workman. The inquiry
was not fair and proper. The IO has not considered the
evidence on record. His findings are perverse. On the basis
of report of the IO, the second party workman was
dismissed from service. The Appellate Authority failed and
ignored to consider the submission of second party and
he mechanically confirmed the order of the Disciplinary
authority. Therefore the second party raised industrial
dispute. It was not settled. Therefore on the basis of the
report of the ALC (C) the Labour Ministry has sent the
reference to this Tribunal. The workman therefore prays
that order of dismissal be set aside and first party be directed
to reinstate him with full back-wages and also prays for
heavy cost and compensation from the first party.
3. The first party resisted the statement of claim vide its
written statement at Ex-8. According to them, the second
party workman was suspended as he was found indulging
in unnatural sex with a dog. The charge was framed against
the workman for the same incident and disorderly indecent
behaviour in the premises of the company. On the report of
other employee Mr. S.P. Gharat the action was taken against
the workman. Two other employees have also witnessed
the incident. Therefore charge was framed against the
workman. Inquiry Officer explained the charge to the
workman. IO has conducted the inquiry in Marathi.
However he has written the proceeding in English. The
workman was represented by Vice President of the Union
who has represented number of employees in the
departmental inquiry. He is quite experienced person. Fair
and proper opportunity was given to the workman in the
inquiry proceeding. All the witnesses were cross examined
by the defence representative. Opportunity was also given
to the workman to lead his evidence. After considering the
evidence on record the inquiry officer found the workman
guilty. His findings are based on evidence on record and
they are not perverse. He has submitted his report to the
disciplinary authority. Copy thereof was given to the
workman. The disciplinary authority perused the report of
the IO, also considered the explanation of the workman
and thereafter looking into the seriousness of the mischief
the workman was dismissed from services. The IO has
followed the proper procedure. Fair and sufficient
opportunity was given to the workman to defend himself.
Therefore neither inquiry can be called unfair nor the
findings of the IO can be called perverse. Therefore, the
first party prays that the reference be rejected.
4. Issues are framed at Ex-9. In this Part-I Award following
are the preliminary issues for my determination. I record
my findings thereon for the reasons to follow:
Sr. No.
Issues
Findings
1.
Whether the inquiry conducted
Yes.
by management of BPCL,
Mahul against the second party
workman was fair and proper?
2.
Whether the findings of IO are
Yes.
perverse?
REASONS
Issue No. 1:—
5. The first party has examined the Inquiry Officer,
Chetan Prabhu at Ex-12. According to him, he is practising
advocate and was appointed as Inquiry Officer by the first
party company. He has proved the inquiry procedings. It is
at Ex-13 collectively. In this respect the fact is not disputed
that the second party workman was defended by Mr. M.S.
Masavkar who was Vice President of the Union. According
to the first party Mr. Masavkar was appointed as per the
choice of the workman. According to them he had
conducted number of inquiries and was an experienced
person. As defence representative must have been
appointed as per the choice of the workman, now neither
workman can be allowed to blame his defence
representative nor inquiry can be called unfair on that
ground. Furthermore the Ld. Adv. of the second party has
not pointed out any untoward question or unwanted action
on the part of defence representative.
6. The main grievance on behalf of the second party
was that, the management has not appointed any officer of
the company as Inquiry Officer. On the other hand they
have appointed a practising advocate as an Inquiry Officer.
The company has paid him his professional fees. Therefore
according to him the inquiry is not fair and proper. In this
respect the Ld. Adv. for the first party submitted that,
though the IO is a practising advocate he had no reason to
be bias against the workman. The Ld. Adv. for the first
party further submitted that, though IO is a practising
advocate, he is not their lawyer. He further submitted that
even lawyer of the company also can be appointed as IO
and such inquiry can be held fair and proper. In support of
his argument the Ld. Adv. resorted to Apex Court ruling in
Saran Motors Pvt. Ltd. V/s. Vishwanath & Anr. FJR in Civil
Appeal No. 755 and 756 of 1963 decided on 31.3.1964.
Wherein the Hon'ble Court on the point observed that;
"Therefore it would be unsound to take the view that a
lawyer who is not a paid officer of the employer is
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2433
incompetent to hold such an inquiry because he is
employer's lawyer and is paid remuneration for holding
the inquiry."
On the point Ld. Adv. for the first party also resorted to
Kerala High Court ruling in N. Rarichan V/s. R.K. Venu Nair
& Anr. 1973 LAB I.C. 536 (V 6 C 123) (Kerala High Court)
wherein the Hon'ble Court in para 9 of the judgement
observed that;
"Inquiry is not vitiated on the ground that it is conducted
by employer's lawyer."
In the case at hand though the inquiry is conducted by
an advocate and he has charged his professional fees, in
the light of above rulings the inquiry cannot be vitiated on
that ground.
7. Another ground raised by the workman is that the
inquiry was conducted in English and he does not know
English. Therefore it is submitted on behalf of the workman
that the IO has violated the principles of natural justice
and on that ground inquiry deserves to be set aside. In this
respect the Ld. Adv. for the first party submitted that though
the proceeding is produced in writing in English the inquiry
was conducted in Marathi. He submitted that the witnesses
are also not English speaking. They were examined and
cross examined in Marathi. Therefore mere recording of
proceeding in English does not create any defect in the
inquiry proceedings and there is no violation of principles
of natural justice. In support of his argument the Ld. Adv.
for the first party resorted to the Bombay High Court ruling
in National Organic Chemicals Ltd. & Anr V/s. Pandit
Ladaku Patil 2008 III CLR 716. In that case the Hon'ble
Court held that, the order of IO neither violates essence of
standing order 25 (4) nor the Principles of Natual Justice as
delinquent therein was quite conversant with English
language. In the case at hand he submitted that, the inquiry
was conducted in Marathi. Merely proceeding was reduced
in writing in English. Therefore the inquiry cannot be said
violative of principles of natural justice.
8. The Ld. Adv. for the first party submitted that the
inquiry cannot be said unfair and improper when it is
conducted as per the procedure. The charges are explained
to him clearly, witnesses are examined ordinarily in the
presence of employee and he is given fair and proper
opportunity to cross examine the witnesses and the IO
recorded his findings with reasons in his report. In support
of his argument the Ld. Adv. resorted to the Apex Court
ruling Sur Enamel and Stamping Works Ltd. V/s. The
workmen AIR 1963 SC 1994 wherein the same principles are
laid down by the Hon'ble Apex Court.
9. In the case at hand the charges were explained to the
workman in clear terms. The witnesses were examined in
his presence. He was given fair and proper opportunity to
cross examine the witnesses through his defence
representative. He has appointed the defence
representative of his choice. He was also given an
opportunity to lead his evidence. In the circumstances
neither it can be said that there is any procedural defect in
the inquiry nor it can be said that there was violation of
principles of natural justice as the inquiry was conducted
in Marathi and reduced in writing in English. In this back
drop I hold that the inquiry is fair and proper. Accordingly
I decide this issue no. 1 in the affirmative.
Issue No. 2:—
10. In respect of the charge the Ld. Adv. for the second
party has argued that the charge is not proved against the
workman. He pointed out that neither any offence was
registered against the workman nor he was sent for medical
examination. He also pointed out that no attempt was made
on behalf of the management to locate or trace out the
concerned dog. It is further pointed out that, such an incident
is totally improbable especially when the dog is not a pet dog.
In this respect the Ld. Adv. for the first party submitted that,
the witnesses of the management have seen the workman in
compromising position and their evidence need not be
discarded. According to the Ld. Adv. these witnesses are
independent witnesses. They have no enmity with the
workman. Therefore their statement was safely accepted by
the IO and the same cannot be viewed with doubt. The Ld.
Adv. for the first party further submitted that, in the
departmental inquiry standard of proof is limited to
preponderance of probabilities and the management need
not prove the charges beyond reasonable doubt as required
in a criminal proceeding.
11. In this respect at the outset I would like to point out
that the incident of indulging in sex with animal amount to
unnatural offence punishable under Section 377 IPC. Had
it been a fact, question arises as to why the concerned
witnesses or management did not lodge any police
complaint against the workman. Had there been police
complaint, the investigating officer would have sent the
workman for medical examination. He would have also
traced out the dog concerned. Not lodging any police
complaint against the workman is a serious flaw in the case
of the management. No explanation is offered as to why
they did not direct the concerned witnesses to lodge a
police complaint against the workman.
12. No doubt in departmental inquiry, standard of proof
is not as high as in criminal cases and mere preponderance
of probability suffices the purpose. In this respect after
perusing the evidence on record the incident appears totally
improbable. A stray dog is not expected to allow a person
even close to him. In the circumstances the incident of
indulging in unnatural sex with a stray dog by the workman
appears improbable especially as the workman is a married
person have wife and children. In such circumstances the
evidence on record cannot be said sufficient to prove the
charge levelled against the workman. The management in
this case has examined so called eye witnesses. However
their evidence does not withstand the test of preponderance
2434
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
of probability as stray dog would not allow a person to
indulge in such act. Furthermore neither the workman was
sent for medical examination nor there is any medical or
expert evidence on record. No doubt such an opportunity
to lead any additional evidence could have been given to
the management. However in the case at hand it appears
that there is no such additional evidence with the
management to prove the charges. Inspite of that with all
fairness I think it proper to give to the management an
opportunity to lead additional evidence, if any to prove
the charges. In the circumstances I hold that, though the
inquiry is fair and proper, the findings of the Inquiry Officer
are perverse. Accordingly I decide this issue No. 2 in the
affirmative and proceed to pass the following order:
ORDER
(i) The inquiry is held to be fair and proper.
(ii) The findings of the Inquiry Officer are found to
be perverse.
(iii) The first party is at liberty to lead additional
evidence, if any, to prove the charges.
Date: 11.3.2013
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
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14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eqEcbZ iksVZ VªLV 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 ¼lanHkZ la[;k 62@1999½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 17@02@2014 dks izkIr gqvk FkkA
[lañ ,y&31012@19@1998&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 919.— In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 62/1999) of the
Central Govt. Indus. Tribunal/Labour Court No. 2 Mumbai
now as shown in Annexure, in the Industiral Dispute
between the employers in relation to the management of
Mumbai Port Trust and their workman, which was received
by the Central Govenrment on 17/02/2014.
[No. L-31012/19/1998-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT : K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/62 OF 1999
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF MUMBAI PORT TRUST
The Chairman,
Mumbai Port Trust,
Ballard Estate,
Mumbai-400038
AND
THEIR WORKMEN
The Secretary,
Transport and Dock Workers Union
P.D'mello Bhawan
P.D'mello Road
Carnac Bunder
Mumbai-400038
APPEARANCES:
For the Employer : Mr. Umesh Nabar, Advocate
For the Workmen : Mr. A.M. Koyande, Advocate
Mumbai, dated the 8th February, 2013
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No. L-31012/19/98-IR (M), dated
01.03.1999 in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section 2 (A) of Section 10
of the Industrial Disputes Act, 1947 have referred the
following industrial dispute to this Tribunal for
adjudication:
"Whether the action of the management of Mumbai
Port Trust in dismissing Shri Chandrakant Baburao
Holamb and Shri Ashok Mahadev Katkar from the
services of the Port is justified? If not, to what relief the
workmen are entitled?"
2. After receipt of reference from Ministry, notices were
issued to both the parties. In response to the notice, the
second party union has filed its statement of claim at Ex-6.
According to it, both these workmen were 'B' category
Mazdoors. They were charge-sheeted by charge-sheet dtd.
26.7.1996 alleging that both of them on 15.1.1995 in
furtherance of their common intension committed theft of 8
kg of Nickel Oxide (worth Rs. 80) from said No. 12, Indira
Docks. They were apprehended by survey security Guard
No. 116 of MbPT. They were found in possession of one
rexine bag containing the said material which they were
carrying jointly. The security guard informed the Yellow
Gate Police Station. The Police arrested both of them and
thereafter the management charge-sheeted these workmen
of failure to maintain absolute integrity and devotion to
duty and committing theft, fraud, and dishonesty in
connection with MbPT work or property. The workman
denied the charges. According to the union the inquiry
conducted against the workmen was against the principles
of natural justice and the findings of the IO are perverse as
they are not based on the evidence led before him. The
competent authority dismissed both the workmen from the
services. The sentence is shockingly disproportionate.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2435
3. Yellow Gate Police filed the charge-sheet in the Court
of Metropolitan Magistrate, Ballard Pier of Mumbai in CC
No. 566 P of 1995. The 16th Court of MM acquitted both
the workmen on 4.3.1997. They produced the copy of the
judgement before the disciplinary authority. However
disciplinary authority did not consider the findings of the
Metropolitan Magistrate. The Appellate Authority upheld
the said order in mechanical manner and did not consider
the evidence in the inquiry proceeding. According to the
union charges of misconduct are not proved against the
workmen. They further contended that even for the sake of
argument charge is presumed to have been proved, the
punishment awarded is disproportionate to the misconduct.
Union therefore prays that, the order of dismissal be set
aside and both the workmen be reinstated with full
backwages and continuity of service w.e.f. 28.07.1997.
4. The management of MbPT resisted the claim vide its
written statement at Ex-7. According to them the inquiry
conducted against the workmen was as per the principles
of natural justice. It was fair and proper. According to them
the findings of the inquiry officer are legal and based on
evidence on record. The punishment awarded to both these
workmen is perfectly legal and proper and not
disproportionate to the proved misconduct. Therefore they
pray that the reference be dismissed with cost. The union
filed rejoinder at Ex-8 and denied the contents in the written
statement and reiterated their version in the statement of
claim.
5. My Ld. predecessor framed the issues at Exh.9. The
issues, in respect of the fairness of inquiry and as to the
pervesity of findings of the Inquiry Officer are treated them
as preliminary issues. In Award Part-I my Ld. Predecessor
held that, the domestic inquiry was as per the principles of
natural justice. However he held that, findings of the Inquiry
Officer are perverse and the management was allowed to
lead evidence.
6. My Ld. Predecessor has recorded further evidence
and in Award Part-II he decided the remaining issues no. 3
& 4 and held that action of the management Mumbai Port
Trust in dismissing both the workmen from services is
unjustified and had directed the management to reinstate
both the workmen with full back wages. This Award part II
passed by of my Ld. Predecessor was confirmed by Single
Judge of Hon'ble Bombay High Court in Writ Petition. The
said order was challenged in Appeal before Division Bench.
The Hon'ble Division Bench by consent of both the
advocates set aside the said award and remanded the matter
back to decide the same in accordance with law.
7. Following are the issues nos. 3 & 4 for my
determination. I record my findings thereon for the reasons
to follow:
Sr. No. Issues
Findings
3.
Whether the action of management
No.
dismissing these two workmen from
service of Port Trust is justified?
4.
If not, what relief the workmen are
As per
entitled to?
the final
order.
REASONS
Issues nos. 3 & 4:—
8. The Ld. Adv. for the second party in this respect
submitted that, the testimony of the sole witness Mr. Surve
is totally unbelievable. Therefore in the criminal case CC
No. 566 P of 1995, the Ld. Metropolitan Magistrate has
acquitted both the workmen. The Inquiry Officer has not
considered the judgement of the said criminal court. The
Ld. Adv. for the second party therefore submitted that the
Inquiry Officer out to have reject the evidence of the said
witness whose testimony was not believed by the criminal
court. On the point the Ld. Adv. for the second party cited
Apex Court ruling in Capt M. Paul Anthony V/s. Bharat
Gold Mines Ltd. & Anr (1999) 3 SCC 679. In that case the
facts were similar i.e. the criminal case and departmental
proceedings were based on the identical set of facts,
namely, raid conducted at the appellants residence and
recovery of incriminating articles therefrom. Findings
recorded by IO therein indicates that charges against the
appellant were sought to be proved by the police Officer
and panch witness who had raided the appellant's house
and hard affected the recovery. They were the only
witnesses examined by the I.O. Relying upon their
statements he came to the conclusion that the charges
were established against the appellant. The same witnesses
were examined in the criminal case but the court on a
consideration of entire evidence came to a conclusion that,
no search was conducted nor was any recovery made from
the appellants' residence. The appellant was acquitted by
throwing out the whole case of the prosecution.
In the light of these facts the Hon'ble Apex Court
observed that :
"It would be unjust, unfair and rather oppressive to
allow the findings recorded at the ex-parte departmental
proceedings to stand."
9. On the point the Ld. Adv. for the first submitted that,
this ruling is in respect of ex-parte inquiry and the ratio laid
down therein is thus not applicable to this case, as inquiry
in this matter is held by this Tribunal as just and proper.
According to him to prove the charges the first party has
examined the main eye witness Ahmed Surve who was
Security Guard on duty and who has caught both the
workmen red handed with a rexine bag containing 8 Kgs. of
Nickel Oxide worth Rs. 80. He further submitted that, in
domestic inquiry the charge need not be proved beyond
reasonable doubt as required in criminal cases. On the other
hand in domestic inquiry mere preponderance of probability
suffice the purpose. He further submitted in domestic
inquiry the rules of Evidence Act are not strictly applicable.
In support of his argument the Ld. Adv. resorted to Division
Bench ruling of Hon'ble Bombay High Court in Appeal no.
1165/2005 on Writ Petition No. 3186 of 2002 decided on
2436
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
17/01/2006 wherein Hon'ble Court while admitting the
appeal in this matter against the order of Single Judge, in
para 2 of the judgement observed that:
"In a criminal trial the evidence is appreciated by the
court by applying strict rule of evidence and proof
beyond reasonable doubt. On the other hand the
disciplinary proceedings, the evidence is appreciated
by the applying the principle of preponderance of
probability. The evidece that may fall short in a criminal
case for proving an act beyond reasonable doubt may
be sufficient to prove delinquency in the disciplinary
proceedings."
10. On the point the Ld. Adv. also cited Apex Court
ruling in State of Haryana & Ors. V/s. Rattan Singh 1977
LAB. I.C. 845(SC) in para 4 of the judgement the Hon'ble
Apex Court on the point observed that:
"In a domestic inquiry the strict and sophisticated rules
of evidence under the Evidence Act may not apply. All
materials which are logically probative for a prudent
mind are permissible."
11. In the light of the above ruling law is well settled on
the point that, in departmental inquiry, the strict proof is
not necessary to prove the charges. The charges therein
are not required to be proved beyond reasonable doubt as
required in criminal cases. In domestic inquiry standard of
proof is limited to the extent of preponderance of
probabilities. In this respect further I would also like to
point out that, the guideline is also given by the Hon'ble
Apex Court, in the above referred case of Rattan Singh
(Supra) wherein the Hon'ble Apex Court observed that.
"The departmental authorities and Administrative
Tribunals must be careful in evaluating such material
and should not glibly swallow what is strictly speaking
not relevant under the Evidence Act."
12. In the light of the above settled principles of law, in
respect of the alleged incidence, the Ld. Adv. for the second
party submitted that, the evidence on record is totally
unbelievable and unacceptable. He pointed out that, the
two workmen at 11 P.M. are not expected to commit theft of
such a small thing i.e. 8 kgs. of Nickel Oxide worth of
Rs. 80 only. It also appears improbable that, a Security
Guard alone caught two persons red handed with stolen
property and none of them even tried to run away. He
pointed out that witness Mr. Ahmed Surve has tried to
implicate both the workmen by saying that, both were
carrying the bag jointly. He has not made it clear as to how
the two workmen were carrying a small bag jointly
containing only 8 Kgs. of Nickel Oxide. It appears totally
improbable that, in odd hours in the night at 11.00 p.m.
they were holding jointly each end of the bag and exhibiting
the stolen property openly. Neither the bag was too heavy
nor, it was a big thing to hold by two persons. Witness Mr.
Surve says both the workmen were holding the bag jointly
or alternatively. His contention to that effect appears
improbable. It appears that he says so merely to implicate
both the workmen. Furthermore it also appears unnatural
and improbable that, none of them ran away or made any
attempt to escape, when they were obstructed by a single
Security Guard. It is also not explained by Mr. Surve how
he could hold both the workmen and took them to the
cabin. He says that he gave a ring to the Police, however
did not explain how he could apprehend both of them till
Police came there. He also did not explain how he realised
that, it was a stolen property in the bag. In his FIR he has
contended that, he asked the workmen from where thay
have brought the said property, but they did not tell
anything about it. It is pertinent to note that, in his
supplementary statement he has made improvement and
says that the workmen told him that, they have stolen the
Nickel Oxide from I.D. Godown no. 12. He further says in
his supplementary statement that, thereafter he went to
I.D. Godown no. 12 and inquired with Godown
Superintendent, Mr. Shyam Sawant and realised that, the
Nickel Oxide was stolen from the said godown. Therefore
he has lodged the complaint. This is not only improvement
in the story given in the FIR but is contrary thereto. He has
not explained where the two workmen were, when he had
gone to I.D. godown no. 12 and inquired with Mr. Sawant.
13. Furthermore I would like to point out that, the stolen
property was 8 Kgs. of Nickel Oxide. Price thereof is shown
only Rs. 80. Such a property is not useful to any other
person and cannot be sold easily in the market. The stolen
property is neither valuable nor has any special importance
to them. Thus it appears totally improbable that, the two
workers would come at 11 p.m. and would commit theft of
such goods worth of only Rs. 80. It appears improbable
that only one Security Guard Mr. Surve had caught hold of
the two workmen and they did not make any attempt to run
away and both stayed with him till arrival of Police party.
Had it been an incident of theft both the workmen could
have ran away when they had seen the Security Guard, at
least they would have made attempt to run away. They
could have also over powered the security guard who was
alone. All the facts and circumstances appear totally
improbable and unbelievable. They do not withstand even
on the touch stone of preponderance of probabilities.
Therefore the Ld. M.M. has also acquitted both the
workmen. My Ld. Predecessor has also recorded the finding
that the first party failed to prove the charges of theft and
trespass. The said award was also upheld by the single
Judge of the Hon'ble High Court. In Writ Appeal without
pointing out any infirmity or defect therein, the Hon'ble
Division Bench set aside the said order by consent of both
the advocates and remanded the reference back for fresh
award.
14. In the light of above discussion though the strict
rules of Evidence Act are not applicable to the departmental
inquiry, however in the case at hand the incident of theft
¹Hkkx II—[k.M 3(ii)º
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2437
does not withstand even to the test of preponderance of
probabilities. In the light of the above facts and
circumstances on record, it is clear that, the charge of
trespass and theft of 8 Kgs. of Nickel Oxide worth Rs. 80
by the two workmen as has been alleged is totally
unacceptable. In this backdrop I hold that the first party
failed to prove the charges of theft and trespass against
both the workmen and the findings of the inquiry officer to
that effect is found to be perverse. As a result I come to the
conclusion that, the punishment of termination deserves
to be set aside.
15. In respect of quantum of punishment, further I would
also like to point out that, even presuming for the sake of
argument that, the charge of theft is proved, for such theft
of 8 kgs of Nickel Oxide worth Rs. 80 the punishment of
termination of services of the two workmen also would have
been held to be shockingly disproportionate. In this case as
the first party failed to prove the charges against the second
party workmen, the punishment deserves to be set aside
and the workmen are entitled to be reinstated in the service.
16. In respect of back wages the second party have
amended their statement of claim and contended that both
the workmen are not gainfully employed. The workmen
have also filed additional affidavit on the point of gainful
employment. It is at Ex-40. In the cross examination at Ex-
40, workman Chandrakant Holamb says that, he used to
get Rs. 250 per week after termination of his service. Both
the workmen are admittedly not in service of the first party
and have not done any work for the first party. Therefore
Id. adv. for the first party submitted that 'no work no wages'
is the settled rule of law. He further submitted that both the
workmen must have earned something to maintain
themselves. Therefore according to him, the workmen are
not entitled to any back wages. As against this the Ld.
Adv. for the second party submitted that, both the workmen
have come from poor family. They have not committed any
mischief and they were deliberately kept out of work by the
first party. They sustained huge monetary loss and their
families suffered a lot. They were not gainfully employed
anywhere. In the circumstances, he submitted that the
workmen deserve for full back wages. After giving
conscious thought to the arguments of both the parties. I
am of the opinion that, awarding full back wages without
any work, would amount to unnecessary burden on the
state exchequer. At the same time I would also like to point
out that, both the workmen are very poor and are
unemployed. They may have earned some meagre amount
for their maintenance by working intermittently. In the
circumstances to meet the ends of justice. I think it proper
to direct the first party to pay 70% back wages to each of
these workmen. Accordingly I decide this issue no. 3 in the
negative and issue no. 4 is decided accordingly. Hence I
proceed to pass the following order:
ORDER
(i) The reference is partly allowed with no order as
to cost.
(ii) The Order of dismissal from service of both the
workmen is found to be not justified and the same
is hereby set aside.
(iii) The first party is directed to reinstate both the
workmen forthwith with 70% back wages from
the date of their dismissal from service till the
date of their reinstatement with continuity of
service and other beneifts.
(iv) The amount if any already paid be adjusted in the
arrears.
Date: 08.02.2013
K. B. KATAKE, Presiding Officer
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14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fganqLrku isVªksfy;e
dkjiksjs'ku fyfeVsM ds izca/kra= ds lac) fu;ktdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
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128@2001½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@02@2014
dks izkIr gqvk FkkA
[lañ ,y&30011@54@2001&vkbZvkj¼,e½]
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New Delhi, the 21st February, 2014
S.O. 920.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 128/2001) of the
Central Government Industrial Tribunal/Labour Court No.
2, Mumbai now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Hindustan Petroleum Corporation Limited
and their workman, which was received by the Central
Government on 17/02/14.
[No. L-30011/54/2001-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVENRMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT : K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/128 OF 2001
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF HINDUSTAN PETROLEUM CORPORATION LTD.
2438
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
The General Manager
Hindustan Petroleum Corporation Ltd.
Petroleum House
17, Jamshedji Tata Road
Churchgate
Mumbai-400 020.
AND
THEIR WORKMEN
(1) Deputy General Secretary
General Employees Association
Tel. Rasayan Bhavan
Tilak Road, Dadar
Mumbai.
(2) Workmen represented by Bhartiya Kamgar
Karmachari Mahasangh
5, Navalkar Lane
Prarthana Samaj
Girgaon
Mumbai-400 004.
APPEARANCES:
FOR THE EMPLOYER
: Mr. B.D. Birajdar,
Advocate
FOR THE WORKMEN (Union no. 1) : Mr. R.D. Bhat,
Advocate
FOR THE WORKMEN (BKKM)
: Mr. G.S. Baj,
Advocate
Mumbai, dated the 25th February, 2013.
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No. L-30011/54/2001-IR (M), dated
13.11.2001 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 Charter of Demands raised by the General
Employees Association vide their letter dated 22/01/
2001 against the management of HPCL justified? If so,
to what relief the concerned workmen are entitled?"
2. After receipt of the reference both the parties were
served with notices. In response to the notice the second
party union filed their statement of claim at Ex-8. According
to them the workmen under reference are the employees of
HPCL. They are shown as contract workers. The contracts
are sham and bogus and nominal. It is mere paper made
arrangement. The contract workers are being exploited a
lot and they have been deprived of the rights and benefits
which they are entitled to under various social welfare and
labour legislations. The union has therefore placed various
demands before the management. They have placed charter
of demand, seeking wages, allowances and other facilities
at par with regular employees. The workmen are employed
for the work of HPCL in its marketing and refinery division.
They are doing the work of the permanent nature as like
regular workers since last number of years. Therefore prays
that their charter of demand in respect of payment of wages
and other allowance be allowed at par with the regular
employees who are doing the same type of work.
3. During pendency of the reference the other union
Bhartiya Kamgar Karmachari Mahasangh was also
impleaded as party. The said union has filed its statement
of claim on behlaf of its workers at Ex. 23 and list of their
workmen is Annexure 'A'. According to them these workmen
are employed in the employment of HPCL since last more
than 20 years. They have been assigned permanent and
perennial nature of work in HPCL refinery by the managerial
personnel of the company. Their work is being supervised
and controlled by the officers of the company. They are
answerable for their work to the company directly. There is
relationship between these workers and company that of
employee and employer. The company has made some
bougus, sham and concocted agreements to show these
workmen as contract labourers. Since last 20 years many
such alleged contractors have been changed however
workmen are the same. They are doing the work of perennial
nature as like permanent employees of the company. Still
there is vast difference in the terms and conditions of service
of these employees than that of the permanent and regular
employees of the company. These workmen are not given
any kind of statutory benefits such as CL, PL, SL. There is
vast difference in the salary structure and allowances
though they are performing the same type and kind of
work. The total salary paid to these workmen is hardly to
the tune of Rs. 3,500 to Rs. 4,000 p.m. Whereas the
permanent employees doing the same and similar kind of
work are paid near abour Rs. 20,000/- and aboe per month.
Time and again the union requested the management to
enhance the monthly wages and other terms and conditions
of services of these workmen. However management did
not pay any attention to their demand. The union has
submitted its charter of demand for and on behalf of its
members to the management vide its letter dt. 5/10/2005
and requested for amicable settlement. However no
meeting has been arranged by the management. The
workmen under reference are not getting sufficient pay
and allowances. They are also not getting leave travel
allowance, medical allowance, medical facilities,
conveyance and washing allowance, sick leave, uniform
and bonus facilities etc. as like the permanent employees.
The union therefore prays that these workmen should be
declared as permanent workmen of HPCL and they should
be paid all consequential benefits of permanency w.e.f. the
date each of them had completed 240 days continuous
service. In the alternative they pray that they be paid all
the consequential benefits at par with permanent
employees and should be granted it w.e.f. the date when
Hon' ble High Court passed an order on 5/4/2002 in WP
No. 767 of 2001 and also prays for all other consequential
reliefs.
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2439
4. The management of HPCL has resisted both the
statement of claims vide their written statement at Ex-9 &
24. According to them reference is not tenable as the
workmen under reference are not the employees of HPCL.
On the other hand they are employees of the respective
contractors. As there is no employer-employee relationship
the reference is not tenable. According to them Bhartiya
Kamgar Mahasangh has no representative character to
pursue the reference as they have hardly few directly
employed persons in the refinery. Therefore this union has
no capacity to pursue the reference. These workmen cannot
be absorbed or regularised in service as they are contractual
labourers. The Apex Court has laid down the guidelines to
that effect in the judgement of Steel Authority of India Ltd.
They denied that the workmen were engaged by the
Corporation since last 20 years and they are doing perennial
nature of work. They denied that these workmen are working
under supervision and control of the officers of the
company. The Corporation awards the contracts to different
successful contractors over a period of 20 years depending
upon the lowest bid of the contractor to carry out different
jobs of the Corporation as per The Contract Labour (R &
A) Act 1970 and the contractors have been engaging the
contract workmen with an understanding among the
outgoing and incoming contractors. The Corporation has
no supervision or control over the contract workmen.
5. The Corporation recruits their employees as per its
recruitment rules and regulations. The Contractual
employees are recruited by the contractor therefore they
cannot be regularised. They denied all the allegations in
both the statement of claim. They denied that the contracts
are sham, bogus and mere camouflage to deprive these
workmen from getting benefit of permanency. The
management of HPCL therefore submitted that as these
workmen are not employees of the corporation their
demands are not tenable in the eye of law. Therefore they
pray that the reference be rejected.
6. Both the unions have denied the contents in the
written statement vide their respective rejoinder at Ex-10 &
25. They denied the contents inthe written statement and
reiterated their claim that the contracts are sham, bogus
and mere camouflage to deprive them from the benefits of
permanency. Therefore they pray that the contents in the
written statement be rejected and the management be
directed to absorb all the workmen in their service
permanently and to give them all consequential benefits.
7. My Ld. Predecessor framed the following issues for
my determination. I record my findings thereon for the
reasons to follow:
Sr.
Issues
Findings
No.
1.
Whether the workers under reference Yes
are 'workmen' as defined under
Section 2 (s) of the Industrial Disputes
Act?
2.
Whether reference is not
Reference is
maintainable under Section 2 (k)
maintainable
of the Industrial Disputes Act?
3.
Whether the demands raised by the
Yes
General Employees Association vide
their letter dated 22/1/2001 and by
BKKM representing its members
against the management of HPCL
is justified?
4.
If so, what relief the concerned
As per final
employees are entitled to?
order
REASONS
Issues Nos. 1 & 2:—
8. The point involved in both these issues are revolving
around the point in issue as to whether the workmen under
reference are the employees of the first party. Therefore in
order to avoid the repetition of discussion both these
issues are discussed simultaneously. It is the case of the
first party that these workmen are not their employees.
According to them they are the employees of respective
contractors. Therefore according to the first party neither
the contract labourers can claim permanency or
regularisation nor can raise an industrial dispute. According
to them the Labour Court or Industrial Tribunal has no
right to abolish the labour contracts. Such power lies with
appropriate Government only. In support of this argument,
the Id. adv. for the first party resorted to Apex Court ruling
in N.T.P.C. & Ors. V/s. Bhadrisingh Thakur & ORs. 2008
AIR SCW 5649 wherein the Hon'ble Court para 14 of the
judgement observed that;
"In view of the provisions of Section 10 of the Act, it is
only the appropriate Government which has the authority
to abolish genuine labour contract in accordance with
provisions of the said section. No Court including the
industrial adjudicator has jurisdiction to do so."
However in the same judgement the Hon'ble Court
further observed that;
"When such dispute is raised, the industrial adjudicator
has to decide whether the contract is sham or genuine.
It is only if the adjudicator comes to the conclusion that
the contract is sham, that he will have jurisdiction to
adjudicate the dispute. If however he comes to the
conclusion that contract is genuine he may refer the
workman to the appropriate Government for abolition
of the contract labour under Section 10 of the Act and
keep the dispute pending."
9. In the case at hand it is the case of the second party
that the contracts between the company and the contractors
are sham and bogus. Therefore as observed in the above
ruling, this tribunal has jurisdiction, to decide the point as
to whether the contracts are sham and bogus and mere
camouflage to deprive the workmen from getting the benefits
2440
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
of permanency. In the circumstances it is clear that, the
ratio laid down in the above ruling does not extend any
help to the first party.
10. In respect of nature of contract, it was argued on
behalf of the first party that there were valid contract of the
company with registered contractors, who have supplied
these labourers to the company. The labourers have to
work as per the direction of the company. Merely giving
direction or supervising their work by officers of the
company is not sufficient proof to show that the workmen
are direct employees of company. In support of his
argument the Id. adv. resorted to Apex Court ruling in
International Airport Authority of India V/s. International
Air Cargo Workers Union & Anr. AIR 2009 SC 3063 wherein
in para 28 of the judgement. the Hon'ble Court on the point
observed that;
"Merely because the contract labour work is under the
supervision of the officers of the principal employer, it
cannot be taken as evidence of direct employment under
the principal employer."
11. On the point Id. adv. for the first party also resorted
to another Apex Court ruling in General Manager (OSD),
Bengal Nagpur Cotton Mills, Rajnandgaon V/s. Bharat Lal
& Anr. 2011 (1) LLN 368 (SC) wherein Hon'ble Court held
that merely because work instructions were issued by
officers of principal employer does not make him his
employer rather than contractor.
12. In this respect the Id. advocates for the second party
submitted that the workmen are not claiming contract are
sham and bogus merely on the ground that, they were
working under direct control of the officers of the company.
According to them there are number of other factors,
indicating that these workmen are employees of the first
party and the contracts are sham, bogus and nominal.
According to them, these workmen are working for more
than 20 years continuously when the contractors were keep
on changing periodically. Contractors were engaged for
one or two years and the same workers continued to work
for more than 20 years. Furthermore the vast duration of
work indicate the perennial nature of work and permanent
need of services of the workers. According to them the
long duration is one of th circumstances indicating the
regular need of work to the company. In support of their
argument, the Id. Advs. resorted to Apex Court ruling in
Workmen of Burkunda Colliery of Central Coal Fields Ltd.
& Anr. V/s. Management of Burkunda Colliery of Central
Coal Fields Ltd. & Anr 2006 I CLR 635 (S.C.) wherein the
Hon'ble Court on the point observed that;
"When temporary or ad-hoc appointment are continued
for long, Courts presume that there is regular need for
his services on regular post and considers case for
regularisation."
13. The Ld. Advocates pointed out that in the case at
hand the same workmen are working for more than 20 years
continuously. It indicates that the need of the employer is
of perennial and regular nature and their services are
required on regular posts. This fact also indicates that, the
contracts are sham, bogus and mere camouflage to deprive
them from the benefits of permanent employees.
14. In this respect Ld. Adv. for the first party submitted
that employee who has not come through Employment
Exchange and not recruited after following the procedure
prescribed therefor cannot be absorbed as permanent
employee. In support of his argument the Ld. Adv. resorted
to Bombay High Court ruling in Airport Authority of India,
Mumbai V/s. Indian Airport Kamgar Union & Ors. 2010 III
CLR 270 wherein the Hon'ble Court held that when the
contract labourers do not come through Employment
Exchange nor they have appeared for any written test and
they have no complaint against the contractor who pays
them their salaries and other benefits and when no charge
sheet are issued to them by the principal employer, despite
its supervision and control, these are all the incidents of
the contract between the labourers and contractors which
contract cannot be termed as sham and bogus.
15. The Ld. Adv. for the first party further submitted
that the abolition of contract labour cannot be directed by
the Court or Tribunal. Under section 10 of the Contract
Labour Act, only appropriate Government can take the
action to that effect. In support of his argument, the Ld.
Adv. resorted to Apex Court ruling in Steel Authority of
India Ltd. V/s. Union of India and Ors. 2006 III CLR 659
wherein the Hon'ble Court on the point observed that;
"It is not disputed before us that matter relating to
abolition of Contract Labour being governed by the
provisions of the 1970 Act, the Industrial Court will have
no jurisdiction in relation thereto."
16. In this respect Ld. Adv. for the second party
submitted that, the workmen herein are not praying for
abolition of contract labour system. On the other hand
they claim theat the contracts are sham and bogus and
mere camouflage to deprive them from getting the benefits
to permanency. Therefore they rightly argued that, the ratio
laid down in the above ruling is not attracted to the set of
facts of the present case.
17. The Ld. Adv. for the the second party submitted that
the union herein claims that the contracts are sham and
bogus. Therefore this Tribunal has jurisdiction to entertain
the reference. On the point they relied on the Constitutional
Bench, Apex Court ruling in R.K. Panda & Ors. V/s. Steel
Authority of India & Ors. 1994 II CLR 402 wherein
employees therein were serving for 10 to 20 years and have
claimed that they became direct employees of the
respondent and they have direct link with the principal
employer eliminating the contractor from the scene. In that
matter the Hon'ble Court held that, normally the Labour
¹Hkkx II—[k.M 3(ii)º
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2441
Court or Industrial Tribunal under the I.D. Act or under the
Contract Labour Act are the competent fora to adjudicate
such disputes on the basis of the oral and documentary
evidence produced before them. Same ratio is reiterated by
the Hon'ble Apex Court in its subsequent judgement in
National Federation of Railway Porters and Vendors and
Bearers V/s. Union of India & Ors. 1995 II CLR 214 (SC).
The Ld. Adv. for the first party in this respect also cited the
Apex Court ruling in The Secretary, State of Karnataka &
Ors. V/s. Uma Devi & Ors. 2006 (3) L.L.N. 78 wherein, the
Hon'ble Court held that, the services of contract workers,
cannot be regularised as it would amount to back door
entry in the service other than the recruitment process. In
this respect I would like to point out that, the unions herein
are not claiming regularisation or absorption in the service.
On the other hand according to them the contracts are
sham and nominal and the workers are in fact direct
employees of the company. Therefore the ratio laid down
in the above Apex Court ruling in the case of Uma Devi is
also not attracted to the set of facts of the case at hand.
18. The Ld. Adv. for the second party submitted that,
though these workmen are not recruited by following the
recruitment process, they are doing their respective jobs
since more than 20-25 years. It indicates that, their respective
jobs are of perennial and regular nature and the company
was also in need to the services permanently. The ability
and qualification etc. of these workmen was never
questioned by the company for last number of years. Some
of them are also doing technical jobs like valve operators
etc. The period they have worked for is sufficient to show
that, they were well trained and competent to do their
respective josb assigned to them. The Ld. Adv. further
pointed out that not only these workmen were working
under direct supervision of the officers of the company
but they were doing the work of perennial nature. They are
doing the respective jobs continuously for years together
without any interruptions whereas the contractors were
kept on changing after gap of a year or two. It is further
pointed out that the officers of HPCL have appreciated the
work of some of the workers and have issued letters of
appreciation to them for the excellent work they have
performed. These letters are on record with list Ex-53. He
also pointed out that, once upon a time the first party
company had issued PF slips to these workmen. Those PF
slips are on record at Ex-49. These PF slips indicate that
these workmen were working as employees of the company
for few years since 1999. For that period PF slips were not
issued by the contractors. All these facts indicate that the
workmen herein were continuously working for the
management for more than 20-25 years and the company
was signing number of contracts merely to deprive these
workmen from getting the benefits of permanency. He
further pointed our that these workmen are working for
meagre amount of minimum wages. After such a long service
of more than 20 years their monthly pay is Rs. 5000 to
Rs. 7000 only whereas the permanent employees,
performing the same work are getting much more pay,
allowances, leave medical leave facilities, canteen facilities,
leave travel concession etc. According to the Ld. Adv. for
the second party, the workmen herein are very poor and
fighting to meet the two ends of their respective families.
They hardly can spend any thing for the education and
welfare of their children. By this type of policy of the
company, poor are getting poorer. He further submitted
that all these workmen are very poor and therefore they
have no other alternative but to work for such a meagre
amount for number of years. The Ld. Adv. further submitted
that such type of exploitation needs to be checked. He
pointed out that there are number of labour welfare
legislations enacted in order to give protection to the
workmen. Inspite of that, exploitation of the poor class is
still going on under the garb of contract labourers or daily
wagers.
19. Hon'ble Apex Court in a recent ruling has taken note
of such exploitations of the poor workmen in Bhilwara
Dugdh Udpadak Sahakari S. Ltd. V/s. Vinod Kumar Sharma
& Ors. 2011 III CLR 386 (SC) wherein, the Hon'ble Apex
Court in respect of such exploitation in the name of so
called contract labourers or daily wagers observed that;
"This appeal reveals the unfortunate state of affairs
prevailing in the field of labour relations in our country.
In order to avoid their liability under various labour
statute employers are every often resorting to subterfuge
by trying to show that their employees are infact the
employees of a contractor. It is high time that this
subterfuge must come to an end. Labour statutes were
meant to protect the employees/workmen because it
was realised that the employer 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 the workmen under various
labour statutes by showing that the concerned workmen
are not their employees but are the employees/workmen
of a contractor or that they are merely daily wage or
shot term or casual employees when in fact they are
doing the work of regular employees."
The Hon'ble Court further observed that;
"This Court cannot countenance such practices
anymore. Globalisation/liberalisation in the name of
growth cannot be at the human cost of exploitation of
workers."
20. The observations of Hon'ble Court are squarely
applicable to the case at hand. The workmen herein are
working since more than 20 years continuously. They are
doing the work of perennial nature. Inspite of that the first
party seems to have inducted some contractors and paying
only minimum wages which is not sufficient in these days
even to meet two ends of their families. It amounts to
2442
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
exploitation as has been observed in the above ruling. In
the light of facts and circumstances of this case, I hold that
the workmen herein are the employees of the first party
and there exists employer-employee relationship between
them. Consequently I also hold that the reference is an
industrial dispute as contemplated under Section 2 (k) of
the I. D. Act, 1947. Accordingly I decide this issue No. 1 in
the affirmative and issue No. 2 in the negative that reference
is maintainable.
Issues Nos. 3 & 4:—
21. In the light of discussions and findings of issues
Nos. 1 & 2 herein above it is clear that the contracts between
the first party and the various contractors are found to be
sham and bogus and the workmen under reference are held
the employees of the first party. They are working there
since last more than 20 years continuously. They are doing
the work of perennial nature as has been discussed herein
above. I therefore hold that these workmen are entitled to
the pay, allowances and other benefits at par with the
permanent employees on the basis of principle of 'equal
work equal pay'. The charter of demand is in respect of the
pay, allowances, bonus and other benefits to these workmen
at par with permanent employees of the first party. In this
backdrop it needs no more discussion to arrive me at the
conclusion that, the demand of the workmen under reference
is quite justified. Accordingly I decide this issue No. 3 in
the affirmative. In respect of issue No. 4 I hold that the
workers under reference are entitled to pay, allowances
and all other benefits at par with regular employees of the
respective cadre of the first party. In short they are entitled
to get the benefits they have put forward by way of their
charter of demand by their letter dt. 22.01.2001 w.e.f
05.04.2002 i.e. from the date of order of Hon'ble High Court
passed in Write Petition No. 676 of 2001. Thus I proceed to
pass the following order:
ORDER
(i) The reference is allowed with no order as to cost.
(ii) The intermediate contracts with various
contractors, are hereby declared as sham, bogus
and nominal.
(iii) The workmen under reference are declared as
regular employees of the first party.
(iv) The charter of demand dated 22-01-2001 is found
to be just and proper. The first party is directed to
pay salary, allowances and all other benefits to
the workmen under reference as per the charter of
demand forthwith and w.e.f. 5-4-2002.
(v) The first party is directed to pay all the arrears of
the respective workmen within six months; 50%
in cash and the rest of the amount be deposited in
their respective Provident Fund Accounts.
Date: 25.02. 2013
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 921.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj jktegy DokVZ~t+ lsaM
,aM dsvksfyu daiuh 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; uñ 2] /kuckn ds iapkV ¼lanHkZ la[;k
180@2001½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@2@2014
dks izkIr gqvk FkkA
[lañ ,y&29012@29@2001&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 921.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 180/2001) 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 Rajmahal Quartz Sand and Kaolin Company
and their workman, which was received by the Central
Government on 17/2/2014.
[No. L-29012/29/2001-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT: SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
REFERENCE NO. 180 OF 2001.
PARTIES
: Sh. Kanahai Mandal
Gen. Secretary, Mangalhat
Zila English Khadan Mazdoor
Sangathan, Jharkhand, Sahibganj,
Vs. M/s. Rajmahal
Quartz-Sand & Kaolin Co.,
1, N.C. Bose Road, Sahibganj,
Jharkhand
APPEARANCES:
On behalf of the workman/Union : Mr. U.N. Lal
Ld. Advocate
On behalf of the Management
: Mr. B.B. Pandey
Ld. Advocate
State : JHARKHAND
Industry : Coal
Dated, Dhanbad, the 31st Dec., 2013
AWARD
The Government of India, Ministry of Labour, in exercise
of the powers conferred on then under Sec.10(1)(d) of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2443
I.D. Act., 1947 has referred the following dispute to this
Tribunal for adjudication vide their Order No. L-29012/29/
2001-IR(M) dt. 18.06.2001.
SCHEDULE
"Whether the action of the management of M/s Rajmahal
Quartz Sand & Kaolin Co. in declaring lock out w.e.f.
07.07.1999 at the New Plant and non-payment of wages
to the Workers is justified. If not, to what relief are the
workmen entitled?."
2. The case of the General Secretary, Zila English Khadan
Mazdoor Sanghthan, Mangalhat, Rajmahal, Distt :
Sahebganj as stated in the written statement is that 109
workmen of the Union were working as disciplined at the
new plant of the M/s. Rajmahal Quartz Sand & Kaolin Co.
While they were engaged in washing China Clay in the
press and Crusher department of the new plant, the
management issued them the notice dt. 6.7.99 for suspension
of the work illegal lock out w.e.f. 7.7.99 as result of the
violation of the terms and conditions of the Bipartite
agreement dt. 28.01.1999 by the workmen represented by
Khadan Mazdoor Sangh. The General Secretary of the
present Union raised by his letter dt. 9.7.99 the Industrial
Dispute before the Regional Labour Commissioner, ©,Patna.
In course of the conciliation proceeding as per File
No.5(81)99ALC-II, both the parties settled it as per the
terms and conditions of the Bipartite Agreement dt. 10.9.99
and accordingly the work was started by the workmen on
12.9.99 at other place of work. Though the Management
had submitted five copies of the Bipartite Agreement in the
proceedings before the ALC © Patna, on 14.9.99 but the
dispute of the wages of forced idleness period was pending.
Again at raising a dispute by the present Union as per its
letter No. 26.4.2000 for the wages of forced idleness period
of illegal lock out the conciliation proceeding started before
the ALC©,Patna in the file No.5(3)/2000 ALC II filed, hence
it resulted in the case. How other workers of the Khandan
Mazdoor Sangh, Maharajpur Nayatola would affect the
present workmen. The 109 workmen as per the list to the
written statement are entitled to full wages to the tune of
Rs. 10,48,686.87 as calculated in their written statement.
(The reference has no list of alleged workmen.)
3. The dateless rejoinder of the workmen filed on their
behalf of without signature of any Union Representative,
so it is unacceptable.
4. Whereas the case of the O.P./Management with
categorical denials is that M/s. Rajmahal Quartz Sand &
Kaolin Co., hereinafter referred to as M/s. R.Q.S.K. has it
China Clay Mines at Mangalhat Hill, Rajmahal, Jharkhand.
The raw materials known as K.S, Stone as extracted from
the Mine. It consists of China Clay and silica sand. Its
needs separation for commercial use. Thus the
Management has its mine and washing plant for the said
purpose. It has two washing plants i.e., one manual and
other merchandised which is semi mechanized commonly
known as New Plant. The entire total labour strength about
450 workmen have been accordingly distributed at three
places in Mine, Manual Plant and New Plant. The dispute
relates to the new Plant where the total strength of workmen
is about 175. Out of four Unions functioning at the
establishment, the New Plant has two Unions active,
namely, the present Union and Khadan Mazdoor Sangh. In
case of any dispute or differences, the Management used
to settle the matter at the Unit level. Such agreements were
binding on all the concerned workmen. There was an
agreement on 28.01.1999 about the rate of the New Filter
Press of New Plant between the representatives of the union
and that of the management, and amongst others, but the
same was not honoured. The workmen of New Plant (Press
Section) adopted 'go slow tactics', affecting other sections
by their behaviour and activities, the management
apprehended of breach of peace at the plant. The workmen
also refused to work in two shifts, for which prior notices
were issued; under the compelling circumstances, the
management had to suspend the work of China Clay depart
and press Depart of New Plant form 7.7.99. The workmen
had created such position so as no alternative for the
management except to suspend the work of New Plant and
for the same, the work of Washing Department, China Clay
Pressing and Cushing Departments of the New Plant was
suspended from 07.07.1999 as per the Notice dt. 6.7.1999
for the various facts and reasoned for it. Thereafter, the
workmen realized their fault, and then approached the
Management for work. Subsequently, as per the agreement
dt. 10.9.1999, the workman concerned were provided with
work from 12.9.1999 at other place (Manual Plant) as
alternative work. The management was always sincere in
their efforts. So the suspension of work (Lock out) was
under the provisions of law and justified. The workmen are
not entitled to any payment of wages on the basis of the
principle of "no work no pay" for the said period they had
not worked as accepted by them in the case. The alleged
demand for remaining of the workmen idle is unjustified for
the reasons of go slow tactics and objectionable behaviors
creating breach of peace etc. So the workman is not entitled
to any relief.
5. Specifically denying the allegations of the Union, the
O.P./Management has stated that the said agreement was
binding on all the workmen of New Plant and the violation
of the agreement was by all workmen irrespective of any
Union. The Reference No.180/2000 as per the Government
of India's Order No.L-29011/12/2000-IR(M) dt. 31.05.2000
in respect of the action of the management in declaring
lock out w.e.f. 6.7.1999, resulting in non-employment of 175
workers is still pending in the CGIT (No.1), Dhanbad, but
the Union took no step till date. No claim is sustainable for
the period for which they have worked and got their wages.
The period of idleness was due to the fault of the workmen
themselves, and the management has not taken any work
from them during the said period, the management is not
liable to pay any wages for the said period. Sec.22 of the
I.D. Act 1947 is not applicable to this case.
2444
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
FINDING WITH REASONS
6. In the instant reference, WW1 Deven Yadav, the
Operator, WW2 Sukhadeo Singh, (Retd. Operator of the
R.Q.S. Company) for the Union, and MW1 Mohan Sah, the
Production In charge for the O.P./Management have been
respectively examined.
Mr. U.N. Lal, Learned Advocate for the union has
submitted that as per the statement of WW1 Devan Yadav,
(one of the 109 workmen as per the list to the written
statement), all the workmen had gone to the Company for
work/duty on 7.7.1999 from 6 a.m. to 2 p.m. as also for the
second shift of duty but they found that the company was
locked, though they sat there. Consequently on 9.9.1999 at
the calling for the workmen by the company itself, there
was a bipartite agreement (Ext. W.3) on 10.9.1999 between
the Company and them according to which they were given
workmen w.e.f. 12.9.1999 at different plant of the Company
at 1 K.m. away from the company; none of the workmen
was paid for the lock out period of the Company, for which
they also brought a fresh industrial dispute on 26.8.2000;
so they are entitled to their wages for the illegal lock out
period from 7.7.1999 to 11.9.1999 as also affirmed by WW2
Sukhdeo Rajak, the Retd. Operator now also evident from
their documents Extt. W.1 to W.4. Mr Lal, Learned Counsel
for the union has further submitted that MW1 Mohan Sah
confirmed their lock out as per the Company's Notice dt.
6.7.1999 from 7.7.1999 and non-payment of their wages for
the lockout period.
7. Whereas Mr. B.B. Pandey, Learned Counsel for the
O.P./Management vociferously contended that the
Referenced schedule neither refers to the number of the
workmen nor the period of alleged lock out, so it is
unsustainable as vague. Mr. Pandey has further submitted
that MW1 Mohan Sah, the Production In-charge of the
Company, has irrebuttably proved that the suspension of
work at the New Plant operated since 7th July, 1999 as per
the Notice dt. 6.7.1999 of the Management in Hindi and
English (Ext.M.1 & 2 respectively) due to the arbitrariness
of the workmen by adopting 'Go slow' as well as forceful
taking of wages from the management, remaining so until
the settlement held on 10.9.1999 between the Union for the
workman and the management for start of workmen at the
New Plant on the basis of which those workmen were
alternatively given their employment at the manual plant in
the night shift, so their claim for payment of their wages for
alleged period of suspension of work at the new plant is
not legally justified. Lastly the emphatic contention of
Mr. Pandey, Learned Counsel for the O.P./Management is
that another Industrial Dispute Ref. No. 180/2000 raised by
the same Union was disposed of as No dispute Award as
per the Award dt. 2nd Sept., 2010 of the CGIT No. 1,
Dhanbad which directly related to the action of this same
management in declaring lockout w.e.f. same date 6.7.1999
resulting in non-employment of 175 workers as apparent
from the Certified Copies of the Award and Order of
Reference (Ext. M-4/2-3 respectively)
8. After hearing both the Learned Counsels for both
respective parties, I have gone through the materials
available on the case record; I find the facts as under:
(i) The present reference as per its schedule is
without numbers or a list of workmen but the same
union filed its written statement with a list of 109
workmen. It is vague.
(ii) There was a valid & legal suspension of work by
the O.P./Management for the arbitionsiness and
go slow tactics of the workmen in their work at
the new plant, though compliance of provision of
notice as under Sec. 22 of the I.D. Act 1947 is not
applicable to the present cases, as the present
industry of China Clay and silica does not come
under any of the Public Utility Services as defined
under the schedule I of the said Act.
(iii) The present reference is thoroughly barred by
the principle of Res-judicata, as the previous
Ref. No. 108/2000 raised by the same Union
against the same Management for the same
cause was awarded as 'No Dispute' as per the
Award dt. 2.9.2000 passed by the C.G.I.T. No. 1,
Dhanbad (Ext.M.4/2.). Under the circumstances,
it is however, in the terms of the reference
hereby:
ORDERED
That the action of the Management of M/s Rajmahal
Quartz-Sand & Kaolin Co, Rajmahal to lock out from
7.7.99 at its new plant for its valid reason and not to
pay the wages for the workers for the period as quite
legally justified, Hence, none of workers is entitled to
any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 922.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dqekj th lh ik.Ms;
,aM daiuh 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; uñ 2] /kuckn ds iapkV ¼lanHkZ la[;k
32@2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@2@2014
dks izkIr gqvk FkkA
[lañ ,y&29011@16@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 922.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 32/2012) of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2445
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 Kumar G.C. Pandey and Company and their
workman, which was received by the Central Government
on 21-2-2014.
[No. L-29011/16/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (No. 2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act, 1947.
REFERENCE No. 32 OF 2012.
PARTIES
:
The General Secretary,
Quarry Workers Union, Pakur
Vs. M/s Kumar G.C. Pandey
Company, Khaprajola, Pakur
APPEARANCES:
On behalf of the Workman/Union : None
On behalf of the Management
: None
State : Jharkhand
Industry : Coal
Dated, Dhanbad, the 27th Dec., 2013
AWARD
The Government of India, Ministry of Labour, in exercise
of the powers conferred on then under Sec.10(1)(d) of the
I.D. Act, 1947 has referred the following dispute to this
Tribunal for adjudication vide their Order No. L-29011/16/
2011-IR(M) dt. 02.05.2012.
SCHEDULE
"Whether the action of the management of M/s Kumar
G.C. Pandey & Co., Malpahari, Pakur, in not paying the
amount of bonus of the last 5 years to Shri Krishna
Mandal is legal and justified? What relief the workman
is entitled to ?’’
2. None appeared as the Union representative for
"Quarry Workers" Union, Pakur, nor workman Krishna
Mandal appeared nor any written statement of the workman
filed by any of them; likewise none appeared for O.P./M/s
Kumar G.C. Pandey Co.,
On perusal of the case record, it appears that the case
has been all along pending for filling the written statement
of the workman Krishna Mandal along with the
documents in the reference which related an issue about
the payment of Bonus for the last five years, but despite
four Regd. Notices dt. 25th June, 2012, 7th Jan, 24th May,
4th Nov., 2013 having been issued to the Union as well as
to the O.P./Company concerned on their respective
addresses as noted in the reference itself, neither the Union
Representative nor the workman appeared nor any written
statement till now filed on behalf of the workman. Under
these circumstances, the conducts of the Union
Representative and the workman clearly show that they
are not willing to pursue the case for finality. Hence the
case is closed as no Industrial dispute existent; accordingly
an Award of No Dispute is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 923.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dqekj th- lh-
ik.Ms; ,aM daiuh 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;y; uñ 2 /kuckn ds iapkV ¼lanHkZ la[;k
33@2012½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17&2&2014 dks
izkIr gqvk FkkA
[lañ ,y&29011@19@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 923.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 33/2012) of the Central
Government Industrial Tribunal/Labour Court No. 2,
Dhanbad now as shown in the Annexure in the Industrial
Dispute between the employees in relation to the
management of Kumar G.C. Pandey and Company and their
workman, which was received by the Central Government
on 21-2-2014.
[No. L-29011/19/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (No. 2), AT DHANBAD
PRESENT:
SHRI KISHORI RAM
Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
REFERENCE No. 33 OF 2012
PARTIES
: The General Secretary,
Quarry Workers Union, Pakur
Vs. M/s Kumar G.C. Pandey Company,
Khaprajola, Pakur
APPEARANCES:
On behalf of the workman/Union : None
On behalf of the Management
: None
2446
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
State : Jharkhand
Industry : Coal
Dhanbad, Dated the 27th Dec., 2013
AWARD
The Government of India, Ministry of Labour, in exericse
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-29011/19/
2011-IR(M) dt. 02.05.2012.
SCHEDULE
"Whether the action of the management of M/s Kumar
G.C. Pandey & Co., Malpahari, Pakur, in not releasing
the final dues to 22 workers (list enclosed) is legal and
justified? What relief the workman is entitled to?"
2. Neither Union representative for Quarry Workers'
Union, Pakur, nor any of twenty two workers as per the list
appeared nor any written statement of the workmen filled
by the union, just as none appeared for the O.P./M/s Kumar
G.C. Pandey Company.
On perusal of the case record, the case has been all
along pending for filing written statement and the
documents of the workmen for which four Regd., Notices
dt. 17.1.13, 25.6.2012, 17.4.2013 and 23.5.13 were issued to
the General Secretary of the Union and the Company
concerned on their respective addresses noted in the
Reference itself. The Union Representatives as well as the
workmen by their conducts appear to be uninterested in
pursuing the case. Under these cirumstances, it prima-facie
appears to be useless to proceed with the case. Hence, the
case is closed as no Industrial Dispute existent; and
accordingly an Award of 'No dispute' is passed.
KISHORI RAM, Presiding Officer
List of workmen
S/Sh.
1.
Mirtun Rajbanshi
2.
Nepa Rajbanshi
3.
Arjun Rajbanshi
4.
Suku Seikh
5.
Vikas Ravidas
6.
Jagdish Rajbanshi
7.
Badam Rajbanshi
8.
Mahadev Rajbanshi
9.
Ashok Rajbanshi
10.
Shishir Karmkar
11.
Sufal Rajbanshi
12.
Rehman Seikh
13.
Kalu Seikh
14.
Sukumar Rajbanshi
15.
Sapan Rajbanshi
16.
Pujrai Rajbanshi
17.
Krishna Sah
18.
Sukumar Sah
19.
Kalu Rajbanshi
20.
Ananta Rajbanshi
21.
Parikha Rajbanshi
22.
Bablu Rajbanshi
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 924.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fjyk;al ykbQ
bU'kqjUl daiuh 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;y; uñ 2 /kuckn ds iapkV
¼lanHkZ la[;k 41@2012½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks
17&2&2014 dks izkIr gqvk FkkA
[lañ ,y&17012@18@2011&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 924.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 41/2012) of the Central
Government Industrial Tribunal/Labour Court No. 2,
Dhanbad now as shown in the Annexure in the Industrial
Dispute between the employees in relation to the
management of Reliance Life Insurance Company Limited
and their workman, which was received by the Central
Government on 17-2-2014.
[No. L-17012/18/2011-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (No. 2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947
REFERENCE No. 41 OF 2012.
PARTIES
: Miss Gyani Kumari (Workwoman)
Vs. Zonal Manager (HR), Reliance Life
Insurance Co., Ltd., Kolkata
APPEARANCES:
On behalf of the workman
: None
On behalf of the Management : Mr. K. Chakraborty, Ld.
Advocate
State : Jharkhand
Industry : Insurance
Dated, Dhanbad, the 16th May, 2013
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2447
AWARD
The Government of India, Ministry of Labour in exercise
of the powers conferred on them under Sec. 10(1)(d) of the
I.D. Act., 1947 has referred the following dispute to this
tribunal for adjudication vide their Order No. L-17012/18/
2011-IR(M) dt. 28.06.2012.
SCHEDULE
"Whether the action of the management of M/s Life
Insurance Co. Ltd., Kolkata in terminating the services
of Miss Gyani Kumari w.e.f. 19.2.2009 is legal and
justified? What relief the workman is entitled to?"
2. Neither petitioner Miss Gyani Kumari appeared nor
she filed her written statement in this reference case
despite four registered notices to her for it. Mr. K.
Chakraborty, the Ld. Advocate for the O.P./Management
is present and files the written statement of the
management in duplicate.
Persuade the case record, it stands clear that despite
three registered notices dt. 27.8.2012, 8th Jan. and 13th
Feb., 2013 having been issued to the petitioner on her
address as noted in her reference case neither she
appeared on any date nor filed her written statement. Last
registered letter appears to have returned with the
comment of the Postal staff concerned dt. 26.2.2013 "Sabhi
Dukan Mai Tala Bandh Rehta Hai, Bapas Kiya" under his
signature.
Under these circumstances, it is apparently that the
petitioner is not willing to contest her case; hence the case
related to an issue about the termination of the service of
the petitioner w.e.f. 19.2.2009 is closed as no Industrial
Dispute existent. In result, an order of No Industrial Dispute
existent is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 925.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ykbQ bU'kqjUl
dkjiksjs'ku vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV
¼lanHkZ la[;k 253@87½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks
17&2&2014 dks izkIr gqvk FkkA
[lañ ,y&17012@11@87&Mh- IV ¼,½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 925.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 253/87) 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
Life Insurance Corporation of India and their workman,
which was received by the Central Government on
17-2-2014.
[No. L-17012/11/87-D.IV(A)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/253/87
PRESIDING OFFICER: SHRI R.B. PATLE
General Secretary,
Raipur Division Insurance Employees Union,
Pandry, Raipur
....Workman/Union
Versus
Divisional Manager,
Life Insurance Corporation of India,
Jeevan Beema Marg,
Raipur
....Management
AWARD
Passed on this 22nd day of October, 2013
1. As per letter dated 8-12-87 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-17012/
11/87-D.IV(A). The dispute under reference relates to:
"Whether the action of the management of Life
Insurance Corpn. of India, Divl. Office, Raipur in
terminating the services of the workman listed below, is
justified? If not, to what relief the workman concerned
are entitled?"
2. After receiving reference, notices were issued to the
parties. Ist party union filed statement of claim at Page 2/1
to 2/6. The case of Ist party union is that Government has
made reference whether the termination of services of 5
employees namely Shri P. Venkataramani, Iqbal Ahmed
Khan, Rajendra Kumar Das, Kumari Deepali Ghosh and
Kumari Varsha Rahatgaonkar is justified? Union submits
that all these employees were working as micro processor
operator with the IInd party. They were appointed on
3-2-86. They had completed 240 days continuous service.
Management of IInd party had given artificial breaks for
period of 45 days is unfair labour practice. The Union has
given working days of all those employees — Shri P.
Venkataramani — 308 days, Iqbal Ahmed Khan — 283 days,
Rajendra Kumar Das — 312 days, Kumari Deepali Ghosh
— 307 days and Kumari Varsha Rahatgaonkar — 293 days.
Union further contented that the services of all those
employees were terminated in violation of Section 25-G, H
2448
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
of the I.D. Act. The termination of their services on
17-12-86 & 18-12-86 is illegal.
3. Union further submits that the termination orders were
passed taking shelter of interim award dated 15-1-86 by
National Tribunal. According to Union, the management
appointed those employees on 3-2-86 prior to the Tribunal's
Interim award dated 15-1-86. Therefore said award is not
applicable to those employees. The award cannot sit over
provisions of the Act. The appointments of employee and
period of their continuance in service has been accepted
by the management. The Union submits that those
employees are illegally retrenched. On such grounds,
Union prays for reinstatement with full back wages.
4. IInd party filed Written Statement at page 3/1 to 3/5.
Services of Iqbal Ahmed Khan & Rajendra Kumar Das were
terminated on 18-12-86 and services of Shri P. Venkataramani,
Kumari Deepali Ghosh and Kumari Varsha Rahatgaonkar
were terminated on 19-12-86. After FOC submitted by ALC,
the dispute is referred. IInd party submits that appointment
of all 5 employees were purely on temporary basis for 42
days from 3-2-86. On completion of said period, their services
were to be terminated as per Clause 2 of the appointment
letter. However they were given further appointment for 42
days on temporary basis. Their services were not terminated
as Interim order from National Industrial Tribunal Bomaby
was brought to notice. The directions were given not to
terminate services of any temporary employee during
pendency of the case before National Tribunal.
5. That various Associations of Class-III and IV
employees working in LIC of India and referred dispute
relating to quantum of wages payable to the temporary,
badly and part time employees working in the Corporation
together with the issue relating to their absorption and
other conditions of service. The Government of India
constituted a National Tribunal presided over by Shri R.D.
Tulpule on 28-5-85 and the dispute was referred. The interim
order was passed on 15-1-86 prohibiting termination of
services of all temporary employee. That all those employees
are given undertaking in writing that they would not get
benefit of service beyond 84 days rendered by them. As
such excluding said period, the employees has not
completed 240 days continuous service preceding
termination of their serivces. The termination of their service
is not in violation of Section 25-F, G of I.D. Act. On such
ground, IInd party prays for rejection of 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 action of the
managmenet of Life Insurance
In Affirmative
Corpn. of India, Divl. Office,
Raipur in terminating the services
of Shri Iqbal Ahmed Khan &
Rajendra Kumar Das from 18-12-86
and Shri P. Venkataramani, Kumari
Deepali Ghosh and Kumari Varsha
Rahatgaonkar from 19-12-86 is
legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?
workman is
rejected.
REASONS
7. Union is challenging legality of termination of those
employees for violation of Section 25-F of I.D. Act. That
all employees have completed 240 days continuous
service, that notice pay was not paid to them, no
retrenchment compensation was paid. Management
denied above contentions. It is submitted that interim
order dated 15-1-86 was passed by National Tribunal
prohibiting termination of services of all temporary
employees. Those employees had given undertaking in
that regard. Affidavit of Shri P. Venkataramani is filed
consistent with the contentions in statement of claim filed
by the Union. Identical affidavit of Shri Iqbal Ahmed Khan
and Kumari Deepali Ghosh are filed. Shri P. Venkataramani
in his cross-examination says that R-2 bears his signature,
he tried to claim that his signatures were forcibly obtained
on the documents. He had complained in that regard to
the Union and higher officers of the management. He
admits knowledge of interim award passed by National
Tribunal. Document R-2 is declaration given by the
witness that he will not claim any benefit for the absorption
or other benefits in LIC on account of such continuance
in service of LIC beyond 85 days. Similar document signed
by Iqbal Khan R-3 is produced. Kumari Varsha
Rahatgaonkar did not appear for her cross-examination
therefore her evidence on affidavit cannot be relied upon
in support of her claim. Shri Iqbal Khan in his cross-
examination says first appointment order was issued for
42 days, he had given undertaking as per document R-3.
He admits that undertaking was to reveal that he would
not claim for benefit of working days beyond 85 days.
That his signatures were obtained by force and he had
complained to the higher authorities and office bearer of
the Union but documents in that regard are not produced
by the workman. Copy of Interim Award passed by
National Tribunal is produced along with Written
Statement. The reference to the National Tribunal was in
respect of what should be the wages and other conditions
of service by badly, temporary and part time workmen of
the Life Insurance Corporation of India as well as the
conditions of their absorption into regular cadre. The
Employees Union were opposing the appointment of
outsiders. During pendency of the reference proceeding,
Interim order passed by National Tribunal that—
"As far as possible, the Corporation, however stated
that where an employee is appointed from amongst the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2449
badly, temporary or part time workmen against a vacancy,
he will be continued as long as that vacancy continues,
provided, he gives an undertaking that no benefits on
their behalf would be claimed if by this circumstance,
the employee continues in position for a period more
than 85 days. The Unions are agreeable and the workmen
concerned shall give an undertaking that they would
not claim any benefit on account of such continuation
for a period more than 85 days if it occurs of absorption
of any other benefit subject to that he may be
continued."
8. Considering the termination of services of above
employees, they are protected as they had submitted
undertaking in terms of interim award passed by National
Tribunal. The period beyond 85 days deserves to be
excluded while calculating 240 days continuous service. If
said period is excluded, above employees have not
completed 240 days continuous service with IInd party
LIC. As such they are not covered as workman under Section
25 (B) of I.D. Act. They are not entitled to protection under
Section 25-F of I.D. Act. For above reasons, termination of
services of those employees cannot be said illegal for
violation of Section 25-F of I.D. Act. Therefore I record my
finding in Point No. 1 in Affirmative.
9. In the result, award is passed as under:—
(1) Action of the management of Life Insurance
Corpn. of India, Divl. Office, Raipur in terminating
the services of Shri Iqbal Ahmed Khan & Rajendra
Kumar Das from 18-12-86 and Shri P.
Venkataramani, Kumari Deepali Ghosh and Kumari
Varsha Rahatgaonkar from 19-12-86 is proper.
(2) Relief prayed by Union/workmen is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 926.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,EIykbt LVsV bU'kqjUl
dkjiksjs'ku 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
53@2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@2@2014
dks izkIr gqvk FkkA
[lañ ,y&15012@3@98&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 926.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947) the Central Government
hereby publishes the award (Ref. No 53/2005) 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 Employees State Insurance Corporation
and their workman, which was received by the Central
Government on 17/2/2014.
[No. L-15012/3/98-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/53/2005
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Gopal Savita,
S/o Shri Sitaram Savita,
R/o M.H. Chauraha,
Near Police Chowki,
Morar, Gwalior
...Workman
Versus
The Manager,
ESI Corpn.,
Munna Lal Gupta Building,
Nishatpura,
Banmore, Distt. Morena (MP)
Director General,
Employees State Insurance Corpn.,
Panchdeep Bhavan,
Kotma Road,
New Delhi
...Managements
AWARD
(Passed on this 11th day of October 2013)
1. As per letter dated 3-6-05 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-15012/3/98-IR(M).
The dispute under reference relates to:
"Whether the action of the management of Employees
State Insurance Corporation, New Delhi in terminating
the services of Shri Gopal Savita vide order dated 20th
June 1994 is legal and justified? If not, to what relief the
disputant concerned is entitled?"
2. After receiving reference, notices were issued to the
parties. Workman filed statement of claim at Page 2/1 to
2/3. Case of workman is that earlier she had approached
CAT for redressal of his grievance. The CAT directed
applicant to make fresh application to Authority under I.D.
Act as per order dated 15.4.98. The workman submits that
he was appointed as peon on daily wages by IInd Party
No. 2. He was performing duties sincerely. That Manager
Shri S.L. Dhevane was in the habit of drinking. He
misbehaved with the customers. Complaint made by Cement
2450
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Factory Mazdoor Sangh Banmore was submitted against
the Manager. His services were terminated by Manager
vide order dated 20.6.94 with allegation of misbehavior with
officers. The allegation are baseless. That workman had
submitted appeal to IInd Party No. 1 on 18.7.94. He did not
receive any response to his appeal despite of issuing
reminder dated 23.10.97. That initially Govt. refused to make
reference observing that he was casual employee during
the period 30.5.94 to 17.6.04. In Writ Petition No. 1985/99
filed by him, directions were given to the Govt. and
accordingly reference is made.
3. Ist Party workman submits that employee cannot be
terminated by punishment without giving any opportunity.
That he was waiting for decision of the appeal by IInd
Party No. 1. That he was working with IInd Party. His
services are dismissed without giving reasonable
opportunity. He suffered loss of wages. Termination of his
services is in violation of provisions of I.D. Act. He prays
for reinstatement with back wages.
4. IInd Party filed Written Statement at Page 11/1 to
11/2. Claim of workman is totally denied. IInd Party submits
that Ist Party workman was not appointed against any
vacant post. He was engaged for specific work for specific
period by the management. That since 1989, there are
surplus posts in the cadre of peon, LDC. There is no
question for appointing workman. Ist Party workman was
engaged on daily wages by the then Manager Shri S.L.
Dhobane in leave vacancy of regular Record Sorter Shri
Sitaram Savita. Manager Grade II is the Head of office who
is incharge and as per powers delegated, he can engage a
substitute. That workman was not selected by Deptt.
Selection Committee, he was not sponsored through
Employment Exchange. Workman hardly worked for 15
days. He is not covered as workman under Section 25(B) of
I.D. Act the workman was paid wages Rs. 557/- on 27.5.95.
On such ground, IInd Party prays 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
In Affirmative
management of Employees
State Insurance Corporation,
New Delhi in terminating the
services of Shri Gopal Savita
vide order dated 20th June
1994 is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
6. Ist Party workman is challenging termination of his
service contending that he was not given any opportunity
prior to his termination of his service. IInd Party submits
that workman is not covered under Section 25B of I.D. Act.
He was casually employed in leave vacancy of his father
by then Manager Shri S.L. Dhobane. That workman was
not sponsored through Employment Exchange. He was
not appointed on recommendation of Deptt. Selection
Committee.
7. Workman filed affidavit of witness contending that
he was appointed by IInd Party management from 30.5.94.
His services were terminated from 20.6.94. He has also made
allegation that Manager Shri S.L. Dhobane was habitual
drunker. Workman was not present for his cross-
examination, therefore his evidence cannot be considered.
His evidence was closed on 25.2.2011.
8. Management filed affidavit of witness Shri Anil Kumar
S/o Shri Sudhir Kumar Singh. The witness of the
management has stated that workman was engaged during
leave vacancy of his father Sitaram. Workman worked for
15 days. His evidence remained unchallenged.
9. Workman has not established that he had worked
continuously more than 240 days preceding his termination
of his services. Therefore he is not covered as workman
under Section 25 (B) of I.D. Act. He is not entitled to
protection under Section 25-F of I.D. Act. Therefore action
of management cannot be said illegal. For above reasons I
record my finding in Point No. 1 in Affirmative.
10. In the result award is passed as under:—
(1) Action of the management of Employees State
Insurance Corporation, New Delhi in terminating
the services of Shri Gopal Savita vide order dated
20th June 1994 is legal.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 927.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSaxuht vksj bafM;k
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
vfèdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k
64@2000½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@2@2014
dks izkIr gqvk FkkA
[lañ ,y&27012@3@99&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 927.—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 15] 2014@iQkYxqu 24] 1935
2451
hereby publishes the award (Ref. No. 64/2000) 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 Manganese
Ore India Limited and their workman, which was received
by theCentral Government on 17/2/2014.
[No. L-27012/3/99-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/64/00
SHRI R.B. PATLE, Presiding Officer.
Shri Sohanlal,
S/o Shri Neelkanth,
Kachhi Barang, Hirapur,
Bharweli,
PO Balaghat
...Workman
Versus
Chairman cum Managing Director,
M/s Manganese Ore India Ltd.,
3 Mount Road Extension,
Sadar, Nagpur.
...Management
AWARD
(Passed on this 30th day of October 2013)
1. As per letter dated 13-3-2000 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-27012/
3/99-IR(Misc.). The dispute under reference relates to:
"Whether the demand raised by Shri Sohanlal and 9
others against the management of Manganese Ore India
Ltd. vide their representation dated 6.10.88 is justified?
If not, to what relief the concerned workmen are
entitled?"
2. After receiving reference, notices were issued to
parties. Ist Party workman filed statement of claim at Page
4/1 to 4/3. The case of Ist Party workman is that 10 workmen
shown in the annexure were working on piece rated basis
for more than 12 years. They were performing work of
Compressor Helper, Fieldman, Loco Helper etc. with
Management. The Management appointed workman with
them and from time to time issued notices for appointment
of piece rated employees on basis of seniority, educational
qualifications, average earning in last 12 months,
attendance performance in interview. That after interview
152 persons were recommended for appointment as
fieldman in Pay Scale Rs. 1600-1850. Vide order dated
14.2.99, 21 workmen were appointed. That Ist Party workman
were ignored by the management. No regular appointment
orders were issued. Ist Party workman claims that they
have sufficient knowledge, experience, considerable
seniority, they are not considered. The junior employees
working on piece rated basis having less education and
experience are appointed as fieldman by IInd party. All the
workmen failed discriminated in the appointed of fieldman
by IInd Party. They prays direction to the management to
issue appointment order for the post of fieldman to them
from the date their juniors were appointed as fieldman.
3. IInd Party filed Written Statement at Page 7/1 to
7/8. IInd Party denied claim of 1st Party workman that
the Government had earlier rejected to make reference
without their being any fresh material and application of
mind. The reference has been made is not tenable. The
dispute has been raised claiming appointment by
individual employee Sohanlal and others is not tenable.
The individual workman has no right to raise the dispute
except termination, dismissal etc. under Section 2A of
I.D. Act.
4. IInd Party further submits that it is Govt. of India
undertaking under Ministry of Steel. There are rules for
recruitment and promotions framed in 1994. In these rules,
a new category of fieldman was included. As per these
rules, 100% of the vacancies of Fieldman are to be filled
through the process of recruitment from amongst the
internal piece rated workman. The rules do not provide
details therefore the material was discussed between
management and recognized Union. A Bipartite Agreement
was finalized prescribing the norms to be followed in the
matter of selection of Piece rated workers against the post
of Fieldmen in the company. Marks have been prescribed
as Seniority- 10 marks, Educational Qualification- 5 marks,
performance with respect to average earning- 10 marks,
attendance for last 12 months- 10 marks and performance
during interview- 15 marks. That the management notified
vacancies of Fieldmen at Balaghat Mine inviting
applications from amongst the Piece rated workers serving
in that mine for internal recruitment as Fieldmen.
Applications from piece rated workmen were invited. 552
applications were received. The selection committee
constituted interview of the candidates in 3rd week of
February, 1998. Names of 152 candidates were
recommended for appointment. That 76 candidates were
appointed as fieldman. The workmen in present dispute
were not selected among 152 candidates recommended
by the Committee. That there were complaints about
irregularities in the selection of fieldmen. Therefore Union
had given strike notice. The matter was reconsidered after
discussion with the Union. The Committee was directed
to review and correct irregularities. The candidates who
were found suitable were deleted. The candidates found
2452
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
suitable but not recommended by Committee were
selected. The candidates were appointed on probation.
Their probation was extended. On such grounds IInd party
submits that the Ist party workman were not selected
even after following the norms of selection by Committee.
No irregularity is committed. Workman are not
discriminated by management. On such grounds, 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 demand raised by
In Negative
Shri Sohanlal and 9 others
against the management of
Manganese Ore India Ltd. vide
their representation dated 6.10.88
is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman
rejected.
REASONS
6. 10 workmen names shown in Annexure I raised dispute
that the case of those workmen is that they were working
as piece rated workers for more than 12 years in IInd Party.
They are not selected as fieldman. The labours having less
education, experience and junior to them are selected and
appointed as fieldmen. On such ground, they have prayed
directions be issued to the management to issue order of
appointment as fieldmen from the date the junior employees
were appointed as fieldmen. The claim of workman is
opposed by management in their Written Statement
discussed above. Workman did not participate in the
reference proceeding. They have not adduced evidence in
support of their demands. The evidence of the workmen is
closed on 1.6.2010. Management filed affidavit of witness
of Shri Nitin Pagnis covering most of the contentions in
Written Statement filed by IInd Party. That 152 candidates
were recommended by Committee for appointment as
fieldmen. After the complaint, the letter was reviewed and
suitable candidates were recommended. The candidates
found not suitable were dropped from the list. The evidence
of management's witness remained unchallenged. I do not
find reason to disbelieve his evidence. Thus claim of
workmen is not supported by evidence. Therefore the
demand of workman cannot be said proper. Therefore I
record my finding in Point No. 1 in Negative.
7. In the result, award is passed as under :—
(1) The demand raised by Shri Sohanlal and 9 others
against the management of Manganese Ore India
Ltd. vide their representation dated 6.10.88 is not
proper.
(2) Relief prayed by Ist Party workmen are rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 21 Qjojh] 2014
dkñvkñ 928.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,vjiksVZ vFkkWfjVh
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
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
39@2007½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@2@2014
dks izkIr gqvk FkkA
[lañ ,y&11011@2@2007&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 928.—In pursuance of section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 39/2007) of the Central
Government Industrial Tribunal/Labour Court, Hyderabad
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
Airport Authority of India and their workman, which was
received by the Central Government on 17/2/2014.
[No. L-11011/2/2007-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
Present : Smt. M. VIJAYA LAKSHMI, Presiding Officer
Dated the 17th day of December, 2013
INDUSTRIAL DISPUTE NO. 39/2007
Between :
Sri. G.A. Rudrappa,
General Secretary,
Indian Airports Kamgar Union,
C/o Airports Authority of India, NAD,
Begumpet, Hyderabad-500016
...Petitioner
AND
The Airport Director,
Airports Authority of India,
Begumpet, Hyderabad.
...Respondent
Appearances:
For the Petitioner
:
M/s. Ch. Indrasena Reddy & D.
Vilas, Advocates
For the Respondent
:
M/s A.K. Jayaprakash Rao, P.
Sudha, M. Govind & Vekatesh
Dixit, Advocates
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2453
AWARD
The Government of India, Ministry of Labour by its
order No. L-11011/2/2007-IR(M) dated 16/7/2007 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of Airports Authority of India and their
workwomen. The reference is,
SCHEDULE
"Whether the action of the management of Airports
Authority of India in not granting next higher scale to
the workmen of Fire Crew on the basis of passing
Advance Refresher Course and ignoring the length of
service rendered by the workmen is legal and justified?
If not, what relief the workmen are entitled to?"
The reference is numbered in this Tribunal as I.D. No.
39/2007 and notices were issued to the parties concerned.
2. Petitioner union represented by the General Secretary
filed claim statement praying to direct the Respondent
management to extend the benefit of higher scale under
the Flexible Complementing Scheme introduced by the
Respondent by paying the arrears from 1.7.1995 or from
their date of entitlement to till date to all the workmen
working in Fire Cadre Department in the Respondent
organization.
3. Respondent filed counter statement stating that
various averments made in the claim statement has no
relevance to the present reference made by the Government
of India. It is further stated that Petitioner union is aware of
the fact that the Flexible Complementary Scheme is
withdrawn w.e.f. 1.2.2005 and new Recruitment and
Promotion Rules have been implemented. The reference is
made after the withdrawal of the said scheme, as such, the
reference is not maintainable in law.
4. Petitioner union filed chief examination affidavit in
lieu of their evidence and the case stands posted for cross
examination of Petitioner.
5. At this stage, a memo has been filed for Petitioner
union stating that Respondent has extended the benefits
to the workmen as claimed by the union and therefore,
Petitioner is withdrawing the claim and sought for dismissal
of the case by passing a 'nil' award. In the circumstances,
proceedings are closed and a 'Nil' award is passed.
Award passed accordingly. Transmit.
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] 21 Qjojh] 2014
dkñvkñ 929.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,vjiksVZ vFkkWfjVh
vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
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
37@2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 17@2@2014
dks izkIr gqvk FkkA
[lañ ,y&15025@01@2014&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 21st February, 2014
S.O. 929.—In pursuance of section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Ref. No. 37/2005) of the Central
Government Industrial Tribunal/Labour Court, Hyderabad
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
Airport Authority of India and their workman, which was
received by the Central Government on 17/2/2014.
[No. L-15025/01/2014-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
Present : Smt. M. VIJAYA LAKSHMI, Presiding Officer
Dated the 17th day of January, 2014
INDUSTRIAL DISPUTE L.C. No. 37/2005
Between :
Sri. M. Harikrishna,
S/o M. Mukundam Rao,
H.No. 4-10/190, Upperpally,
Rajendranagar,
Ranga Reddy District.
...Petitioner
AND
1.
The Chairman,
Airports Authority of India,
Safdar Jung Airport, New Delhi-1
2.
The Executive Engineer (Ele),
Airport Authority of India,
Hyderabad Airport, Begumpet,
Hyderabad-500 016.
3.
M/s. Gannon Dunkerly & Co.,
Early Street, Calcutta,
C/o Kalavathi Electrical Works,
1-9-53/2, Alwal, Secunderabad-500 015.
2454
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
4.
M/s. I.C.S. Systems Ltd.,
4-135, Fatehnagar,
Hyderabad.
...Respondents
Appearances:
For the Petitioner
: M/s. Ch. Indrasena Reddy,
Advocate
For the Respondent
: M/s M. Vijaya Kumar, I.
Sambasiva Rao & D. Sreekanth,
Advocates
AWARD
This is a petition filed by Sri. M. Harikrishna, the workman
invoking Sec. 2A (1) and (2) of the I.D. Act, 1947 seeking
for a relief declaring that the Petitioner is deemed to be
continuing in service pending regularization of services,
and consequently directing the respondents to pay wages
from the date of termination including difference of pay of
regular employee with 12% interest p.a. till the date of
payment together with attendant benefits. He also sought
for the following interim reliefs i.e., to reinstate him into
service of the 4th respondent or else where and also for
directing the third respondent to pay wages pending
adjudication of the dispute and from the date of oral
termination i.e., 17.7.2000 with interest at 12% p.a. till the
date of retirement.
2. The averments made in the petition in brief are as
follows:
Petitioner has been working as khalasi in the Electrical
department of the 2nd Respondent since 1.7.1999. He was
interviewed by the Junior Executive Engineer, of Airport
Authority of India, Hyderabad in the year 1995 and was
selected for employment as N.M.R. and he was allotted to
work under the 3rd Respondent represented by its sub-
contractor i.e., Kalavathi Electrical Works. He was paid
monthly salary of Rs. 1860. His signature was being taken
in wage register. He used to perform duties at Rajiv Gandhi
Terminal or N.T.R. Terminal as conveyor belt operator and
also used to perform or assist the operation and
maintenance and also to repairs of passenger baggage
conveyor system; daily, weekly and annual maintenance
schedule during their duty timings. He got requisite
knowledge of the work of conveyor belt operating and its
repair. His attendance was marked by J.E., Electrical, who is
an officer of Airport Authority of India (A.A.I.) and his
salary was being paid by the Airport. Therefore it is clear
that he was completely under the control of the 2nd
Respondent who is the principal employer. He was given
identity card and his signatures were obtained in log books
maintained by the contractors. He worked round the clock
without a holiday or over time. He worked on par with the
regular employees of the department though he was denied
the facilities to which the regular employees are provided
with like pay scales, holidays, weekly offs, casual leaves
etc., with the expectation that his services would be
regularised in future. The work is perennial in nature and
Ist Respondent ought to have considered case of the
Petitioner and regularised his services, after abolishing of
the contract labour system by the Government of India
vide notification No. S.O. 114/E dated 16.11.1999. Petitioner
is qualified with respect to eligibility to hold the posts in
which he worked, on a regular basis. After the system of
contract labour was abolished consequent to notification
issued on 16.11.1999, the AAI became direct employer
eliminating the middlemen and the contractor thereby with
effect from 16.11.1999 there is relationship of employer and
employee between the 2nd Respondent and the Petitioner.
Without complying with the rules of Contract Labour (R&A)
particularly Sec. 14, i.e., Procedure For Termination of
Services or Sec. 25-F of Industrial Disputes Act, 1947, 4th
Respondent orally terminated the services of the Petitioner
from 17.7.2000 and engaged men of their choice thus
depriving livelihood of the Petitioner. Aggrieved by the
illegal termination of the Petition by 4th Respondent their
union namely Airport Authority Kamgar Union, filed a
petition invoking Sec. 2(k) of Industrial Disputes Act, 1947
before the Assistant Labour Commissioner (Central),
Hyderabad but no conciliation took place. 2nd Respondent
continued the contract labour system even till today,
initially through the 3rd Respondent and now through the
4th Respondent. After Petitioner was terminated without
notice, 4th Respondent engaged other persons in
Petitioner's place, though the Respondents were specifically
directed by the Hon'ble High Court of A.P. in their order
dated in WVMP 3479/2000 in WPMP No. 16170/2000, not
to replace the Petitioner with the third parties. The persons
who were working on aero bridge were brought to work on
conveyor belt by 4th Respondent. Inspite of Petitioner
putting in 240 days of continuous service each year without
complying with the provisions of Sec. 25-F of Industrial
Disputes Act, 1947 his services were terminated. It is to be
verified whether the contract is a genuine contract or it is a
mere ruse or camouflage to evade compliance with various
legislations so as to deprive the workers of the benefits
thereunder.
3. Respondents 1 and 2 filed their counter with the
averments in brief as follows:
Airport Authority of India ought to have been made a
party but not the Chairman of the Executive Engineer. Prior
to March, 1997 conveyor belt was not commissioned at
Hyderabad airport. The date of commissioning of Rajiv
Gandhi Terminal was 10.3.1997 as such, there was no need
to operate the conveyor belt before that date. The
contention of the Petitioner that he was engaged by AAI
from 15.3.1995 onwards is totally incorrect. AAI got nothing
to do with the Petitioner before 13.3.1997 as there was no
conveyor belt operation till that date. Prior to 13.3.97
Petitioner might have worked under any contractor as an
unskilled labour for the erection of conveyor which is not
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2455
a continuous process and which does not require any
regular employment. There is no employer and employee
relationship between AAI and Petitioner. Petitioner never
reported to any Airport Authority of India official and AAI
never marked his attendance. No payment was made by
AAI to the Petitioner. AAI's involvement is limited to the
general supervision of works that was being done through
agency of contractors. AAI do not have any regular
conveyor belt operator with whom the job of Petitioner can
be compared. AAI has discontinued the operation of the
conveyors. Conveyors are operated by respective airline
operators. The Government of India's order dated 16.11.1999
was quashed by the Delhi High Court on 22.11.2001.
Therefore, no relief can be claimed on the strength of said
Government order. At the present AAI is getting the periodic
maintenance of the conveyors done through agencies
having technical expertise in the field. There is no regular
deployment of the staff of AAI for this purpose. The order
of Hon'ble High Court of A.P. dated 19.4.2001 referred in
the petition does not speak of continuation of the labour.
At present 4th Respondent is carrying out periodic
maintenance of conveyor belt at Hyderabad airport. There
is no industrial dispute what so ever that could be raised
against the Respondents No. 1 and 2.
There is no post as khalasi, helper, electrician, fitter etc.,
in Respondent's organization. Conveyer belts have never
been operated by the Respondents No. 1 and 2 and the
same are being operated by the airlines on their own. No
operator is required for Respondent 1 and 2. AAI is
responsible only for the periodic maintenance of the
conveyor belts. For which no operator is required. The
contention of the Petitioner that AAI deployed regular
employees for operating conveyor belt is not correct.
Petitioner never approached Assistant Labour
Commissioner (Central), Hyderabad. Petition is liable to be
dismissed.
4. By virtue of order dated 9.5.2007 3rd Respondent has
been set exparte and by virtue of order dated 7.3.2007 4th
Respondent has been set exparte by this forum.
5. Since main case itself is being disposed off, the court
need not consider the interim reliefs sought for.
6. To substantiate the contentions of the workman he
examined himself as WW1 by filing his chief examination
affidavit. But he was not subject to any cross examination
by the Respondent. As Respondent was not showing any
interest to cross examine the said witness, his right to cross
examine the said witness forfieted by virtue of order
29.7.2011. No evidence was adduced for the Respondent.
7. Heard either party.
8. The Point that arise for determination is:
Whether the Petitioner is entitled for the main reliefs
sought for?
9. Point:
The workman invoked Sec. 2 A (1) and (2) of the I.D.
Act, 1947 and filed this petition seeking for a relief of
declaration that the Petitioner is deemed to be continuing
in service pending regularization of services and
consequently to direct the respondents to pay wages to
him from the date of termination including difference of
pay of regular employee with 12% interest till date of
payment. This is a very vague relief sought for. It can be
said so since no where in the petition, Petitioner claimed
that he initiated any proceeding seeking for regularization
of his services. In such case seeking for declaration that he
is deemed to be continuing in service pending regularization
of his services does not arise. Likewise, the consequential
direction to the respondents sought for, to pay him any
wages, also does not arise.
10. Further more, a careful perusal of the material made
available on the record including the pleading of the
Petitioner, giving rise to a conclusion that Petitioner's claims
themselves are vague. Petitioner, on one hand is claiming
that he is an employee of the 2nd Respondent. On the
other hand he is claiming that he is an employee of third
Respondent, having allotted by the 2nd Respondent to
work under the 3rd Respondent. 2nd Respondent is an
executive engineer of AAI. 3rd Respondent is a private
company. How 2nd Respondent can engage a worker and
allot him to work under 3rd Respondent is a question which
remained unanswered.
11. Further more, Petitioner is relying upon a document
dated 5.6.2000 said to have been issued by one Kalavathi
Electricals which is to the effect that Petitioner worked in
their concern and has been associated with maintenance
of baggage conveyor system at Rajiv Gandhi Terminal
building or N.T.R. Terminal building at Hyderabad Airport.
Petitioner claimed that said Kalavathi Electrical works is
sub-contractor for the 3rd Respondent. But, the certificate
issued by said Kalavathi Electrical Works does not show
that the said firm is a sub-contractor to the 3rd Respondent.
In such case how the Petitioner, who appeared to have
worked for said Kalavathi Electrical Works can claim that
3rd Respondent got anything to do with the work done by
him is also a question which remains unanswered. As it is
the contention of the Petitioner himself, that Petitioner
worked for Kalavathi Electrical Works a sub-contractor of
3rd Respondent, 3rd Respondent will not have anything to
do with him. Kalavathi Electrical works is his employer.
The certificate issued by Kalavathi Electrical Works dated
5.6.2000 clearly indicates that Petitioner has been working
in their concern.
12. In the giving circumstances, question of either of
the Respondents 1 to 4 terminating services of the Petitioner
does not arise.
13. In view of the fore gone discussion, it can safely be
held that there is no industrial dispute to be dissolved,
2456
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
existing among the parties to this petition and that Petitioner
is not entitled for any of the reliefs sought for.
14. Result :
In the result, Petition is dismissed.
Award passed accordingly. Transmit.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
WW1: Sri M. Hari Krishna
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 930.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj]
VsyhdkWe] jk;iqj ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k
lhthvkbZVh@,ylh@vkj@58/98½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 21@02@2014 dks izkIr gqvk FkkA
[la- ,y&40012@18@97&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 24th February, 2014
S.O. 930.—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/58/98) 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 General Manager, Telecom, Raipur and
their workman, which was received by the Central
Government on 21/02/2014.
[No. L-40012/18/97-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/58/98
PRESIDING OFFICER : SHRI R.B. PATLE
Shri Rajpal Verma,
Q. No. 96, Janata Colony,
Gudiyari, Raipur (MP)
...Workman
Versus
General Manager,
Telecom,
Distt. Raipur (MP)
....Management
AWARD
(Passed on this 28th day of January 2014)
1. As per letter dated 9-3-98 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-40012/18/97-IR(DU).
The dispute under reference relates to:
"Whether the action of the General Manager,
Telecommunication Distt. Raipur (MP) in terminating
the services of Shri Rajpal Verma w.e.f. 1-10-95 is legal
and justified? If not, what relief the workman is entitled
to?"
2. After receiving reference, notices were issued to
the parties. Workman filed Statement of claim at Page
2/2 to 2/8. Case of workman is that he was working as
full time labour on muster roll from 10.1.89 with IInd
party No. 4. He was continuously working till 1-10-95 for
the period of 5 year 10 months. His services were
terminated orally from 12-10-95 without assigning
reasons, without notice. His services were terminated
verbally. Workman requested him to continue in service
was not considered. Termination of his service is illegal,
arbitrary in violation of Article 311 of Constitution. No
opportunity was given for his defence. IInd party
avoided attendance before Labour Court. Workman
prays for his reinstatement with back wages. That
termination of his services is illegal.
3. IInd party filed Written Statement at Page 10/1 to 10/
2. Claim of workman is denied outright. The case of IInd
party is that management of Telecom Deptt. had undertaken
an expansion programme in order to expand telecom
facilities all over the State of MP. In order to achieve its
object, the said expansion programme required laying of
telephone cables/lines and errection of poles etc. The said
work was of temporary nature. Workman was engaged as
casual labour. His services were subject to availability of
work. Workman never completed 240 days continuous
service in a year. The Telecom deptt. framed scheme for
regularization of casual labour. Workman does not fulfill
conditions prescribed in said scheme. Workman is not
entitled for temporary status. IInd party prays for rejection
of 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
In Affirmative
the General Manager,
Telecommunication Distt.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2457
Raipur (MP) in terminating
the services of Shri Rajpal
Verma w.e.f. 1-10-95 is legal
and justified?
(ii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to relief
prayed by him.
REASONS
5. Though workman is challenging termination of
services for denial of opportunity for hearing, termination
without notice or paying compensation is illegal. Workman
has not participated in reference proceeding. His evidence
is closed on 6-9-2011 as workman failed to adduce evidence
in support of his claim. Management filed evidence by way
of affidavit of Shri P.R. Sahu. Said witness is not cross-
examined by the workman. Evidence of witness remained
unchallenged. I do not find reason to disbelieve evidence
of management's witness. Claim of workman is not
substantiated by any thread of evidence. Therefore I record
my finding in Point No. 1 in Affirmative.
6. In the result, award is passed as under:
(1) Action of the General Manager, Telecommunication
Distt. Raipur (MP) in terminating the services of
Shri Rajpal Verma w.e.f. 1-10-95 is legal.
(2) Workman is not entitled to relief prayed by him.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 931.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj] xzs
vk;ju QkmaMªh] tcyiqj ds izcaèra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV
¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj@174/96½ dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 21@02@2014 dks izkIr gqvk FkkA
[la- ,y&14011@09@94&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 24th February, 2014
S.O. 931.—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/174/96)
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 General Manager, Grey Iron Foundry,
Jabalpur and their workmen, which was received by the
Central Government on 21/02/2014.
[No. L-14011/09/94-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/174/96
Presiding Officer, SHRI R.B. PATLE
The Secretary,
G.I.F. Employees Union,
Grey Iron Foundry,
Jabalpur
....Workman/Union
Versus
General Manager,
Grey Iron Foundry,
Jabalpur
....Management
AWARD
(Passed on this 30th day of January 2014)
1. As per letter dated 30-8-96 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/
9/94-IR(DU). The dispute under reference relates to:
^^D;k izcaèra= xzs vk;ju QkmUMªh] tcyiqj ¼eñizñ½ esa izcaèdksa
}kjk fuEufyf[kr Jfedksa dks tks fd Qjuslesu ¼tujy½ ds in
ij osrueku #i;s 210&290 esa fu;qDr gq;s Fks mUgsa Qjuslesu
tujy ds in LdhYM dsVsxjh esa osrueku 260&400 esa fnñ
16-10-81 ls vixzsM u djus dh dk;Zokgh U;k;ksfpr gS vFkok
Qjuslesu tujy ds in ij rhu o"kZ iw.kZ dj ysus dh fnukad ls
mUgsa osrueku 260&400 esa esYVj ¼Qsjl ,UM uku Qsjl½ ds in
ij LdhYM dsVsxjh esa vixzsM u djus dh dk;Zokgh U;k;ksfpr gSA
;fn ugha rks lacafèr deZdkjx.k fdl vuqrks"k ds gdnkj gSa\**
2. After receiving reference, notices were issued to the
parties. Grey Iron Foundry Employees Union submitted
statement of claim at Page 2/1 to 2/4. The case of Union is
that the workmen in the matter are employees of Grey Iron
Foundry i.e. IInd party. They were appointed as labour
between 1974 to 1979. Thereafter Trade Test of Furnaceman
(General) was passed by them. Those employees were
appointed as Furnaceman (General) in pay scale Rs. 210-
290 (Old pay scale). That in IVth Pay Commission, the pay
of employees was revised. Central Government has
appointed Expert Classification Committee as per the
recommendation of IIIrd Pay Commission, for classification
of the grade/trade of all industrial trades in Ordnance
Factories including the trade of these workmen. That nature
of work of Furnaceman (General) in all Ordnance Factory is
similar. The management of Ordnance Factory are
controlled by Chairman, Ordnance Factory Board, Calcutta.
That in some ordnance factories, the Furnaceman (General)
trade has been given skilled category from 16-10-81 whereas
2458
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
the same has been denied for the workmen of the Grey Iron
Foundry. That SRO 357 of 1979 was applicable to industrial
workmen employed in Ordnance Factories. As per this SRO,
only one trade as Furnaceman (General) has been prescribed
at Sl. No. 293 in the Pay Scale of Rs. 210-290. The
management of Ordnance Factories has created a trade
known as Furnaceman (Porer) which is a sub-trade of
Furnaceman (General). From 16-10-81, management
upgraded this sub-trade Furnaceman (Porer) in the skilled
category at the pay scale of Rs. 260-400. The Furnaceman
(General) was denied said upgradation.
3. Management had constituted anomalies-committee
to settle the problem and arising in pay fixation of the trade/
grades after the E.C.C. Report. Said anomaly Committee in
its finding in Para 7.2 have decided that the semi-skilled
jobs in other Defence Establishment whose nomenclature
are comparable with the job already studied should also be
elevated to skilled category in the pay scale of Rs. 260-400
without any further study. Accordingly in some factories
the Furnaceman (General) trade has been upgraded as
skilled category trade, such benefit is not given to the
workmen of GIF. It is further submitted that Ordnance
Factory Board constituted another committee which was
known as "Guha Committee". The said committee has also
accepted that nature of work of the Furnaceman (General)/
Semi-skilled Furnacemen (Porer), Furnaceman Charger,
Furnaceman Leading, Steel Melter, Cupolaman are similar,
equal and identical and these trades are grouped together
and given a common designation of Melter (Ferrous and
Non-Ferrous). According to Guna Committee Furnaceman
(General) who completed 3 year service in their trade should
have been upgraded as Melter skilled from back date. No
action is taken on said report. That the junior employees to
the workmen in Furnaceman (Porer) are placed higher in
seniority list, some of the juniors are promoted to higher
grades. Union is praying for suitable directions to the
management.
4. IInd party management filed written Statement at page
10/1 to 10/5. Claim of Union is denied. It is submitted that
Shri I.C. Tiwari and another workmen were initially
appointed as labour in the year 1978 in Grey Iron Foundary.
During course of their service, they were promoted to
Furnacement (General) in the pay scale of Rs. 210-290 after
qualifying the trade test from 2-5-1980. The post of
Furnaceman (General) is of semi-skilled post. The Grey Iron
Foundry is an establishment under Ministry of Defence. It
is governed by rules and regulations framed by Govt. of
India. The fixation/revision of pay scales lies with pay
commission and other bodies subject to acceptance by
Government of India. The demand for revising the pay
scale by Union cannot be entertained as General Manager
of Factory has no authority to grant such pay scales to
group of employees. That Shri I.C. Tiwari and 25 others
holding post of Furnaceman (General), GIF are claiming
promotion to higher scale in the category of skilled
employees in the pay scale of Rs. 260-400. Said issue was
raised earlier before CAT, Madras. That CAT, Madras held
that it is not job of Tribunal to evaluate the job contents in
Ordnance Factory. IInd party referred to judgment in
Original Application 677 and 701 of 1986 by CAT, Madras
and Apex Court judgment in SLP No. 3999 and 4024 of
1988. IInd party submits that there is no justification of
grant of higher pay scale for Furnaceman (General) of GIF
with Furnaceman (Porer) and Furnaceman (General) of
O.F.A. That for rationalization of trades and grades in
Ordnance Factories, Guna Committee was formed. Such
Committee reduced the number of trades in Ordnance
Factory to provide avenues to employees in deed end trades
by merging them with main line trades after following the
procedure laid down in S.R.O. The report of ECC was for
purpose of sorting out recommendation of IIIrd Pay
Commission. Guha Committee was appointed for Ordnance
Factory itself. There is no logic in linking those reports.
The object of Guha Committee was to provide avenues of
promotion to the incumbents of dead trade by merging
them with nearby akin trades after trade test. IInd party
refers to judgment of Principal Bench of CAT, New Delhi
and judgment by Hon'ble Apex Court. That executive
instruction can make provision only with regard to a matter
which was covered by the rules and such Executive
instruction could not over-ride any provision of the rules.
That Guha Committee recommendations cannot supersede
SRO provision. That nowhere it is provided that
Furnaceman (General) is semi-skilled grade or any one else
could give higher pay scale of Rs. 260-400 automatically.
On such ground, IInd party prays that award be passed in
its favour.
5. Workman filed rejoinder at Page 11/1 to 11/3 reiterating
their contentions in the Statement of Claim. That Pay
Commission fixed pay of workman according to their trade/
grade which is done by the management. Ist party prayed
for direction to IInd party for producing ECC-Guha
Committee Report.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of Grey
In Affirmative
Iron Foundry, Jabalpur in
denying to upgrade the pay
scale of Furnaceman
(General) from Rs. 210-290
to Pay Scale Rs. 260-400
w.e.f. 16-10-81 is justified?
(ii) Whether the action of the
In Affirmative
management in not
upgradig the Furnaceman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2459
(General) on completing
3 years working to the post
of Melter in pay scale
Rs. 260-400 is justified?
(iii) If not, what relief the
Workmen are not
workman is entitled to?"
entitled to relief
prayed.
REASONS
7. Terms of reference relates to denial of skilled category
Pay Scale Rs. 260-400 to Furnaceman (General) in Pay Scale
210-290 by the management of IInd party. Workmen Dilip
Kumar, Biharilal, Tokram, I.C. Tiwari filed identical evidence
on affidavit in support of their claim that they were
appointed as Furnaceman (General) in Grey Iron Foundry
in pay Scale Rs. 210-290 from 1-10-82, 1-4-81, 1-1-81
respectively. That in some other Ordnance Factories,
Furnaceman (General) has been given higher Pay Scale
Rs. 250-450. That the nature of work of Furnaceman
(General) in all places are same. That the nature of work of
Furnaceman (Porer) and Furnaceman (General) are same.
Workman Dilip Kumar in his cross-examination says he
was selected as Furnaceman (General) on 2-5-80 having
pay scale 210-290. That pay of Furnaceman (Porer) was
same. That pay of Furnaceman in Ordnance Factory
Khamaria is Rs. 260-400. Shri Tokram in his cross-
examination says he was initially appointed as labour in
1978 then he was promoted as Furnaceman (General). That
work of Furnaceman (General) and Furnaceman (Porer) is
same. Designations are given as per the work. Written order
was not given. Oral directions were given about their work.
That after ECC report Furnaceman (Porer) was given pay
scale 260-450). He claims ignorance about Guha report.
That Pay is fixed as per working of Furnaceman (General)/
Furnaceman (Porer). No written order was given to him
working as Furnaceman (Porer).
8. Shri I.C. Tiwari in his cross-examination says that he
received education upto 8th standard. He was first
appointed as mazdoor in 1978. He was promoted around
1980-81 as Furnaceman (General) in Pay Scale 210-290. It
was semi-skilled category. The Factory comes under
Defence Ministry. The Pay revision is made by fixation
Committee. He claimed that from work of Furnaceman
(General) and Furnaceman (Porer) are of same category.
They are also known as loaderman covered in Pay scale
260-400. That he had not received written order for working
as Furnaceman (Porer). He had complained about it to the
management. That he continued to work as Furnaceman
(Porer) and claims pay of said category.
9. Other workman Francis, Mahmood Aslam. Nandlal,
Madhukar Rao, Sevaram, Narmad Prasad though filed their
affidavit of evidence, they did not make available for their
cross-examination, therefore their evidence cannot be
considered.
10. Management filed affidavit of evidence of Seema
Gupta. Management's witness has stated that Shri I.C.
Tiwari and 25 others holding post of Furnaceman (General)
of Grey Iron Foundry represented though Union for higher
pay scale skilled category employees. That the adoption
of Point rating system, ECC has evaluated the job contents
of various trades. As a result of evaluation Furnaceman
(General), and Furnaceman (Porer) were awarded the pay
scale of Rs. 260-400 considering the gravity of risk and
arduous nature, Furnaceman (General) was given the pay
scale of Rs. 210-290. For rationalization of trades and grades
in ordnance Factories, Guha Committee was formed. The
basic purpose of said committee was to reduce the number
of trades in Ordnance Factories. The purpose of ECC was
of sorting out anomalies arising out of the recommendations
of 3rd Pay Commission and applicable to Ministry of
Defence, management's witness was not cross-examined.
His evidence remained unchallenged. IInd party has
produced copy of ECC report. The pay scales for semi
skilled are given Rs. 210-290, pay scale of skilled category
260-400. The Guha Committee report is also produced. Pay
scale of Furnaceman (General) is shown Rs. 210-290. No
change was proposed on revision. The scale of Furnaceman
(leading) is shown Rs. 260-400. Guha Committee is expert
Committee for rationalizing trades.
11. Though the Union has pleaded that in some Ordnance
Factories, pay scale of Furnaceman (General) is given pay
scale Rs. 260-400, no such evidence is produced. IInd party
has produced copy of award in R/64/96. Identical claim of
Union was not accepted. I have carefully gone through the
judgment. It was observed that Union of India is not
implemented as party. That Competent Authority to grant
pay scale to the group of employees is Union of India.
After such discussion, claim was rejected. From the
evidence discussed above, Union has not establishment
that Furnaceman (General) are entitled to get pay scale
Rs. 260-400. Therefore I record my finding in Point No. 1, 2
in Affirmative.
12. In the result, award is passed as under:—
(1) Action of management of Grey Iron Foundry,
Jabalpur in denying to upgrade the pay scale of
Furnaceman (General) from Rs. 210-290 to Pay
Scale Rs. 260-400 w.e.f. 16-10-81 and is not
upgrading the Furnaceman (General) on
completing 3 years working to the post of Melter
in pay scale Rs. 260-400 is justified.
(2) Union is not entitled to any relief.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 932.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vflLVsaV bathfu;j]
fMikVZesaV vkWQ VsyhdE;wfuds'ku] fcykliqj ds izca/kra= ds lac)
2460
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
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@87/91) dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 21@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&40012@149@90&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 932.—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/87/91) 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 Asstt. Engineer, Department of
Telecommunications, Bilaspur and their workman, which
was received by the Central Government on 21-02-2014.
[No. L-40012/149/90-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/87/91
SHRI R.B. PATLE, Presiding Officer.
Shri Anil Kumar Singh,
S/o Shri Ram Sunder Singh,
Village and Post Ram Nagar Kot,
Distt. Sultanpur (UP)
....Workman
Versus
Asstt. Engineer,
Deptt. of Telecommunication,
Satellite Project,
SECL Compound,
Bilaspur (MP)
...Management
AWARD
(Passed on this 30th day of January 2014)
1. As per letter dated 19-4-91 and corrigendum dated
13-8-91 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-40012/149/90-IR(DU). The dispute under
reference relates to:
"Whether the management of Department of
Telecommunication, Office of Asstt. Engineer, Satellite
Project, Bilaspur (MP) is justified in not granting
temporary status to Shri Anil Kumar Singh, a casual
labour w.e.f. 1-1-85 and in terminating his services w.e.f.
25-2-90? If not, to what relief the workman concerned is
entitled to?"
2. After receiving reference, notices were issued to the
parties. Ist party workman filed statement of claim at Pages
9/1 to 9/3. The case of workman is that he was employed as
casual labourer from 1-1-1985 at Sultanpur with the IInd
party Deptt. of Telecommunication. He was working till 25-
4-85. Thereafter he was again taken back on duty by the
IInd party in May 1988 and posted at Srinagar, Distt. Pudi.
Ist party was continued on work till September 1988. Then
he was transferred to Joshi Math from October 1988. He
continued to work till September 1989. Thereafter he was
transferred to Bilaspur and after relieving from Joshi Math,
the workman joined his services on 22-9-89. He continued
to work at Bilaspur till 24-2-90.
3. Workman submits that he had completed 240 days
continuous service. His services were terminated from
25-2-90 without assigning reasons. The termination of his
service is illegal and violation of Article 14, 16 of
constitution. That though he had completed 240 days
continuous service, he was not paid retrenchment
compensation. That IInd party retained junior employees
Jeetram, Ram Prakash Rajak, Hemant Kumar, Krishna Kumar
Sahu. One Lalit Kumar was appointed after termination of
service of workman. IInd party violated Section 25-G of
I.D. Act. He further submits that he had submitted
application before ALC, Bilaspur claiming temporary status.
IInd party got annoyed and terminated his services from
25-2-90. On such grounds, workman is praying for setting
aside his termination and allow his reinstatement with back
wages.
4. IInd party filed Written Statement at Pages 10/1 to
10/3. The claim of workman is denied outright. IInd party
claims ignorance about working of workman at Shrinagar,
Gadwal (UP). It is denied that Ist party workman was
continuously working. It is submitted that the organization
of IInd party installing Satellite Station was started in
August, 1989. The project is not a recruiting organisation
and casual labours are engaged from the local TDE, Bilaspur.
As said exchange expressed its inability to provide casual
labour, casual labour had to be engaged for a short duration.
Workman was one of such casual labour engaged for the
project. Workman was not transferred from Joshimath to
Bilaspur. That workman had not completed 240 days
countinuous service. He is not entitled to retrenchment
compensation. That workman was engaged for specific
work of protection of satellite antenna kept on the ground.
When said antenna was lifted on tower work for which he
was engaged is ceased. Said work was of temporary nature.
Workman was found missing at his residence when he was
called for work, so another labour was engaged. All other
contentions of workman are denied. It is submitted that
workman is not entitled for absorpotion. His discontinuation
is covered under Section 2(oo)(bb) of I.D. Act. IInd party
prayed for rejection of claim.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2461
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 management of
In Affirmative
Deptt. of Telecommunication,
Office of Asstt. Engineer, Satellite
Project, Bilaspur (MP) is justified
in not granting temporary status to
Shri Anil Kumar Singh, a casual
labourer w.e.f. 1-1-85?
(ii) Whether the action of the
In Affirmative
management of Deptt. of
Telecommunication in terminating
the services of workman w.e.f.
25-2-90 is justified?
(iii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to any relief.
REASONS
6. The terms of reference relates to denial of temporary
status to workman Shri Anil Kumar Singh and legality of
termination from service vide corrigendum. In his statement
of claim, workman submits that his services are terminated
without paying retrenchment compensation, without any
notice. Termination from service is in violation of Section-
25-F, G, H of I.D. Act. The evidence of workman was
recorded. He has stated that he was discontinued from
work from 25-2-90. He was not given notice, retrenchment
compensation was not paid. That he was engaged from
1-1-1985. As stated above, his evidence is also beyond
terms of reference. In his cross-examination, workman
denies that the work was completed. He admits that the
employment is provided through Employment Exchange
Office. The evidence of workman is absolutely silent about
any rules, regulations occurring him status of temporary
employee. Workman has not produced any document about
completing 240 days continuous service with IInd party.
7. Though the workman has challenged termination of
Section 25-F, G of I.D. Act, evidence of workman about
completing 240 days continuous service is not supported
by any document. Any other witness is not examined
therefore workman has not established completion of 240
days continuous service. Therefore he is not entitled to
protection. The evidence on record is not sufficient to grant
status of temporary employee claimed by workman as per
the terms of reference, therefore I record my finding in
Point No. 1 & 2 in Affirmative.
8. In the result, award is passed as under:—
(1) The action of the management of Deptt. of
Telecommunication, office of Asstt. Engineer,
Satellite Project, Bilaspur (MP) in not granting
temporary status to Shri Anil Kumar Singh, a
casual labourer w.e.f. 1-1-85 and in terminating his
services w.e.f. 25-2-90 is legal and proper.
(2) Workman is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 933.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj jhtuy Mk;jsDVj]
jhtuy lsaVj vkWQ vkxsZfud Qkfe±x] tcyiqj 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 CGIT/LC/R/94/2007½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 21@02@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@40@07&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 933.—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/94/2007)
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 Regional Director, Regional Centre of
Organic Farming, Jabalpur and their workmen, which was
received by the Central Government on 21/02/2014.
[No. L-42012/40/07-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/94/07
PRESIDING OFFICER: SHRI R. B. PATLE
Shri Rajesh Kumar Sharma,
S/o Shri Koushal Kishore Sharma,
House No. 1645, Phootatal,
Bahai Mohalla,
Hardoul Mandir,
Jabalpur
.... Workman
Versus
Regional Director,
Regional Centre of Organic Farming,
(Formely known As Regional Biofertiliser
Development Centre), 2, 1 Heera Bhawan,
Andhrtal, Jabalpur
.... Management
2462
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
AWARD
(Passed on this 28th day of January, 2014)
1. As per letter dated 11-9-07 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/
40/07-IR (DU). The dispute under reference relates to:
"Whether the action of the management of Regional
Centre of Organic Farming, Jabalpur in retrenching their
workman Shri Rajesh Kumar Sharma w.e.f. 31-8-2006 is
legal and justified? If not, to what relief the workman is
entitled to?"
2. After receiving reference, notices were issued to the
parties. Workman filed statement of claim at pages 5/1 to
5/4. Case of workman is that he was appointed as casual
labourer w.e.f. 9-5-94. He was paid wages Rs. 33.93 per day
by IInd party. His name was sponsored through
Employment Exchange. He had continuously worked more
than 240 days and acquired status of permanent employee.
In order to deny claim of regularization, workman was asked
to sign in payment voucher in name of Shri Bhagwandas.
His services were terminated from 19-4-95. The dispute
was raised as per R/169/96 to this Tribunal. Vide award
dated 28-5-99, management was directed to reinstate him
with full back wages. Award was challenged by IInd party
filing Writ Petition No. 4427/99. The writ was admitted
subject to compliance of Section 17(b) of I.D. Act. He was
reinstated by workman w.e.f. 27-4-00. He was not paid back
wages. Writ Petition was dismissed by the Hon'ble High
Court on 28-2-06.
3. Workman submits that he requested management to
implement award passed by this Tribunal after dismissal of
the Writ petition. The management did not comply with
award. Showcause notice was issued by Dy. CLC dated
28-7-06 for initiating prosecution under Section 29 of the
I.D. Act. The management decided to terminate his services.
His services were terminated from 31-8-06 without justified
ground. That termination of his services is illegal. His
services were terminated by management on the ground
that Central Govt. discontinued/closed biofertilizer project.
Workman submits that his office is still working. There are
vacant post of Class-IV employees. His services were
terminated after 12 year service in violation of Section 25-F
of I.D. Act. Workman prays for setting aside his termination
and he be reinstated with back wages.
4. IInd party filed Written Statement at page 7/1 to 7/3
IInd party raised preliminary objection that reference is not
tenable. The applicant workman was serving as part time
daily wager in Regional Centre of Organic Farming, Jablapur
which is a research centre. That the service matters relating
to Central Govt. employees falls within jurisdiction of CAT
as per Act of 1985.
5. Ist party workman was engaged on daily wages on
9-5-94. His services were terminated in 19-4-95. Termination
of workman was challenged in R/169/96. The award was
passed on 18-5-95 directing reinstatement of workman with
back wages allowing 12% interest per annum. The award
was challenged in Writ Petition No. 4427/99. Workman was
reinstated in compliance of Section 17-B of I.D. Act. Writ
petition was dismissed on 28-2-06 treating termination of
workman as retrenchment. That as per the award, workman
was paid retrenchment compensation, wages are also paid.
IInd party submits that services of workman are terminated
from 31-8-06 is legal. Workman is not entitled to relief prayed
by him.
6. Workman filed rejoinder on 13-4-2010 reiterating his
contentions in statement of claim.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Negative
management of Regional Centre
of Organic Farming, Jablapur in
retrenching their workman
Shri Rajesh Kumar Sharm w.e.f.
31-8-2006 is legal and justified?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
8. In support of his claim, workman filed affidavit of his
evidence. He has stated facts of his appointement by IInd
party as casual labour from 9-5-94 and discontinuation of
his service from 19-4-95. That the termination was
challenged by him in the reference. The reference was
allowed. IInd party filed Writ Petition against the said
Award. That his services were terminated from 31-8-06
illegally without notice, without paying retrenchment
compensation. The reason given for termination that
biofertilizer plant is closed. Termination of his services is in
violation of Section 25-F of I.D. Act. In his cross-
examination workman says he was given appointment order,
its copy is not produced. He had not requested for giving
letter of appointment, he has not produced documents
about completion of 240 days service. He has not produced
documents about asking him to sign payment voucher in
name of Shri Bhagwandas. He was asked to sign in name of
Shri Bhagwandas in 1995. On other days he was paid salary
with his signature. That he was continuously working for
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2463
12 years. Attendance sheet is not produced. More than
100 officers and employees were working he has not
produced appointment letter of any of them. Permission of
Central Government was not obtained for closing the centre.
9. Mangement filed affidavit of witness Shri Rajesh
Kumar Sharma. The witness has narrated the course of
litigation relating to the termination of services of Ist party
workman, the award challenged in Writ Petition. Workman
was paid back wages with interest, compensation, one
months wages in lieu of notice and cost Rs. 1000. The copy
of award in R/169/96 is produced. The award has been
confirmed by the Hon'ble High Court dismissing Writ
Petition No. 4427/99, copy of judgement in Writ Petition is
produced. Therefore legality of earlier termination cannot
be decided in present case, the same has received finality.
The services of workman are terminated as per notice dated
31-8-06 Exhibit W-1. As per said notice, workman was paid
arrears of wages Rs. 6565 interest on arrears as per CGIT
order Rs. 5714, compensation under Section 25-F Rs. 12,102.
The period of retrenchment compensation is not disclosed,
paid wages for August 06 Rs. 2017, wages in lieu of notice
Rs. 2017 and cost Rs. 1000. Learned counsel for workman
Mr. Mishra emphasized that copy of said notice is not
forwarded to the competent authorities as per section 25-F
of I.D. Act Section 25-F (C) of I.D. Act provides- "Notice in
prescribed manner is served on the appropriate Government
or such authority specified by the appropriate Government
by Notification in official gazette."
The notice Exhibit W-1 is not disclosing period. Said
notice in prescribed form is not sent to the Competent
Authority provided under Section 25-F (C) and therefore
the termination of services of workman is in violation of
Section 25-F(C) of I.D. Act. For above reasons, I record my
finding in Point No. 1 in Negative.
10. Point No. 2—In view of my finding in Point No. 1
that termination of services of workman is illegal, question
arises whether the workman is entitled reinstatement with
back wages. The services of workman are terminated after
dismissal of Writ Petition No. 4427/99. In compliance of
Section 17-B, workman was reinstated during pendency of
Writ Petition. For the same ground, services of workman
are terminated vide Exhibit W-1 from 31-8-06. The
termination is in violation of Section 25-F of I.D. Act. The
evidence of workman is not clear what he was doing after
termination of services from 31-8-2006. The management
has also not adduced evidence about workman was in
gainful employment. Considering those aspects,
reinstatement of workman with 50% back wages will be
appropriate. Accordingly I record my finding in Point
No. 2.
11. In the result, award is passed as under:—
(1) Action of the management of Regional Centre of
Organic Farming, Jablapur in retrenching their
workman Shri Rajesh Kumar Sharma w.e.f.
31.8. 2006 is illegal.
(2) Mangement is directed to reinstate workman with
50% back wages with continuity of service.
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] 24 Qjojh] 2014
dkñvkñ 934.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fizafliy tujy
esustj] VsfydkWe] Hkkjr lapkj 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;&1]
paMhx<+ ds iapkV ¼lanHkZ la[;k 47@2009½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@40@2008&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 934.—In pursuance of section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby published the award (I.D. No. 47/2009) 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 Principal General Manager, Telecom,
BSNL and their workman, which was received by the Central
Government on 24/02/2014.
[No. L-40012/40/2008-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 47 of 2009. Reference No. L-40012/40/2008-
IR(DU) dated 04-08-2009 Madan Lal, S/o Sh. Sanwaru Ram,
H. No. 160, Indira Colony, Manimajra UT, Chandigarh.
.... Applicant
2464
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Versus
1. The Principal General Manager, Telecom, BSNL, Sector
18-B, Chandigarh.
.... Respondent
APPEARANCES :
For the Workman:
Sh. P.K. Longia Advocate.
For the Management:
Shri Anish Babbar Advocate.
AWARD
Passed on : 11.02.2014
Central Govt. vide notification No. L-40012/40/2008-IR
(DU) dated 04.08.2009 has referred the following dispute to
this Tribunal for adjudication:
Term of Reference:
"Whether the action of the management of Principal
General Manager, Telecom, BSNL, Chandigarh in
terminating the service of Shri Madan Lal w.e.f. 24/7/
1998, is legal and justified? If not, what relief the workman
concerned is entitled to?"
2. The workman in his claim statement pleaded that he
was directly engaged by the management on 28.05.1997 as
casual clerk in Commercial Office Mohali and ordered to be
shifted to Commercial Office Panchkula w.e.f. 01.04.1998.
His work and conduct was satsfictory. On 24.07.1998, his
services have been terminated with verbal order without
any reason. It came to the notice of the workman that his
services were terminated on the allegation that he was found
involved in forging documents in connection with the
issuing of new telephone connections. It is further pleaded
by the workman that no notice was given to him and no
compensation was paid before his termination. It is further
pleded by the workman that a FIR was lodged by the
management against five persons including the workman
on 08.08.1998, and a case was lodged in the court of
Additional Chief Judicial Magistrate, Panchkula on
20.01.2000. And after evidence in the criminal case, the
charges were not proved against the workman and all of
them have been acquitted. It is pleaded by the workman
that his termination is against the mandatory provisions of
the I.D. Act. He prayed for his reinstatement with full back
wages and other consequential benefits.
3. The management filed reply, preliminary objection
has been taken that the claim is barred by limitation as the
workman was disengaged in the year 1998 but he raised
the dispute in the year 2009. The workman was engaged on
need basis not according to the recruitment rules and he
has not locus standi to raise the dispute. On merits the
management pleaded that workman engaged as labourer
on need basis and was being paid as per the job assignment.
He was deployed at Mohali but his services however were
utilized on need basis at Panchkula. It is further pleaded by
the management that the workman was found involved in
forging certain documents for providing new telephone
connection against which the workman was engaged was
completed and he was disengaged as no more work was
available and regular incumbents were deployed on the
job. The workman never completed 240 days, therefore the
provisions of I.D. Act are not attracted and notice or
retrenchment compensation was not required to be paid.
He was not disengaged due to his involvement in a criminal
matter. Rather he was disengaged due to the fact that no
work was available for him. Therefore, question of
termination does not arise. Criminal case was registered
much after his disengagement on 08.08.1998. The workman
was not acquitted of merits. It is pleaded by the management
that no case is made out in favour of the workman. And the
reference may be answered against the workman.
4. The workman filed replication reiterating the claim
made in the claim statement. It is pleaded in the reapplication
that workman has very much completed 240 days and
management violated the provisions of I.D. Act 1947.
5. In evidence, workman filed his affidavit. The workman
also relied upon Ex. W2 which is experience certificate.
Photocopies of W3 to W18 which are the attendance sheets
from May 1997 to July 1998, showing that the workman has
worked for different period and completed 240 days in a
calendar year.
6. The management in evidence filed affidavit of Ashok
Kumar as Ex M1. In cross-examination, the witness of the
management stated that he has not personally observed
the work of workman in Mohali and Panchkula and he is
deposing on the basis of the documents. He further stated
that he just having a copy of FIR and no other document is
available.
7. I have heard the parties, gone through the evidence
and record of the case.
8. During oral arguments learned counsel for the
workman submitted that workman has continuously worked
with the management from May 1997 to 24.07.1998 and his
services were terminated without giving one month notice
or one month pay in lieu of notice retrenchment
compensation, which is in gross violation of Section 25Fof
the I.D. Act. It is further submitted during the arguments
by the learned counsel for the workman that after the
disengagement of the workman junior had been retained in
service. The management is legally bound to comply with
the provisions of Section 25F of the I.D. Act and other
provisions of I.D. Act. The management has violated the
mandatory provisions, therefore, the workman is entitled
to be reinstated in service with full back wages and other
consequential benefits.
9. The learned counsel for the management during
arguments submitted that the workman has no locus standi
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2465
to file the case. His services were not terminated due to the
criminal case registered against him, but due to the reason
that no work left to be done by the workman, and thus he
was disengaged. It is further submitted during arguments
that as the workman has not put in 240 days service, he
was not entitled to be paid, retrenchment compensation or
one month pay in lieu of notice. The learned counsel for
the management prays for the rejection of the claim of a
workman.
10. During the arguments representative of the
management raised preliminary objection submitting that
claim petition filed by the workman is barred by limitation.
As the workman was disengaged in the year 1998 and
present dispute has been raised in the year 2009. Counsel
for the workman refuted this submission and argued that
the workman was disengaged on 24.07.1998 and FIR was
lodged against the workman including some other persons
on the basis of FIR, workman was facing criminal trial in the
court of Additional Chief Judicial magistrate, Panchkula in
the criminal case No. 44/52901R0011232005, and after facing
the criminal proceedings for 7 years, the workman was
acquitted by the court vide judgment dated 01.02.2007 in
the criminal case. Since then the workman is seeking his
reinstatement with the management but the management
did not allow him to join. Thereafter the workman had to
move before the Assistant Labour Commissioner (Central)
i.e. Conciliation Officer and after failure of the conciliation
proceedings. The Ministry of Labour has referred the
present dispute to this tribunal for the adjudication. In the
present circumstances, the claim of the workman is not
barred by the limitation.
11. The second preliminary objection raised by the
management is that claim petition against the BSNL is not
tenable as the workman was never engaged by BSNL, BSNL
Ltd. came into existence in October, 2004, when the workman
was already disengaged. From the array of the claim
statement it is clear that the respondent No. 1 has been
arrayed as General Manager BSNL and Commercial Officer
Department of Telecom, Mohali and Commercial Officer
Telecom Department, Panchkula.
12. It is well settled that where an establishment is
renamed or merged in some other company, then liabilities
and assets automatically vested to the successor
establishment. In these circumstances the preliminary
objections taken by the management is without any
substance.
13. Management also submitted that the workman was
engaged as casual labour clerk and he was not recruited as
per recruitment rules of the management. In this regard,
workman submitted that the workman was working with
the management as daily wages clerk. A certificate issued
by the Commercial officer Department of Telecom, SCF 115,
Phase-7, Mohali, dated 31.03.1998, Commercial Officer had
certified that workman Madan Lal was working as daily
wages clerk from 28.05.1997 to 31.03.1998.
14. This certificate was issued on 31.02.1998,
management's witness MW1 Ashok Kumar DET legal
Telecom in cross-examination clearly stated that he has
not personally observed the workman. He has no personal
knowledge of the case. He never seen the workman and he
is deposing on the basis of the documents. He is only
having FIR lodged against the workman. Workman in his
statement, before this tribunal admitted that there was no
advertisement of the post against which he was working.
His name was not sponsored by Employment Exchange
and no appointment letter was given to him. Workman in
his statement also admitted that he was engaged at
Panchkula afresh. Workman also admitted that no junior to
him are working in the department and no person was
engaged after his termination. Workman also stated that
he is doing marketing work and he is earning about
Rs. 2,500.
15. From the submissions of the parties and from the
perusal of documents and evidence on record it is clear
that workman was working as casual wages clerk on daily
wages from 28.05.1997 to 24.07.1998. While working with
the management FIR was registered against the workman
along with four other persons, and after criminal trial,
workman was acquitted vide judgment dated 01.02.2007 by
the Additional Chief Judicial Magistrate, Panchkula.
16. Workman was not allowed to work after 01.02.2007,
and the workman was not given any notice pay and
retrenchment compensation at the time of his
disengagement. No reason was assigned to the workman
for his disengagement. The workman aslo admitted that
his recruitment was not as per recruitment rules. Hence so
far as the reinstatement of the workman is concerned it
would not be proper to order for reinstatement particularly
when the workman worked only for about one year, the
workman is entitled to lump sum compensation in lieu of
reinstatement.
17. Taking into consideration the facts and
circumstances of the case, the end of the justice would
meet by awarding compensation of Rs. 25,000/-. In view of
the above peculiar facts and circumstances the workman is
also entitled for Rs, 5,000 as litigation costs. The
management is directed to pay total sum of Rs. 30,000/- to
the workman within one month from the date of publication
of the award.
18. In view of the above, the reference is answered
accordingly. Central Govt. be informed. A soft copy as well
as hard copy be sent to the Central Govt. for publication of
the award.
Chandigarh : 11.02.2014
S.P. SINGH, Presiding Officer
2466
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 935.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947 dk
14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lqifjUVsUMsUV vkWQ+
iksLV vkWfQllZ ,aM vnlZ 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 lhthvkbZVh,-497@2004½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 24@2@2014 dks izkIr gqvk FkkA
[lañ ,y&40012@54@2002&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 935.—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-497/2004) of the Central
Government Industrial Tribunal/Labour Court, Ahmedabad
now as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of The
Supreintendent of Post Offices and others and their workman,
which was received by the Central Government on 24/2/2014.
[No. L-40012/54/2002-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 4th February, 2014
Reference: (CGITA) No.-497/2004
Reference (I.T.C.) No. 47/2002 (old)
Order No. L-40012/54/2002-IR(DU)
1.
The Suprientendent of Post Offices,
Gandhinagar Division, Sector-30
Gandhinagar
2.
The Chief Post Master General,
Gujarat Circle, Khanpur,
Ahmedabad (Gujarat)-380001
....First party
And
Their Worman
Sh, Natwarbhai Velabhai Rathod
Through the organising Secretary,
The Association of Railway and Post Employees,
15 Shashi Apartments,
Near Anjalee Cinema, Vasna Road,
Ahmedabad (Gujarat) 380007
....Second Party
For the first party:
Shri Pravinchandra M. Rami,
Asst. Govt. Pleader & Advocate
(Labour & Industrial Court)
For the second party: None
AWARD
The Government of India/Ministry of Labour, New Delhi
by its Order No. L-40012/54/2002 IR (DU) dated 18.6.2002
under clause (d) of sub section (1) and sub section 2(A) of
Section 10 of the Industrial Disputes Act, 1947 referred the
dispute for adjudication to the Industrial Tribunal,
Ahmedabad Gujarat on the terms of reference specified in
the Schedule:
SCHEDULE
"Whether the action of the Department of Posts through
its officer in termination the service of Sh. Natwarbhai
Velabhai Rathod, Branch Post Master without
compensation is legal, proper and justified? If not, to
what relief the concerned workman is entitled?"
2.
Parties appeared in the case and filed respective
pleadings as per statement of claim (Ext.10) of the 2nd party
that the concerned wormman was serving a branch
postmaster at Sitapur and he worked from 08.11.2000 to
09.05.2000/- continuously, but all of a sudden his serving
notice and without assigning any reason, After his
termination the work of post master was given to new person.
The 1st party has conveyed the mandatory provision of
section 25F and 25H and Rules 77 of the I.D. Act which is
illegal and so relief sought for his reinstatement with full
back wages and consequential benefits.
3.
The 1st parties in its written statement (Ext. 12)
contended that the reference is not maintainable since the
workman Shri Rathod was kept on purely temporary basis
as stop gap p arrangement and that the concerned workman
worked on for 184 days from 08.11.2000 to 10.05.2001 and
so the 1st parties have not entitled for reinstatement with
back wages etc. and the reference is fit to be dismissed.
4.
The dates are being adjourned for leading
evidence by the workman (2nd party) but 2nd party
remained absent whereas the lawyer of the 1st party by
filing pursis Ext. 18,19 and 20 on different dates was ready
for cross of 2nd party workman.
The 2nd party workman and his Union appear to have
lost interest in this reference. So the reference deserves to
be dismissed. The following order is passed.
ORDER
The action of the 1st party is terminating the services of
Natwarbhai V. Rathod is justified. The workman is not
entitled to relief.
This reference is dismissed for non-prosecution.
BINAY KUMAR SINHA, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2467
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 936.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,y ds
izcaèra= 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@Je
U;k;ky; uañ 2 /kuckn ds iapkV ¼lanHkZ la[;k 24@2001½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@419@2000&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 936.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 24/2001)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanbad now as shown in the Annexure in
the Industrial Dispute between the management of
M/s. BCCL and their workman, which was received by the
Central Government on 24/02/2014.
[No. L-20012/419/2000-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT: SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
REFERENCE NO. 24 OF 2001.
PARTIES :
The Working President,
Rastriya Colliery Mazdoor Sangh
Rajendra path, Dhanbad
Vs. General Manager,
Central Workshops of Kustore Area
of M/s. BCCL Kustore, Dhanbad
APPEARANCES:
On behalf of the workman/
Mr. K. Chakraborty,
Union
Ld. Advocate
On behalf of the :
None, Ld. Advocate
Management
State:
JHARKHAND
Industry:
Coal
Dated, Dhanbad, the 9th Jan. 2014.
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec.10(1)(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
419/2000(C-I) dt. 25.01.2001.
SCHEDULE
“Whether the demand of the Union for promoting
Shri Bishambhar Singh, Armature Winder Gr. I of Central
Workshop of Kustore Area of M/s. BCCL, Distt. Dhanbad
to the post of Asstt. Foreman J & S Gr. “C” with effect from
the date his juniors have been promoted as Asstt. Foreman
is justified? If so, to what relief is the said workman
entitled.”.
2. Neither the Union Representative for Rastriya
Colliery Mazdoor Sangh nor workman Bishambhar Singh
appeared nor any witness produced for the evidence of
workman despite Regd., notices. Similarly none appeared
for the Management.
On perusal of the case record, it stand clear from it
that the case has been pending for the evidence of workman
since 30.12.2005 for which Registered notices were issued
to the union concerned on its address noted in the reference
itself, though Mr. Gopal Tiwary, the Legal Assistant was
present for the O.P./Management on the last date i.e. on
26.11.2013 on which date last chance was given to the
Union Representative for the evidence of the workman.
The present reference relates to an issue for the promotion
of the workman to the post of Asstt. Foremen J & S for
Grade C. The Union Representative as well as the workman
by his conducts appears to be disint erested/unwilling in
pursuing the case, as he has lost his interest in it. Therefore
the case is closed as no Industrial dispute existent and
accordingly an Award of No Dispute is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 937.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj chlhlh,y 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@Je
U;k;ky; uañ 2 /kuckn ds iapkV ¼lanHkZ la[;k 85@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@82@2012&vkbZ vkj ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 937.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 85/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanbad now as shown in the Annexure in
2468
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
the Industrial Dispute between the management of
M/s. BCCL and their workman, which was received by the
Central Government on 24/02/2014.
[No. L-20012/82/2012-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
REFERENCE NO. 85 OF 2012
PARTIES :
The Vice President,
Janta Mazdoor Sangh, Vihar Building,
Jharia, Dhanbad.
Vs. General Manager,
Kusunda Area of M/s. BCCL Kusunda,
Dhanbad
APPEARANCES:
On behalf of the
Mr. K. N. Singh,
Workman/UnionLd. Advocate
On behalf of the
:
Mr. U.N. Lal, Ld.
Management
Advocate
State
:
JHARKHAND
Industry
:
Coal
Dated, Dhanbad, the 3rd Jan. 2014
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec.10(1)(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
82/2012-IR(CM-I) dt. 29.10.2012.
SCHEDULE
“Whether the action of the management of Kusunda
Area of M/s. BCCL in not regularizing Sri Pramod
Prasad as UG Munshi is legal and justified? To what
relief is the workman concerned entitled?”
2. Neither any Representative for Janta Mazdoor
Sangh, Jharia, Dhanbad, for the Union nor workman Promod
Prasad appeared nor any written statement of the workman
filed, Mr. U.N. Lal Learned Advocate for the O.P./
Management is also absent.
On perusal of the case record, I find that the present
case has all along been pending for the Written Statement
to be filed on behalf of the Union/workman, for which three
Regd. Notices dt., 24th Dec., 2012, 31st July and 13th Nove.,
2013 respectively have been issued to the Vice President
of the Union concerned, but none of them responded to it.
The Union Representative as well as the workman by his
conduct appears to be uninterested in pursuing the case
for its finality. Under these circumstances, it is useless to
proceed with the case for uncertainity. Hence the case is
closed as no Industrial dispute existent, and accordingly it
is passed an Order of ‘No Dispute’.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 938.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uñ 2] /kuckn ds iapkV ¼lanHkZ la[;k 01@2007½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@88@2006&vkbZ vkj ¼lh ,e&I)]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 938.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 01/2007)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of M/s. BCCL,
and their workman, received by the Central Government on
24/02/2014.
[No. L-20012/88/2006-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1) (d) of the I.D. Act, 1947
REFERENCE NO. 01 OF 2007.
PARTIES:
Shri Hari Prasad Saw, M/Labour
Bhowra (S) Colliery of M/s. BCCL,
Dhanbad
Vs.
General Manager, E.J. Area of
M/s. BCCL, Bhowra, Dhanbad.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2469
APPEARANCES :
On behalf of the workman
:
Mr. M.N. Rewani, Ld.
Advocate
On behalf of the
:
Mr. U.N. Lal, Ld.
Management
Advocate
State : Jharkhand
Industry : Coal
Dhanbad, Dated the 4th Nov., 2013
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec. 10(1)(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
88/06-IR (CM-I) dt. 24.1.2007.
SCHEDULE
"Whether the action of the management of Bhowra
(S) Colliery of M/s. BCCL in dismissing? Shri Hari
Prasad Saw, M/Loader from Service of w.e.f. 12.2.2004
is justified & legal? If not, to what relief is the
concerned workman entitled?"."
2. The case of workman Hari Prasad Saw is that he
was a permanent employee of Bhowra (S) Colliery of M/s.
BCCL working as M/Loader. He was issued the charge
sheet by the Management on 24.10.2003 for misconduct of
habitual unauthorized absentism from 27.06.2003 under
clause 26.1.1. of the Certified Standing Order of M/s.
BCCL.Whereas he had absented from duty, as he was
abducted by his father-in-law for a dispute/ enmity with
him. His mother had informed the management of it through
the Regd.Post on 20.11. from his village Gararia,
P.O.Raniganj, Distt:Gaya, Bihar. The charge sheet was
issued with a direction to him to submit his reply within
seven days. But without waiting for his reply, he was
communicated as per the Office Order on 27.10.2003 for
holding a domestic enquiry. It was totally illegal and
violative of natural law. He had replied to the chargesheet
by stating his inability to attend to his duty on account of
his enmity with his father-in-law. In spite of it, the notice
was issued on 6.1.004 for conducting a domestic enquiry
into the chargesheet. Even at his full justification for his
absence due to the said reason in the enquiry, he was not
sympathetically allowed to join his duty. The enquiry report
of the Enquiry Officer without a date falsifies the enquiry
process. The workman also instantly replied to the letter
dt. 19.1.2004 of the Management on the same date; even
then the Management without hearing and considering
his prayer recommended to dismiss him with immediate
effect from 12.02.2004.The appeal preferred by the workman
against it before the Management for his re-instatement
has been still pending.
3. The workman in his rejoinder categorically denying
the allegations of the Management has stated that his
absence was quite reasonable, and the clause 26.1.1 of the
Certified Standing Order applies only to the habitual
absence but without any reasonable cause. Just after three
days of the chargesheet, he was informed on 27.1.2003
about the setting up of the domestic enquiry, which was
conducted without sufficient opportunity to him. The copy
of the chargesheet was not supplied to him, but to his
mother, through Regd Post at his native village, so his
mother had replied to it. The entire enquiry proceeding is
illegal, as it bears the workman to have put his signature
whereas he is an uneducated person.
4. Whereas the contra pleaded case of the O.P,./
Management with its categorical denials is that workman
Hari Prasad Saw, Ex-Miner Loader (P.No.03003050) of
Bhowra (S) Colliery was unauthorisedly absenting w.e.f.
27.06.2003,so he was issued the chargesheet dt.24.10.2003
for his misconduct of habitual absentee as per clause 26.1.1.
of the Certified Standing Order of the Company, directing
him to file written reply to it in seven days. His mother
replied to it that she was unaware of his whereabout.
Consequently, the management as per the letter No.1544
dt.4.12.2002 appointed the Enquiry Officer and the
Management Representative to enquire into the matter. At
the notices of the Enquiry, the workman fully participated
and availed ample chances for his defense in the enquiry.
He had subsequently submitted his reply to the Second
Show Cause, it was found unsatisfactory. In the enquiry,
the past attendances of the workman were 75, 17,41 and 28
days in the years 2000 to 2003 (Upto June,26,2003)
respectively as also brought out in the enquiry, so in the
last year one SPRA of the workman as per the Order
dt.01.03.2003 was stopped. Consequently the Disciplinary
Authority imposed upon the workman the penalty of his
dismissal for it as per the letter No.178 dt.12.2.2004 subject
to the approval of the General Manager on 6.2.2004.
Thererafter, the I.D. came into existence.
5. Irrespective of repetitions, the O.P./Management
categorically responded negatively and postively,and
sought a permission to adduce its evidence before the
Tribunal in case of finding the enquiry as improper.
FINDING WITH REASONS
6. In the instant case, at the acceptance of the
domestic enquiry as fair and proper by Mr. M.N.Rawani,the
Learned Advocate for the workman, the Tribunal as per its
order No.24 dt.31.7.2012 has accordingly held it to be in
accordance with the principle of natural justice. In result,
the documents of the O.P./Management were duly marked
(on formal proof waived). Hence, it has directly come up
for hearing at the final argument on merits.
Mr.M.N.Rewani ,Learned Counsel for the workman
has submitted that the workman is a permanent employee
as a Miner Loader of the Bhowra Colliery of M/s. BCCL,
and the workman has been indisputably awarded with the
harsh punishment of dismissal for his unauthorized
absentism,which is fourth time, following two penalties of
warning and third one of SPRA stoppage on his apologies
for his previous absentisms in the year 2000 to 2003 (Upto
2470
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
28th June, 2003). Further it is submitted on behalf of the
workman that he had though justified his present absentism
from his duty on account of the threatful incidents of his
father-in-law. On the other hand, Mr. U. N. Lal, Learned
Advocate for the O.P./ Management has to contend that
the workman is an acknowledged habitual absentee as also
as per his previous record of his services, the punishment
of dismissal to the workman for gross misconduct is quite
proportionate to the gross nature of his absentism.
7. On the perusal and consideration of the materials
on the case record, I find that the workman is undoubtedly
a habitual absentee from the job of Minor Loader just as in
the present case of gross unauthorized absentism.
Therefore, the punishment of dismissal to the workman for
his gross absentisms from duty in violation of clause 26.1.1.
of the Certified Standing Order of the Company seems not
disproportionate to the nature of his usual absentism.
Dismissal of an employee habitually absenting is justified
as held in the case of P.M.Raju Vs. the Presiding Officer,
Labour Court, Madurai & Management of Fenner (India)
Ltd.(2001)4 LLN903;(2002)IV LLJ (Supp) 1119. Hence the
workman appears to be wide off any relief under the
provisions of Sec.11 A of the Industrial Ttribunal,1947.
In the result, it is responded and hereby
ORDERED
That the action of the Management of Bhowra (S)
Colliery of M/s. BCCL in dismissing Sri Hari Prasad Saw,
M/Loader from service w.e.f. 12.2.2004 is justified and legal.
The concerned workman is not entitled to any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 939.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uñ 2] /kuckn ds iapkV ¼lanHkZ la[;k 29@2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@438@2001&vkbZ vkj ¼lh&I)]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 939.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 29/2002)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of M/s. CCL,
and their workmen, received by the Central Government on
24/02/2014.
[No. L-20012/438/2001-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTAL GOVERNMENT INDUSTRIAL
TRIBUNAL (NO. 2), AT DHANBAD
PRESENT : SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1) (d) of the I.D. Act, 1947
REFERENCE NO. 29 OF 2002
PARTIES
:
Shri Hardev Mistry.
Ex-Turner, Sirca Colliery of M/s CCL,
PO: Argada, Hazarbagh
Vs the Project Officer,
Sirca Colliery of M/s CCL, PO: Argrada,
Hazaribagh.
APPEARANCES:
On behalf of the workman/ :
Mr. D. Mukherjee, Ld.
Union
Advocate
On behalf of Management :
Mr. D.K. Verma, Ld.
Advocate
State : Jharkhand
Industry : Coal
Dhanbad, Dated the 22nd January, 2014
AWARD
The Government of India, Ministry of Labour, in
exercie of the powers conferred on them under Sec. 10(1)(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
438/2001. IR (C-I) dt. 04.04.2002
SCHEDULE
"Whether the demand of Hardeo Mistry, workman
of Sirka colliery of M/s C.C. Ltd. that his date of
superannuation should be 5.12.2000 instead of
termination of service w.e.f. 19.2.2000 on the basis of
his date of birth 5.12.1940 is legal and justified? If so,
to what relief is the concerned workman is entitled?"."
On receipt of the Order No. L-20012/438/2001.IR(C-I)
dated 04.04.2002 of the above mentioned reference from
the Government of India, Ministry of Labour, New Delhi
for adjudication of the dispute, the reference Case No. 29
of 2002 was registered on 01.04.2002 and accordingly an
order to that effect was passed to issue notices through
the Registered Post to the parties concerned directing them
to appear in the Court on the date fixed and to file their
written statements along with the relevant documents and
a list of witnesses in support of their claims. In pursuance
of the said order, notices by the Registered Post were sent
to the parties concerned.
Both the parties made their appearance through their
respective Counsels and Union Representative and filed
pleadings and documents. They also adduced oral
evidence.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2471
2. The case of workman Hardev Mistry as pleaded in
his written statement is that he was a permanent workman
at Sirka Colliery. While appointing him, his date of birth
(DoB) was based on his School Leaving Certificate and his
declaration. All the employees of coal Industries were
served with their service excerpt for giving a last chance
for rectification/correction/amendment of date of birth, date
of appointment etc. It was agreed that the date of birth as
recorded in the service excerpt should be treated as final, if
no objection raised. However, in event of any objection, it
was agreed for the reference the workman concerned to
the Medical Board for determination of age and his age so
determined by Medical Board would be final. Accordingly,
the workman was also issued his service excerpt bearing
his date of birth as 05.12.1940, according to which the date
of his superannuation at 60 years of his age was 5.12.2000.
But the Management illegally and arbitrarily terminated his
service w.e.f. 19.2.2000. In spite of his representation against
it to the Management, it turned out in effective. The
R.C.M.S. Union raised an Industrial Dispute before the
A.L.C. (C), Hazaribagh against it, and the management in
its conciliation proceeding though agreed for his
reinstatement with full wages and benefits for the period
Feb. 19 to Dec. 5, 2000. The dispute on that assurance was
closed. But the Management took no cognizance of it. So
the workman being disgusted with it reagitated the matter
before the Concilliation Officer, but the Conciliation due to
the restive attitude of the Management also failed. Though
the Central Government had rejected the dispute for
reference; but as per the order dt. 11.2.2000 of the Hon'ble
High Court, Jharkhand, passed in W.P.(s) No. 1085/2002,
the government referred it for an adjudication. Thus the
action of the Management in terminating the service of
workman w.e.f. 19.5.2000 instead of 5.12.2000 was illegal,
arbitrary and against the principle of natural justice.
Specifically denying the allegations of the O.P./
Management as false, the workman in his alleged rejoinder
under signature of his Lawyer concerned has stated that
the workman was appointed prior to nationalization of CCL;
the R.C.M.S. Union is a pocket Union of Management, as
the dispute at the instance of the Management was
withdrawn.
3. Whereas the pleaded case of the O.P./Management
with categorical denials is that the reference is not
maintainable, as he is not a workman as under section 2(S)
of the Industrial dispute Act 1947 after his superannuation.
Sri Hardeo Mistry son of Shri Kharag Mistry of Village
Dakhin-Gaon, PO: Wazir Ganj, Distt: Gaya was appointed
on 22.5.1958 at Kathara Colliery during erstwhile N.C.D.C.
At his medical examination by the Asstt. Medical Officer
In-charge of the colliery on 25.4.1969, his age was recorded
by the aforesaid Doctor in his medical examination report
as 32 years by appearance and 31 years of age as stated by
the employee, who accepted it under his thumb Impression.
His same age 32 years as on 25.4.1969 was recorded in his
service sheet according to which his date of birth (DoB)
came to 25.4.1937. Accordingly it was recorded in his service
sheet as also authenticated by the Manager of colliery.
The employee was transferred to Gorbi and Sirka Colliery
as Mechanist/Turner Gr. I in the years 1973 and 1979
respectively. His date of birth remained unchanged up to
25.8.1981 which was satisfactory for about 12 years, but he
never thought of any change in his date of birth as per
Certificate of Matriculation on N.C.V.T., out of which the
latter certificate he had got in the year 1978. But he
committed a mischief to claim his date of birth as 05.12.1940
in his School Certificate he had not produced the School
Certificate at the time of his Medical Examination or his
appointment. It appears to have managed it later on after
coming into the service of erstwhile N.C.D.C. He got his
date of birth interpolated in his service book collusively,
by striking his original date of birth, replacing it with his
another one as 05.12.1940 based on his alleged
Matriculation Certificate. When asked for it, the workman
failed to produce any Matriculation Certificate till then. His
such interpolation came to knowledge of the Area
Management in Feb., 2000, and being satisfied with the
original entry of his date of birth in his service sheet, the
Management directed the Project Management to retire
him with immediate effect. Besides, he worked for 42 years
beyond the age of his retirement w.e.f. 19.2.2000, it can not
be treated as his termination. So the retirement of the
workman is legal and justified.
FINDING WITH REASONS
4. In this case, WWI Hardeo Mistry, the petitioner
himself for the Union and MWI Sukumar Deoghria, the Dy.
Manager (Pes.), Sirka Colliery, CCL for the O.P./
Management have been examined respectively.
According to the statement of petitioner Mahadeo
Mistry (WW1) as per his written argument, while being
appointed as Blacksmith in the year 1958, his age was
recorded as 05.12.1940 in his Form-B Register as also
recorded in his I.D. Card and Service Excerpt (Extt. W.1 & 2
respectively). Further the emphasis of the petitioner is that
his passed ITI Certificate issued on July 1976 (Ext. W.3) as
bears his same date of birth (DoB) as noted in the original
School Leaving Certificate (Ext. W.4), according to which
his superannuation comes on 05.12.2000, but instead of
that the OP/Management unreasonably stopped him from
working w.e.f. Feb., 2000, against which he had submitted
his representation (Ext. W.5) to the Management. But from
the admission of the petitioner, it is clear that his School
Leaving Certificate was issued by the School Authority in
the year 1968, and his I.D. Card bears not his date of birth.
It prima facie proves that the petitioner had not submitted
his alleged School Leaving Certificate (S.L.C.) for his non
matriculate to the OP/Management at the time of his
appointment as also asserted by MW1 Sukumar Deogharia.
2472
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
5. Whereas the interalia contention of Mr. D.K. Verma,
the Learned Counsel for the O.P./Management in the light
of the statement of MW1 Sukumar Deogharia, Dy. Manager
(Pers) of Sirka Colliery of CCL is that the petitioner has
raised the reference after his retirement, so neither his
superannuation nor his status as a workman comes under
Sec.2 A and Sec. 2(5) of the Industrial Dispute Act 1947,
hence it is unmaintainable. Further Mr. Verma, Learned
Counsel has contended that the petitioner was firstly
appointed as Turner in the NCDC (National Coal
Development Corporation) on 22.5.58 and as per his Service
Sheet (Ext. W.1) following his medical examination by the
Asst. M.O. I/C as per his Medical Report (From dt. 25.4.69
Ext. M.2 with objection), his date of birth was recorded as
25.4.1937 or as 32 years as on 25.6.69, since the petitioner
had completed his service for 41 years 9 months beyond 60
years since his appointment, so he was made to retire on
19.2.2000 from Sirka Colliery of CCL as per the
Management's order dt. 19.2.2000 (Ext. M.3). Though
petitioner/workman had never produced his School
Certificate at the time of his entry into the service, he tried
to make out his false date of birth claim based on his ITI
Provision Certificate evidently contingent upon his alleged
non-matriculation certificate as referred therein (Extt. W.3
and 4 respectively), on the basis of which, he managedly
got the same interpolated in his Service Sheet (Ext. M.1).
All these prove that the petitioner had not produced his
any School Certificate at the time of his appointment as
Turner, so his claim in the reference appears be untenable.
6. On persual and consideration of the materials on
the case record, I find that the argument of Mr. D.K. Verma,
Learned counsel for the O.P./Management appears to be
not untenable, rather consistent with real factum of the
case. As the nature of the case stands before me clearly
reflects the claim of the employee to be based on his non-
matriculate Certificate procured in the year 1968 after about
a decade, which seems a concoction on his part. In such
circumstance, I am of the view as also held by the Hon'ble
Apex court in the case of G.M. Bharat Coking Coal Ltd. Vs.
Shib Kumar Dushad, (2000) 8 SCC 696 that correction of
date of birth by an employee long after his joining service
will not be permissible.
In result, it is, in the terms of the reference, responded,
and accordingly, hereby.
ORDERED
That the demand of Shri Hardeo Mistry, then
employee, from the Management of Sirka Colliery of CCL
whether his superannuation w.e.f. 19.2.2000 in place of
5.12.2000 on the basis of his alleged date of birth 5.12.1940
is quite unjustified as well as illegal. Hence the petitioner is
not entitled to any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 940.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lhlh,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 24@ 2013½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@177@1999&vkbZñ vkjñ ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 940.—In pursuance of Section 17of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 24/2013) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 2,
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. CCL, and their
workmen, received by the Central Government on
24/02/2014.
[No. L-20012/177/1999-IR(C-I)]
M. K. SINGH, Section Officer
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD
PRESENT : Shri Kishori Ram, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
NO. 24 OF 2013.
PARTIES
:
The Addl. Gen. Secretary,
National Coal Organization Employees
Association, Ranchi
Vs. The General Manager,
C.W.S. Barkhakana of M/s. CCL,
Hazaribagh.
APPEARANCES:
On behalf of the workman/
None
Union
On behalf of the :
Mr. D.K. Verma,
Management
Ld.Advocate
State:
Jharkhand
Industry:
Coal
Dhanbad, Dated the 20th Jan., 2014.
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on then under Sec.10(1)(d)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2473
of the I.D. Act, 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
177/99-IR(C-I) dt. 18.08.1999.
SCHEDULE
"Whether the dismissal of S/Shri S.K. Palit, Niranjan
Kumar, Mandip Ram and Sanjay Kumar from service
by the Management of M/s. CCL, Barkakana is proper,
justified and legal? If not, what relief the workmen
are entitled to?"
2. Neither the Union Representative for the National
Coal Organization Employees Association, Darbhanga
House, Ranchi, nor any of the four workmen S.K. Palit,
Niranjan Kumar, Mandeep Ram and Sanjay Kumar appeared
nor on their behalf not any written statement with
documents filed. But Mr. D.K. Verma, the Ld. Advocate for
the O.P./Management is present.
On perusal of the case record, it is clear that since
the Reference case has been registered, despite three Regd.
Notices dt. 03.04.2013, 01.10.2013 and 27.11.2013 having
been issued to the Addl. General Secretary of the
Association on its address noted in the Reference itself,
none appeared on any date nor W.S. with the documents
filed on behalf of the workmen in this case which is related
to an issue of their dismissal. The Union Representative as
well as the workmen by their conducts appears to be
uninterested in pursuing their case for finality. Under these
circumstances, it would be quite proper to close the case
as no Industrial Dispute existent. Accordingly an Award of
No Disputer is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 941.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 223 dk 2001½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@236@2001&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 941.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 223/
2001) of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL, and their
workmen, received by the Central Government on
24/02/2014.
[No. L-20012/236/2001-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD
PRESENT: Shri Kishori Ram, Presiding Officer.
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act, 1947.
REFERENCE NO. 223 OF 2001.
PARTIES :
The Secretary,
Koyla Ispat Mazdoor Panchyat,
Katrasgarh, Dhanbad
Vs. Gen. Manager, Katras Area of
M/s. BCCL, Sijua, Dhanbad
APPEARANCES:
On behalf of the workmen/
Mr. B.B. Pandey Ld.
Union:
Advocate
On behalf of the Management: Mr. D.K. Verma,
Ld. Advocate
State:
Jharkhand
Industry:
Coal
Dhanbad, dated the 20th Jan., 2014.
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec.10(1)(d)
of the I.D. Act, 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
236/2001-IR(C-I) dated 10.08.2001
SCHEDULE
"Whether the action of the Management of Katras
Area of M/s. B.C.C.L., P.O. Sijua, and Distt. Dhanbad
in not providing employment to the 2nd wife of Late
Munna Rajwar is justified? If not, to what relief is the
dependent of the concerned workman entitled?"
2. The case of sponsoring Coal Ispat Mazdoor
Panchyat, Katrasgarh, Dhanbad, for petitioner is that Late
Munna Rajwar was the permanent employee of East Katras
Colliery of M/s. BCCL under Katras Area, but he expired
on 23.04.1992 during his service. On his death, his
dependent wife Dharmshila Rajwarin submitted all the
relevant Certificates/papers for the employment in place of
her deceased husband under clause 9.5.0 of the N.C.W.A-
V. She is second wife of Late Munna Rajwar, and entitled to
all benefits. Accordingly the management has paid her all
legal dues, CMPF Accumulation, Gratuity and amount
under Life Cover Scheme arising due to death of her
husband. On being fully satisfied with the claim as genuine
after several queries from her, the management as per its
2474
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
letter No. EK/PD/98/171 dt.1/17.2.1998 offered her options
for accepting either monetary compensation or employment
in place of her deceased husband under said clause of
NCWA. Accordingly she chose for employment thereunder,
by confirming it in writing on 18.02.1998. But the
Management kept silent over it for about three years, during
which the issue was discussed with the Management even
before the ALC ©, Dhanbad. Lastly the Management as
per its letter No. EK/PD/2000/3160 dt.13/14.11.2000 regretted
her claim for employment. Though despite the approaches
of the petitioner and the Union concerned for
reconsideration as before the ALC ©, Dhanbad, the
conciliation proceedig before the ALC©, failed resulting in
the reference for an adjudication.
3. The petitioner in her rejoinder dt. 15.12.2003 under
the signature of Mr. P.P. Pandey, Advocate for her has
categorically denied the allegations of the O.P./
Management, and stated that Rukmini Kamin had expired
on 17.02.1987, and the petitioner Dharmashila Rajwarin/
Dharam Shila Devi, though second wife of the deceased
workman, was legally a married wife, as she got all the legal
dues CMPF etc. of her deceased husband. The second
wife has the status of legally married wife, so she is entitled
to employment.
4. Whereas specifically denying the allegation of the
petitioner, the O.P./Management challenging the
maintainability of the reference has stated that the instant
case does not indicate the name of second wife of deceased
workman Munna Rajwar, who as a permanent employee of
East Katras Colliery died in harness on 23.04.1992. The
deceased workman had married Smt. Rukmani Kamin whose
name appears as his nominee in his PF Records. But during
the life of his aforesaid first wife, he had married Smt.
Dharmsila Devi as second wife which was null and void
under the law: the bigamous marriage is a punishable
offence and also misconduct under the Certified Standing
Order of the Company. So the petitioner second wife of the
deceased workman has no status of a wife under the law.
As per the provision of the NCWA, only the wife of the
workman is entitled employment in case of his death in
harness, but his second wife (petitioner) has no status of a
wife under the law, so she can neither be called as his wife
nor be entitled to any employment. Besides, the processing
of papers for employment, and forwarding the same to the
Company's H.Q and correspondences, if any, do not change
the legal status of second wife of the deceased workman.
So the action of the Management as stated in the Schedule
to the reference is justified.
FINDING WITH REASONS
5. In the instant case, WW1 Dharmashila Rajwarin,
the petitioner, on behalf of the Union, has been examined.
Not any witness for the Management despite ample
opportunity has been produced and examined. The
statement of petitioner Dharmashila Rajwarin (WW1)
reveals that Late Munna Rajwarin, the Extrammer at East
Katras Colliery was her husband who died in harness on
23.04.1992. After his death, she as his widow had got all
dues of her husband from the Management. Her positive
assertion is that her husband had married her about four
years (i.e. in the year 1988) before his death 23.04.1992 but
after the death of his first wife Rukmini Kamin on 17.02.1987
as evident from their Death Certificates Extt. W./5 and 5/1
respectively. Consequent upon the death of her husband,
the petitioner had submitted her representation to the
Management on compassionate ground which was
forwarded to the H.Q. at Koyla Bhawan. The Management
as per its letter (dt.11/17.2.1998—Ext.W.1) asked her for
compensation or employment. She responded to it as per
her petition (dt. 17.02.1998—carbon copy —Ext.W.2), but
the management as per its letter dt. 13/14.11.2000 with its
enclosure dt. 1.11.2000 (Extt.W.3 and 3/1 respectively)
rejected/regretted the fact of her employment, though the
Project Officer is per his letter (dt. 26th July 1995—Ext.W.4)
addressed to the Dy. Chief Personnel Officer over her claim
for employment compassionate ground. Hence she raised
the industrial dispute for her relief. She has flatly denied
the fact of the O.P./Management in her cross examination
that the ex-workman had married her during the life time of
his first wife, as also denied the Death Certificate of her
husband as manufactured. In the light of aforesaid facts,
Mr. B.B. Pandey, Learned Counsel for the petitioner has
arguably submitted for her employment on compassionate
ground under clause 9.5.0 of the NCWA-V, and the case is
not at all belated.
6. Whereas the contention of Mr. D.K. Verma, Learned
Advocate for the O.P./Management is that the marriage of
the petitioner as second wife having been soleminsed after
the death of the first wife of the deceased workman has not
been proved, the second wife is not eligible for her
employment, and lastly that the present reference being
belated is not considerable.
7. On the perusal and the consideration of the
materials on the case record, I find that the O.P./
Management could not be able to rebut them payment of
legal dues CPF etc. of the deceased workman to the
petitioner even as his second wife. So far as the legal status
of the petitioner as the second wife of the workman dying
in harness after the death of his first wife Rukmini Kamin
earlier is concerned, the petitioner has legal status
accordingly after her marriage with the deceased workman
just four years prior to his death in harness. The expression
'wife and husband' means a person claiming to be a wife or
husband. The expression cannot be given a strict meaning
as to convey only legally married wife and husband in
reference to Sec. 14 of the Hindu Marriage Act (25 of 1955)
as held in the case of Laxmibai Vs. Ayodhya Prasad, reported
in AIR 1991 MP 47.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2475
In view of the aforesaid discussed facts, I find the
petitioner Dharmsila Rajwarin as the second wife of the
late workman Munna Rajwar dying in harness has merits in
her case. Hence in the terms of the reference, it is hereby.
ORDERED
That the action of the Management of Katras Area
of M/s. BCCL, P.O. Sijua, Dist. Dhanbad in not providing
employment to the second wife of Late Munna Rajwar is
not only unjustified but also quite illegal. Therefore, the
petitioner Dharmshila Rajwarin as the second wife of Late
Munna Rajwar is entitled to her employment on
compassionate ground under clause 9.5.0.(ii) of the
N.C.W.A-V, if under 45 years of her age at the relevant time,
otherwise she will be entitled only to monetary
compensation.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 942.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 292 dk 1999½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@178@1999&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 942.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 292/
1999) of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL, and their
workmen, received by the Central Government on
24/02/2014.
[No. L-20012/178/1999-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT: SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act, 1947.
No. 292 OF 1999
PARTIES :
The Secretary,
Bihar Janta Khan Mazdoor Sangh,
Sijua, Dhanbad
Vs.
The General Manager,
Katras Area of M/s. BCCL,
Sijua, Dhanbad
APPEARANCES:
On behalf of the Workman/
None
Union
On behalf of the
Mr. D.K. Verma,
Management
Ld.Advocate
State:
Jharkhand
Industry:
Coal
Dhanbad, Dated the 20th 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-20012/
178/99/IR(C-I) dt. 04.08.1999.
SCHEDULE
"Whether the dismissal from service of Shri
Chandadeo Yadav by the Ram Kanali Colliery of M/
s. BCCL w.e.f. 20.07.92 is justified, legal and proper?
If not, what relief the workman is entitled to?"
2. No Representative for Bihar Janta Khan Mazdoor
Sangh, Sijua, Dhanbad, nor workman Chandra Dev Yadav
appeared, but Mr. D.K. Verma, Ld. Counsel for the O.P./
Management, Katras Area of M/s. BCCL present without
any Management witness on preliminary point.
On perusal of the case record, it is quite clear that the
case has been all along pending for the evidence of the
Management at the preliminary point, meanwhile for its
settlement it was also sent to Lok Adalat but it could not
succeed. It is also evident that the Union representative or
the workman by his conducts appears to be quite unwilling
to pursue the case. Due to disinterestedness of the Union
Representative as well as that of the workman and since
the case is the oldest one of the year 1999. Under these
circumstances, it would not be improper to close the case
as No Industrial dispute existent. Accordingly an Award of
No Dispute is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 943.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lh lh ,y ds
2476
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
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; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 11 dk 2007½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@162@2004&vkbZñ vkjñ ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 943.—In pursuance of Section 17of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 11/2007)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. CCL, and their
workmen, received by the Central Government on
24/02/2014.
[No. L-20012/162/2004-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT: SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
REFERENCE NO. 11 OF 2007.
PARTIES
:
The President,
United Coal Workers Union, Rajrapa,
Hazaribagh
Vs. The Project Officer, Rajrappa
Project of M/s. CCL, Rajrappa,
Hazaribagh.
APPEARANCES:
On behalf of the workman/
Mr. D. Mukherjee,
Union
Ld.Advocate
On behalf of the :
Mr. D.K. Verma,
Management
Ld. Advocate
State:
Jharkhand
Industry:
Coal
Dhanbad, Dated the 13th Jan., 2014.
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec.10(1)(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
162/2004/IR(CM-I) dt. 23.02.2007.
SCHEDULE
"Whether the demand of the United Coal Workers
Union from the Management of Rajrapa Project of
M/s. CC Ltd. to place Shri Rajeshwar Singh & 12
others (list enclosed), E.P. Turners & Mechanists
Gr. I Group 'B'(daily rated) in monthly rated T & S
Gr.'B' is legal and justified? If so, to what relief are the
concerned workman entitled and from which date?"
2. None appeared for the Union United Coal Workers
Union nor any of the workmen Rajeshwar Singh & 12 others
nor any witness for the evidence on their behalf been
produced despite last chance. Mr. D.K. Verma, the Ld.adv.
for the O.P./Management is present.
From the perusal of the case record it is clear that the
case has been pending for the evidence of the workman
since 30th Jan. 2013 but not a single witness for the workmen
even after giving the last chance has been produced on
behalf of the Union. The Union Representative and the
workmen by their conducts appear to be uninterested in
pursuing the case for finality of the reference which is
related to an issue for placement of the workmen in monthly-
rated T& S Gr. B. Under these circumstances, the case is
closed as No Industrial Dispute existent and accordingly
an Award of 'No Dispute' is passed.
List of the workmen
1.
Rajeshwar Singh, Turner Gr.I
2.
B.K. Bhattacharje, Turner
3.
D.P.Singh, Mechanist
4.
Bhola Ram Prajapati Turner
5.
Naresh Prasad, Turner
6.
Maithu Matho, Turner
7.
Anand Mahato, Turner
8.
Y.P. Verman, Turner
9.
Ratan Lal Mahato, Mechanist
10.
Perma Nand Prasad, Mechanist
11.
Hirdya Nand Singh, Mechanist
12.
Muneshwar Mandal, Mechanist
13.
R.K. Yadav, Mechanist
KISHORI RAM, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 944.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fot;k cSad ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp vuqcaè esa
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2477
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd fookn vfèdj.k@
Je U;k;ky;] cSaxyksj ds iapkV ¼lanHkZ lañ 25@2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 24-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12011@34@2002&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 24th February, 2014
S.O. 944.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishs the Award Ref. 25/2002 of the
Cent. Govt. Inus. Tribunal-cum-Labour Court, Bangalore
as shown in the Annexure, in the industrial dispute between
the management of Vijaya Bank and their workmen, received
by the Central Government on 24/02/2014.
[No. L-12011/34/2002-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
21st October, 2013
PRESENT:
SHRI S.N. NAVALGUND,
Presiding Officer
C R No. 25/2002
I Party
II Party
The General Secretary,
The General Manager,
Vijaya Bank Workers
Vijaya Bank,
Organisation, 37/1, I Floor, Car
Head Office, 41/2,
Street, Ulsoor,
M G Road,
BANGALORE-560 008
BANGALORE-560 001
Appearances
I Party
:
Shri S Vittal Shetty
Advocate
II
:
Shri Pradeep S. Sawkar,
Advocate
AWARD
1. The Central Government vide order No. L-12011/
34/2002-IR(B-II) dated 24.05.2002 in exercise of the power
conferred by clause (d) of sub-section (1) and sub-section
(2A) of Section 10 of the Industrial Disputes Act, 1947 (14
of 1947) made this reference for adjudication with the
following schedule:
SCHEDULE
"Whether the management of Vijaya Bank is justified
in terminating the disputants as per list attached from
the services? If not, what relief these workers are
entitled for"
2. After receipt of the reference on registering it in C
R 25/2002 when notices were issued to both the sides they
entered their appearances through their respective
advocates and the General Secretary of the I Party Union
filed his claim statement on 07.08.2002 claiming that though
the workmen covered in the reference have worked as
Temporary Sub-staff for more than 240 days in a year in
different branches they having been terminated without
compliance of the mandatory provisions of Section 25F of
Industrial Dispute Act, they are entitle for reinstatement,
whereas, Deputy General Manager of the II Party filed the
counter statement on 07.06.2004 deny the said claim.
3. After completion of the pleadings when the matter
was posted for the Evidence of the II Party management its
learned advocate while examining 12 witness as MWs 1 to
12 got exhibited Ex-M-1 to Ex M-27 the detailed description
of which are narrated in the annexure. After the evidence of
II Party the I Party Union while filing Application reporting
settlement relating to Sh. R V Raghunath, Sh. J H
Palakamurthy, Sh. Narasimha, Smt. Kasthuri, Shri H. Satish
along with their individual Memo of Reporting Settlement
while restricting the claim only in respect of Sl. No. 2
Sh. Basavarajappa while filing his affidavit examining him
as WW 1 got exhibited Ex-W-1 to ExW-17 the detailed
description of which are narrated in the annexure.
4. After close of the evidence, the learned advocate
appearing for the I Party filed his written arguments whereas
the learned advocate appearing for the II party submitted
his oral arguments. The following citations are referred to
by the learned advocates appearing for I Party and II Party:
Citations on behalf of I Party
1. (2010) 2 SCC 543 - Ramesh Kumar vs. State of
Haryana
2. (2010) 5 SCC 497 - Anoop Sharma vs. Executive
Engineer, Public Health Div. No. 1, Panipat (Haryana)
Citations on behalf of II Party
1. 1999 I LLJ 1027 SC - Municipal Committee, Tauru
vs. Harpal Singh and Another
2. AIR 2006 SC 1806 = 2006 SCC (Vol-4) 1 - Secretary,
State of Karnataka vs. Umadevi
3. 1987 I LLJ 545 (SC) - Union of India & others vs. N
Hargopal & others
4. 1997 FJR (Vol-90) 332 (SC) = AIR 1997 SC 1788 -
State of Haryana & others vs. Jasmer Singh & others
2478
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
5. 2002 (3) SCC 25 = JT 2002 (2) SC 238 - The Range
Forest Officer vs. S T Hadimani
6. 2004 (Vol. 107) FJR 264 (SC) - Rajasthan State Mills
vs. State of Rajasthan
7. AIR 2004 SC 4681 - Municipal Corporation,
Faridabad vs. Siri Niwas
8. 2004 (8) SCC 426 2004 LAB I C 4041 (SC) - MP
Electricity Board. vs. Hariram
9. AIR 1997 SC 3657 - Himanshu Kumar Vidyarthi &
others vs. State of Bihar & others
10. JT 1996 (7) SC 678—Allahabad Bank vs. Shri Prem
Singh
5. Since the claim in respect of five workmen reported
as settled and only the claim in respect of workman at Sl.
No. 2 namely Sh. Basavarajappa persued the points that
arise for my consideration are
Point No. 1: Whether I Party Union proved that Sh.
Basavarajappa worked for 240 days in a year at
Akkipet and K G Road Branches of the II Party before
he was allegedly terminated?
Point No. 2: If yes, to what relief he is entitle to?
6. On appreciation of the pleadings, oral and
documentary evidence brought on record by both the sides
in the light of the arguments put forward by both the learned
advocates appearing for both the sides my finding on Point
No. 1 is in the Negative and Point No. 2 as per final order
for the following
REASONS
7. In view of the settlement in respect of the dispute
relating to five workmen out of the 12 witnesses examined
for the management the evidence of MW 5 and 11 and
exhibits Ex M-14, 15 and 26 series which are relating to the
claim of Sh. Basavarajappa regarding his claim of work at
Akkipet and K G Road Branches of the II Party are relevant.
Since it is the specific case made out in the claim statement
filed by the General Secretary of the I Party Union that Sh.
Basavarajappa worked in Akkipet Branch from 01.01.1996
to 31.12.1996 for 365 days; from 01.01.1997 to 21.08.1997 for
233 days; at K G Road Branch from 24.08.1998 to 23.08.1999
for 365 days; 24.08.1999 to 23.08.2000 for 365 days and
from 24.08.2000 to 16.12.2000 for 115 days, the evidence
tendered by the I Party he having also worked at K R Puram,
Indiranagar, Residency Road, Rajajinagar, Jayanagar
Branches of Bangalore being outside the pleading the same
cannot be taken into consideration as urged by the learned
advocate appearing for the II party. WW 1 in his cross-
examination having categorically admitted that he was
engaged at Akkipet Branch from January 1996 to December
1996 and from January 1997 to 21.08.1997 for a period of
233 days and he has been paid wages in that regard as per
Ex M-15 crediting to his SB Account exract of which has
been produced at Ex M-14 and at K R Puram Branch for 92
days between 28.12.1983 to 28.03.1984. His documentary
evidence produced at Ex W-10 to Ex W-17 also do
corroborate the said admission given by him. Thus, it is
clear that in no academic year he has worked for 240 days
continuously either at Akkipet Branch or K G Road Branch
to fall under Section 25B of ID act. Therefore, the question
of complying the mandatory provision of Section 25F in
his case did not arise at all. In the result, I arrive at conclusion
of answering the Point No. 1 in the Negative.
8. In view of my finding on Point No. 1 Sh.
Basavarajappa workmen at Sl. No. 2 of the schedule is not
entitle for any relief. In the result, I pass the following
O R D E R
The reference relating to Sh. Sh. R V Raghunath, Sh.
J H Palakamurthy, Sh. Narasimha, Smt. Kasthuri, Shri.
H Satish is Rejected as Settled out of court and the
reference relating to Sl. No. 2 i.e. Sh. Basavarajappa
is Rejected on Merits holding that the management
of Vijaya Bank is justified in terminating his services
and that he is not entitle for any relief.
Dictated to U D C transcribed by him, corrected and
signed by me on 21st (October 2013)
S.N. NAVALGUND, Presiding Officer
ANNEXURE-I
Witness examined on behalf of Management:
MW 1—Sh. K B Vijaya Kumar, Senior Branch Manager
MW 2—Sh. T. Nazeer Ahmed, Senior Branch Manager
MW 3—Sh. M H Narayanana, Assistant Branch Manager
MW 4—Sh. K Satish Shetty, Senior Branch Manager
MW 5—Sh. Guna Prakash Rao, Manager
MW 6—Sh. Gopala Krishna K, Senior Manager
MW 7—Smt. Subbalakshmi, Assistant Manager
MW 8—Sh. N Dinakara Shetty, Senior Branch Manager
MW 9—Sh. Sushyil Kumar Chand, Senior Branch Manager
MW 10—Sh. N Gunapal Shetty, Senior Branch Manager
MW 11—Sh. A Jaganatha Reddy, Assistant Branch
Manager
MW 12—Sh. J G Fernandes, Assistant Branch Manager
Witnesses examined on behalf of Workman:
WW 1—Basavarajappa, Workman
¹Hkkx II—[k.M 3(ii)º
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Documents exhibited on behalf of the Management:
Ex M-1:
Copy of letter engaging the I Party, Sri J H
Palaksha Murthy, as Temporary Peon at R C
Road Branch
Ex M-2:
True copy of the attendance Sheets from
February 1995 to November 1995
Ex M-3:
True copy of the acquittance roll sheets and
pay bill paid to Sri J H Palaksha Murthy
Ex M-4:
Extract of Bi-partite Settlement with regard to
temporary employees
Ex M-5:
Copy of the Circular No. 30/93 dated 27.03.1993
of II Party
Ex M-6:
Extract true copy of the Debit Vouchers for the
period November 1999 to December 2000
Ex M-7:
Extract true certified copy of the Acquittance
roll of the I Party
Ex M-8:
Extract True certified copy of the SB A/c No.
13670 of I Party
Ex M-9:
Original letter engaging I Party Sri R V
Raghunath, as Temporary Peon at Victoria
Road Branch
Ex M-10:
Original Ledger Sheets of SB A/c No. 1940 of I
Party
Ex M-11:
True copy of the acquittance roll sheets
pertaining to Sri R V Raghunath
Ex M-12:
True copy of the acquittance roll sheets
pertaining to Sri D R Narasimha
Ex M-13:
True ledger sheets of SB A/c No. 000217 of I
Party
Ex M-14:
True copy of ledger sheets of SB A/c No. 97206
to Sri Basavarajappa, KG Road Branch
Ex M-15:
True copy of the acquittance roll sheets
pertaining to Sri Basavarajappa
Ex M-16:
True copy of the acquittance roll sheets
pertaining to Sri B V Raghunath
Ex M-17:
True copy of the ledger sheets of SB A/c No.
50034 of Sri R.V. Raghunath, Vanivilas Road
Branch
Ex M-18:
True copy of the acquittance roll sheets
pertaining to Sri H Satish
Ex M-19:
True copy of the ledger sheets of SB A/c No.
18461 of Sri H Satish, Audugodi Branch
Ex M-20:
True copy of the ledger sheets of SB A/c No. 7
of Sri J H Palaksha Murthy, FTS Branch,
Chickpet Branch
Ex M-21:
True copy of acquittance roll sheets pertaining
to Sri J H Palaksha Murthy, FTS Branch,
Chickpet Branch
Ex M-22:
Copy of letter engaging I Party Smt. K Kasturi
as Temporary Peon at DAO Branch
Ex M-23:
True copy of the ledger sheets of SB A/c No.
21246 of Smt. K Kasturi, DAO Branch
Ex M-24:
True copy of the acquittance roll sheets
pertaining to Smt. K Kasturi, DAO Branch
Ex M-25:
True copy of the acquittance roll sheets
pertaining to Sri H Satish, N R Road Branch
Ex M-26:
True copy of the acquittance roll sheets
pertaining to Sri Basavarajappa, Akkipet Branch
Ex M-27:
True copy of the acquittance roll sheets
pertaining to Sri H Satish, Ulsoor Branch
Documents exhibited on behalf of the I party
Ex M-1:
Copy of letter dated 28.02.2001 adressed to
ALC (C), Bangalore
Ex M-2:
Original letter dated 20.04.1989 issued by the
K R Puram, Bangalore
Ex M-3:
Original letter dated 15.02.1995 issued by the
Zonal Office, Bangalore
Ex M-4:
Self attested copy of letter dated 15.04.1995,
issued by the Zonal Office, Bangalore
Ex M-5:
Original salary voucher for the month of May
1995 issued by K R Puram Branch
Ex M-6:
Original letter dated 23.06.1995 issued by K R
Puram Branch
Ex M-7:
Self attested copy of letter dated 04.07.1995 of
Indiranagar Branch
Ex M-8:
Self attested copy of letter dated 30.03.1998 of
Residency Road Branch
Ex M-9:
Original Letter dated 27.12.1995 of Zonal Office,
Bangalore
Ex M-10:
Self attested SB A/c statement of Akkipet
Branch from 09.07.1996 to 07.08.1997
Ex M-11:
Copy of Bonus calculation sheet issued by
Akkipet Branch
Ex M-12:
Self attested copy of letter dated 09.08.1996
issued by Akkipet Branch
Ex M-13:
Self Attested copy of letter dated 30.10.1996
issued by Akkipet Branch
Ex M-14:
Self Attested copy of letter dated 21.08.1997
issued by Akkipet Branch
2480
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Ex M-15:
Self Attested copy of letter dated 16.03.1998
issued by Akkipet Branch
Ex M-16:
Original Certificate dated 02.11.2007 issued by
K G Road, Bangalore
Ex M-17:
Self Attested copy of letter dated 08.05.1999,
K G Road Branch
S. N. NAVALGUND, Presiding Officer
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New Delhi, the 24th February, 2014
S.O. 945.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 188/2012)
of the Central Government Industrial Tribunal/Labour Court
No. 1, Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The Superintendent, Archaeological Survey
of India and their workmen, which was received by the
Central Government on 21/02/2014.
[No. L-42012/69/2012-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
No.1, KARKARDOOMA COURTS COMPLEX, DELHI
ID. No.188/2012
Sh.Bhim Singh and Sh. Madan Lal through
The General Secretary,
All India CPWD (MRM) Karamchari
Sangathan (Regd.), 4823,
Balbir Nagar Extension,
Gali No.13, Shahadra,
Delhi-110032
...Workman
Versus
The Superintendent,
Archaeological Survey of India,
Delhi Circle, Safdarjung Tomb,
New Delhi-110003.
…Management
AWARD
Archeological Survey of India (hereinafter referred
to as the management) engages casual labour on need
basis for removal of vegetation growth, maintenance,
special repair environmental development work,
conservation and preservation of historical monuments,
archeological sites and remains of national importance
Casual labours was engaged by the management belonging
to trades like, beldars, coolies, bandhani, mistry, bhisti,
stone cutter, mason etc., Wages of such casual labours are
paid as per minimum wages, notified from time to time by
the appropriate Government Shri Bhim Singh and Shri
Madan Lal were engaged as casual labour by the
management. Their services were availed for considerable
long period. When they allegedly claimed enhancement of
their wages, their services were dispensed with in February
2010. They raised a demand for reinstatement in service
but to no avail. Resultantly, dispute was raised on their
behalf before the Conciliation Officer. Since management
contested their claim, conciliation proceedings ended into
a failure. On consideration of failure report, submitted by
the Conciliation Officer, the appropriate Government
referred the dispute to this Tribunal for adjudication vide
order No. L-42012/69/2012-IR(DU), New Delhi dated
07.12.2012, with following terms:—
"Whether the action of the management of
Archeological Survey of India in terminating from
employment the workmen, S/Shri Bhim Singh and
Madan Lal with effect from 28.03.2010, is illegal and
unjustified and if yes, what relief the said workmen
are entitled to?"
2. Claim statement was filed by Shri Bhim Singh and
Shri Madan Lal pleading therein that they were engaged
by the management on muster roll with effect from 03.12.1994
and 22.08.2002 respectively. No appointment letter, wage
slips or wage card etc. were issued in their favour. They
have worked for more than 240 days in every calendar year
Regular employees of their category are paid wages by the
management according to regular scales of pay, while they
are paid only minimum wages. Temporary status has not
been granted to them. Though seniority list is being
maintained by the management, yet the same has not been
circulated to them. On 11.05.2009. directions were issued
by the management to the effect that casual labours would
be paid @ 1/30th of the pay at minimum of relevant pay
scale plus dearness allowance for work of 8 hours a day.
Pursuant to the said directions, they became entitled for
payment of wages in consonance with regular scales of
pay. When such a request was made by them, their services
were dispensed with abruptly on 28.03.2010. No notice or
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2481
pay in lieu thereof and retrenchment compensation was
paid to them. They requested the management to reinstate
their service with continuity and full back wages but to no
avail. They are entitled to reinstatement in service with
continuity and full back wages, besides other consequential
benefits, plead the claimants.
3. Claim was demurred by the management pleading
that it is a scientific and technological institution set up by
Government of India. It discharges duties of preservation
and conservation of historical monuments, archeological
sites and remains, declared to be of national importance
under the Ancient Monuments and Archeological Sites
and Remains Act 1958 and the Antiquities and Art Treasures
Act, 1972. Functions performed by the management are
sovereign functions, hence it is not an industry within the
meaning of provisions contained in the Industrial Disputes
Act, 1947 (in short the Act). The management protects 160
monuments situated all over Delhi with the help of its regular
employees. For casual jobs of removing vegetation growth,
conservation, preservation, maintenance, special repairs
and environmental developmental work etc., it engages
casual labours. Since sovereign functions are performed
by the management, provisions of the Act would not come
in to operation even for casual labour so engaged.
4. The management presents that Shri Bhim Singh
and Shri Madan Lal were engaged as casual labours for
temporary nature of cleaning work. It has been disputed
that Shri Bhim Singh was engaged as casual labour since
1994. He was engaged for periodical work between October
2001 to December 2004. Shri Madan Lal was also engaged
as a casual labour for sporadic nature of work for some
specified duration. They had not completed 240 days of
continuous service. Since as per their own claim, they were
engaged on 03.12.1994 and 22.08.2002, hence they are not
entitled for grant of temporary status, pursuant to scheme
formulated in that regard on 10.09.1993. Seniority list for
casual labours is being prepared and circulated from time
to time. Since claimants were engaged for periodical work,
their names were net included in the seniority list so
circulated. Work assigned to them was of temporary nature,
hence their services were disengaged on completion of
specific item of work. Certificates, obtained by the
claimants, were issued by officers not competent to issue
such certificates Claimants have no case for reinstatement
in service. Their claim may be dismissed, pleads the
management.
5. On perusal of pleadings following issues were
settled:
(1) Whether management is not an industry within
the meaning of Section 2(j) of the Industrial
Disputes Act, 1947?
(2) Whether claimants have rendered continuous
service of 240 days, in preceding 12 months, from
the date of termination of their services?
(3) As in terms of reference.
6. Claimants have examined themselves in support
of their claim Shri R.K. Jhingan entered the witness box to
fend facts on behalf of the management. No other witness
was examined by either of the parties.
7. Arguments were heard at the bar Shri Satish Kumar
Sharma, authorized representative, advanced arguments
on behalf of the claimants. Ms. Avtar Kaur Dhingra,
authorized representative, presented facts on behalf of the
management I have given my careful considerations to
arguments advanced at the bar and cautiously perused the
record. My findings on issues involved in the controversy
are as follows:—
Issue No. 1
8. At the outset, Ms. Dhingra argued that the
management is not an industry within the meaning of clause
2(j) of the Act. She presents that the management is a
department under the Ministry of Culture, Government of
India, New Delhi. It is a scientific and technological
institution established by the Government of India, vide
notification No.A-36016/2/89/Estt. dated 27.10.1989. The
management discharges duties of preservation and
conservation of ancient and historical monuments, hence
it is not an industry. Contentions advanced by Ms. Dhingra
are repelled by Shri Sharma. He argued that the activities
undertaken by the management fall within all four corners
of the definition of industry, as enacted by section 2(j) of
the Act.
9. When a claim is made by the management that it is
not an industry within the meaning of clause (j) of section
2 of the Act, it becomes expedient to consider the term
'industry', Definition of term 'Industry', as enacted by
section 2(j) of the Act, is extracted thus:
"industry, means any business, trade, undertaking,
manufacture or calling of employers and includes
any calling, service, employment, handicraft, or
industrial occupation or avocation of workmen."
10. The definition of term "industry" is both
exhaustive and inclusive. It is in two parts. The first part
says that it "means any business, trade, undertaking,
manufacture or calling of employers" and then goes to say
that it "includes any calling, service, employment, handicraft
or industrial occupation or avocation of workman." Thus
one part defined it from the stand point of the employer,
and the other part from the stand point of the employees.
The first part of the definition gives the statutory meaning
of the industry, whereas the second part deliberately refers
to several other items of industry and bring them in the
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THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
definition in an inclusive way. The first part of the definition
determines any industry by reference to occupation of
employers in respect of certain activities viz., business,
trade, undertaking, manufacture or calling. The second part
views the matter from the angle of employees and is
designed to include something more in what the term
primarily denotes. By this part of the definition any calling,
employment, handicraft, industrial occupation or avocation
of workmen is included in the concept of industry. This
part gives extended connotation.
11. Gloss was put on the definition of word ''industry"
by the High Courts and the Apex Court time and again. The
question as to what is "industry" has continuously baffled
and perplexed the courts, A graph of the cases decided by
the Apex Court, if plotted on the background of the
expression used in two parts of the definition of "industry",
would represent rather a zig zag curve. There have been
various judicial ventures in this rather volatile area of law.
The decided cases show that the efforts were made to
evolve test by reference to characteristics regarded as
essential for constituting an activity as an "industry".
Various cases would show that the Apex Court has been
guided more by empirical rather than a strictly analytical
approach. Most of the decisions have centered around the
expression "undertaking" used in the definition. In
Bangalore Water Supply and Sewerage Board ( 1978 Lab.
I.C. 778) the Apex Court reviewed the earlier decisions on
interpretation of the wide words encompassed in the
definition and formulated positive and negative principles
for identifying "industry"' as enacted by clause (j) of section
2 of the Act. It would be expedient to reproduce the
authoritative pronouncement of the Court, in the very words
set out in the majority decision, handed down by Justice
Krishna lyer, which are extracted thus:
"1. "Industry" as defined in S.2(j) and explained in
Banerjee (AIR 1953 S.C. 58) has a wide import.
(a) Where (i) systematic activity, (ii) organized by
co-operation between employer and employee
(the direct and substantial element is chimerical)
(iii) for the production and /or distribution of
goods and services calculated to satisfy
human wants and wishes (not spiritual or
religious but inclusive of material things or
services geared to celestial bliss i.e. making,
on a large scale prasad or foods) prima facie,
there is an "industry" in that enterprise.
(b) Absence of profit motive or gainful objective
is irrelevant, be the venture in the public, joint,
private or other sector,
(c) The true focus is functional and the decisive
test is the nature of the activity with special
emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does
not cease to be one because of philanthropy
animating the undertaking.
II. Although section 2(j) uses words of the widest
amplitude in its two limbs, the re-meaning cannot
be magnified to overreach itself.
(a) "Undertaking" must suffer a contextual and
associational shrinkage as explained in
Banerjee and in this judgement, so also,
service, calling and the like. This yields the
inference that all organized activity possessing
the triple elements in 1 (supra), although not
trade or business, may still be 'industry'
provided the nature of activity, viz. the
employer-employee basis, bears resemblance
to what we find in trade or business. This takes
into the fold 'industry' undertaking, calling and
services, adventures, "analogous to the
carrying on the trade or business". All
features, other than the methodology of
carrying on the activity viz in organizing the
co-operation between employer and employee,
may be dissimilar. It does not matter, if on the
employment terms there is analogy.
III. Application of these guidelines should not stop
short of their logical reach by invocation of creeds,
cults or inner sense of incongruity or outer sense
of motivation for or resultant of the economic
operations. The ideology of the Act being
industrial peace, regulation and resolution of
industrial disputes between employer and
workmen, the range of their statutory ideology
must inform the reach of the statutory definition.
Nothing less, nothing more.
(a) The consequences are (i) profession, (ii) clubs
(iii) education institutions, (iv) co-operatives
(v) research institutes, (vi) charitable projects
and (vii) other kindered adventures, if they fulfil
the triple tests listed in 1 (supra), cannot be
exempted from the scope of section 2(j).
(b) A restricted category of professions, clubs,
co-operatives and even gurukulas and little
research labs may qualify for exemption if they
are simple ventures, substantially, and going
by the dominant nature criterion, substantively
no employees are entertained but in menial
matters and marginal employees are hired
without destroying the non employee character
of the unit.
(c) If, in a pious or altruistic mission, many employ
themselves, free or for small honoraria or like
return, mainly drawn by sharing in the purpose
or cause, such as lawyers volunteering to run
¹Hkkx II—[k.M 3(ii)º
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2483
a free legal services clinic or doctors serving
in their spare hours in a free medical centre or
ashramites working at the bidding of the
holiness, divinity or like central personality,
and the services are supplied free or at nominal
cost and those who serve are not engaged for
remuneration or on the basis of master and
servant relationship, then, the institution is not
an industry even if stray servants, manual or
technical, are hired. Such eleemosynary or like
undertakings alone are exempt not other
generosity, compassion, developmental
passion or project.
IV. The dominant nature test:
(a) Where a complex of activities, some of which
qualify for exemption, other not, involves
employees on the total undertaking, some of
whom are not "workmen" as in the University
of Delhi case (AIR 1963 S.C.1873) or some
departments are not productive of goods and
services if isolated, even then, the predominant
nature of, the services and the integrated
nature of the departments as explained in the
Corporation of Nagpur (AIR 1960 S.C.675) will
be the true test. The whole undertaking will be
industry although those who are not
"workmen" by definition may not benefit by
the status.
(b) Notwithstanding the previous clauses,
sovereign functions, strictly understood
(alone) qualify for exemption, not the welfare
activities or economic adventures undertaking
by govt. or statutory bodies.
(c) Even in department discharging sovereign
functions, if there are units which are industries
and they are substantially severable, then they
can be considered to come within S.2(j)
(d) Constitutional and competently enacted
legislative provisions may remove from the
scope of the Act categories which otherwise
may be covered thereby.
V. We overrule Safdarjung (AIR 1970 S.C.1407),
Solicitors case (AIR 1962 S.C 1080), Gymkhana
(AIR 1968, S.C. 554) Delhi University (AIR 1963
S.C.1873), Dhanraj Giriji Hospital (AIR 1975 SC
2032) and other rulings whose ratio runs counter
to the principles enunciated above, and the
Hospital Mazdoor Sabha (AIR 1960 SC 610) is
hereby rehabilitated."
12. Principles laid down in Bangalore Water Supply
& Sewerage Board (supra) hold ground. Therefore, the
controversy raised will be adjudicated in view of the law
laid by the Apex Court in the precedent referred above.
The management agitates that it is not an industry. The
view point held by the management is that no profit motive
activities are being carried on by it. No business is being
run. hence the management cannot be termed as an
'industry'. Except the facts referred above, the management
nowhere projects any other factors to lay emphasis on the
fact that it is not an 'industry'.
13. In Ahmedabad Textile Industry's Research
Association [1960 (2) LLJ 720], the Association was
established to carry on research with respect to the textile
industry with a view to secure greater efficiency,
rationalization and reduction of cost, which were "material
services" to the textile industry hence the Association was
held to fall within the ambit of definition of industry. But in
Safdarjung Hospital case (supra) it was not held to be an
industry because it was a non-profit making body and its
work was in the nature of training, research and treatment.
In Indian Standard Institute [1966 (1) LLJ 33] the Apex
Court suggested that in order to be recognized as an
undertaking analogous to trade or business, the activity
must be an economical activity in the sense that it is
productive of material goods or material services. In
Bangalore Water Supply and Sewerage Board (supra), the
Apex Court laid down that an activity systematically or
habitually undertaken for production or distribution of
goods for rendering material services to the community at
large or a part of such community with the help of employees
is an undertaking. An 'industry' thus was said to involve
cooperation between the employer and employees for the
object of satisfying material human needs but not for
oneself nor for pleasure nor necessity for profit. Lack of
business and profit motive or capital investment would
not take out an activity from the sweep of 'industry', if
other conditions are satisfied. It is the activity in question
which attracts the definition and absence of investment of
any capital or the fact that the activity is conducted for
profit motive or not, would not make material difference.
Conversely mere existence of profit motive will not
necessarily convert the activity into 'industry' if other tests
are not satisfied.
14. Ms. Dhingra argued that the management carries
out sovereign functions hence it cannot be termed as an
industry. Therefore, it is expedient to know as to what are
regal and sovereign functions of the State which may
qualify for exemption from the ambit of the definition of
word "industry"? Regal powers of the State has acquired a
definite connotation, which can be described as
"administration of justice, maintenance of order, repression
of crime, security of borders from external aggression and
legislative powers, as among the primary and inalienable
functions of a Constitutional Government". In Corporation
of City of Nagpur [1960 (1) LLJ 523] the Apex Court observed
that it could not have been in contemplation of the legislature
to bring in the regal functions of the State within the
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THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
definition of "industry" and to confer jurisdiction on
Industrial Tribunal to decide disputes in respect thereof.
The activities of the Government which can be properly
described as regal or sovereign activities, are therefore,
outside the scope of industry. In Hospital Mazdoor Sabha
[1960 (1) LLJ 251] the Supreme Court adumberated the test:
can such activity be carried on by a private individual or
group of individuals? The answer to this is : if a business
or activity could not be carried on by a private individual
or group of individuals, it could not be an industry, while if
it could be, it might fall within the scope of "industry".
This test was reiterated in Corporation of City of Nagpur
(supra) but rejected in Gymkhana Club [1967 (II) LLJ 720].
In Bangalore Water Supply and Sewerage Board (supra)
the Apex Court observed "*** sovereign functions, strictly
understood, (alone) qualify for exemption, not the welfare
activities or economic adventures undertaken by
Government or statutory bodies. Even in departments
discharging sovereign functions, if there are units, which
are "industry" and they are substantially severable, they
can be considered to come within section 2(j)". In Chief
Conservator of Forests [1996 (1) LLJ 1223] the above
proposition was reiterated where in it was observed "***
even within the wider circle of sovereign function, there
may be an inner circle encompassing some units which
could be considered as "industry", if substantially
severable".
15. In Physical Research Laboratory [1997 (2) LLJ
625] the Apex Court held that the Physical Research
Laboratory is not an 'industry' because it is not engaged in
an activity which can neither be called business, trade or
manufacturing nor it is an undertaking analogous to
business or trade. It is not engaged in commercial or
industrial activity and cannot be described as an economic
venture or commercial enterprise as it is not its objective to
produce and discharge services which would satisfy wants
and needs of consumer community, it is not rendering any
services to others. It is engaged in pure research in space
science.
16. While reaching the conclusion, referred above,
the Apex Court relied observations made in Bangalore
Water Supply and Sewerage Board (supra) with respect to
research institutes, which observations are extracted thus:
"Does research involve collaboration between
employer and employee ? It does. The employer is
the institution, the employees are the scientists, para-
scientists and other personnel. Is scientific research
service? Undoubtedly it is. Its discoveries are
valuable contributions to the wealth of the nation.
Such discoveries may be sold for a heavy price in
the industrial or other markets. Technology has to
be paid for and technological inventions and
innovations may be patented and sold. In our
scientific and technological age nothing has more
cash value, as intangible goods and invaluable
services, than discoveries. For instance, the
discoveries of Thomas Alva Edison made him
fabulously rich. It has been said that his brain had
the highest cash value in history for he made the
world vibrate with the miraculous discovery of
recorded sound. Unlike most inventors, he did not
have to wait to get his reward in heaven; he received
it munificently on this gratified and grateful earth,
thanks to conversion of his inventions into money a
plenty. Research benefits industry. Even though a
research institute may be a separate entity
disconnected from the many industries which funded
the institute itself, it can be regarded as an
Organisation, propelled by systematic activity,
modelled on co-operation between employer and
employee and calculated to throw up discoveries
and inventions and useful solutions which benefit
individual industries and the nation in terms of goods
and services and wealth. It follows that research
institutes, albeit run without profit-motive, are
industries".
17. In the light of above propositions, facts of present
controversy are to be scanned. As claimed by the
management, it performs sovereign functions of
preservation and conservation of ancient and historical
monuments, archeological sites and remains declared to
be of national importance under Ancient Monuments and
Archeological Sites and Remains Act 1958 and the
Antiquities and Art Treasures Act, 1972. As claimed by the
management, in Delhi Circle there are 160 monuments spread
all over the metropolis city, such as forts, mosques, tombs,
pillars, hauzes, wells, walls, remains, rock inscriptions,
cemeteries, temples, gardens etc. declared to be of national
importance under the Ancient Monuments and
Archeological Sites and Remains Act. 1958 and the
Antiquities and Art Treasure Act. 1972. Aforesaid
monuments are preserved and conserved by the
management with the help of its regular employees. Besides
its regular employees, the management also engages casual
labours on need basis for removal of vegetation growth,
conservation, preservation, maintenance, special repairs
and environmental developmental work in respect of sites,
referred above. Question which needs attention is as to
whether functions of preservation and conservation of
monuments of national importance can be termed as
sovereign or regal functions. I am afraid that submissions
made by Ms. Dhingra have any force. Functions, which
are being carried on by the management are welfare
activities undertaken to preserve historical monuments. In
its welfare activities, State undertakes to preserve and
conserve historical sites, and remains, to educate its subject
in that regard Thai act would not fall within the ambit of
administration of justice, maintenance of order, repression
of crime, security of borders from external aggression and
¹Hkkx II—[k.M 3(ii)º
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2485
legislative powers of the State, On the otherhand, the
management renders service to the community to satisfy
their wishes to know about the history and historical
monuments. Therefore, aforesaid activities cannot be
described as regal or sovereign functions, since such
activities could be carried out by private individuals or
group of individuals.
18. Even in departments discharging sovereign
functions, there may be units, which are "industry" and
they are substantially severable, they can be considered
to come within section 2(j) of the Act. As projected by Ms.
Dhingra, the management carries out functions of
preservation and conservation of ancient and historical
monuments, archeological sites and remains declared to
be of national importance under the Ancient Monuments
and Archeological Sites and Remains Act 1958 and the
Antiquities and Art Treasures Act, 1972. Functions of
preservation and conservation of ancient monuments
cannot be termed as sovereign functions by any stretch of
imagination. Even otherwise, the unit where casual labours
are engaged by the management to carry out is
substantially severable from other department of the
management. It is further evident that there is hardly any
activity performed by the management which a private
entrepreneur cannot carry out. Resultantly, it emerges over
the record that activities carried on by the management
cannot be termed as regal.
19. The management carries out its functions with
co-operation between it and its casual employees.
Activities performed by the management are systematic
one. It renders services to the community at large to satisfy
human wants. Lack of business or profit motive or capital
investment would not take out attributes of the
management from the sweep of industry, if other conditions
are satisfied. These facts make me to comment that triple
test, referred above, stood satisfied and activities of the
management fall within the ambit of industry, as defined
under section 2(j) of the Act. Objections raised by the
management is brushed aside on that count. The issue is,
therefore, answered in favour of the claimant and against
the management.
Issue No. 2
20. In order to discharge onus resting on them,
claimants namely, Shri Bhim Singh and Shri Madan Lal
tendered their affidavits Ex.WW1/A and Ex. WW2/A
respectively as evidence. In affidavit Ex. WW1/A, Shri Bhim
Singh swears that he was engaged as safai karamchari at
Old Fort on 03.12.1994. He was engaged by Shri Jhingan,
Conservation Assistant, Archeological Survey of India.
He worked under Shri Jhingan upto October 1998.
Thereafter, he was orally transferred to museum at Old Fort
where he worked under Ms. Sunita Tevatia. He worked
under her till December 2000. He was again transferred by
oral order to Humayun Tomb where he worked under
Shri Jhingan upto December 2004 in January 2005, his
services were taken at Jantar Mantar under Hari Singh Negi.
He worked there till December 2005. In January 2006, his
services were availed at Old Fort where he worked till
27.03.2010.
21. In affidavit Ex. WW2/A filed as evidence, Shri
Madan Lal details that he was engaged by the management
on 22.08.2002. He worked at Safdarjung Madrasa till
13.08.2003. From 14.08.2003 to 31.12.2003, his services were
availed at Old Fort. Thereafter, he was made to work from
01.01.2004 to 31.08.2004 at Humayun Tomb, New Delhi. His
services were availed at Old Fort from 01.09.2007 to
27.03.2010. His service was orally dispensed with on
28.03.2010.
22. Shri R.K. Jhingan deposed that Shri Bhim Singh
had worked under him in the year 2004. According to him,
Shri Bhim Singh worked for about 200 days in that year.
Certificate Ex. WW1/1 was issued by him in favour of Shri
Bhim Singh, wherein it has been mentioned that he had
continuously worked under him for a period of three years.
He feigned ignorance on the proposition as to whether
Shri Bhim Singh was working with the management since
1994.
23. Question for consideration would be as to
whether ocular facts, unfolded by the claimants in affidavit
Ex. WW1/A and Ex. WW2/A would be sufficient to prove
that they continuously worked with the management for a
period of 240 days in a calendar year. In Range Forest
Officer (2002 LLR 339), it has been ruled that the workman
had to lead evidence to show that in fact he had worked for
240 days in the year preceding his termination. Mere filing
of affidavit cannot be regarded as sufficient evidence for
any Court or Tribunal to come to a conclusion that the
workman had, in fact, worked for 240 days in a year.
24. In Essen Deinki [2003 SC (L&S) 113], Apex Court
ruled that in support of ocular facts, workman is under an
obligation to produce some document to substantiate his
claim of rendering continuous service of 240 days with his
employer. Observations made by the Apex Court are
extracted thus:
''Completion of 240 days is to be in the year preceding
termination of the workman to avail benefit under
section 25F read with section 2B of the Act. Burden
to prove that the workman has rendered service for
240 days in a year lies upon the workman when such
claim is denied by the employer. No proof of receipt
of salary or wages for 240 days or order or record of
appointment or engagement for this period was
produced by the workman. It is for the claimant to
lead evidence and show that he had in fact worked
for 240 days in the year preceding his termination.
Law, being well settled, and provisions of law are
also very clear in that regard, question of
interpretation of provisions of law in the manner
2486
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
proposed by learned advocate for the respondent,
does not arise at all. In that respect, it is immaterial
whether the statute is beneficial legislation to the
labour or not."
25. In R.M. Yelati [2006(1) SCC 106] same proposition
of law was laid by the Apex Court. It was ruled therein that
mere filing of affidavit or self serving statement made by
the claimant will not suffice to discharge burden of proof
of serving the employer for a period of 240 days in a given
year. For sake of convenience, observations made by the
Apex Court are extracted thus:
''Analyzing the above decisions of this Court, 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 afore-stated
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 for 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 waged 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 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. Lastly, the above judgments lay down
the basic principle, namely, that the High Court under
Article 226 of the Constitution will not interfere with
the concurrent findings of fact recorded by the
labour court unless they are perverse. This exercise
will depend upon facts of each case."
The above proposition was again reiterated in
recent judgements in Shyamal Bhowmik [2006(1) SCC 337],
Sham Lal [2006 VI AD (SC)1] and Gangaben Laljibhai and
others [2006 VI AD (SC) 31].
26. In the light of law laid above, it would be taken
note of as to whether Shri Bhim Singh and Shri Madan Lal
had been able to discharge onus resting on them. Shri
Bhim Singh places reliance on experience certificate issued
by Shri R.K. Jhingan, which has been proved as Ex. WW1/
1. Ex. WW1/1 brings to light that Shri Jhingan certifies that
Shri Bhim Singh was working with the management as daily
wager sweeper for the last three years, Ex. WW1/1 was
issued by Shri Jhingan on 01.07.2004. When perused,
contents of Ex. WWI/1 give reaffirmation to the facts
unfolded by Shri Bhim Singh in his affidavit Ex. WW1/A.
27. Shri Madan Lal projects that he was engaged by
the management for the first time on 22.08.2002. He initially
worked at Safdarjung Tomb, thereafter at Old Fort, Hurnayun
Tomb and was again transferred to Safdarjung Tomb. He
lastly worked at Old Fort, from where his services were
dispensed with. To have support, he places reliance on
certificate Ex.WW2/1 issued by Shri J.M. Thapar wherein
it has been certified that Shri Madan Lal was employed as
a daily wager at Safdarjung Tomb, New Delhi. Ex. WW2/1
has been issued on 15.12.2006. He has also relied on letter
Ex. WW2/4 on the strength of which his representation Ex.
WW2/2 was sent by Deputy Director (Accounts),
Archaeological Survey of India, New Delhi to
Superintending Archeologist for submission of report in
the matter. Ex. WW2/2 highlights that Shri Madan Lal as
working with the management since long and his services
were abruptly terminated on 28.03.2010. Authenticity and
genuineness of Ex. WW2/2 and Ex. WW2/4 were not
questioned by the management. Therefore, these
documents give support to facts unfolded by Shri Madan
Lal. Resultantly, it is crystal clear that ocular facts, detailed
by Shri Madan Lal and Shri Bhim Singh get support from
documentary evidence, referred above.
28. An employer may discharge a portion of his labour
force as surplusage in a running or continuing business
for variety of reasons, e.g., for economy, convenience,
rationalization in industry, installation of a new labour saving
machinery etc. The Act defines "termination by the
employer of the service of a workman for any reasons
whatsoever", except the categories exempted in sub-
section 2(oo), to be retrenchment. The definition of the
term "retrenchment", as enacted by the Act, is extracted
thus:
"(oo) "retrenchment" means the termination by the
employer of the services of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary action,
but does not include—
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment
between the employer and the workman
concerned contains a stipulation in that behalf;
or
¹Hkkx II—[k.M 3(ii)º
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2487
(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".
29. 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].
30. Section 25F of The Act lays down conditions
pre-requisite to retrenchment, which are as follows:
(i) There should be one month's notice in writing to
the workman concerned.
(ii) The notice should specify the reasons for
retrenchment.
(iii) The period of one month's notice should have
expired before retrenchment is enforced, or the
workman has been paid in lieu of such notice the
wages for the period.
(iv) The workman has been paid retrenchment
compensation which should be equivalent to 15
days' average pay for every one years' service or
any part thereof provided it exceeds six months.
(v) The notice is also given to the appropriate
Government.
31. 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.l.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.
32. In Ramakrishna Ramnath [1970 (2) LLJ 306], Apex
Court announced that when a workman renders continuous
service of not less than 240 days in 12 calendar months, he
is deemed to have completed one years' service in the
industry. It would be expedient to reproduce/observations
made by the Apex Court in that regard, which are extracted
thus:
"Under Section 25-B a workman who during the
period of 12 calendar months has actually worked in
an industry for not less than 240 days is to be deemed
to have completed One year's service in the industry.
Consequently an enquiry has to be made to find out
whether the workman had actually worked for not
less than. 240 days during period of 12 calendar
months immediately preceding the retrenchment.
These provisions of law do not show that a workman
after satisfying the test under Section 25-B has further
to show that he has worked during all the period he
has been in the service of the employer for 240 days
in the year".
33. 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
2488
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
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.
34. The Tribunal is saddled with the responsibility to
scrutinize facts adduced by the parties in order to ascertain
as to whether the claimants have rendered continuous
service of 240 days in any calendar year. As projected above,
Shri Bhim Singh claims that he was serving the management
since 03.12.1994 and rendered continuous service of 240
days in every calendar year, which fact is substantiated by
certificate Ex.WWl/1. In the same manner, Shri Madan Lal
claims to have rendered continuous service with the
management since 22.08.2002. His continuous service with
the management creep out of certificate Ex.WW2/1 issued
by Shri J.M. Thapar on 15.12.2006. Furthermore, contents
of Ex. WW2/2, which document has not been dispelled by
the management, come to rescue of Shri Madan Lal.
Therefore, for reckoning continuous service for a period of
240 days in preceding 12 months from the date when
services of the claimants were dispensed with, the Tribunal
had appreciated ocular facts detailed in affidavit Ex.WW1/A
and Ex. WW2/A, coupled with the documents Ex.WWI/1,
Ex.WW2/2 and Ex.WW2/4. On careful examination of ocular
as well as documentary evidence brought over the record,
it is concluded that the claimants could establish that
they were in continuous service of the management for
a period of 240 days in every calendar as contemplated by
section 25B of the Act.
35. Period of service rendered by the claimants, as
detailed above, nowhere includes Sundays and holidays.
In a calendar year, an employee may get 52 weekly offs,
besides three national holidays. In case 52 weekly offs and
three national holidays are added to the periods referred
above, claimant could establish beyond doubt that they
rendered continuous service for a period of 240 days in
every calendar year, as contemplated by section 25-B of
the Act. Resultantly, ft is concluded that the claimants had
been able to project that they rendered continuous service
of 240 days in every calendar year to avail benefits of
provisions of section 25-F of the Act. The issue is, therefore
answered in favour of the claimant and against the
management.
Issue No. 3
36. It is not the case that the claimants reached the
age of superannuation or sought voluntary retirement. No
evidence was brought to show that they were employed
for a fixed term of contract and their services came to an
end on non-renewal of contract of employment. It was not
asserted that their services were terminated on the ground
of their continued ill-health. Neither services of the claimants
were done away as punishment for a domestic action nor
action of the management falls within the category exempted
under second limb of section 2(oo) of the Act. Thus it is
obvious that termination of services of the claimants, for
any other reason, amounts to retrenchment, as defined by
clause (oo) of section 2 of the Act.
37. The claimants had rendered continuous service
for a period of one year in each year, as contemplated by
section 25-B of the Act. According to them, retrenchment
compensation was not paid, which fact was not dispelled
by the management. The management was under an
obligation to pay them compensation for retrenchment,
when their 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) LLU 351], Adaishwar Laal [1970
Lab.I.C.936] and B.M. Gupta [1979 (1) LLJ 168] announce
that subsequent payment of compensation cannot validate
an invalid order of retrenchment.
38. Claimants deposed that their services were
terminated by the management 28.32010 without any notice.
Out of facts unfolded by the claimants, it stood crystallized
that neither notice nor pay in lieu thereof nor retrenchment
compensation was paid to them by the management.
Therefore, retrenchment of their service is violative of the
provisions of section 25-F of the Act. The management
had failed to project that the case of the claimants is an
exception to the general rule. No evidence was brought
over the record that service of the claimants were engaged
dehors the rules. It is not the case that the names of the
claimants were not sponsored by the employment exchange
when they were initially engaged by the management. In
such a situation, this Tribunal cannot reach a conclusion
to the effect that case of the claimants is an exception to
the general rule and relief of reinstatement in service may
not be awarded to them. I am of the considered opinion
¹Hkkx II—[k.M 3(ii)º
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2489
that the claimants could bring it over the record that they
are entitled to relief of reinstatement in service with
continuity.
39. No evidence was brought over the record by the
claimants to establish that they made efforts but could not
secure a job. There is complete vacuum of evidence to the
effect as to whether claimants remained gainfully employed
in the intervening period Absence of evidence on the issue
of gainful employment make me to comment that the
claimants could not show a case of award of back wages
for the intervening period. Resultantly, it is ordered that
the claimants are entitled to reinstatement in service with
continuity and all consequential benefits, except the back
wages. An award is, accordingly, passed in favour of the
claimants and against the management. It be sent to the
appropriate Government for publication.
Dated : 03.02.2014
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 946.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u bafLVV~;wV
vkWQ isVªksfy;e ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k ,oa Je U;k;ky;&2] fnYyh ds iapkV ¼lanHkZ la[;k
89@2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 21@02@2014
dks izkIr gqvk FkkA
[lañ ,y&42011@175@2011&vkbZvkj ¼Mh;w½]
ih-ds- os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 946.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947) the Central
Government hereby publishes the award (I.D. No. 89/2012)
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 Indian Institute of Petroleum and their
workman, which was received by the Central Government
on 21.02.2014.
[No. L-42011/175/2011-IR (DU)]
P.K. VENUGOPAL, Section Officer.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
CUM-LABOUR COURT-II, DELHI
Present : Shri Harbansh Kumar Saxena
ID No. 89/2012
Sh. Hitler Singh Bisht,
Versus
Indian Institute of Petroleum
NO DISPUTE AWARD
The Central Government in the Ministry of Labour
vide notification No. L-42011/175/2011-IR(DU): dated
17.02.2012 referred the following Industrial Dispute to this
tribunal for the adjudication:—
"Whether the action of management of Indian
Institute of Petroleum in terminating the services of
Sh. Hitler Singh Bisht, helper w.e.f. 30.11.1995 without
complying with the 25F of Industrial Dispute Act,
1947 is legal and justified? What relief the workman
is entitled to?"
On 13.3.2012 reference was received in this tribunal.
Which was register as I.D. No. 89/12 and claimant was
called upon to file claim statement with the 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 11.5.2012.
Against contents of claim statement management
filed Written Statement on 22.01.13.
Against contents of Written Statement workman filed
Rejoinder on 21.5.2013.
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 management of Indian
Institute of Petroleum in terminating the services of
Sh. Hitler Singh Bisht, helper w.e.f. 30.11.1995 without
complying with the 25F of Industrial Dispute Act,
1947 is legal and justified? What relief the workman
is entitled to?
Workman on 12/11/2013 appeared and stated as
follows in his examination-in-chief.
That the workman Sh. Hitler Singh stated that he
want to withdraw his case with permission to file a fresh
case at CAT.
Thus there remains no dispute to be adjudicated by
this tribunal. Which has been referred for adjudication by
Labour Ministry through its notification No. L-42011/175/
2011-IR (DU), dated 17.02.2012.
Moreover this tribunal is not empowered to permit
claimant/workman to withdraw his dispute.
In these circumstances it is a fit case for passing no
dispute Award. Which is accordingly passed.
Dated: 13.02.2014
HARBANSH KUMAR SAXENA, Presiding Officer
2490
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 24 Qjojh] 2014
dkñvkñ 947.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj us'kuy bafLVV~;wV
vkWQ+ QS'ku VSDuksykWth ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; 2] fnYyh ds
iapkV ¼lanHkZ la[;k 68@2000½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 21@02@2014 dks izkIr gqvk FkkA
[lañ ,y&42012@43@2000&vkbZ vkj ¼Mh;w½]
ih-ds- os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th February, 2014
S.O. 947.—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/
2000) 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 National Institute of Fashion Technology
and their workmen, which was received by the Central
Government on 21/02/2014.
[No. L-42012/43/2000-IR (DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-II,
Present : Shri Harbansh Kumar Saxena
ID No. 68/2000
Shri Sanjay Kumar & Ors.
Versus
National Institute of fashion Technology (NIFT).
AWARD
The Central Government in the Ministry of Labour
vide notification No L-42012/43/2000-IR (DU) dated
21.6.2000 referred the following industrial Dispute to this
tribunal for the adjudication:—
"Whether the termination of service of S/Sh. Sanjay
Kumar, Sundeep Kumar, Manoj Kumar Rana, Satish
Kumar, Benjamin Tigga by the management of NIFT,
Ministry of Textile is legal and justified? If not, to
what relief the workmen are entitled and from what
date?"
On 1/8/2000 reference was received in this tribunal.
Which was register as I.D No. 68/2000 and claimant were
called upon to file claim statement with in fifteen days from
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
After service of notice workmen/claimants
Shri Sanjay Kumar, Satish Kumar, and Benjamin Tigga filed
claim statement on 7.8.2003 in this tribunal- Wherein
grounds were taken as follows:—
l. That the deponent-workman was an employee of
the management since 20.7.1996 as attendant of daily
wages. It is submitted that at the time of initial employment,
the recruitment procedure were complied with by
interviewing the workmen, after having satisfied with
eligibility criteria such as Qualification and age and was
appointed. The workman marked his attendance daily. The
workman has put in continuous service of more than 240
days right from 20.7.1996. In fact the service was continuous
till the date of illegal termination on 31.7.1999.
2. That the Management of NIFT is under the control
of Ministry of Textile Govt. of India and its director general
is the Chief and Principal officer of the Management, who
is having the control on Management.
3. That the workman performed the duty with hard
labour and diligently and never given any chance of
complaint in the Management nor there/was any complaint
against any of the workmen regarding his work and duties.
4. That in colorful exercise of powers, the
Management continued to issue the extension letters for
their services rather to regularize their services even after
the completion of 240 days of the regular services of the
workmen and upto 3 year. The services of the workmen
were continuous till the date of illegal termination on
31.07.1999. Like other workmen numbering about 71 who
are still continuing in the services of the Management, the
services of the workmen were extended from time to time.
The action of the Management in continuing the workmen
and other as temporary Attendant right from 1996 and not
making them permanent is unfair labour practice. The very
continuation of employment itself is a proof of existence of
vacancies. Termination of services of the workmen herein
and continuing with other similarly situated persons in the
services would amount to unfair labour practice,
discrimination and arbitrary exercise of power. The
management being a "State" under Article 12 of the
Constitution of India, its action is hit by Article 14 and 16
of the Constitution.
5. That under the guise of Management policy and
under the colorful exercise of powers, the Management
have illegally terminated the old services of the workmen
w.e.f. 31.7.1999 without any prior notice of information
rather to regularize their service. The action of the
Management in terminating the services of the workmen
herein was in gross violation of Sec., 25F of I.D. Act in so
far as no notice, or notice pay or retrenchment
Compensation was given to them at the time of termination.
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Hence the termination of the workmen w.e.f 31.7.1999 being
retrenchment is void ab initio.
5A. That many workmen were seniors, as is evident
from the list of Regular & Daily wages attendant as on
15.1,1999 of the management. The names appearing at Serial
No. 35 to 71 are juniors to the workmen, as their names are
appearing above serial Number 35 . Hence the principle of
'Last Come First Go' was not followed while terminating the
services of the workmen. Therefore, the termination is illegal,
invalid, unjustified and unfair labour practice and is in gross
violation of Sec. 25F of I.D. Act, 1947.
5B. That in the third week of July 1999, the
management pressurized and threatened to terminate the
services of the workmen, if they do not accept to work on
contract basis. The workmen objected to the pressure and
threat held out to them and did not accept to become a
contract employee. Therefore by way of victimization and
vindictive attitude, the management executed its threat by
illegally terminating the services of the workmen. Therefore,
the termination on 31.7.1999 is illegal and invalid being the
result of victimization and vindication attitude.
5C. That the Management put pressure and held out
threat to terminate the services of the workmen, if they did
not accept the employment on contract basis. The
Management issued letter of termination dated 26.7.1999
terminating the services w.e.f 31.7.1999 at the close of the
working hours. It is submitted that there was requirement
of workmen, as three workmen were otherwise entitled to
continue till 31.12.1999, as per extension order dated
7.7.1999. Instead of regularizing the services of the workmen
after prolonged continuous services and paying them the
regular pay scales, changing the condition of services as
contract employee is without notice under Sec. 9-A of I.D.
Act, 1947 is illegal and invalid, and also would amount to
unfair labour practice. The Management did not give any
Notice under Section 9-A of the I.D. Act, 1947, Termination
of services in these circumstances is illegal. The workmen
filed a Civil Suit on 29.7.99 for declaration, permanent and
Mandatory injunctions against the order of termination.
Since the Management took objection as to the
maintainability of efficacious alternate remedy under I.D
Act, 1947, the workmen withdrew the suit on 27.3.2001 on
legal advice. Immediately thereafter raised industrial
dispute against termination of their services.
5D. That the scale of pay of attendant as of June
1999 was 2550-55-2660-60-3200. As against the proper pay-
scale, the workmen were paid only Rs. 82-30 per day and
the wages were paid every month. There was no paid weekly
holidays. No wages was paid for Sundays and other
holidays. No bonus was paid. No leave facilities was
extended. However, Provident fund contribution were
deducted @ of 10% initially and thereafter @ 12% later on
and the wages paid to the workmen."
5E. That the management regularized several similarly
situated workmen in the services, To say, the persons
appearing in the list upto Serial No. 29 were regularised in
the services before October, 1998 on the dates mentioned
in the list. Hence workmen are also entitled to be regularized
and are to be treated at par with them.
7. That in this way the management had illegally and
with wrongful intentions adopted the unfair labour practice,
victimization and pick and choose policy against the
workmen. The management had also adopted the unfair
labour practice as defined in the fifth schedule sub-clause
10 of the I.D, Act, 1947 which reads as under:
"To employee workmen as 'Badlis' casuals or
temporaries and to continue them as such for years,
with the object of depriving them of the status and
privilege of permanent workmen".
8. That the above said action of the management are
highly illegal, unjust, unfair, unconstitutional ultravirous,
anti-labour, and against all the cannons of law. The
management has no right to adopt the policy of
victimization, discrimination and pick and choose policy in
such as illegal manner against the workmen. All the workmen
have illegally been victimized at the stage when they were
entitled to become permanent employee.
9. That all the workmen are having the burdon of
their families , who are on road in starving position since
the management had illegally terminated them from their
old services while the other counter parts/colleagues/
employees have been appointed on the permanent post of
attendant.
10.That a notice of demand dated 27.9.1999 was duly
sent to the management by Regd. Post, which was duly
received by the management but the management
deliberately did not pay any heed toward the same and
were adamant on its illegal designs.
11.That thereafter, having no other efficacious
remedy the workmen were compelled to file their case for
reinstatement before the Conciliation Officer, Sh. Khushal
Singh, A.L.C. (Central) on 26.10.99 where the case was heard
for 7 or 8 times and the Ld. Conciliation Officer persuaded
the management that it is a clear case of illegal termination
and the management should reinstate the workmen on their
old services but the management did not pay any heed
towards the said advice of the Ld. Conciliation Officer in
the colourful exercise of powers and to conceal their illegal
acts, hence this claim.
12. That the Central Government, Ministry of Labour/
Shram Mantralaya, after considering the facts of the whole
case and the illegal acts of the management, has referred
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the present dispute to this Hon'ble Court by framing the
following issue:—
"Whether the termination of service of S/Sh. Sanjay
Kumar, Sundeep Kumar, Manoj Kumar Rana, Satish
Kumar Benjamin Tigga by the management of NIFT,
Ministry of Textile is legal and justified? If not, to
what relief the workmen are entitled and from what
date?".
13. That as per the facts and circumstances of the
case the workmen has made out a clear case of illegal
termination against the Management and they are entitled
for reinstatement on the post of Attendant with effect from
1.8.1999 with full back wages and other arrears and
allowances.
14. That all the workmen are unemployed since their
illegal termination by the management.
It is, therefore, most respectfully prayed that an Award
may pleased be passed in favour of the workmen and against
the Management thereby directing the Management to
reinstate the services of the workmen since their date of
illegal termination i.e. 31.7.99 with full back wages and other
arrears and allowances in the larger interest and equity.
In reply to claim statement management filed
Written Statement on 13.10.03. Wherein it is submitted
as follows:—
A. That the dispute raised by the workmen is a
frivolous and vexatious dispute. The present
dispute is barred since the workmen had already
raised the said dispute by way of suit bearing No.
782/99 titled 'Sanjay Kumar & Ors. Vs. NIFT' which
is presently pending in the court of Sr. Sub Judge,
Tis Hazari, Delhi.
B. That the present court does not have the
jurisdiction to deal with the present dispute since
the claimants are not "workmen" as defined under
section @ (s) of the Industrial Disputes Act, 1947.
The National Institute and is not an "industry" as
defined under section 2(j), Industrial Disputes Act,
1947 because it is a teaching institute and is not
any business, trade, undertaking manufacture or
calling of employees, NIFT is a fashion technology
College which has been set up to impart
specialized education in this field. As such, only
teaching and consulting staff is employed
alongwith certain Class IV officials to carry out
the day to day work requirements.
C. That the present claim has been filed by the
dissatisfied attendants. It is submitted that the
order of the management dated July 26, 1999 has
been passed pursuant to a policy decision taken
by the management of the institute . The services
of the workmen was not terminated but the
conditions of service were sought to be changed
in view of the fact that it was thought beneficial
for both the attendant and the management of the
institute to engage their services on contract
basis.
D. It is submitted that the services of the said persons
have not been illegally terminated. The said
persons were employed on a daily wage basis
and their employment was on a day to day basis.
The said persons were given the terms and
conditions of appointment in which it was clearly
stipulated that the services of these persons was
liable to be terminated without giving any reason
by given a one month's notice. However, in an
effort to give better conditions of service, all daily
wagers were given the option of changing their
basis of employment on contract basis, where the
monthly remuneration worked out to be higher
than the monthly wages of the workers. Without
prejudice to the above, it is submitted that the
Applicants were appointed on daily wage basis
on the condition that their service could be
terminated without assigning any reason. It was
also stipulated that in the event one months notice
period is not given, the pay in lieu thereof can be
given. It is submitted that upon the July 26, 1999
notice being given to the Applicants, the
Applications did not present themselves to be
appointed on contract basis. They absented
themselves from work, and have not exercised
the option of taking the new more beneficial service
terms. Further, all other persons falling in the same
category are working on the new service
conditions, and thus no right arises in the favour
of the Applicants.
E. It is most humbly submitted that it is well settled
proposition of law that on expiry of the contractual
term an employee cannot claim to continue
beyond the period of contract and /or regularized
irrespective of the fact that they are given
extension from time to time which is recently
ratified by various courts in their decisions
including the Supreme Court of India. The
management craves leave of this Hon'ble Forum
to refer to and rely upon the case law in this
respect at the time of hearing.
F. These persons were not employed against any
posts of permanent nature in as much as the work
done by them differed depending upon the
requirements of the Institute. It is submitted that
employees against the said posts are already
recruited, and there is no vacancy for any
permanent employee in this category. It is further
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submitted that the Institute is a National Design,
Management and Technology College which is
highly specialized in nature and thus the need of
attendants is not very high. The institute is akin
to College where mostly classes are held and no
other kind of labour is required be done. Further,
the job of attendants is extremely fluid and they
are shifted from one department to another
depending upon the need. The nature of the job
is mostly temporary. The Institute is famous for
holding national level Fashion Shows,
Workshops, Seminars, etc. It is at such times that
most of these attendants are required. Thus they
are hired at times when their services are required
on a daily wage basis. In order to maintain a check
on the expenditure of the Institute, surplus
attendants are not recruited.
G. That however, at the time of recruiting the
concerned persons it was made clear to them that
their services were liable to be terminated at any
time by giving them one month notice. The
relevant term of the appointment of the said
persons reads as follows:
"... Your appointment will be purely on a daily wage
basis and can be terminated at any time by giving
one month notice without signing any reasons either
side...."
A copy of the appointment letters issued to the said
persons is annexed hereto and marked as
ANNEXURE-A (Colly).
These persons were thus provided their services on
a day to day basis. They were paid on the basis of
daily wages. As such the persons have no cause of
action in the present case.
H. From the above it is clear that the action of the
Management was not malafide. In fact, all other
daily wages have been absolved on a contract
basis vide orders dated 2.8.99, 3.8.99, 5.8.99, 9.8.99
and 11.8.99. Only the employees before this
Hon'ble Forum were not appointed since they did
not approach the institute and chose to first file a
civil suit as slated earlier, which is still pending
with Tis Hazari Courts and now approached this
Hon'ble Forum. Copies of the appointment letters
dated 2.8.99, 3.8.99, 5.8.99, 9.8.99 and 11.8.99. is
annexed hereto and marked as ANNEXURE-B
(COLLY):—
It is therefore respectfully submitted that the present
claim raised by the employees should be dismissed
outrightly the same is an abuse of the process of court
because they have already approached the civil court for
the same relief which is still pending and they should not
be allowed to run parallel litigations one before the civil
court and second before this Hon'ble Forum at the same
time.
I. That the question for determination before this
Hon'ble Tribunal is limited to the extent whether
the services of the Persons were terminated
illegally or not. It is not the case here that there
are any permanent vacancies or there is any unfair
trade practice or the persons ought to be
regularised as alleged. The pleas raised by the
Persons in respect of regularization, unfair labour
practice etc. are not triable by this Hon'ble
Tribunal. Therefore the plea of regularisation,
unfair trade practice etc. raised are beyond the
jurisdiction of this Hon'blc Tribunal.
J. That as per the settled proposition of law, in case
of contract employee whose services were
terminated after expiry of the contract period, there
is no need to comply with condition of notice as
per Section 25F of the Industrial Dispute Act, 1947.
Therefore, there was no violation of Section 25 F
of the Industrial Dispute Act, 1947 as alleged.
PARAWISE REPLY:
1-2 The contents of paras I and 2 of the statement of
claim are not denied being matter of record. It is submitted
that the appointment of the said employees was on purely
daily wage basis which was made clear in the terms and
conditions at the time of their appointment terminable
without assigning any reason at one months notice or in
lieu thereof.
It is respectfully submitted that initially the said
employees were engaged on contract basis that therefore
their status is of a contract employee. However, the contract
was renewed for further period but as per the settled law,
renewal of contract does not confer any vested right in
favour of the persons and termination of their services
after completion of the contract period is held to be valid
and legal by the Apex Court as well a High Court in a
catena of judgments.
3. The contents of para 3 of the statement of claim
need no reply.
4. With reference to para 4 of the statement of claim,
it is denied that the management continued to issue
extension letter for the services of the concerned employee
in colorful exercise of power. Since the nature of job of the
said employees required to be done by them depended
upon the need and requirement at a particular time, these
persons were employed on contractual basis by the
Institute on daily wage. Thus, there arises no question of
regularizing the services of these persons arises in the
present case. It is settled position in law that on expiry of
contractual term of employee, the employee cannot claim
to continue beyond the period of contract and/or
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[PART II—SEC. 3(ii)]
regularised irrespective of the fact that they are given
extension from time to time which is recently ratified by
various courts in their decisions including the Supreme
Court of India.
It is respectfully submitted that there was no unfair
labour practice on the part of the Management, as alleged
or at all. It is submitted that there were no sanctioned posts
and the persons were employed for seasonal work on
contract basis. Therefore, continuation of the persons on
contract basis would not create any right in favour of
regularization or otherwise. As far as continuation of the
other similarly placed employees is concerned, it is
submitted that they are also working on contract basis and
when the Persons were offered the same work on contract
basis, for he reasons best known to them, they denied to
accept the same which was also made clear by the
Management during the conciliation proceedings pending
before the Conciliation Officer. Therefore when the Persons,
on their own will refused to work with the Management, it
does not lie in their mouth to contend that allowing other
similarly place persons to continued is unfair trade practice
or violative of Article 14 and 16 of the Constitution, as
alleged.
5. With reference to para 5, it is denied that the
Institute illegally terminated the services of the concerned
employees with effect from 31.7.99 without prior notice or
information. Since the said employees were employed on a
daily wage basis, their appointment was liable to be
terminated at any time without assigning any reasons.
It is denied that there was any violation of Section
25F of the Industrial Disputes Act. It is respectfully
submitted that as per the settled proposition of law, in case
of contract employee whose services were terminated after
expiry of the contract period, there is no need to comply
with the condition of notice as per Section 25F of the
Industrial Dispute Act, 1947. Therefore, there was no
violation of Section 25F of the Industrial Dispute Act,
1947, as alleged.
5A. In reply to the contents of para 5A it is
respectfully submitted that as the persons were employed
on contract basis, their terms of conditions were governed
by their respective contract and there was no provisions
for keeping a seniority list for the persons engaged on
contract basis. Therefore, there was no violation of the
principles of "Last come first go".
5B-C That the contents of para 5 B and 5 C of the
claim are wrong, incorrect and untenable. It is vehemently
denied that the Management pressurized and threatened
to terminate the Persons, if they do not accept to work on
contract basis, as alleged or at all. On the contrary, the
persons from their initial appointment were engaged on
contract basis and here was no question of pressurizing
them to work on contract basis and therefore, in view of
the documents placed by the Management wherein it is
apparent that the Persons were working on contract basis
from their initial appointment, this submission of the Person
is nothing but to mislead this Hon'ble Tribunal. As far as
the regularization of the persons is concerned, it is reiterated
at the sake of repetition that as per law working on contract
basis for long period does not create a right for
regularization. It is farther submitted that as per the terms
of the appointment letter, the said employees were governed
by their respective contract of employment and thus
termination of the persons was in accordance with their
contract and there was no violation of Section 9 A of the
I.D. Act as alleged.
5D. In reply to the contents of para 5D of the claim, it
is submitted that the persons were duly paid their dues as
per their contract at the rate prescribed under the Minimum
Wages Act. It is respectfully submitted that the
Management is an autonomous body governing under the
Ministry of Textile therefore, it has to follow all the law
including Minimum Wages Act. Therefore, the wages paid
to the persons were fixed as per law and there was no
violative of any law at any point of time.
5E. In reply to the contents of para 5E of the claim, it
is submitted that none of the similarly situated persons
were regularised, as alleged, on the contrary, it is submitted
that services have been hired on the basis of a short terms
contract basis instead of daily wage basis. Since no
permanent posts exist against which these persons can
perform their duties, it cannot be said that the services of
any of the similarly placed employees has been regularised.
6. With reference to para 6, it is denied that the persons
were performing the duties of permanent nature and that
various other similarly placed employees were regularised.
As stated above in the preliminary submissions, none of
the persons were performing duties of a permanent nature
and more so no permanent posts exist in the Institute where
they can be accommodated. Other employees have not
been regularized and their services have been hired on the
basis of a short term contract basis instead of daily wage
basis. Since no permanent post exist against which these
persons can perform their duties, it cannot be said that the
services of any of the similarly placed employees has been
regularised.
7-8 With reference to the contents of para 7 and 8 of
the statement of claim, it is denied that the Institute has
adopted unfair labour practice, victimization and has
adopted pick and choose policy against persons. It is
further denied that the Institute also adopted unfair labour
practice as defined in the 5th Schedule, sub-clause (10) of
the Industrial Disputes Act, 1947. It is reiterated that since
no permanent posts exists against which these persons
can perform their duties, it cannot be said that the service
of any of the similarly placed employees has been
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2495
regularised/or the persons were entitled to become
permanent employee as alleged or at all.
9. The contents of para 9 are not replied hereto since
they are not relevant to the crux of the dispute herein.
10. That the contents of para 10 of the statement of
claim are denied in as much as the Management did not
willfully choose to ignore the said notice.
11. With reference to para 11 of the statement of
claim, it is submitted that before approaching the
Conciliation Officer, the persons in the present matter, filed
a civil suit in Tis Hazari Court for mandatory injunction
which is still pending, therefore the persons could not be
allowed to say that they have not exhausted any alternate
remedy they have. It is submitted that the claimants are
availing two remedies at one time. On one side they have
filed a civil suit which is still pending and on the other side
they are taking recourse under the provisions of the Act
which is totally wrong and incorrect and same amounts to
abuse of the process of the court and concealment of facts
from this Forum. The claim of the claimant should be
rejected outrightly on this ground itself.
12. With reference to the contents of para 12 of the
statement of claim, it is submitted that the reference of the
present dispute is obtained by concealment of facts that
they are already pursuing civil remedy before the civil
courts and the same is still pending apart from the present
dispute before this Hon'ble Forum. Therefore view of the
fact that the matter is sub-judice, the present reference is
not maintainable at all.
13. With reference to the contents of para 13 of the
statement of claim, it is denied that the service of Applicants
was terminated. Without admitting, but assuming that the
services of the Applicants was terminated, it is submitted
that the termination of the claimant is legal and on valid
and cogent grounds. It is submitted that since the
appointment of the persons was purely on daily wage basis,
their appointment could not be extended beyond the period
of the contract. Therefore, the present claim of the persons
is liable to be rejected and no relief as prayed for be allowed
to the workman in view of the factual as well as legal position
discussed in the preliminary objections hereinabove.
14. That the contents of para 14 of the statement of
claim are denied for want of knowledge and the persons
are required for furnish strict proof thereof.
In view of the facts and circumstances stated
hereinabove, it is most respectfully prayed that the present
claim of the claimant be dismissed with heavy exemplary
costs being void, illegal, malafide, vexatious being filed
without any cogent and valid grounds for regularization of
their contractual appointment which could be regularised
beyond the period of contract as per law. It is prayed
accordingly.
Workmen/claimants Shri Sanjay Kumar, Satish
Kumar, and Benjamin Tigga in reply to aforesaid written
statement filed rejoinder wherein they stated as follows:—
REPLY TO PRELIMINARY SUBMISSIONS :
A. That the contents of para No. A are wrong and
denied. There is no bar as alleged in maintaining the present
claim on behalf of the workmen. A civil suit for declaration
filed by the workmen was withdrawn on 27.3.2001. Hence
the allegations as made are misconceived.
B. That the contents of para No. B are wrong and
denied being misconceived. The claimants are workmen as
defined under section 2(s) of the I.D. Act and the
management is an Industry as defined under Section 2(j) of
the Act. Hence the allegations as made are wrong and
denied.
C That the contents of para No. C are wrong and
denied. The services of the workmen have been illegally
terminated. The allege policy to terminate the services is
illegal and invalid. There can be no policy in negation of
the provisions of the Industrial Dispute Act. At no point of
time the Management ever issued any notice in terms of
the Section 9A of the I.D. Act. In any event in the given
facts and circumstance the alleged change of service
conditions is nothing but unfair labour practice. The
Management committed unfair labour practice in retaining
and absorbing the junior while terminating the services of
the workmen. The alleged change of condition of service
was unfair labour practice to perpetuate illegality and unfair
labour practice so as to exploit the weak bargaining power
of the workmen. Hence the allegations have no merit.
D. That the contents of para No. D are wrong and
denied. The workmen had been employed continuously
for longer period under the guise of daily wagers and
thereby the management committed unfair labour practice
though they were employed on permanent nature of jobs
continuously. The absorption of the juniors to the workmen
herein itself indicative of the fact that there were permanent
vacancies in existence. The alleged change of terms and
conditions were unfair labour practice. Perpetuating the
practice of daily wagers/temporary employees is in negation
of the object and scope of I.D. Act and would amount to
unfair labour practice. The management in one form or
another continued/or allowed to continue daily wagers/or
on contract basis,/or on temporary basis against permanent
requirement. This is nothing but unfair labour practice of
the Management to exploit the working class. The
Management wanted the workmen to sign on contract
employment which was unfair and hence the workmen
refuse to do so and insisted for regularization/absorption
in the employment itself as permanent employees of the
Management and sought scale of wages/other service
benefits. The Management was so adamant and threatened
to terminate the services if the contract employment for a
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[PART II—SEC. 3(ii)]
fixed sum was not accepted by the workmen. Hence the
management committed unfair labour practice by victimizing
the workmen for their act of not accepting the employment
on contract basis. The threat of the management has
become a reality by terminating the services of the workmen
illegally vide letter dated 26.7.1999 w.e.f. 31.7.1999.
E. That the contents of para No. E are wrong and
denied being misconceived. Continuing with employment
on contract basis inspite of permanent requirement is itself
an unfair labour practice and is in negation of the settled
law. The management persisted and pursued the policy of
contract employment so as to deny the various legal
benefits available in law to the workmen. Perpetuating
contractual employment as is being pursued by the
management is to deny the deprive the workmen from the
various service benefits available to them in law.
F. That the contents of para No. F are wrong and
denied. The workmen were continuously working right from
1996 onwards though they were called daily wagers, against
permanent requirements and vacancies. Continuous
employment itself is indicative of existence of permanent
requirements and vacancies. Instead of making the
workmen as permanent employees and giving them various
service benefits as available in law, asking them to accept
employment on contract basis and thereby denying them
the permanent status and ultimately terminating their
services illegally for not towing to the pressures and threat
held out by the management to the workmen, renders the
action of management in terminating the services as void
and illegal. The rest of the allegation are wrong and denied
being misconceived.
G. That the contents of para No. G are wrong and
denied. That management has committed unfair labour
practice as stated in the claim and this Rejoinder. The
allegations that the workmen were made clear and their
services were liable to be terminated is wrong and denied,
which is otherwise an unfair labour practice. In view of the
weak bargaining power of the workmen, the management
incorporated such a reasonable untenable clauses in the
orders of appointments which is nothing but unfair labour
practice.
H. That the contents of para No. H are wrong and
denied except to the admission that many workmen have
been absorbed on contract basis which is an unfair labour
practice. Since the workmen were aggrieved by the action
of the Management they resorted to the legal remedy by
filing civil suit which was ultimately withdrawn as the civil
suit was barred by the provisions of the I.D. Act as the
workmen are governed by the I.D. Act. It is submitted that
the present claim is legal, valid and is maintainable. Rest of
the allegations are wrong and denied being misconceived.
I. That the contents of para No. I are wrong and
denied. The very continuous employment itself is a proof
of existence of permanent vacancies and still employing
the workmen as daily wagers/contract basis is unfair labour
practice. Rest of the allegations are wrong and denied being
misconceived.
J. That the contents of para No. J are wrong and
denied being misconceived. The very practice of continuing
as daily wagers/or contractual employees for years together
is unfair labour practice. Hence the actions of the
Management are violative of the provisions of the ID Act.
The termination of services of the workmen is also in
violation of the Section 25F of the I. D. Act.
PARAWISE REJOINDER
1. to 2. That the contents of para 1 to 2 of the WS are
wrong and denied. The contents of corresponding paras
of the claim are reiterated and reaffirmed. The management
committed unfair labour practice by keeping the workmen
as daily wagers against permanent requirements and
vacancies and thereby exploited them. The renewal of
contract etc. as alleged in these para are unfair labour
practice in the given facts and circumstances of the case.
Hence the allegations are wrong and denied.
3. That the contents of para 3 of WS needs no reply
as the corresponding para 3 of the claim are not disputed.
4. That the contents of para No. 4 are wrong and
denied. The contents of para 4 of the claim are reiterated
and reaffirmed. There was permanent and continuous
requirements and with a view to deny permanency and
other service benefits attached to permanent employment
the Management perpetuated daily wage/contract
employment system which is nothing but unfair labour
practice. The actions of the management are also in
negation of the settled principles to take a plea that there
was no sanctioned post and heat the workmen were
employed on seasonal work as alleged, as the employment
was continuous. The Management forced the workmen to
accept the unfair conditions and thereby wanted to continue
the contract employment forever which was not acceptable
to the workmen. As a consequence, the services of the
workmen were terminated illegally and admittedly the
management did not comply with section 25 F of the I.D
Act. Admittedly the Management absorbed juniors to the
workmen after termination of services. This too indicates
the unfair labour practice of the management.
5. That the contents of para 5 of the WS are wrong
and denied. The contents of para 5 of the claim are reiterated
and reaffirmed. The workmen were illegally terminated in
violation of Section 25 F of the I.D. Act. There was no
notice or notice pay or retrenchment compensation given
to the workmen. The practice of contract employment itself
is illegal and is an unfair means to exploit the workmen.
5A to 5C That the contents of paras 5A to 5C of the
WS are wrong and denied. The contents of paras 5A to 5C
of the claim are reiterated and reaffirmed. The allegations
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that the term of contract would govern the employment is
misconceived. Perpetuating the contractual employment
is itself unfair labour practice and in violation of the very
object and scope of the I.D. Act. A right had accrued to the
workmen for permanent employment in the Management
as a result of continuous employment and in view of the
unfair labour practice adopted by the management. Rest of
the allegations are also wrong and denied.
5D. & 5E That the contents of para 5D and 5E of the
WS are wrong and denied. The contents of para 5D and 5E
of the claim are reiterated reaffirmed.
6 to 14 that the contents of paras 6 to 14 of the WS
are wrong and denied. The contents of paras 6 to 14 of the
claim are reiterated and reaffirmed. Continuous employment
of workmen itself is a proof of permanent requirement and
permanent vacancies in the Management. It was the
management which adopted unfair labour practice by
keeping the workmen and others as daily wagers/contract
employees. The Civil Suit has already been withdrawn.
The actions of the management in terminating the services
of the workmen is illegal , invalid and in violation of the
provisions of the I.D. Act.
It is prayed to the Hon'ble Tribunal that Award be
passed holding that the workmen are entitled to
reinstatement in service with full back wages and other
service benefits.
On the basis of pleadings of parties following issues
have been framed by my Ld. Predecessor on 9.9.2004:—
1. Whether this court has jurisdiction to entertain
& try this case/reference? If so its effect? OPW.
2. Whether the contract between the workman/
claimant and management ? If any has expired? If so its
effect? OPW
3.1n terms of reference ? OPW.
In support of their case workmen Shri Sanjay Kumar,
Satish Kumar, and Benjamin Tigga filed their affidavit. They
tendered their affidavit. Thereafter they were cross-
examined by A/R for the management.
In support of its case management filed affidavit of
MW1 Anil Kumar, His affidavit was tendered by
management MW1 Anil Kumar was cross examined by Ld.
A/R for the workmen.
Written arguments on behalf of the workmen.
Wherein they stated as follows:—
1. That the workmen Sh. Sanjay Kumar, Satish Kumar
and Benjamin Tigga have filed the present industrial
dispute against the management of NIFT stating therein
that they were appointed with the management as attendant
w.e.f. 20.7.1996 after following a due recruitment procedure
and continuously worked with the management for more
than three years and their services were abruptly terminated
by the management vide order dated 26.7.1999 w.e.f.
31.7.1999. It is further submitted that the workmen have
put more than 240 days in every calendar year and they
were seniors and the principles of last come first go was
not followed and the juniors were retained however their
services have been terminated because they refused to
accept change in their service condition and work on
contract basis.
2. That the management filed Written Statement and
took some contradictory stands and submitted that the
services were not terminated but were sought to be changed
in view of the fact that it was thought beneficial for the
claimants to work on contract basis (para C preliminary
objection written statement). It was further submitted by
the management that the action was taken to maintain a
cheque on the expenditure of the institute and surplus
attendants are not recruited (para F written Statement
preliminary objection). However in para H, the management
admitted that they have recruited the daily wagers after the
termination of the claimants. The workmen examined
themselves as WW-1, WW2 and WW3 and exhibited
documents of their appointment and termination, legal
notice. Nothing material could have come out of their cross
examination.
3. That the management on the other hand examined
one Sh. Anil Kumar as MW1, who was working as assistant
director with the management. MW-1 in his cross
examination admitted that he joined the management only
in the year 2006 and prior to this he never worked with the
management and hence it is absolutely clear that he had no
personal knowledge of the case. He further admitted that
the claimants worked with the management w.e.f. 20.7.1996
to 31.7.1999 continuously without any break and completed
240 days. He further admitted that the wages of all the
workmen were paid on monthly basis. It was further admitted
by MW-1 that no notice of retrenchment was served and
no notice pay was given to the claimants nor any
retrenchment compensation was offered and seniority list
was also not prepared. It was further admitted by MW1
that no notice U/s 9-A of I.D. Act was issued to any of the
workmen to change the service condition. From the
testimony of MW-1, it is clear that the claimants have
worked for more than 240 days and their services were
terminated without assigning any reason and without
giving any retrenchment compensation and notice pay or
notice. No charge sheet or how cause notice was issued.
The termination was without any notice U/s 9-A of I.D.
Act.
4. In "Krishan Singh V/s Executive Engineer, Haryana
State Agriculture Marketing Board, Rohtak 2010, LLR 450",
the Hon'ble Supreme Court has held that where claimant
has put more than 240 days of service and the termination
of the services was without providing of retrenchment
compensation and notice pay or pay in lieu of notice, the
termination is illegal and the claimant is liable to be
reinstated with back wages.
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[PART II—SEC. 3(ii)]
5. In "Haryana Roadways V/s Ramesh Kumar 2009,
LLR 754", the Hon'ble Delhi High Court has held that if
principle of first come last go is not followed and
retrenchment compensation not paid, the termination of
claimants is highly illegal.
6. In "Ratan Singh V/s Union of India LLJ 1998",
supplementary, volume 3, the Hon'ble Supreme Court has
held that if the claimant has worked continuously for more
than 240 days in a calendar year, he is entitled to protection
U/s 25-f and it cannot be denied nearly on the ground that
he was a daily wager.
7. In "Suraj Pal V/s P.O.L.C No. 111", Delhi High Court
2002, LLJ, Part-III, it has been held that continuous service
of 240 days does not mean immediately preceding date of
retrenchment but it can be any year.
8.The summary of all these judgments is that if the
claimant had worked more than 240 days in calendar year,
he is entitled to protection U/s 25-f of I.D. Act and if the
termination is without following the procedure laid down
U/s 25-F, the same is violative and is illegal and the claimants
are liable to be reinstatement with full back wages. The
claimants have duly submitted in their evidence that they
are unemployed and there is no evidence on record contrary
to the said facts and there is no evidence of their gainful
employment and hence they are liable to be reinstated with
full back wages.
9. That the management has himself admitted that
after the termination of the services of the claimants, they
have appointed fresh workers on the same post clearly
shows that the management required the services of the
claimants. Since no seniority list was prepared, no
compensation was offered or paid, the procedure as laid
down in Section 25-F is violative. It is further not the case
of the management that the engagement of the claimants
was against statutory rules or the post was not sanctioned
or there is no vacancy or the claimant is in gainful
employment. Hence the termination is absolutely illegal.
10. That the management has tried to make a change
in service conditions of the claimant by putting them on
contract basis and as required U/s 9-a of I.D. Act, the same
can be done only after a notice and in the present case
admittedly no notice was served to the claimants. The
management has also tried to put the claimant on contract
basis, which was not at all acceptable to the claimant
because the same is violative of various labour laws as the
claimants have been working for more than three years.
Moreover, the Hon'ble Supreme Court in "Bhilwara Dugdh
Utpadak Sahkari S. Ltd. V/s Vinod Kumar Sharma" LLR
2011, Volume XLIT, 1079 has held that the appointment on
contract basis is exploitation of labour and hence in the
present case, the very offering of the appointment on
contract basis is against the law and is liable to be
condemned. The Hon'ble Supreme Court in the said
judgment has held that labour statues were meant to protest
the employees and there has been a tendency on the part
of managements by showing the workers on contract or
short term or casual although they have been doing regular
work and hence globalization/liberalization cannot be at
the human cost of exploitation of workers.
11. That the claimants humbly pray that the Hon'ble
Court may kindly be pleased to pass an award in favour of
the claimants and against the management and direct the
reinstatement of the claimants with full back wages and
continuity of service.
For this act of kindness, the claimants shall always
remain grateful to this Hon'ble Court.
Written Arguments on behalf of management.
Wherein it stated as follows:—
Preliminary Submissions:—
I. That the claim has been filed by the workman
alleging illegal termination and praying for direction from
this Hon'ble Tribunal to direct the management to reinstate
the services of the workman.
II. That National Institute of Fashion Technology (in
short called hereinafter as "NIFT") was set up in the year
1986 for the purposes of imparting high quality of education
in the field of fashion technology and ancillary areas. That
the said Institute is a recognized premier institute of the
country and operates under the aegis of the Ministry of
Textiles, Government of India. The said Institute is a well-
reputed Institute, nationally and internationally, where
exemplary standard of education are imparted and
maintained. The said Institute is a national institute with
eight regional centers. The NIFT headquarters is at Delhi,
and there are eight regional centers in Delhi, Mumbai,
Chennai, Gandhinagar, Calcutta, Hyderabad, Rae Bareli and
Bangalore, The eight NIFT centers are directly under the
supervision and control of the NIFT headquarter where all
policies governing NIFT are formulated are implemented.
OBJECTIONS:—
III. That the dispute raised by the workmen is a
frivolous and vexations dispute. The present dispute is
barred since the workmen had already raised the said
dispute by way of a Suit bearing no. 782/99 titled 'Sanjay
Kumar & Ors. V. NIFT before the District Court, Tis Hazari.
IV. That the present court should not take the
cognizance of the present dispute its jurisdiction since the
claimants are not "workmen" as defined under Section 2(s)
of the Industrial Dispute Act, 1947. The National Institute
of Fashion Technology is not an "industry" as defined
under section 2(j), Industrial Dispute Act, 1947 because it
is a teaching Institute and is not any business, trade,
undertaking, manufacture or calling or employers. NIFT is
a fashion technology College which has been set up to
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impart specialized education in this field. As such, only
teaching and consulting staff is employed along with
certain Class IV officers to carry out day to day work
requirements.
SUBMISSION OF FACTS AS PER RECORDS.
V. It is most respectfully submitted that the present
claim has been filed by workmen/attendants who were
earlier employed on daily wages basis and their employment
was on a day to day basis.
VI. Further, it is submitted that the workmen were
employed on a daily wage.The said persons were given
the terms and conditions of appointment in which it was
clearly stipulated that the services of these persons was
liable to be terminated without giving any reason by giving
a one month's notice. The copies of the appointment letters
dated 20.7.96. and 9.08.96 and extension letters dated
14.10.96, 19.12.96, 4.9.96, 17.3.98, 29.6.98, 6.1.99 and 7.7.99
are exhibit as EXHIBIT DW1/2 (COLLY).
That however, at the time of recruiting concerned
attendants, it was made clear to them that their services
were liable to be terminated at any time by giving them one
months notice. The relevant term of the appointment of
said attendants reads as follows:—
"...Your appointment will be purely on a daily wages
basis and can be terminated at any time by giving
one month notice without signing any reasons either
side..."
It is pertinent to point out that during cross-
examination, the workmen did not deny the same.
VII. That vide order dated July 26.1999, in an effort to
give better conditions of service, all daily wagers were
given the option of changing their basis of employment on
contract basis, where the monthly remuneration worked
out to be higher than monthly wages of the workers.
VIII. Further, it is submitted that the order of the
employer dated July 26, 1999 was passed pursuant to a policy
decision taken by the employer Institute. The copy of order
dated July 26, 1999 is exhibited as EXHIBIT DW1/1.
IX. Further, it is submitted that the services of the
claimants were not illegally terminated but the conditions
of service were sought to be changed in view of the fact
that it was through beneficial for both the attendants and
the employer to engage their services on a contract basis.
X. Further, it is submitted that on the July 26, 1999, a
notice was given to these attendants but they did not
present themselves to be appointed on contract basis. They
had absented themselves from work, and had not exercised
the option of taking the new more beneficial service terms,
instead they preferred to file the present proceedings,
whereas, all other persons falling in that same category
were absorbed at that point of time for working on the new
service conditions offered at that relevant time. The copy
of notice dated July 26, 1999 has already been exhibited as
EXHIBIT DW1/1.
It is pertinent to point out here that the workmen
have not denied the same in cross examination.
XI. Further, it is submitted these attendants were not
employed against any posts of permanent nature inasmuch
as he work done by them differed depending upon the
requirement of the Institute. Further, the permanent
attendants against the said posts were already recruited,
and there is no vacancy for any permanent employee in
this category.
XII. Further, it is submitted that the Institute is a
National Fashion Technology College which is highly
specialized in nature and thus the need of attendants are
not very high. The Institute is akin to a college where
mostly classes are held and no other kind of labour is
required to be done. Further, the job of attendant is extremely
fluid and they are shifted from one department to another
depending upon the need. The nature of the job is mostly
temporary. The Institute is famous for holding national
level Fashion shows, workshop, seminars etc. It is at such
times that most of these attendants are required on a daily
wage basis. Moreover, in order to maintain a check on the
expenditure of the Institute, surplus attendants are not
recruited.
XIII. Further, it is submitted that due to heavy
surplussage which was creating a financial burden on the
Institute, in July 1999 a policy decision was taken by the
Governing Body of the Institute that the services of all the
attendants working in the Institute on a daily wage basis
would be terminated and that only the attendants who
would qualify the interview held by the Institute, would be
re-employed on a contract basis. This arrangement was
preferred over the last arrangement because an attendant
would be employed on a yearly basis instead of a daily
basis which would lead to certainly of employment for a
particular period for the employee. Even the monthly
remuneration of the employee was stipulated to be Rs.
3000 which worked out to be higher than the monthly wage
of a daily wager which was Rs. 2139.80 Rs. 82.30×26 days,
if calculated as per the prescribed statutory minimum wage.
Thus, when a daily wager is terminated on cogent and
valid reason, there is no grievance that the claimants can
raise. It is also stated that the employer is an autonomous
body governing under the Ministry of Textiles, therefore it
has to follow all the laws including Minimum Wages Act
and thus wages paid to these attendants were fixed as per
law and there was no violation of any law at any point of
time.
XIV. Further, it is submitted that the action of the
employer Institute was not malafide. In fact, all other daily
wagers were absorbed on a contract basis at that time vide
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[PART II—SEC. 3(ii)]
order dated 2.8.99, 3.8.99, 5.8.99, 9.8.99 and 11.8.99, on the
new service conditions offered at that relevant time. The
copies of the letter dated 2.8.99, 3.8.99, 5.8.99, 9.8.99 and
11.8.99, are exhibit as EXHIBIT DW1/3. The daily wagers
before this Hon'ble Forum were not appointed since there
was no vacancy for any permanent employee in this
category and the need of more attendants was not very
high. Moreover, these attendants had not approached the
employer Institute, and instead had chosen to first file a
Civil Suit, which they had withdrawn afterwards on
27.3.2001, in pursuance of the Conciliatory proceedings
before the Asst. Labour Commissioner ©. It is stated that
for the reasons best known to them. The applicants in the
present matter had denied to accept the offer to be recruited
on much beneficial terms of engagement i.e. on contract
basis, as similarly placed to other employees, by the
employer Institute. The employer Institute even tried for
early settlement of the matter vide letter dated 17,1,2000
before the Asst, Labour Commissioner © but applicants
herein denied the same. The copy of the letter dated
17.1.2000 is exhibit as EXHIBIT DW1/4.
XV. Further, it is submitted that if assuming that the
services of the Applicants were terminated and there is
any question for determination before this Hon'ble Tribunal
then it is limited to the extent whether the services of the
present attendants were illegally terminated or not. It is not
the case here that there are any permanent vacancies or
there is any unfair trade practice or the said attendants
ought to be regularized as alleged. It is stated that as per
the settled proposition of law, in case of contract employee
whose services were terminated after expire of the contract
period, there is no need to comply with the condition of
notice as per Section 25F of the Institute Dispute Act, 1947.
Therefore, there was no violation of Section 25F of the
Industrial Dispute Act, 1947, as alleged.
JUDGMENTS RELIED UPON :—
1. [2006 (4) SCALE 197]
SECRETARY, STATE OF KARNATAKA AND
OTEHRS VERSUS UMADEVI AND OTHERS
(A copy of the judgment is annexed herein)
That the Constitutional Bench of the Hon'ble
Supreme Court categorically held in paragraph 24 as follows:
"therefore, consistent with the scheme for public
employment, his 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 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".
It is most respectfully submitted that in view of the
Constitutional Bench Judgment, the workmen have not
been illegally terminated and that they cannot be re-instated
as claimed by the claimants in the present claim.
2. [1997(4) SCC 391]
HIMANSHU KUMAR V1DYARTHI AND OTHERS
VERSUS STATE OF BIHAR AND OTHERS
(A copy of the judgment is annexed herein )
That in this judgment the Hon'ble Supreme Court
categorically held in as follows:
"Every department of the Government cannot be
treated to be an industry. When the appointments
are regulated by the statutory rules, the concept of
industry to that extent stands excluded. The
petitioners were not appointed to the posts in
accordance with the rules but were engaged on the
basis of need of the work. They are temporary
employees working on daily wages. Their
disengagement from service cannot be construed to
be a retrenchment under the Industrial Dispute Act.
The concept of retrenchment therefore cannot be
stretched to such an extend as to cover these
employees. Since the petitioners are only daily-wage
employees and have no right to the posts, their
disengagement is not arbitrary.
It is most respectfully submitted that in view of the
constitutional Bench judgment, the workmen have not been
illegally terminated and that they cannot be re-instated as
claimed by the claimants in the present claim.
Conclusion
Therefore, it is submitted that in view of the above-
stated facts, cross-examinations of the workmen , evidence
of the management, above-made arguments and the above
two judgment cited, the present claim requires to be
dismissed with exemplary cost.
Thereafter I have heard the arguments of Ld. A/Rs
for the parties at length.
Ld A/R's for the parties also filed written arguments
which were introduced on record.
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In the light of contention and counter contentions
I perused the pleadings in statement of claim, written
statement, rejoinder and evidence of the parties. Principles
laid down in the cited rulings and settled law of Hon'ble
Supreme Court and Hon'ble Delhi High Court.
Perusal of reference made to this tribunal shows that
case of 5 workmen was referred for adjudication to this
tribunal.
Out of 5 workers Shri Sundeep Kumar and Manoj
Kumar Rana have not filed any claim statement nor they
adduced any evidence in support of their case. So their
case cannot be considered in want of claim statement and
their evidence.
Workmen Sh. Satish Kumar, Sanjay kumar and
Benjamin Tigga filed their Statement of claim and adduced
their evidence so their case is being decided on the basis
of appreciation of evidence on record in the light of settled
law.
My issue wise finding is as follows.
Issue No. 1
Burden to prove issue No. 1 was on management but
management has adduced no evidence to prove issue
no. l in its favour. Moreover Labour Ministry has made
reference for adjudication to this Tribunal on 21.6.2000.
Against reference dated 21.6.2000 management filed no
writ petition which was the available remedy for its alleged
stand. Hence order of reference has become final. Therefore
management is estopped to say that this Tribunal has no
jurisdiction. Specially in the circumstances when no
evidence was given by management and no ruling cited on
behalf of management on the point of jurisdiction.
Issue No. l is liable to be decided in favour of workmen
and against management.
Which is accordingly decided.
Issue No. 2
Burden to prove issue No. 2 also lies on management
but management adduced no evidence to prove this issue.
In want of which there is no option to this tribunal except
to decide this issue against management and in favour of
workmen.
Hence Issue No. 2 is decided in favour of workmen
and against management.
Issue No. 3
In this issue questions of determination mentioned
in the Schedule of reference are included.
Schedule of reference shows that Labour Ministry
while sending reference to this Tribunal referred the
following dispute for adjudication.
"Whether the termination of service of S/Sh. Sanjay
Kumar, Sandeep Kumar, Manoj Kumar Rana, Satish
Kumar Benjamin Tigga by the management of NIFT,
Ministry of Textile is legal and justified?"
In this background burden was on management to
prove whether the termination of services of Shri Sanjay
Kumar, Satish Kumar and Benjamin Tigga is legal and
justified but management adduced no plausible, credible
and reliable evidence on the relevant point.
While workmen adduced all plausible, credible and
reliable evidence which they could produce.
In this background management has utterly failed to
discharge its burden while workmen prove their case.
In the light of contentions and counter contentions
I perused the settled law of Hon'ble Supreme Court on the
point of reinstatement and grant of back wages which
shows that reinstatement is not a necessary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be awarded.
In Assistant Engineer, Rajasthan Dev. Corporation and Anr.
Vs. Gitam Singh, (2013)II LLJ 141 Hon'ble Supreme Court
has held that reinstatement of workman with continuity of
service and 25% back wages was not proper in the facts
and circumstances of the case and the compensation of
Rs.50,000 (Rs. Fifty Thousand Only) shall meet the ends of
justice. In Jagbir Singh Vs. Haryana State Agriculture
Marketing Board & Anr. AIR 2009 Supreme Court 3004,
Hon'ble Supreme Court held thus "the award of
reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year
preceding the date of termination particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded." In catena of Judgments,
Hon'ble Supreme Court has taken a view that reinstatement
is not automatic, merely because the termination is illegal
or in contravention of S-25-F of the Industrial Dispute Act.
In Talwara Co-operative Credit and Service Society Limited
Vs. Sushil Kumar (2008) 9 SCC 48c6, Hon'ble Supreme Court
held thus, "grant of relief of reinstatement, it is trite, is not
automatic. Grant of back wages is also not automatic."
Workmen of the instant case was not appointed by
following due procedure and as per rules. They had
rendered service with the respondent as a casual workers,
thus. Compensation of Rs. 50,000 (Rs. Fifty Thousand Only)
by way of damages as compensation to each of 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 workmen
and against Management.
Award is accordingly passed.
Dated : 30/l/2014
HARBANSH KUMAR SAXENA, Pesiding Officer
2502
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 948.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj if'pe jsyos
izca/kra= ds laca) fu;ktdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k
vgenkckn ds iapkV ¼lanHkZ la[;k 17@2011½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr gqvk FkkA
[lañ ,y&41011@143@2010&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 948.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 17/2011) 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 workmen, received by the Central
Government on 26/02/2014.
[No. L-41011/143/2010-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVENRMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
BINAY KUMAR SINHA,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad, Dated 20th January, 2014
Reference (CGITA) No. 17/2011
Adjudication Order No. L-41011/143/2010-IR(B-I)
1. The Divisional Railway Manager,
Western Railway, Pratapnagar,
Baroda
2. The Chief Project Manager,
Western Railway, Kalupur,
Ahmedabad
3. The Senior Divisional Finance Manager,
Western Railway, Pratapnagar,
Baroda
....First Party
And
Their Workman (Pensioner)
Shri Sunil Kumar S. Roy
Through The General Secretary,
Western Railway Kamdar Sangh,
78/9-C, National Highway,
Gandhidham (Kutch)
....Second Party
For the First Party
:
None
For the second Party
:
Shri O.P. Vashishatha,
General Secretary,
W. Rly. Kamdar Sangh,
Gandhidham
AWARD
The Government of India Ministry of Labour, New
Delhi by its order No. L-41011/143/2010-IR(B-I)) dated
07.03.2011 under clause (d) of sub section (1) and sub-
section (2A) of Section 10 of the Industrial Disputes Act,
1947 referred the dispute specified in the Schedule to this
tribunal for adjudication:
SCHEDULE
"Whether the action of the management of Chief
Manager, Western Railway, Ahmedabad and senior
Divisional Manager, Western Railway, Baroda in not
paying medical allowance of Rs. 100 per month to
Shri Sunil Kumar S. Roy, a pensioner of railway, is
legal and justified? To what relief the Union/workman
is entitled?"
2. The 2nd party Union/pensioner filed statement
of claim (Ext. 3) to the effect that on
recommendation of 5th pay commission, Ministry
of Railway, Railway Board under RBE No. 22/2008/
Letter No. PC-V/496 (No. PC-V/98/1/7/1 dated
07.02.2008 issued order for payment of Rs. 100
per month to Railway pensioners/family
pensioners w.e.f. 01.12.1997. But this benefit was
not provided to the pensioners Sunil and so
dispute was raised. Hence seeking for the relief
for directing Rly. Administration to pay fixed
medical allowance to all affected pensioners/family
pensioners.
3. The 1st party appeared executing Vakilpatra in
favour of Shri N.J. Acharya, Rly. Panel Advocate
and W.S. (Ext. 7) was filed pleading interlia that
the reference is not maintainable and the Union/
pensioner has no legal cause of action.
4. Subsequently, on application of the 2nd party/
Union by order dated 04.09.2013 (Ext. 10) the
appearance of Shri N.J. Acharya, Advocate was
disallowed U/s. 36(4) of the I.D. Act, 1947.
5. The 2nd party/Union on 10.01.2014 filed
withdrawal pursis (Ext. 11) on the ground that
D.R.M. (E) Baroda under his letter No. E/789/11/
WR.M.S. dated 10.12.2013 has expressed his
intention to grant fixed medical allowance to the
disputant pensioner Sunil Kr. S. Roy on the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2503
condition of withdrawal of this reference case
(Copy enclosed).
6. In such view of the matter, there is no need for
adjudication as per Schedule since 1st party W.R.
is ready to provide fixed amount of Rs 100 p.m. for
which DRM(E) BRC has wrote letter dated
10.12.2013 to C.P.M. ADI for sanctions the fixed
medical allowance to disputant pensioner Sunil
Kr. S. Roy. In the light of withdrawal pursis, the
reference is dismissed as withdrawn.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 949.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
izca/kra= ds lac) fu;ktdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k
vgenkckn ds iapkV ¼lanHkZ la[;k 770/2004) dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@22@2002&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 949.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 770/2004)
of the Central Government Industrial Tribunal-cum-Labour
Court, Ahmedabad 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 26/02/2014.
[No. L-12012/22/2002-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVENRMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
BINAY KUMAR SINHA,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad, Dated 7th January, 2014
Reference (CGITA) No. 770/04
Reference (I.T.C.) 20/2002 (old)
Adjudication Order No. L-12012/22/2002/IR(B-I)
The Branch Manager,
State Bank of India,
Kevadia Colony branch,
Dist.-Narmada-393151
...First Party
And
Their Workman
Shri Naginbhai Kalidas Mahayavanshi
A-78, Opp. Government Hospital,
Taluka-Nanded, Kevadia Colony,
Dist. Narmada-393151
...Second Party
For the First party
:
Ms. Meenaben Shah, Advocate
For the Second party :
None
AWARD
Under adjudication order No. L-12012/22/2002-IR
(B-I) New Delhi dated 09.05.2002 the appropriate
Government/Ministry of Labour referred the dispute under
clause (d) and Sub-section (1) and (2A) of Section 10 of the
I.D. Act, for adjudication to the Industrial Tribunal Baroda
under the terms of reference specified in the Schedule:
SCHEDULE
"Whether the action of the management of State Bank
of India through the Branch Manager, Kevadia
Colony Branch, Dist. Narmada in terminating the
services of Shri Naginbhai Kalidas Mahyavanshi,
Peon in the year 1995 is justified? If not, what relief
the concerned workman is entitled?"
2. The 2nd party workman in spite of repeated notice
failed to appear in the court and also failed to submit
statement of claim whereas the 1st party (Bank) appeared
and executed power (Vakilpatra) in favour of Ms. Meenaben
Shah, Advocate of Gandhi Associates. The case record
received in this CGIT-cum-Labour Court on 30.12.2010.
Thereafter fresh notice was sent to the 2nd party workman
to file statement of claim but again the workman failed to
appear.
3. So it can be manifestly presumed that the 2nd
party workman who raised the Industrial disputes against
his termination has no interest in this reference. For more
than a decade opportunity was given to him but the
workman slept over the matter having no interest in this
case.
4. The 1st party filed pursis (Ext. 7) that the 2nd party
is not interested in continuing this dispute so the reference
case be disposed of in the interest of Justice.
5. The reference case is fit to be dismissed since S.P.
workman has failed to submit statement of claim. So the
action of the management of S.B.I. through the Branch
Manager (1st party) in terminating the services of the
workman Naginbhai in the year 1995 is held to be justified.
This reference is dismissed. No order of cost.
BINAY KUMAR SINHA, Presiding Officer
2504
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 950.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj xqtjkr baMLVªh;y
dks&vksijsVho cSad fy- ds izca/kra= ds lac) fu;kstdksas 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;] vgenkckn ds iapkV
¼lanHkZ la[;k 37@2006½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 26@02@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@9@2006&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 950.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 37/2006)
of the Central Government Industrial Tribunal-cum-Labour
Court, Ahmedabad as shown in the Annexure in the
Industrial Dispute between the management of Gujarat
Industrial Co-operative Bank Ltd. and their workmen,
received by the Central Government on 26/02/2014.
[No. L-12012/9/2006-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVENRMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
BINAY KUMAR SINHA, Presiding Officer,
CGIT-cum-Labour Court,
Ahmedabad, Dated 6th February, 2014
Reference (CGITA) No. 37/2006
Ajdudication Order No. L-12012/9/2006-IR(B-I)
The Branch Manager,
Gujarat Industrial Co-operative Bank Ltd.,
Raapura Branch, Near GPO, Vadodara,
Vadodara (Gujarat)
...First Party
And
Their Workman
Sh. Rameshchandra Nanalal Patel
C/o. S.R. Adhyru, 11/A,
Sheetal Kunj Society, Manjalpur Naka,
Vadodara
....Second Party
For the first party :
Shri S.R. Dave, Advocate
For the second party:
None
AWARD
The Ministry of Labour/Government of India vide
order No. L-12012/9/2006-IR(B-I), New Delhi dated
20.03.2006 referred the dispute for adjudication to this
Tribunal under clause (d) of sub-section (1) and sub-section
(10) of the I.D. Act, 1947, on the terms of reference specified
in the Schedule:
SCHEDULE
"Whether the action of the management of Gujarat
Industrial Cooperative Bank Ltd. in terminating the
services of Shri Rameshchandra Nanalal Patel w.e.f.
02.04.1986 is legal, proper and just? If not, to what
relief the concerned workman is entitled to?"
2. The case of the 2nd Party as per statement of claim
(Ext. 6) is that he was working as a peon in the establishment
of the 1st party since 1975. He was issued a show cause
notice on 26.09.1984 regarding eight different misconduct/
like going on strike irregularities leaving workplace etc.
The domestic enquiry was not conducted in fair way, no
reasonable opportunity given to defend, principles of
natural justice not followed and he was illegally terminated
as per adverse findings of inquiry report w.e.f. 02.04.1986
prayers made for reinstatement with back wages.
3. As against this the 1st party pleaded inter alia as
per w.s. (Ext. 9) is that the reference is not maintainable.
2nd party has no valid cause of action and that after valid
and proper enquiry he was terminated from the services on
02.04.1986 and that the 2nd party is not entitled to any
relief and the reference is fit to be dismissed.
4. The 2nd party left to attend the court since long
and failed to lead evidence whereas 1st party used to appear
through its lawyer. It appears that 2nd party (workman)
has lost interest in this reference. So it is not desirable to
keep the case further pending for evidence of the 2nd party.
The reference deserves to be dismissed. The following
order is passed.
ORDER
The terms of reference specified in the Schedule is
answered in favour of the 1st party that termination of the
2nd party (Workman) w.e.f. 02.04.1986 is legal, proper and
justified.
This reference is dismissed for non-prosecution.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 951.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos 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;] dkuiqj ds iapkV ¼lanHkZ la[;k 76@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr gqvk FkkA
[lañ ,y&41011@36@2012&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2505
New Delhi, the 26th February, 2014
S.O. 951.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 76/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court, Kanpur as shown in the Annexure in the Industrial
Dispute between the management of Northern Railway and
their workmen, received by the Central Government on
26/02/14.
[No. L-41011/36/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SRI RAM PARKASH, HJS, PRESIDING
OFFICER, CENTRAL GOVENRMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, KANPUR
I.D. No. 76/12
Present :
RMU, C/o Hem Raj Sharma,
House No. 570/66,
Gopalpuri, Alambagh,
Lucknow
And
The Divisional Railway Manager,
NR. DRM Office Hazaratganj,
Lucknow
AWARD
1. Central Govt. MoL, New Delhi vide above
reference No. L-41011/36/2012-IR (B-I) dated 27.07.2012 has
referred the following dispute for adjudication to this
tribunal.
2. Whether the demand of the Union RMU Lucknow
for appointment of Sri Phool Chand son of Bhagwan Deen,
Rajesh Kumar Son of Chhota Lal, Ram Keshari son of
Sunder Lal, Tribhunal Singh son Raj Pati, Ram Kumar son
of Jagmohan, Sri Chandra son of Baboo Lal, Ram Lakhan
son of Baboo Lal, Arun Kumar son of Shambhu Dahayal,
Jai Narain son of Ram Sewak, Dhiru Prasad son of Ram
Pyarey, Baboo Lal son of Dulam and who have worked as
substation porter from Jan. 80 to December 84 after
appointment of other such substation porter by the
management of railway is legal and justified? If not to what
relief the workman is entitled?
3. After receipt of the reference order as above
several notices were issued by the tribunal to both the
parties, but none has appeared from the side of the claimant
nor there is any statement of claim.
4. None appeared from the side of the management.
On few occasion worker's side put their appearance but
have not filed any claim statement in support of their claim.
5. It therefore, from the circumstances of the case
appears that the Union or the workman is not interested in
prosecuting its case. As such the tribunal is of the confirm
opinion that it is a case in which neither there is any
statement of claim nor the claimant is interested in
prosecuting his case, therefore, the case is bound to be
decided against the union and workman for want of
pleadings and proof.
6. Accordingly it is held that the workman/union is
not entitled for any relief pursuant to the present reference
order.
RAM PARKASH, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 952.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vkbZlhvkbZlhvkbZ
cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 17@2011½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr
gqvk FkkA
[lañ ,y&12012@26@2010&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 952.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 17/2011)
of the Central Government Industrial Tribunal-cum-Labour
Court, Chennai as shown in the Annexure, in the Industrial
Dispute between the management of ICICI Bank and their
workmen, received by the Central Government on
26/02/2014.
[No. L-12012/26/2010-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Wednesday, the 12th February, 2014
PRESENT :
K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 17/2011
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of
2506
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Section 10 of the Industrial Disputes Act, 1947 (14 of 1947),
between the Management of ICICI Bank Limited and their
workman]
BETWEEN
Sri M. Subramanian
:
1st Party/Petitioner
AND
The Chief Manager
:
2nd Party/Respondent
ICICI Bank Limited
4th Floor, Arihant Insight
No. 24, South Phase
Ambattur Industrial Estate
Ambattur
Chennai-600058
Appearance:
For the 1st Party/Petitioner:
Sri T. Ramkumar & C.D.
Sugumar, Advocate
For the 2nd Party/Respondent: M/s S. Ramasubramaniam
& Associates, Advocates
AWARD
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-12012/26/2010-IR (B-I)
dated 08.03.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of ICICI
Bank Limited in terminating services of Sri M.
Subramanian, Ex-Sub-Staff w.e.f. 06.02.2002 is legal
and justified? To what relief the workman is entitled?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 17/2011 and issued notices to both
sides. Both sides have entered appearance through their
counsel and have filed Claim and Counter Statement
respectively.
3. The averments of the petitioner in the Claim
Statement in brief are these:
The petitioner had joined the service of the
Respondent Bank, in its Dindigul branch on 08.12.1989 as
Sub-Staff. The petitioner had been discharging his duties
in a sincere and diligent manner. In the year 1997 the
petitioner was transferred to Paganeri branch of the
Respondent Bank in Sivagangai District. The petitioner
got married in November 1998. The wife and unborn baby
of the petitioner died during delivery. The petitioner became
mentally ill consequently. His physical health was also badly
affected by the incident. The petitioner sent a letter to the
management requesting to transfer him any other branch
in Sivagangai District. But the Respondent arbitrarily
transferred him to Thiruppur branch on 03.09.1999. Though
the petitioner made a request, the management declined to
withdraw the order of transfer. Though the petitioner joined
the Paganeri branch in March 2000 he had to take leave for
several days to take care of his mother. He has sent leave
application to the Management. The petitioner got married
again in December 1999. He had to be with his wife at the
time of delivery. He sent several representations to the
Respondent request to transfer him to any of the branches
in Sivagangai District. However, this was not considered.
The petitioner then received a letter alleging that he has
been unauthorizedly absenting from duty, and also asking
him to resume duty on or before 31.12.2001. The allegations
made in the letter are false. Though the petitioner reported
for duty on 31.12.2001 he was not allowed to resume duty
by the Manager of the branch. He had then sent letters to
the Management stating that he is interested in continuing
in the service of the Respondent. In spite of this the
Management had issued an order on 04.02.2002 stating
that it had come to the conclusion that the petitioner had
voluntarily abandoned the service of the Respondent. The
petitioner had further requested the Respondent to permit
him to rejoin duty. However, this was turned down. So the
petitioner had raised the dispute. The petitioner is entitled
to be reinstated in service with back wages, continuity of
service and other attendant benefits.
4. The respondent has filed Counter Statement
contending as follows:
The dispute raised by the petitioner is barred by
limitation as the claim is made after more than 5 years from
the date of his dismissal. The petitioner was an employee
of the erstwhile Bank of Madura Ltd. When the bank merged
with the respondent with effect from 10.03.2000 its
employees including the petitioner have become
employees of the respondent. The petitioner had joined
the service of Bank of Madura Ltd. on 01.02.1989 and was
on probation for a period of 6 months. He was confirmed in
service on 08.12.1990. In 1999, he was transferred to Paganeri
branch. He had absented from duty from 02.10.1999 to
16.10.1999, 17.10.1999 to 30.10.1999, 31.10.1999 to 13.11.1999,
14.11.1999 to 30.11.1999, 01.12.1999 13.12.1999 and
31.12.1999 to 31.01.2000. Since the petitioner claimed that
he is ill, he was asked to appear for medical examination.
But rather than appearing before the medical board, he
reported for duty on 01.03.2000. Then, he absented himself
again from 13.03.2000 to 01.04.2000, 22.04.2000 to 29.04.2000,
08.05.2000. 12.05.2000 to 15.05.2000, 19.05.2000 to 20.05.2000
and 31.05.2000. A charge Sheet was issued to him on
26.07.2000 for unauthorized absence for 187 days. A reply
was given by the petitioner. This was considered by the
management and taking a lenient view for unauthorized
absence, a warning was given to the petitioner. In spite of
this, the petitioner continued to be unauthorizedly absent
subsequently also. He was absent for 253 days
unauthorizedly in between 16.06.2000 to 02.06.2001. A letter
was sent to the petitioner calling upon him to report for
duty forthwith. Even after this, the petitioner did not report
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2507
for duty. The management sent a letter to the petitioner
calling upon him to resume duty on or before 06.08.2001
and also stating that in case of failure it will be construed
as abandonment of service by the petitioner. Even after
this, the petitioner continued to unauthorizedly absent
himself. So the Management sent a letter to the petitioner
giving him a final chance to resume duty on or before
31.12.2001. Even after this, he did not resume duty. The
respondent then issued letter dated 04.02.2002 treating the
petitioner's unauthorized absence from duty for 421 days
for the period from 25.11.2000 to 04.02.2002 as voluntary
abandonment of service. The unauthorized absence of the
petitioner has caused irreparable hardship to the
Respondent. Considering that the petitioner was a chronic
absentee he was dismissed from the service of the
Respondent with effect from 07.02.2002. The petitioner was
paid almost Rs. 9,00,000 towards his PF and about Rs. 40,000
towards his Gratuity on 10.06.2002 by crediting his account
with the Bank. The petitioner had written to the Respondent
stating that he has received the amount without any protest.
The petitioner had raised the dispute after a delay of 7
years. The claim of the petitioner that he has been
discharging his duties in a sincere and diligent manner is
denied. It is incorrect to state that the petitioner had reported
for duty on 31.12.2001 but he was no allowed to resume
duty. So also the allegation that the petitioner had sent
letter to the Respondent requesting him to allow him to
resume duty is false. The Respondent did not receive any
such letter from the petitioner. The petitioner had refused
to utilize the opportunities given to him to resume duty.
The petitioner is not entitled to any relief.
5. The evidence in the case consists of oral evidence
of WW1 and MW1 and the documents marked as Ext W1
to Ext W15.
6. the points for consideration are:
(i) Whether the action of the respondent bank in
terminating the services of the petitioner with
effect from 06.02.2002 is legal and justified?
(ii) What if any is the relief to which the petitioner is
entitled?
The Points
7. The petitioner had entered the service of erstwhile
Bank of Madura Ltd. in the year 1989. When Bank of Madura
Ltd. merged with the Respondent Bank. the employees of
the Madura Bank Ltd. including the petitioner have become
employees of the Respondent. The initial appointment of
the petitioner was at Dindigul branch of Madura Bank Ltd.
On 03.09.1999, while the petitioner was working Thiruppur
branch he was transferred to Paganeri branch. The case of
the Respondent is that the petitioner is a chronic absentee
and that while he was an employee of Paganeri branch he
had absented himself from duty unauthorizedly on several
days. He had given peptic ulcer as the reason for his long
absence. But when he was asked to appear for a medical
examination, rather than doing this, he had reported for
duty. Again he had continued to be absent intermittently
and frequently. Earlier, after he was unauthorizedly absent
for 187 days from 30.10.1999 to 31.05.2000 a Charge Sheet
was issued to the petitioner. He had given a reply and the
Respondent had taken a lenient view and had let him off
with a warning. According to the Respondent, subsequently
also he continued to be unauthorizedly absent. After his
absence for 253 days from 16.06.2000 to 02.06.2001 a letter
was issued to the petitioner asking him to report for duty.
He had refused to attend duty even after this. Still another
letter was issued to the petitioner asking him to resume
duty on or before 06.08.2001. Still the petitioner was not
willing to resume work. The Respondent is said to have
issued still another letter giving a chance to the petitioner
to join duty. Ultimately, the Respondent had issued a letter
of warning to the petitioner telling him that his action will
be treated as voluntary abandonment of service. The
respondent dimissed the petitioner from service with effect
from 07.02.2002 considering that he has abandoned the
service.
8. The respondent has not conducted any enquiry
before dismissal of the petitioner from service. When the
letter said to have been issued by the Respondent calling
upon the petitioner to resume duty was not honoured by
the petitioner, the Respondent has considered it as
voluntary abandonment of duty by the petitioner and had
dismissed the petitioner from service.
9. The petitioner has filed affidavit of examination to
substantiate his case. Ext. W6 is the letter received by the
petitioner from the Respondent directing to report for duty
on 31.12.2001. According to the petitioner, he had reported
for duty but he was not allowed to resume duty on
31.12.2001. His case is that he had sent three
representations to the Respondent subsequently
requesting to permit him to resume duty. Ext. W9 is said to
be one of the copy of the representations sent by the
petitioner to the Respondent to permit him to join duty.
However, there is nothing to show that any such
representation was received by the Respondent. During
cross-examination, the petitioner had stated that he has
got a courier receipt to show that Ext. W9 was sent by him.
But he has not produced it. The petitioner had admitted
during this cross-examination that of an on he was absent
from duty for 421 days. He also stated that he had submitted
leave application for half the period of absence but did not
submit any applications for the remaining period of absence.
He also admitted that does not remember for how many
days he had applied for leave. He then stated that was
remaining absent from duty bacuase he had to take care of
his aged mother.
10. The Respondent has examined MW1 to prove
the case that the petitioner was a chronic absentee. MW1
2508
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
was the Chief Manager in the personal department in
erstwhile Bank of Madura Ltd. This witness has stated
that the petitioner had absented himself from duty on
02.10.1999 to 31.01.2000 and there was no news from him at
all during this period. Since he had claimed that he is
suffering from Peptic Ulcer, he was asked to appear before
the Medical Board for medical exmination. After this, the
petitioner has reported for duty without appearing for
medical examination. MW1 has then stated that the
petitioner was then absenting himself again and accordingly
the Charge Sheet marked as Ext. W8 was issued to him for
his unauthorized basence for 187 days. The Respondent
had taken a lenient view and had allowed the petitioner to
continue in service with a warning. However, the petitioner
was again absent for 253 days and letter was issued to him
asking him to report for duty. Ext. W6 is one of the letters
issued to the petitioner asking him to report for duty.
Though the petitioner was asked to be on duty by
31.12.2001, he has not obliged and continued to be absent
unauthorizedly. MW1 has stated that Ext. W8 order
terminating the service of the petitioner was issued after
giving several opportunities to him to resume duty. The
petitioner had refused to utilize the opportunities and had
continued to be absent unauthorizedly.
11. Though, documents are not marked on the side
of the Respondent to prove the absence of the petitioner
from duty continuously, the evidence of MW1 coupled
with the admission made by the petitioner and his own
documents would establish that the peitioner was a chronic
absentee. In fact even from the averments made by the
petitioner in his Claim Statement it self it could be seen that
he was mostly absent from duty. The petitioner had stated
in Para-6 of the Claim Statement that after he had joined in
Thiruppur branch in March 2000, he had taken leave for
some days for which he claims to have sent leave
applications to the Repsondent. The petitioner refers to
absence from duty for other period also in his Claim
Statement. However there is no case for him that he has
sent applications for leave for such absence and those
applications were sanctioned. Thus it is very much clear
that the petitioner was a person who had given scant regard
for his job, that though he was absenting himself frequently,
he did not care to submit even application for leave.
12. The counsel for the petitioner had referred to a
decision of the Delhi High Court in Fateh Chand Vs.
Presiding Officer, Labour Court and Another reported in
2012, 2 LLN 130 and argued that the absence of the
petitioner from duty could not be considered as
abandonment of service. In the above decision it has been
held that abandonment of service is voluntary
relinquishment of one's services with intention not to
resume the same and that mere absenteeism for a continuous
period would not establish what the employee had
abandoned his service. However, the Apex Court had taken
a different view in the matter. In the decision in North
Eastern Karnataka Transport Corporation Vs. Ashappa
reported in 2006 5 SCC 137, the Apex Court had held that
remaining absent for a long time cannot be said to be a
minor misconduct. The action of the management in
dismissal of the Bus Conductor who was absent from duty
unauthorizedly and continuously was upheld by the Apex
Court. Again, in the decision in Vijay Vs. Indian Airlines
Ltd. And Others reported in 2013 (10) SCC 253, the Apex
Court has held that abndonment of service is unilateral
action of the employee and such an act cannot be termed
as retrenchment. The Apex Court has further held that
absence from duty in the beginning may be a misconduct
but when such absence is for a long period it may amount
to voluntary abandonment of service resulting in
termination of service automatically without necessitating
any further order from the employer.
13. In the present case, the petitioner had been
absenting himself from duty continuously. In spite of this,
the Respondent had been making several attempts to make
him resume duty. Letters were sent by the Respondent
asking him to resume duty as seen from Ext. W6 produced
by the petitioner himself. It was when the petitioner failed
to report for duty in spite of repeated such attempts, the
management was constrained to presume that the petitioner
had abandoned service voluntarily and had terminated the
service of the petitioner. An employer could not be expected
to keep an employee who refuses to be on duty
continuously. The action of the Respondent in terminating
the service of the petitioner was only the natural
culmination of the action of the petitioner in voluntarily
abandoning the service of the Respondent. There is nothing
improper or illegal in the action of the Respondent.
14. Another aspect that requires consideration is the
undue delay in raising the dispute. The petitioner was
terminated from service by order dated 04.02.2002. The
dispute is raised by the petitioner only in 2010 with a delay
of 7 years. The counsel for the petitioner has referred to
the decision in Ajav Singh Vs. Sirhind Cooperative
Marketing and Processing Service Society Ltd. And
Another reported in 1999 (6) SCC 82 in support of his
argument that delay in raising the dispute is not of
consequence. In the above decision the Apex Court has
held that Article 137 of the Limitation Act are not applicable
to the proceedings under the Industrial Disputes Act and
that relief under the Act cannot be denied to the workman
merely on the ground of delay. However, in a subsequent
decision Haryana State Cooperative Land Development
Bank Vs. Neelam reported in 2005 1 LLJ 297 the Apex Court
has held that "the Labour Court considering the conduct
of the workman in approaching the Court after more than 7
years to be a relevant factor for refusing to grant the relief
cannot be said to be an irrelevant one". The present case is
one where the petitioner had absented himself from duty
unauthorizedly for several days together and had refused
to report for duty in spite of repeated letters from the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2509
Management. It was accordingly the management had
treated the petitioner as one who had abandoned the service
and had terminated him from service. On going through
the very averments in the Claim Statement it could be seen
that the petitioner had no valid excuse for the delay in
raising the dispute at all. Even for his absence he had no
valid reason. What he has stated in the Claim Statement is
that he lost his wife and unborn baby during delivery and
this made him physically and mentally ill. However, he had
got married again within a year. He had not given any reason
for not raising the dispute earlier. The action of the petitioner
would amount to his total abandonment of service of the
Respondent. He has remained quiet for a period of 7 years
before he raised the dispute. This itself would strengthen
the case of the Respondent that he had abandoned the
service voluntarily. Termination of service of the petitioner
was only the consequence of his abandonment of service.
When all these aspects are considered, it could be seen
that the claim of the petitioner to reinstate him in the service
of the Respondent is without any justification. I find that
the petitioner is not entitled to any relief.
In view of my discussion above, 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 12th February, 2014)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
WW1, Sri M. Subramanian
Union:
For the 2nd Party/
MW1, Sri N.
Management:
Muthukrishnan
Documents Marked:
On the petitioner's side
Ex. No.
Date
Description
Ex. W1
04.12.1999
Appointment order issued to the
petitioner
Ex. W2
10.08.1999
Representation of the petitioner
regarding his transfer
Ex. W3
03.09.1999
Order of the Respondent,
transferring the petitioner from
Paganeri branch to Tiruppur
Branch
Ex. W4
06.09.1999
Representation of the petitioner,
requesting the management to
withdraw its order of transfer
Ex. W5
05.08.2001
Representation of the petitioner,
requesting the respondent
management to transfer him to any
of the branches in Sivagangai
District
Ex. W6
19.12.2001
Letter of the Respondent,
directing the petitioner to report
for duty on 31.12.2001
Ex. W7
31.12.2001
Representation of the petitioner
regarding his transfer
Ex. W8
04.02.2002
Order of termination issued to the
petitioner
Ex. W9
03.04.2002
Representation of the petitioner
requesting the management to
permit him to join in duty
Ex. W10
18.02.2009
Dispute filed under Section-2A of
the Industrial Dispute before the
Assistant Commissioner of
Labour
Ex. W11
Sep. 2009
Counter Statement filed by the
Respondent
Ex. W12
09.12.2009
Rejoinder filed by the petitions
Ex. W13
08.03.2001
Reference of the dispute made by
the Govt. of India
Ex. W14
26.07.2000
Copy of the Charge Sheet issued
by the Respondent to the
petitioner
Ex. W15
28.07.2001
Copy of the letter sent by the
Respondent to the petitioner
regarding unauthorized absence
On the Management's side
Ex. No.
Date
Description
Nil
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New Delhi, the 26th February, 2014
S.O. 953.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 04/2010)
2510
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
of the Central Government Industrial Tribunal-cum-Labour
Court, Guwahati as shown in the Annexure in the Industrial
Dispute between the management of N.F. Railway and
their workman, received by the Central Government on
26/02/2014.
[No. L-41011/98/2009-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, GUWAHATI,
ASSAM
Present : Shri L.C. Dey, M.A., LL.B., Presiding Officer
CGIT-cum-Labour Court, Guwahati
Ref. Case No. 04 of 2010
In the matter of an Industrial Dispute between:—
The Management of N.F. Railway, Maligaon, Guwahati
-Vrs-
Their Workman Sri Thaneswar Kalita, represented by the
Rail Mazdoor Union, N.F. Railway, Maligaon.
APPEARANCES
For the Workman
:
Mrs. M. Bora, Advocate
For the Management :
Mr. K.C. Sarma, Advocate
Date of Award: 12.02.2014
AWARD
1. This Reference has been initiated on an Industrial
Dispute exists between the employer in relation to the
Management of N.F. Railway and their workman, which
was referred to by the Ministry of Labour, Government of
India, New Delhi vide their order No. L-41011/98/2009-IR
(B-I) dated 03.05.2010. The Schedule of this Reference is as
under.
SCHEDULE
"Whether the demand of Rail Mazdoor Union for
fixation of seniority of Shri Thaneswar Kalita in the
cadre of Open Line Organisation, from the date of
his screening in construction organization is legal
and justified? If yes, what relief the workman is
entitled?"
2. On receipt of this order for adjudication of the
dispute as mentioned above, this reference case has been
registered and notices were served upon the concerned
parties who appeared and submitted their respective claim
statement/written statement.
3. The case of the Rail Mazdoor Union, N.F. Zone,
Pandu, in brief, is that the workman Thaneswar Kalita was
employed in the post of Khalasi Helper in construction
organization as a casual labourer on 16.3.84 in the
establishment of Senior Divisional Electrical Engineer,
Guwahati, North East Frontier Railway in short (Sr. DEE/
GHY/NF. Railway) and he was posted under Senior Section
Engineer, Electrical at Pandu Power House of N.F. Railway.
The workman was under the administrative control of
Assistant Divisional Electrical Engineer, Maligaon (in short
ADEE, Maligaon) of the Electrical Department headed by
its Principal Officer designated as Chief Electrical Engineer,
N.F. Railway at its Headquarter, Maligaon. The workman's
seniority is looked after by the office of the Assistant
Personnel Officer, Guwahati, N.F. Railway. The workman
after the fulfillment of requirements and the norms, was
given temporary status of service in the construction wing;
and he was screened for permanent service on 1.4.84 against
the 60% construction reserve post as per the Rules under
the Dy. Chief Electrical Engineer, construction, Maligaon
(In short Dy. CEE/CON/MLG) vide office order No. E/227/
CON/Elect dated 15.05.1996. Thereafter the workman was
absorbed in the Railway service as regular employee and
posted against the permanent post of Khalasi Helper on
1.4.84. The workman rendered his service in the
construction organization in the capacity of khalasi helper
and was promoted to the post of Lineman which was a
grade-III post and continued in that organization upto 1997.
The Government of India, Ministry of Railway, Railway
Board issued letter from time to time to the General Manager
of All Indian Railways and Production Units regarding
staffing in construction organization by creating
construction reserve post for posting in construction wings
in Indian Railways and the said lists were circulated by
N.F. Railway vide its No. Misc. 1378/No. E/1/19(C) dated
14.7.1988 to meet the manpower requirement in construction
Organisation. The Construction reserved post are
permanent including the workman. In implementing the
policy of the Railway Board as mentioned above in order
to shedding extra workforce not required for the work in
the construction organization, the management sent in lots
workmen occupying the posts of the said Construction
Reserve to the Open Line wing of the N.F. Railway under
official authority, and the workman belonging to one such
lot was directed to report to the Divisional Electrical
Engineer, Guwahati of the Open line Wing as per his spare
letter dated 23.10.1997 issued by Sr. Section Engineer
(electrical) (construction) which was effected as per the
direction of letter No. C/255/CON/Seniority/CL Pt. VII
(Elect) dated 01.10.97 issued by the General Manager
(CON)/(P)/Maligaon, N.F. Railway as mentioned in his spare
letter dated 2.10.97. Accordingly the workman resumed his
work as Khalasi in the scale of Rs. 2550/- to Rs. 3200/- on
24.10.1997 under DEE/Guwahati and on being appointed
against a permanent post the workman had a lien in the
substantive capacity in the permanent cadre of N.F. Railway
and on his transfer to Open Line he was entitled to seniority
on this basis of his lien.
¹Hkkx II—[k.M 3(ii)º
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2511
Further pleading of the Union is that the workman
on absorption in regular post of Khalasi was placed in
Group D post of the 60% non-gazetted regular posts
earmarked for the construction Organisation and as the
workman was eligible for a lien in the substantive post
where it is maintained his seniority with reference to his
date of absorption irrespective of the Oganisation where
his services were utilized in the regular capacity. As such,
on his placement his seniority is to be fixed in the seniority
unit under Sr. DEE/GHY/N.F. Railway with the maintenance
of his slot. According to the inter-se seniority the occupants
of the post of Khalasi among the 60% non-gazetted regular
posts earmarked for the Construction Organisation as a
whole. But it was not done and the workman was placed in
the establishment of Sr. DEE/GHY/N.F. Railway far below
in the pay scale of Rs. 2550 to Rs. 3200 in the said
establishment who had been still other than his juniors in
respect to his date of absorption in the 60% non-gazetted
regular post earmarked for the Construction Organisation
vide letter No. E/255/I/Pt. III dated 12.03.1999 issued by the
APO/GHY placing the workman at serial No. 35 which was
a wrong assignment of slot in the seniority list. The Union
mentioned that due to loss of seniority the workman lost
chances of promotion whereas his juniors advanced far
ahead in service career by earning promotion by dint of
this wrong seniority. The workman has also been deprived
of promotional benefit under the policy of restructuring of
cadre because of the said anomaly in fixation of lien and
consequent seniority. On being aggrieved, the workman
represented to the authorities through his Union his
grievance for correction of his seniority and for granting
other relief like promotion over and before his juniors, but
it yield no result. The Union also submitted that the date of
appointment to the substantive post in permanent cadre is
the universal criteria for deciding the place of an employee
holding a civil post in the gradation list kept for the category
of service which he belongs to; and the workman is senior
to the existing staff under the establishment of DEE/
Guwahati although the date of appointment to the
substantive post in permanent cadre by way of absorption
of the workman in the Construction Organisation on 1.4.84.
The Management has mistaken in fixing the seniority of
the workman below the subsequent appointees reckoning
the date of reporting of the workman against his permanent
service in the establishment of DEE/Guwahati i.e. on 24.10.97
from the electrical section of the Construction Organisation
as the Railway is a single organization including the open
line in the Construction Organisation and the workman did
not join the electrical establishment of the open line with
his post, but only on being released by the Management
of the Construction Organisation to the open line under
the terms of letter No. E/227/CON/Elect (Screening) dated
3.10.1997 and the letter No. C/255/CON/Seniority/CL Pt.
VII (Elect) dated 1.10.97 is issued by the General Manager
(CON)/(P)/Maligaon, N.F. Railway. The workman also did
not leave the Construction Organisation and joined the
Open Line Organisation of the same zonal Railway on his
own but under official direction. The Union has relied upon
the provision of Rule 312 of the Indian Railway
Establishment Manual, Rule 312 volume-I of 89 Edition. By
depriving the praspect of career advancement and monetary
benefits that would have come to the workman's right
guaranteed under the Articles 14, 16 and 21 of the
Constitution of India. Hence, the workman prayed for
passing award granting the workman his long and seniority
from 1.4.94 and directing the Management to implement
the award with retrospective effect along with
consequential benefits of promotion/financial up-
gradation/promotion under policy of cadre restructuring
at par with his juniors, and to correct all seniority list where
the workman has given wrong seniority position, and to
maintain correct seniority list.
4. The Management, on the other hand, pleaded,
inter-alia, that the reference is not maintainable in its present
form as well as in law and fact and hence, it is liable to be
dismissed; that the statement made in paragraphs-2 and 3
are not correct and the facts are on record; and that the
statements made in paragraphs-4, 5 and 6 of the claim
statement are not correct and hence, denied by the
Management. It is stated by the Management that it is not
correct that the workman was promoted to the post of
Lineman since the workman failed to mention the date of
promotion and the reason behind this for non disclosing
the promotion date is self explanatory. It is also mentioned
by the Management that the post of Open line is a Revenue
post while the posts attached to Construction organization
are work charge posts which is a decided fact in N.F. Railway
based on the circumstances of the urgent occasion and
also need based though both are under the same Railway
Organisation. All the incumbents working in the work
charged posts in the construction organization having lien
in the open line, their seniority is maintaining among the
staff comprising both Open line and Construction
Organisation; and while any regular selection is processed
in open line the staff of both the Open line and Construction
Organization are called for, as per seniority.
Further case of the Management is that no normal
selection procedure is done in Construction organization;
while in exceptional circumstances, which is time based
and need based only, some adhoc promotion are made in
the Construction Organisation amongst the Construction
staff itself only. But there is no claim of adhoc promotion of
Open line staff in Construction Organisation, and while
regular selection is made in Open line, Construction staff
are being called as per seniority and as a matter of right.
The Railway being a vast Organisation the organizational
structure of work force in N.F. Railway at the time under
question do have substantial distinction between the Open
line and the Construction staff force establishment
procedure is concerned. It is also contended by the
Management that the workman Thaneswar Kalita was
2512
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
transferred to Open line as per provisions exclusively
admissible to Open line staff only and his seniority was
also fixed, and subsequently the same is maintained in the
Open line itself. The Management categorically denied the
averment made in para Nos. 13, 14, 15 and 16 of the Claim
Statement and mentioned that the seniority of the workman
was not maintained in the working place, it is fixed in Open
line correctly and there is no scope for any junior staff to
be promoted by the superseding the workman at any point
of time. Hence, the Management contended that the case
of the workman is false and frivolous and it is nothing but
gross abuse of law, and as such, it is liable to be dismissed
with no award.
5. In order to establish their respective cases, the
Union examined 2 witnesses including the workman while
the Management examined their solitary witness Sri Anil
Kumar Sarma, the Office Superintendent, Office of the
Assistant Personnel Officer, N.F. Railway, Guwahati. Both
the parties have also produced a number of documents in
order to substantiate their respective pleadings.
6. The workman witness No.1, Sri Mridul Kr. Das,
General Secretary, RMU, N.F. zone, Pandu, in his evidence
mentioned that the workman Thaneswar Kalita is an
employee of the establishment of Senior Divisional
Electrical Engineer, Guwahati, who was appointed as casual
labourer on 16.3.84. The workman was screened for
permanent service on 1.4.84 against the 60% construction
reserve post under the Chief Electrical Engineer
(Construction), Maligaon vide Office order marked as
Exhibit-1. The workman had been working in the
Construction Organisation upto 1997 and thereafter he was
promoted to Grade-3 post of lineman in Construction
Organisation against permanent post. Subsequently the
workman was spared from Construction Organisation and
he was sent to open line on 23.10.07. vide Railway letter
No.EL/CON/LMG/Estt/2 dated 23.10.97 marked as Exhibit-
2 and the construction reserved posts are permanent post
which is evident from the Circular letter marked as Exhibit-
3. Hence, the workman is entitled to lien in the open line
from the date of his absorption as regular employee placed
under Construction Organisation and his date of
appointment in substantive post in permanent cadre in the
gradation list maintained in the open line in his grade
Khalasi helper. The workman was sent to the establishment
to Senior Divisional Electrical Engineer, Guwahati and
accordingly his seniority in this establishment in his group-
D grade would be according to his lien reckoning from the
date of his appointment i.e. 1.4.84 but the Management did
not do so. Instead of maintaining the seniority of the
workman in the establishment of Senior Divisional Engineer,
Guwahati in his Group-D grade of Khalasi and workman
was given a slot in the gradation list of Khalasi(P). Due to
the said wrong assignment of seniority the workman has
been superseded by his juniors reckoning the date of his
absorption in permanent post who was appointed later
than the workman but placed in the gradation list above
the workman for which the workman has been deprived of
the opportunity of getting promotion including the
promotion through restructuring of cadre. In support of
his contention of the workman witness No. 1 has relied on
the provisions of Rule 12 of Railway Establishment Manual,
Volume-1 of 1989Edition together with the provisional
seniority list of Khalasi(P) in the scale of Rs. 2550 to
Rs. 3200 as on 01.04.1988 marked as Exibit-4. In his cross-
examination the W.W.1 categorically denied the suggestion
that the overall seniority counted from the date of joining
in the open line and a per the policy Circular marked as
Exhibit-1 seniority of the workman would have been
counted from the date of his posting in the open line i.e. in
1997.
The workman Sri Thaneswar Kalita stated that he
was screened for permanent service on 1.4.88 against the
60% Construction Reserved Post under Dy. CEE,
Construction vide Exhibit-1, and he was promoted to the
grade-3 post of Lineman while in service in the
Construction Organisation. He mentioned that the Railway
is divided into two wings in the N.F. Railway, one is Open
Line construction under General Manager, N.F.Railway and
the other is Construction wing headed by another General
Manager (Construction), Subsequently the workman was
spared from construction Organisation on 23.10.97 vide
Exhibit-2. He also mentioned that as he was a permanent
railway workman from the date of his absorption from 60%
reserved post he had the enhancement the right to lien in
the open line Organisation in suitable Units which will be
decided by the Management with effect from the date of
his permanent absorption and his seniority would be fixed
from the date of his screening. He also mentioned that the
construction reserve posts are permanent as it appears
from the Circular Letter marked as Exhibit-3. He again
supporting the statement of W.W.1, stated that he is entitled
to a lien in the open line from the date of his absorption as
a regular employee placed under construction of N.F.
Railway, and his date of appointment in the substantive
post in permanent cadre is the universal criteria for deciding
his seniority in the open line for his grade of Khalasi helper.
Thje workman contended that his seniority is to be
maintained from the date of his screening on his transfer
on administrative ground from Electrical Wing of the
construction organization to the Electrical Establishment
of Senior Divisional Engineer, Guwahati in open line under
Rule 312 of Indian Railway Establishment Manual, Volume-
I of 1989 marked as Exhibit-5. He has also produced the
seniority list showing the junior most personnel got
promotion earlier in terms of the date of appointment date
of birth, than the senior most personnel borne in
construction Organisation whose lien was fixed under
Sr.DEE/Guwahati of Lumding Division vide Exhibit-6; and
the provisional seniority list of Khalasi Helper as on
1.4.2000, marked as Exhibit-7.
¹Hkkx II—[k.M 3(ii)º
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2513
During his cross-examination he mentioned that he
has got the less pay about Rs. 2000 per month after joining
in the open line but he has not submitted any document in
respect of drawing less pay.
The Management witness No. 1 Sri Anil Kumar Sarma,
Office Superintendent, Office of the Assistant Personnel
Officer, Station Road, Guwahati in his deposition stated
that the workman Thaneswar Kalita was originally a staff
of Construction Organisation who joined there on 16.3.84
as casual labourer, and the workman was allowed temporary
status of casual labourer on 11.3.85 under Construction
Organisation. Subsequently on 1.4.84 the workman was
approved for posting against permanent post in the
Construction Organisation, and thereafter the workman
became eligible to be transferred to open line of Railways.
Thereafter the workman joined as Khalasi, Group-D on
24.10.97 as per the option preferred by the workman. He
aslo mentioned that the workman was promoted on ad hoc
basis as Fitter-cum-Driver, Grade-3 and the relevant entry
in respect of the ad hoc promotion of the workman on
13.2.1990 as Fitter-cum-Driver, Grade-3 was made in the
Service Book of the workman vide Exhibit-A and Exhibit-
A(1). The seniority of the workman has been maintained in
the open line with effect from the date of his joining i.e.
24.10.97, as per the Railway Rules, the workman is not
entitled to get seniority in open line on the basis of his
approval in the screening as on 1.4.84 in the construction
organization. He also added that both the open line and
construction organization are under same umbrella but the
status of both are different as the open line is concerned
with Revenue Post while the construction is concerned
with work charged, time based, need based and for project
oriented post; if a person joined as per selection in the
open line directly before the date of the joining of the
construction organization the seniority of the said workman
who joined later in open line will be considered above that
of the workman who joined earlier in construction
organization. The Divisional seniority is maintained
independently, in case of posting of an employee from one
Division to another on administrative ground his inter se
seniority would be maintained but if the said employee is
transferred at his own instance his seniority will not be
maintained, and as the workman has been posted in open
line at his own request/option his seniority in the
construction organization would not be maintained. As
such, the claim of the workman for maintaining his seniority
as on the date of his screening in construction organization
is not tenable. During his cross-examination the
Management witness No. 1 admitted that the right to lien
of the workman was acquired on 1.4.1984. He also said that
the seniority of the employee is counted from the date of
his regular absorption in any organization of the Railway
and the workman is entitled to all the benefits of railway
employees except seniority and promotional benefit
although he joined earlier in construction organization. He
also admitted that there is no record to show the option on
request of the workman available in their office. He also
denied the suggestion tendered by the Union that the
workman is not entitled to seniority as well as promotional
benefit on the basis of his permanent absorption in the
construction organization.
7. On completion of hearing from both the parties I
have heard argument from both the sides at length. The
Union also submitted a written argument. From the evidence
and the documents relied upon both the sides it is found
admitted that the workman joined in construction
organization of N.F. Railway on 16.3.84 as casual workman
and he was absorbed in permanent post of construction
reserved post after his approval in the screening on 1.4.84;
and that the workman was spared form construction
organization on posting in open line on 23.10.97. Now the
vital issue involved of this dispute is whether the seniority
of the workman is to be maintained with effect from the
date of his permanent absorption i.e. 1.4.84 in the
construction organization on his posting in the open line.
On scrutiny of the Railway memorandum No.52/96 dated
15.5.96 proved as Exhibit-1, it appears that the workman Sri
Thaneswar Kalita was duly screened by the Screening
Committee and approved by the competent authority under
letter No. Dy.CEE/CON/MLG and he was absorbed against
permanent post of 60% construction reserved sanctioned
post and his name has been reflected at serial No. 23 of the
said Circular letter (Exhibit-I) and he was spared on 23.10.97
from construction organisation for reporting to his new
assignment. The provisional seniority list of Khalasi in the
scale of Rs. 2550—3200 of open line proved vide Exhibit-4
shows that the name of the workman Thaneswar Kalita
appears at serial No. 35 showing his Date of Birth as
29.4.1966, date of appointment as 16.3.84/24.10.97 and in
the said document a good number of employee (Khalasi)
whose date of birth, date of appointment are much later
than those of the workman, have been placed senior to the
workman. Thus it is clear that the seniority of the workman
has been counted from the date of his joining in the open
line ignoring his render the service with effect from 1.4.84
against the permament vacancy in construction
organization.
Mr. Das, the representative of the Union submitted
that the Railway Board vide their letter No. E(NG).II/78/CL/
12 dated 14/16.10.1980 and No. E(NG).II/85/CL/6 dated
28.11.86 and 19.5.87 made clear provision for maintenance
of seniority and he referred para-12,17, 17.2,17.5 of the said
Master Circular which provide protection of the status in
stages of casual labourer as follows:
"Seniority:
12. Service prior to absorption in the regular cadre
will not count for seniority, which will be determined on the
basis of their regular appointment after due screening/
selection vis-a-vis other regular Railway servants, subject
2514
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
to the provision that if the seniority of certain individual
Railway servants, subject to the provision that if the
seniority of certain individual Railway servants has already
been determined in any other manner pursuant to Judicial
decision or otherwise, the same shall not be altered.
17.2 Absorption i.e. appointment against a regular
vacancy, will be on the basis of screening and not by
selection. The Screening Committee should at least consist
of three members including an officer belonging to SC/ST
community and another to minority community.
17.5 After working out the vacancies in Gr.-D to be
provided for the absorption of casual labour in regular
employment in accordance with the instructions in force, a
list of casual labour eligible to be considered should be
drawn equal to the number of vacancies worked out plus
25% thereof. In drawing the list, only those who are borne
on the current casual labour register, excluding those who
had been absent on two occasions when called for
screening earlier, should be considered. The list should be
prepared in the order of seniority of all eligible casual labour
in the unit of screening which may be fixed by the Railway,
based on the total service/cumulative aggregate service."
Mr. Das, representative of the Union also submitted
that in Railway substantive appointment is regulated by
provision of Indian Railway Establishment Code, Volume-
I, Rule-238 which provides that two or more Railway Servant
can not be appointed to the said permanent post at the
same time; a Railway servant can not be appointed
substantively to two or more permanent posts at the same
time; and a Railway servant can not be appointed
substantively to a post on which another Railway servant
holds a lien. He also mentioned that Rule 239 defines lien
as unless in any case it be otherwise provided in these
Rules a Railway servant on substantive appointment to
any permanent post acquires a lien on the post and causes
to hold any lien provisionally acquired on any other post;
and these provisions under Rule 238 and 239 are applicable
in case of the present workman on absorption in a regular
post with effect from 1.4.84. Mr. Das also added that the
construction organization does not maintain a cadre of
permanent staff for the rank of Khalasi and substantive
absorption or appointment can be given in permanent cadre
is maintained only there and after absorption in open line
one can always go back to his substantive post by the dint
of his lien in the post in open line. Thus the seniority of the
workman was maintained in the open line with effect from
the date of his joining on 24.10.97 is not legal and justified
and as such, the management committed a grave illegal
and wrong assignment of the seniority to the workman in
the Establishment of Sr. DEE, Guwahati in his Grade-D cadre
of Khalasi and instead in giving a slot in the gradation list
of Khalasi (P) far below the staff appointed much later than
him in the open line. He cited the example of one workman
namely Sri Gopal Sarkar who was appointed on 11.4.1997
was given to 3rd slot in the gradation list whereas the
workman absorbed on 1.4.88 was given the 30th slot. In
support of his contention Mr. Das referred the documents
marked as Exhibit-7 and Exhibit-6.
8. Mr. K.C. Sarma vehemently opposing the
submission of the representative of the Union stated that
the workman was appointed initially as casual worker as
Khalasi under Construction Division and he was absorbed
against permanent vacancy on 1.4.84; and thereafter at his
instance the workman was taken in open line on 23.10.97.
As such, as per the provision of the Railway Board's
Circular No. E(NG) 1-85-SR.6/14 dated 22.1.86 and Rule 312
of Indian Railway Establishment Manual, Volume-I (Revised
Edition 1989) the workman has abandoned his seniority
due to his offering application for transfer from
Construction Organisation and hence, he is not entitled to
the seniority on the basis of his absorption in construction
organization. Mr. Sarma, Learned Advocate also submitted
that there is no example of promotion to higher post in
open line superseding the workman, nor the workman ever
agitated before the Management for maintaining his
seniority on the basis of his permanent absorption in the
construction organization.
9. On careful scrutiny of the evidence on record and
having regard to the submission of the learned counsel for
the workman as well as learned Advocate for the
Management it appears that although the management is
taking plea that the workman was transferred from
construction organizaton to open line at his request and
his seniority was fixed with effect from the date of his joining
in the open line organization, and his seniority was fixed
below the existing staff in his grade in open line as per
provision of Rule 312 of Indian Railway Establishment
Manual, Volume-I (Revised Edition 1989). But there is no
iota of evidence to show that the workman has submitted
any representation for transferring him from construction
organization to open line even the Management. At the
instance of the workman, the Management was directed to
produce the representation or any application submitted
by the workman for transferring him from construction
organization to open line, but they have failed to produce
any document. Further the workman categorically
mentioned that he was transferred from construction
organization to open line on administrative ground and his
contention was supported by the workman witness No. 1
and even the Management did not adduce any rebuttal
statement challenging trustworthiness of this contention
of the workman. In the spare letter marked as Exhibit-2
there is no mention to the effect that the workman was
spared from construction organization to join in the open
line at his own request. Thus it is found well established
that the workman was transferred from construction
organization to open line in the interest of Administration.
As per provisions of Rule 311 of Indian Railway
Establishment Manual, Volume-I (Revised Edition 1989) the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2515
seniority of the Railway servant on transfer from one cadre
to another in the interest of the Administration is regulated
by the date of promotion/date of appointment to the grade
as the case may be and the provision of Rule 312 of the
said Manual as relied upon by the Management in case of
the present workman, it is applicable in case of transfer
from one Railway to another and from one cadre/Division
to another cadre/Division on the same Railway in case of
request of the workman.
In the Railway Board Master Circulat letter No.
E(NG)II/78/CL/12 dated 16.10.1980 and letter No. E(NG)II/
85/CL/6 dated 28.11.1986 and 19.5.1997 and at Para-12 it
has been provided that the seniority of the workman will
be determined on the basis of their regular appointment
after due screening selection vis-a-vis other regular Railway
Servant subject to the provision that if the seniority of
individual Railway servant has already been determined in
any other manner in pursuance to the judicial decision or
otherwise, the same shall not be altered. In para-17.2 of the
said Circular it is mentioned that absorption i.e. appointment
against a regular vacancy will be on the basis of screening
and not by selection, and the service prior to absorption in
regular cadre will not count for seniority which will be
determnined on the basis of regular appointment after due
screening/selection. Rule 239 of Indian Railway Code of
the Account Department Pt. I (revised Edication 1984)
Chapter-2 runs as under:—
"239. Lien— Unless in any case it be otherwise
provided in these Rules a railway servant on
substantive appointment to any permanent post
acquires a lien on that post and ceases to hold any
lien provsionally acquired on any other post."
In this connection my attention has been drawn by
the learned counsel for the workman to the Writ petition
Nos. 147, 320-69, 454, 4335-4434/83 etc. disposed of by the
Hon'ble Supreme Court wherein it was ordered as:
"We are of the view that the Scheme prepared by the
Railways setting out the list of project casual labour
with reference to each department in each. Division
and also in regard to each category, namely, skilled,
semi-skilled and unskilled, is in compliance with the
judgement and order dated 18.4.1995 given by this
Court and that obsorption of these with the longest
service be made in accordance with such list. Mr.
Krishnamurti Iyer states that this process will be
completed within two months from today. The matter
is disposed of in these terms".
In H.S. Vankani V/s State of Gujrat of Gujarat, AIR
200 SC 1714, wherein it was held that the seniority plays a
vital role in employee's service career. Unsetting the seniority
leads to resentment, hostility and loss of enthusiasm to do
quality work. Hon'ble Supreme Court in Rajendra Pratap
Singh Yadav V/s State of Uttar Pradesh reported in AIR
(2011) SC 2737 held that the sanctity of the final seniority
list must be maintained unless there are very compelling
reasons to do so in order to do substantial justice. It is also
decided by the Hon'ble Apex Court in a case reported in
AIR 2009 SC 137 that inter se seniority between direct
recruits and promotees the principle of continuous length
of service ought to be applied being most equitable rule.
10. In view of the above discussion & the findings &
having regard to the ratio of the cases cited above, I find
no reason to discord the please of the Union that the
workman was transferred from construction to open line in
the interest of management of the N.F. Railway and as the
workman has been working against permanent post after
his screening in Construction Organisation w.e.f. 1.4.1984
he is entitled to his seniority with effect from the date of his
absorption against permanent vacancy on 1.4.1984 under
construction organization. Thus, the fixation of the
seniority of the workman with effect from 23.10.1997 i.e.
from the date of his absorption in open line, by the
Management is against the principle of substantial justice
as well as natural justice.
11. In the result, it can safely be held that the demand
of the Rail Mazdoor Union for fixation of the seniorty of Sri
Thaneswar Kalita in the cadre of open line Organisation
from the date of his screening (i.e. with effect from 1.4.1984)
in the construction organization is legal and justified.
Accordingly the workman is entitled to his seniority in the
open line with effect from 1.4.1984 in the cadre in which he
was absorbed against permanent post. The workman is
also entitled to other consequential benefits as per the
Railway Establishment Manual and other Circualr/
memoranda issued by the Railway Board from time to time.
Accordingly this Reference is decided on contest in favour
of the Union.
12. No cost awarded.
Send the Award to the Government as per law.
Given under my hand and seal of this Court on this
12th day of February, 2014 at Guwahati.
L. C. DEY, Presiding Officer
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lqefr ldykuh] vuqHkkx vf/kdkjh
2516
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 26th February, 2014
S.O. 954.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 588/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court No. II, Chandigarh now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of State Bank of India and
their workmen, which was received by the Central
Government on 26/02/2014.
[No. L-12012/272/1999-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
PRESENT: Shri Kewal Krishan, Presiding Officer.
Case I.D. No. 588/2005
Registered on 23.8.2005
Sh. Manphool Singh, C/o Sh. Tek Chand Sharma,
25-Sant Nagar, Civil Lines,
Ludhiana (Punjab)-141001
...Petitioner
Versus
The Regional Manager, State Bank of India,
Regional Office, Region-III (Haryana & UT- Chd.)
Sector-85, Chandigarh-160008
...Respondent
APPEARANCES:
For the workman
Sh. Tek Chand Sharma Adv.
For the Management
Sh. N.K. Zakhmi Adv.
AWARD
(Passed on 5.2.2014)
Central Government vide Notification No. L-12012/
272/99-IR(B-I) Dated 15.11.1999, by exercising its powers
under Section 10 Sub-section (1) Clause (d) and Sub-
Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Act') has referred the following
Industrial dispute for adjudication to this Tribunal:—
"Whether the action of the management of SBI
represented by Regional Manager, SBI Region No.
III (Haryana & U.T. Chandigarh) Sector 8C,
Chandigarh, in imposing punishment of dismissal
from service to Sh. Manphool Singh, Cashier-cum-
Clerk vide order dated 5.5.1988 is just and legal. If
not to what relief the workman is entitled to and from
which date?"
In response to the notice the workman appeared and
submitted statement of claim pleading that he had been
wroking with the repondent bank as Cashier-cum-clerk at
Mandi Dabwali when he was placed under suspension
vide order dated 13.6.1986. He was issued charge-sheet
dated 8.6.1986 alleging misconduct to which he submitted
reply. But the same was not considered and Inquiry Officer
was appointed who conducted the inquiry and submitted
his report. On the basis of the Inquiry report, he was
dismissed from service. Now according to him, the inquiry
was not legal and valid as the Inquiry Officer was not
appointed as per provisions of law and notice was not
displayed on the bank's notice board regarding the
appointment. That the charge-sheet served was not legal
and did not contain the list of witnesses/list of documents.
That the Inquiry Officer acted in a biased manner and did
not appreciate the evidence led before him. That the report
of the Inquiry Officer is not based on any evidence. The
disciplinary authority also did not apply its mind before
issuing the show cause notice to which he submitted reply
which was not considered at all and he was illegally
dismissed from service. Considering the conduct of the
authorities concerned, he did not prefer any appeal. That
his dismissal is illegal and the same be set aside with
continuity of service.
Respondent-bank filed reply pleading that a proper
and valid inquiry was held and the workman was given due
opportunity to defend himself and on the basis of the
Inquiry, after serving a show cause notice to the workman,
he was dismissed from service as he was found guilty of
gross misconduct. That there is no illegality in the inquiry
proceedings or in the dismissal order. That the workman
was required to prefer an appeal before the Appellate
Authority under the law and since he did not prefer any
appeal, the industrial dispute is premature.
In support of its case the workman appeared in the
witness box and filed his affidavt reiterating the case as set
out in the claim petition.
On the other hand the management examined M.L.
Palta and Sh. V.K. Jain.
Sh. M.L. Palta is the person who conducted the
inquiry. He placed on record the inquiry proceedings Exhibit
MW-2/2 (37 pages).
Sh. V.K. Jain filed his affidavit reiterating the case of
the respondent as set out in the written statement.
I have heard Sh. Tak Chand Sharma counsel for the
workman and Sh. N.K. Zakhmi, counsel for the management.
It was vehemently contended by learned counsel for
the workman that the appointment of the Inquiry Officer
was not made according to Rules and no order in this
respect was given to the workman and therefore the finding
of the Inquiry Officer is illegal. He has further contended
that the Inquiry Officer did not act in a fair manner as he
himself put probing questions to the witnesses and to the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2517
prejudice of workman. That the Inquiry report is not based
on any evidence and even the complainant did not appear
before the Inquiry Officer and thus the inquiry report is not
legal and consequently the action taken on its basis
dismissing the workman is also not sustainable. I have
considered the contentions raised by the learned counsel
and perused the inquired proceedings.
The workman was charge-sheeted on the following
grounds vide charge-sheet dated 18.6.1986.
1. That on 3.4.1986, while officiating as teller, he made
a payment of withdrawal for Rs. 500 relating to
Savings Bank Account No. 24/7866 maintained
by one Sh. Om Prakash at our Mandi Dabwali
Branch. The signatures of the account holder on
the front and reverse of the withdrawal from are
apparently forged.
2. Again on 16.4.1986 at his instance withdrawal for
Rs. 500/- was authorized without pass book by
Sh. H.R. Bishnoi, Accountant and he attested the
signatures of Sh. Om Prakash, accountholder
appearing on the reverse of the withdrawal in the
style known to me. The payment was collected
by him from Sh. B.R. Silha, officiating Teller and at
that time he was accompanied by another person
whom the officiating teller thought to be the
depositor. Further, he posted the withdrawal in
the ledge account although he was not working
on that seat. The signatures of Sh. Om Prakash,
appearing on the front and reverse of that
withdrawal form materially differ with those
recorded at the branch and are apparently forged.
3. On 2.5.1986, a sum of Rs. 1000 has been deposited
in the above account and signatures appearing
on the deposit voucher are similar to those
appearing on the above-mentioned two
withdrawal forms.
4. Although he was not working on the Saving Bank
Seat, he posted two withdrawals for Rs. 500 and
Rs. 100 on 16.4.1986 and 17.4.1986 in the ledger
sheet of account No. 24/7866 on 17.4.1986 he
also completed the pass book and handed over
the same to the depositor without making entries
of the two withdrawals dated 3.4.1986 and 16.4.1986
for Rs. 500 each and intentionally showed the
pass book a balance different to that appearing in
the ledger account. The balance in the pass book
has been authenticated by him.
When he did not submit reply to the charge-sheet,
the competent authority passed order dated 12.9.1986
appointing the Inquiry officer as well as Presenting Officer
and the workman was accordingly informed. The Inquiry
Officer conducted the proceedings and during the inquiry
the photocopy of the documents relied upon by the
management were supplied to him as is clear from the
proceedings dated 18.12.1986. Workman also told the
Inquiry Officer that he would be defended by S.N. Aneja.
On the next date of hearing i.e. 23.1.1987 the workman
decided to defend himself as his defence representative
did not turn up. The inquiry procedings further show that
witnesses were examined in his presence and were cross-
examined by him. On 28.5.1987 workman did not produce
any witness in his defence and on his request the case was
adjourned to 19.6.1987. On that day the workman was
proceeded against ex parte.
During the inquiry, the Inquiry Officer examined
seven witnesses who supported the case of the bank. All
the witnesses were duly cross-examined by the workman
himself. Replying on the evidence produced before him,
the Inquiry Officer submitted a detailed report dated
6.8.1987 holding that all the charges are proved against the
workman. It is nowhere the case of the workman that he
was wrongly proceeded against ex parte. It is not shown
that the Inquiry officer has violated any rule or regulation
by conducting the inquiry. It is specifically pleaded by the
respondent bank that the appointment of the Inquiry Officer
was duly displayed on the bank's notice board and it is not
shown under which rule the documents and list of witnesses
were to be supplied to the workman along with the charge-
sheet. However he was supplied the documents during the
inquiry. The report of the Inquiry Officer is based on the
evidence led before it. If the Inquiry Officer has asked any
question to any witness, the same do no vitiate the inquiry
as Inquiry Officer was not to sit as a mute spectator and he
was well within the powers to illicit the truth from the
witnesses, though, it is not shown that he asked any
question to the witnesses which proved detrimental to the
workman. Thus the inquiry do not suffer from any illegality
and the same is held to be fair and proper.
It was submitted by the learned counsel that only
small amounts of Rs. 500 are allegedly misappropriated by
the workman and an extreme penalty of dismissal from
service has been imposed on him which is not justified. It
is not disputed that banking business revolves around
integrity and honesty and the same is necessary to build
the confidence of the public. The workman has withdrawn
amounts from the accounts of the customer and dealt with
the bank books at his will which tantamount to gross
misconduct on his part and he cannot take refuge that only
small amounts were received. Considering the gravity and
misconduct of the workman, the bank authorities rightly
imposed the penalty of dismissal from service and the same
do not call for any interference.
In result, the reference is answered against the
workman holding that the punishment of dismissal is just
and legal. Let hard and soft copy of the award be sent to
the Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
2518
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 26 Qjojh] 2014
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New Delhi, the 26th February, 2014
S.O. 955.—In pursuance of Section 17 of the
Indusrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 15/2004)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bangalore as shown in the Annexure, in the industrial
disputes between the management of State Bank of India
and their workmen, received by the Central Government on
26/02/2014.
[No. L-12012/179/2003-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
29th January, 2014
PRESENT
:
Shri S. N. NAVALGUND,
Presiding Officer
C R No. 15/2004
I party
II party
Sh. Thimmaraj.
The General Manager,
No. 16, Muthyalam
State Bank of India,
Koil G. Street,
No. 48, Church Street,
Bangalore - 560 001.
Bangalore - 560 001.
APPEARANCES :
I Party
:
Shri H. H. Nagaraj, Advocate
II Party
:
Shri B. C. Prabhakar, Advocate
AWARD
1. The Central Government vide order No. L-12012/
179/2003-IR (B-I) dated 26.02.2004 in exercise of the power
conferred by clause (d) of sub-section (1) and sub-section
(2A) of Section 10 of the Industrial Disputes Act, 1947 (14
of 1947) made this reference for adjudication with the
following schedule:
SCHEDULE
''Whether the action of the management of State Bank
of India is justified in terminating the services of
Shri R. Thimmaraj, Temporary Sub-staff w.e.f.
27.4.2000? If not to what relief he is entitled?''
2. On receipt of the reference from the Central
Government, when notices were issued to both the parties
I party entered his appearance through Sh. H. H. Nagaraj,
advocate and filed his claim statement on 14.05.2004 and
the II party entered its appearance through Sh. J. Satish
Kumar, Advocate and filed its counter statement on
22.12.2004.
3. In the claim statement filed by the I party it is
alleged that his representation raising the dispute in
claiming appointment on permanent basis is based on the
lines of the advertisement dated 01.08.1988 published in
Deccan Herald by the Personnel Manager; State Bank of
India management in line with Clause 5 of the agreement
dated 17.11.1987 entered between the State Bank of India
and All India State Bank of India Staff Federation and that
the II party contention that each branch/office is to be
treated as one establishment and temporary service put in
at a branch/office alone will be reckoned for the purpose,
establishes a clean deviation from the paper advertisement
which reads as ''Eligible category of temporary employees''
240 days of temporary service in a calendar year of 270
days of temporary service in a block of 36 calendar months
or 30 days of service in a calendar year of 70 days in any
block of 36 calendar months after 1.07.1975 and up to
31.07.1988 at ''any one or more branches/offices under a
module (Regional Office) as existing/defined as on
31st July 1988 exhibit (1) enclosed''. It is further stated that
he having completed 114 days of temporary service in
3 branches namely Richards Town, Kacharakanahalli and
J.C. Road branch between the period 12.11.1984 to
28.04.1987 he is eligible to be appointed on permanent basis
and that in this connection he has submitted an application
cum declaration on 28.03.1995 furnishing the entire details.
Thus he has claimed that his candidature for a permanent
appointment needs to be considered on the basis of his
temporary service of 114 days in three different branches
and out of the total absorption made there are 30 persons
having put in service of 114 days to 90 days of service so
his absorption should be at par with the similar category of
similar seniority.
4. It is contended in the counter statement filed by
the II party that the bank has been engaging temporary
employees especially in the sub-staff to work on daily
wages in leave/casual vacancies of messengers and as
there was a long standing demand from the association of
All India Bank Employees Federation that these temporary
employees should be considered for absorption in
permanent vacancies, after a great amount of discussion a
bipartite settlement dated 17.11.1987 was entered into and
the same was subsequently modified by another agreement
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2519
dated 16.07.1988 under which all eligible temporary
employees were to be given a chance for being considered
for permanent absorption subject to the terms and
conditions contained in the said agreement categorising
them into 3 categories viz.,
(a) those who have completed 240 days temporary
service in any continuous block of 12 calendar
months or less during the period 01.07.1975 to
31.7.1988,
(b) those who have completed 270 days temporary
service in any continuous block of 36 calendar
months during the period 1.07.1975 to 31.07.1988
and
(c) those who have completed a minimum of 30 days
aggregate temporary service in any calendar year
after 1.07.1975 or a minimum of 70 days aggregate
temporary service in any continuous block of 36
calendar months during the period 01.07.1975 to
31.07.1988. It is further contended that the
aforesaid aggregate temporary services of 270
days, 240 days, 70 days or 30 days should have
been put in by a daily wager at any one or more of
the offices. It is further contended that candidates
will be appointed in full time or part time positions
and they will be treated as new entrants and will
not be entitled for any back wages or difference
between the wages payable to regular temporary
employees and adhoc/fixed remuneration paid to
them or any other attendant benefits and their
appointment will be effective from the date they
take up their permanent appointment.
5. It is further contended the I party was placed in
the list "C" category according to his seniority which is
determined according to the numebr to his seniority which
is determined according to the number of days of work
done during the relevant period from 01.07.1975 to 31.07.1988
and that the employees falling in A, B & C list were absorbed
in that order in the vacancies arising up to December, 1994
untill the lapse of the panel in March, 1976 and though the
cut off date was March 1997 the panel was kept alive upto
December 1997. It is further contended the employees listed
were absorbed according to the seniority against the
vacancies that arise up to December 1994 and the
employees who have put in 90 days service was the last
employee to be absorbed. It is also denied in the counter
statement relaxing some conditions for few employees side
lining the I party being absorbed. It is also contended the
I party being not in the service of the bank as of now in any
capacity temporary or otherwise the question of continuing
his service in the bank does not arise and there being no
vacancies in the bank it is not possible to absorb him.
6. It is also contended in the counter statement that
the I party had filed Writ Petition No. 13041/2000 on the file
of the Hon'ble High Court of Karnataka and same came to
be disposed of with observation that the bank can consider
the case of the I party for absorption in case if the vacancies
that may be created from 1997 till 05.09.2000 and in
pursuance to the said order the bank has examined the
case and considered and found that there are no vacancies
arose as per the observations of the Hon'ble High Court
and an endorsement was issued to the complainant under
letter No. PER & HRD:5440/276 dated 18th December 2000
and aggrieved by that endorsement the I party filed
contempt petition before the Hon'ble High Court of
Karnataka and aggrieved by that the bank filed SLA before
the Hon'ble Supreme Court of India in SLA No. 13095-13097/
2001 wherein their lordships dismissed the case in favour
of the bank. It is further contended that the Hon'ble High
Court of Karnataka in Writ Appeal No. 6290/2000 held that
if an employee is found to be eligible as per the scheme is
entitled for absorption in the permanent vacancy and if an
employee is found ineligible to be appopinted as per the
scheme in the permanent vacancy the question of
absorbing him for future vacancy does not arise. Thus it is
contended the case having been reached finally before the
High Court this reference deserves to be dismissed.
7. With the above pleadings when the II party was
called upon to adduce evidence, initially the affidavit of
Shri K.A. Ganapathi, Chief Manager (P&HRD) State Bank
of India, Zonal Office, Bangalore was filed on 19.11.2005
and later since he could not be produced for cross
examination giving up his affidavit a fresh affidavit of
Shri Vadiraj P. Bhat, Dy. Manager (P&HRD), Zonal Office,
Bangalore reiterating the counter statement came to be
filed on 14.02.2006 and through him the copies of settlement
dated 17.11.1987 and 16.07.1988 between the Subordinate
Temporary staff and the II party bank got marked as Ex- M-
1 and Ex M-2 and he is subjected to cross examination by
the counsel for the I party, Interalia, the I party workman
while filling his affidavit and examining himself on oath as
WW1 got marked Ex W-1 to Ex W-22 the detailed description
of which are narrated in the annexure (Ex- W-1 to W-12
have been got marked during the cross examination of
MW1, whereas, Ex W-13 to W-22 have been got marked in
the examination chief of WW1 dated 04.01.2007).
8. With the above pleadings, oral and documentary
evidence brought on record by both the sides, after hearing
the arguments addressed by the learned advocates for both
the sides by Award dated 11.07.2011 the award was passed
in following terms:
"The reference is allowed holding that the action of
the management in terminating the services of the
first party w.e.f. 27.04.2000 is not justified and that
the first party is entitle for absorption as a last man
amongst those who have been absorbed having put
in service of 114 days as temporary sub-staff. He is
also entitle for back wages from such date of
2520
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
absorption fixed by the second party with all other
consequential benefits that he would have received
in the event of his absorption on that day. The second
party has to work out and carry out the award within
two months from the date of Gazette publication of
the award by issuing him absorption order and pay
the arrears and in default to comply within the
stipulated period accrued arrears would be payable
with interest @ 8% per annum."
9. When this award was challenged by the II Party
before the Hon'ble High Court of Karnataka in W P No.
45482/2011 (L-RES) the Hon'ble High Court by Order dated
11.09.2012 set aside the said award and remitted back the
matter with direction to confine to the issue referred i.e. as
to "Whether the action of the management of State Bank
of India is justified in terminating the services of Shri R.
Thimmaraj, Temporary Sub Staff w.e.f. 27.04.2000? If not to
what relief he is entitled?"
10. Persuant to the Order of the Hon'ble High Court
referred to above while re-registering the reference in C R
15/2004 when notices were issued to both the sides, they
entered their appearances through their respective
advocates and counsel for the I Party filed his written
arguments and cited the decisions reported in
1. 1. 2002 III LLJ Page 885 - Suraj Pal Singh and
others vs. Presenting Officer., Labour Court No.
111 and another.
2. 2. LLJ 1972 SC Page 486 - Senior Superintendent,
RMS Cochin and another vs. KV Gopinath, Sorter.
3. 3. 1978 LAB IC Page 394 - Assistant Personnel
Officer, S Rly, Olvakkot vs. KT Anthony.
4. 4. LLJ 19814 II SC Page 386 - Surendra Kumar
Verma and others vs. CGIT, New Delhi.
whereas, the learned advocate appearing for the II Party
addressing his oral arguments relied upon the decision
reported in
AIR 1997 SC 1657 - Himanshu Kumar Vidyarthi and
others vs. State of Bihar and others.
11. In view of the order passed by Hon'ble High Court
in WP No. 45482/2011 (L-RES) the point that arises for my
consideration is "Whether the II Party terminated the
services of Sh. R Thimmaraj, Temporary sub-staff w.e.f.
27.04.2000? If yes, whether such termination is justified?"
12. On appreciation of the pleadings oral and
documentary evidence adduced by both the sides with the
written arguments filed by the I Party counsel and oral
arguments addressed by the II Party counsel my finding
on the I part of the point is in the Negative and the II part
also in the Negative for the following.
REASONS
13. On carefully going through the claim statement
filed by the I Party absolutely I find no allegation/assertion
being made his temporary services being terminated w.e.f.
27.04.2000 or any evidence is let in to that effect. His only
claim is that pursuant to the II party advertisement in
Deccan Herald dated 01.08.1988 in line with clause 5 of the
agreement dated 17.11.1987 entered between the SBI and
All India SBI federation he applied for his absorption/
regularisation through his application cum declaration
dated 28.03.1995 furnishing the entire details which needs
to be considered. Now in view of the order of the Hon'ble
High Court in W P No. 45482/2011 (L-RES) in this reference
there is no scope to consider such claim of the I Part. Even
after the Hon'ble High Court set aside the Award passed
by this tribunal dated 11.07.2011 with a direction to confine
only to the issue referred the I Party neither amended the
claim statement nor lead any evidence his temporary
services being terminated w.e.f. 27.04.2000 and for what
reason the same is not justified. The learned advocate
appearing for the I Party in his written arguments states
that in this case 240 days need not be proved as there is a
statutory settlement between both the parties under Section
18 of the ID Act as well as the Rule 29 of the Karnataka
Standing Order Rules as such the termination of the I Party
is illegal and arbitrary. If such a argument is to be considered
again this tribunal would commit the same error that was
committed while passing the award dated 11.07.2011 which
has been set aside by the Hon'ble High court holding that
the same is outside the scope of the reference. A temporary
employee if alleged and proved as contemplated by Section
25 of the ID Act that he had continuously worked for 240
days in a twelve calendar month he gets a right as
contemplated under Section 25F of ID Act for being given
one month's notice in writing indicating the reasons for
retrenchment or wages in lieu of such notice and
compensation equivalent to 15 days average pay for every
completed year of continuous service or any part thereof
in excess of 6 months and do not confer any right on him
for being permanently absorbed in the establishment.
Therefore, in the absence of the pleading and evidence by
the I Party that he worked continuously for a period of 240
days in the particular 12 calendar months even if he is
presumed to have been terminated from Temporary Service
w.e.f. 27.04.2000 no fault can be found with the II Party or
any relief can be granted to the I Party. In the result, I arrive
at conclusion the I Party having failed to plead and prove
that he served for 240 days in any 12 claendar months and
terminated w.e.f. 27.04.2000 without complying the
mandatory requirements of Section 25F of Industrial
Dispute Act the alleged termination w.e.f. 27.04.2000 cannot
be found with fault. Accordingly, while answering the point
raised by me in the Negative, I pass the following.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2521
ORDER
The reference is Rejected.
(Dictated to U D C, transcribed by him, corrected and
signed by me on 29th January, 2014)
S. N. NAVALGUND, Presiding Officer
ANNEXURE - I
Witnesses examined:
MW 1 - Sh. Vadiraj P. Bhat, Enquiry Officer
WW 1 - Sh. R. Thimmaraj, I Party Workman
Documents exhibited on behalf of management:
Ex M-1
:
Copy of Settlement between the Subordinate
temporary staff and the second party bank
dated 17.11.1987.
Ex M-2
:
Copy of Settlement between the Subordinate
temporary staff and the second party bank
dated 16.07.1988.
Documents exhibited on behalf of the I Party:
Ex W-1
:
Certificate dated 31.03.1986 issued by the
Branch Manager, Richards Town of the second
party bank wherein it has been stated that the
first party has worked as a temporary
messenger for a period of 37 days during
October and November, 1985.
Ex W-2
:
Certificate issued by the Branch Manager, J.C.
Road Branch of the second party bank wherein
it is certified the first party having worked for
15 days in September 1986, 20 days in October
1986, 19 days in November 1986 and 6 days in
December 1986 totaling for a period of 60 days.
Ex W-3
:
Certificate issued by the Branch Manager,
Kacharakanahalli Branch of the second party
bank wherein it has been certified that the first
party having worked in that branch for 17 days
from 29.11.1984 to 30.11.1984, 13.04.1987 to
28.04.1987 as temporary messenger.
Ex W-4
:
Certificate issued by the Asst. General
Manager, St. Mark's Road branch of the second
party bank certifying his temporary service
from 1.04.1992 to 31.12.1992 and 1.06.1993 to
31.03.1994 (405 days).
Ex W-5
:
Certificate issued by the Asst. General
Manager, St. Mark's Road branch of the second
party bank certifying his temporary service
from September 1994 to February 1995 (164
days).
Ex W-6
:
Certificate issued by the Asst. General
Manager, St. Mark's Road branch of the second
party bank certifying his temporary service
from 1.03.1995 to 27.04.1995 (34 days).
Ex W-7
:
Certificate issued by the Asst. General
Manager, St. Mark's Road branch of the second
party bank certifying his temporary service
from October 1995 to August 1996 (196 days).
Ex W-8
:
Certificate issued by the Branch Manager,
Ulsoor branch of the second party bank
certifying his temporary service from 27.9.1999
to 30.09.1999, 1.10.1999 to 15.10.1999 &
8.12.1999 to 17.12.1999 (25 days).
Ex W-9
:
Certificate issued by the Branch Manager,
Church Street Branch of the second party bank
certifying his temporary service from 08.05.1999
to 11.05.1999, 15.05.1999, 17.05.1999 to
17.12.1999 (20 days).
Ex W-10 :
Certificate issued by the Asst. General
Manager, Ulsoor Branch of the second party
bank certifying his temporary service from
31.01.2000 to 03.02.2000, 05.02.2000 to
29.02.2000, 01.03.2000 to 13.03.2000, 03.04.2000,
19.04.2000 to 29.04.2000 & 08.05.2000 to
31.05.2000 ( 60 days).
Ex W-11 :
Letter issued by the Deputy General Manager,
Church Street Branch addressed to the first
party regarding Writ Petition No. 13640/2000
filed by the first party regarding considering
his candidature for appointment.
Ex W-12 :
Xerox copy of Ex. W11.
Ex W-13 :
Write Petition No. 13640/2000(S-REG) filed by
the first party before the Hon'ble High Court
of Karnataka dated 29th August, 2000.
Ex W-14 :
Letter addressed to the Branch/Chief Manager
dated 15th September 2000 by the Assistant
General Manager regarding WP. No. 13640-
13643/2000.
Ex W-15 :
Copy of Writ Petition No. 14812, 14813, 14815,
& 14817/1985.
Ex W-16 :
Letter issued by the Chief Manager (P&HR)
regarding recruitment of permanent part time
general attendants.
Ex W-17 :
Letter issued by the Chief Manager (P&HR)
regarding absorption of temporary employees.
Ex W-18 :
Advertisement appeared in Decan Herald
News paper dated 1st August, 1998 regarding
State Bank of India, Church Street, Bangalore
settlement dated 17th November 1987.
Ex W-19 :
Copy of Application-cum-declaration signed
by the first party dated 26.03.1995.
2522
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Ex W-20 :
Interview letter issued by the Chief Manager,
(P) to the first party dated 24.02.1995.
Ex W-21 :
Copy of 'C' list of employees of the second
party bank.
Ex W-22 :
Copy of the Bipartite agreement dated
07.05.1991.
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vfèdj.k@Je U;k;ky;] v#ukdqye ds iapkV ¼lanHkZ lañ 28@2010½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26-02-2014 dks izkIr
gqvk FkkA
[lañ ,y&12012@50@2010&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 956.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 28/2010)
of the Cent. Govt. Indus. Tribunal - cum - Labour Court,
Ernakulam as shown in the Annexure, in the industrial
dispute between the manatgement of Union Bank of India
and their workmen, received by the Central Government on
26-02-2014.
[No. L-12012/50/2010-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present : Shri D. Sreevallabhan, B.Sc. LL.B,
Presiding Officer
(Friday the 12th day of July, 2013/21st Ashadha, 1935)
I.D. 28/2010
Workman
:
Shri Manoj V
S/o. Shri Velayaudhan
Mattukkad House
Copalmannam PO
Palghat-678702
By M/s. H.B. Shenoy Associates
Management :
The Deputy General Manager
Union Bank of India
Nodal Regional Office
Ernakulam
By Adv. K.S. Ajayagosh
This case coming up for final hearing on 11.07.2013
and this Tribunal-cum-Labour Court on 12.07.2013 passed
the following:
AWARD
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 (14 of 1947), the Government
of India/Ministry of Labour by its Order No.-L-12012/50/
2010-IR(B-II) dated 07.10.2010 referred the following
industrial dispute to this tribunal for adjudication.
2. The dispute is:
"Whether the action of the management of Union
Bank of India in not considering the candidature of
Shri Manoj for regular appointment and the
subsequent action in terminating him from its services
without adhering to the provisions of the ID Act is
fair and justifiable? What relief the workman is entitled
to?"
3. After receipt of summons both parties entered
appearance. Workman field claim statement alleging that
he was employed as part-time sweeper against regular and
permanent vacancy in the Coyalmannam Branch of the
management bank in the year 1997 and since then he was
continuously working without any break of service
discharging the duties of a regular and permanent part-
time sweeper as also that of a regular and permanent peon
and at times a regular and permanent clerk as required by
the bank without payment of adequate remuneration until
he was illegally terminated from service on 27.11.2005
without complying with the mandatory procedure provided
under Section 25F of the Industrial Disputes Act and in
violation of the provisions in paragraphs 522 to 524 of the
Sastri Award. Since his retrenchment was effected retaining
the workmen junior to him in violation of Section 25G of
the Industrial Disputes Act and para 507 of Sastri Award
and fresh hands were employed immediately without
affording opportunity to him for re-employment in violation
of Section 25H of the Industrial Disputes Act, clause 20.12
of First Bipartite Settlement dated 19.10.1966 and paragraph
493 of Sastri Award he is entitled to be regularized and to
be afforded regular appointment in the permanent services
of the management bank. Hence he prays for his
reinstatement with continuity of service, full back wages
and other attendant benefits as a permanent part-time
sweeper.
4. Management bank filed written statement
challenging the validity of the reference by contending
that the workman was not employed through selection
process and that there exists no industrial dispute as he is
not a workman coming under Section 2(s) of the Industrial
Disputes Act. After denying the allegations in the claim
statement it is further contended that he was not employed
by the management bank against a regular/sanctioned/
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2523
permanent post and hence there is no question of
retrenchment as envisaged under Section 25F of the
Industrial Disputes Act and paragraphs 507, 522 to 524 of
the Sastri Award. He is not entitled for reinstatement or for
regularisation as claimed by him.
5. Workman filed replication refuting the contentions
in the written statement and reaffirming the allegations in
the claim statement.
6. Afterwards when the case stood posted for
evidence workman was continuously absenting himself
without any representation. In spite of several
adjournments he did not turn up to adduce any evidence
and hence he was set ex-parte. As the burden of proof lies
on the workman to prove his case in view of the contentions
raised in the written statement management did not adduce
any evidence. No evidence, either oral or documentary,
was adduced by him to prove his case. The initial burden
cast upon him to prove that he is a workman coming within
the definition of Section 2(s) of the Industrial Disputes Act
and his service was illegally terminated by the management
in violation of the statutory procedure provided under
Section 25F of the Industrial Disputes Act is not discharged
by him by adducing any evidence. Hence it can only be
held that the action of the management in not considering
the candidature of the workman for regular appointment
and the termination of his services is legal and justifiable.
7. In the result an award is passed finding that the
action of the management terminating the services of the
workman without considering his candidature for regular
appointment is fair and justifiable and hence he is not
entitled to any relief.
The Award will come into force one month after its
publication in the Official Gazette.
D. SREEVALLABHAN, Presiding Officer
APPENDIX - NIL
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FkkA
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jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 957.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 2/2011
of the Cent. Govt. Indus. Tribunal - cum - Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the mangament of Paradip Port Trust and
their workmen, received by the Central Government on 26/
02/2014.
[No. L-38011/3/2010-IR (B-II)]
RAVI KUMAR, 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. 2/2011
Date of Passing Order-12th August, 2013
Between:
1. The Director, Chennai Radha
Engineering Works, Site Office-M.C.H.P.
Paradip, A./Po. Paradip,
Distt. Jagarsinghpur (Orissa)
2. The Chairman, Paradip Port
Trust, At./Po. Paradip, Distt. Jagatsinghpur, Orissa.
... 1st Party-Managements.
(And)
The General Secretary, Paradip
Port Dock & Construction Workers Union,
Qr. No. M-C/80, Madhuban, Paradip Port,
At.Po. Paradip, Distt. Jagatsinghpur, Orissa.
...2nd Party-Union.
Appearances:
M/s. B.K. Nayak,
...
For the 1st Party-
Advocate
Management No. 1
Shri Deepak Rath,
...
For the 1st Party-
E.E. Mech.
Management No. 2
Shri A.K. Acharya,
...
For the 2nd Party-
Auth. Represenative.
Union.
ORDER
The 1st Party-Management No. 1 has moved a
petition in this Tribunal on 28.6.2013 stating that the present
case may be disposed of by passing proper order in view
of the order dated 3.5.2012 passed by the Hon'ble High
Court of Orissa in Review Petition No. 153/2011.
2. The allegation of the party moving the above
petition is that the present I.D. case was referred by the
2524
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Central Government for adjudication to this Tribunal in
pursuance of the order dated 15.11.2010 passed by the
Hon'ble High Court of Orissa in W.P. (C) No. 12994/2010.
But in Review Petition No. 153/2011 the order dated
15.11.2010 passed in the above W.P. has been recalled on
3.5.2012 and the dispute between the parties was directed
to be placed for conciliation. Accordingly the dispute was
placed for conciliation. But on failure of conciliation, a failure
report was submitted to the Government and the
Government, in turn, has referred the dispute to this Tribunal
vide letter dated 31.01.2013, which has already been
registered as I.D. Case No. 7/2013. Therefore the present
I.D. case has become infructuous.
3. The 2nd Party-Union has not filed any objection
to this petition.
4. I have heard both the parties and perused the
materials on record incuding the orders passed by the
Hon'ble High Court in W.P. (C) No. 12994/2010 and Review
Petition No. 153/2011 (arising out of W.P.(C) No. 12994/
2010). I have also perused the file of I.D. Case No. 7/2013.
5. Upon due consideration of all the materials placed
before me it becomes apparently clear that this I.D. case
was referred by the Central Government in view of the
order dated 15.11.2010 passed by the Hon'ble High Court
of Orissa in W.P.(C) No. 12994/2010. But subsequently this
order was recalled by the Hon'ble High Court vide its order
dated 3.5.2012 passed in Review Petition No. 153/2011
(arising out of W.P.(C) No. 12994/2010). Therefore the
reference made vide letter dated 12.12.2010 by the Central
Government in pursuance of the order dated 15.11.2010
has been set at naught and became infructuous at the
moment when the order dated 15.11.2010 was recalled by
the Hon'ble High Court of Orissa vide its order dated
3.5.2012. It is further apparent that by virtue of order dated
3.5.2012 a fresh reference has been made to this tribunal by
the Central Government vide its letter dated 31.1.2013 which
has been registered as I.D. Case No. 7/2013. Therefore the
present reference cannot proceed along with I.D. Case No.
7/2013 as both the references have arisen out of the same
industrial dispute, though one point of dispute has been
left over by the Government in I.D. Case No. 7/2013. But
that makes no difference as the present dispute has become
non-existent in view of the recall order dated 3.5.2012 of
the Hon'ble High Court of Orissa.
6. In view of the above, the present reference is liable
to be returned un-answered. The reference is accordingly
returned to the Government unanswered for necessary
action at its end.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 958.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj pSUubZ iru U;kl
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; pSUubZ ds iapkV ¼lanHkZ lañ 16@2013½ dks izdkf'kr djrh gS
tks dsUæh; ljdkj dks 26-02-2014 dks izkIr gqvk FkkA
[lañ ,y&33011@2@2012&vkbZñvkjñ ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 958.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), The Central
Government hereby publishes the Award Ref. No. 16/2013
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Chennai as shown in the Annexure, in the industrial
dispute between the management of Chennai Port Trust
and their workmen, received by the Central Government on
26/02/2014.
[No. L-33011/2/2012-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Thursday, the 13th February, 2014
Present :
K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 16/2013
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of Chennai Container Terminal (Pvt.) Ltd.
[CCTL(DP World) and their workman]
BETWEEN :
The General Secretary
:
1st Party/Petitioner Union
The Madras Port Trust Employees' Union
SCC Anthony Pillai Bhawan, No. 34 (Old No. 9)
Second Line Beach
Chennai-600 001
AND
The General Manager— :
2nd Party/Respondent
HR/IR & Admn.
Chennai Container Terminal P. Ltd. (DP World)
Chennai Port Trust Administrative Building
Ground Floor, No. 1, Rajaji Salai
Chennai-600001
Appearance:
For the 1st Party/Petitioner Union : M/s K.M. Ramesh,
Advocates
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2525
For the 2nd Party/
:
M/s.S. Ramasubramaniam and
Respondent
Associates, Advocates
AWARD
The Central Government, Ministry of Labour &
Employment, vide its order No. L-33011/2/2012-IR (B-II)
dated 31.01.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Chennai
contractor Terminal (Pvt.) Ltd. [CCTL(DP World],
Chennai Port Trust Administrative Building, Chennai
in not deducting the Union subscription for a list of
30 employees (as per list attached) belonging to The
Madras Port Trust Employees; Union from their salary
w.e.f July 2011, despite authorization from the
individual employees is legal and 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 16/2013 and issued notices to both
sides. Both sides have entered appearance through their
counsel and have filed Claim and Counter Statement
respectively.
3. The case has been posted for evidence. While so,
the petitioner has filed a memo stating that the General
Secretary of the Petitioner Union had bilateral talks with
the Respondent Management and the Management had
given positive assurance that the issue pending in the ID
will be looked into. Because of this, the petitioner wanted
to withdraw the Industrial Dispute with liberty to agitate
the same if need arises in future.
4. In view of the memo of the petitioner there is no
necessity to proceed with the case. The ID is allowed to be
withdrawn with liberty to raise the issue again in case of
necessity.
An award is passed accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 13th February, 2014).
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Document Marked:
On the petitioner's side
Ex. No.
Date
Description
Nil
On the Management's side
Ex.No.
Date
Description
Nil
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 959.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lSaVªy cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; v:ukdqye ds iapkV ¼lanHkZ lañ 2@2012½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26-02-2014 dks izkIr
gqvk FkkA
[lañ ,y&12012@47@2011&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 959.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 2/2012 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court, Ernakulam
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 26/02/2014.
[No. L-12012/47/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present: Shri D. Sreevallabhan, B.Sc., LL.B.,
Presiding Officer
(Wednesday the 27th day of March, 2013/6th Chaitra, 1935)
I.D. 2/2012
Workman
:
Smt. Sunithakumari V.
Vizhinjam Street
Vizhinjam P.O.
Trivandrum District
Kerala.
By Adv. Shri Ravindranathan N.S.
Management :
The Assistant General Manager
Central Bank of India
Regional Office
Thyvila Road
Trivandrum
By M/s Peter & Karunakar
2526
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
This case coming up for final hearing on 26.03.2013
and this Tribunal-cum-Labour Court on 27.03.2013 passed
the following:
AWARD
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, the Government of India,
Ministry of Labour by its Order No. L-12012/47/2011-IR
(B-II) dated 14.12.2011 referred this industrial dispute to
this Tribunal for adjudication.
2. The dispute is:
"Whether Smt. Sunithakumari V., was in continuous
service w.e.f. 1993 with Central Bank of India, Kovalam
Branch and her retrenchment w.e.f. 05.11.2010 was in
accordance with the provisions of Industrial Disputes
Act, 1947 and her demand for regularisation/
reinstatement is genuine? What relief the workman
is entitled to?"
3. After receipt of summons both parties entered
appearance and while proceeding with the case after
submitting pleadings by them, the Learned Cousel for the
workman has submitted that the workman was appointed
in the sub-staff cadre as 'Safai Karmachari-cum-Peon' w.e.f.
18.03.2013 and it is not necessary to further proceed with
the case. An affidavit was filed to that effect on 22.03.2013.
In the affidavit, it was stated that the industrial dispute
may be treated as settled without prejudice to the right of
the workman to have recourse to take appropriate steps to
realize the monetary benefits based on her past service in
the management bank as a temporary employee. It was
objected to by the Learned Cousel for the management
submitting that it is not a full and final settlement to be
accepted to close the reference. At that time the Learned
Counsel for the workman has submitted that the
appointment can be accepted as full and final settlement
and hence it is not necessary to have any adjudication of
the industrial dispute. A memo is also filed to that effect.
Therein it is expressly made clear that there is a full and
final settlement and hence the reference can be closed
without any adjudication. As there is no reason to further
proceed with this case the reference is closed.
The Award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistant, transcribed and
typed by her, corrected and passed by me on this the 27th
day of March, 2013.
D. SREEVALLABHAN, Presiding Officer
APPENDIX - NIL
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 960.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;qfu;u cSad vkQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/
kdj.k@Je U;k;ky; v#ukdqye ds iapkV ¼lanHkZ lañ 27@2012½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26-02-2014 dks izkIr gqvk
FkkA
[lañ ,y&12011@120@2011&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 960.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 27/2012 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ernakulam as shown in the Annexure, in the Industrial
dispute between the management of Union Bank of India
and their workmen, received by the Central Government on
26/02/2014.
[No. L-12011/120/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present : Shri D. Sreevallabhan, B.Sc., LL.B,
Presiding Officer
(Tuesday the 30th day of April, 2013/10th Vaisakha, 1935)
I.D. 27/2012
Workman
:
The General Secretary
Union Bank of India Employees Union
(Kerala)
'Chirayil', Malavila
Vedivechancoil PO
Kerala-695 501
Management :
The Deputy General Manager
Union Bank of India
Regional Office
Union Bank Bhavan, Statue
Trivandrum-695 001
By Adv. K.S. Ajayagosh
This case coming up for final hearing on 29.04.2013
and this Tribunal-cum-Labour Court on 30.04.2013 passed
the following:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2527
AWARD
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 (14 of 1947), the Government
of India, Ministry of Labour by its Order No.-L-12011/120/
2011-IR(B-II) dated 26.09.2012 referred this industrial dispute
to this Tribunal for adjudication.
2. The dispute is:
"Whether the action of the management of Union
Bank of India in imposing the punishment of
"Bringing him down to a lower stage in the scale of
pay by two stages" on Shri C. A. Jameskutty after
his retirement vide Order dated 10.02.2010, is legal
and justified and is against the provisions of the
disciplinary action procedures dated 10.04.2002?
What relief Shri C. A. Jameskutty is entitled to?"
3. After receipt of the ID in this Tribunal, summons
was issued to both the parties. After accepting summons
the management alone entered appearance. In spite of
several adjournments union did not enter appearance and
file any claim statement. Hence the union was set ex-parte.
4. The management filed affidavit to satisfy that the
action taken against the workman for imposing the penalty
is legal and justifiable. Since the union has not appeared
and remained ex-parte without filing any claim statement it
can be held that the action taken by the management is
legal and justifiable based on the averments in the affidavit
filed by the management.
5. In the result an award is passed holding that the
action taken by the management against the workman for
imposing the penalty of "Bringing him down to a lower
stage in the scale of pay by two stages" is legal justifiable
and is not violative of the provisions of the disciplinary
action procedures dated 10.04.2012. Hence the workman is
not entitled to any relief.
The Award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistant, Transcribed and
typed by her, corrected and passed by me on this the 30th
day of April, 2013.
D. SREEVALLABHAN, Presiding Officer
APPENDIX-NIL
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 961.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lSaVªy cSad vkWQ
bafM;k ds izca/kra= ds laca) fu;ktdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; v:ukdqye ds iapkV ¼19@2012½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26-02-2014 dks izkIr gqvk
FkkA
[lañ ,y&12012@48@2011&vkbZ vkj¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 26th February, 2014
S.O. 961.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 19/2012) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ernakulam 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
26/02/2014.
[No. L-12012/48/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present: Shri D. Sreevallabhan, B.Sc., LL.B,
Presiding Officer
(Wednesday the 27th day of March, 2013/06th Chaitra 1935)
I.D. 19/2012
Workman:
Smt. Syamala L.
Sunil Mandiram
Kovalam PO
Trivandrum Distt.
Kerala.
By Adv. Shri Ravindranathan N.S.
Management:
The Assistant General Manager
Central Bank of India
Regional Office
Thyvila Road
Trivandrum (Kerala)
This case coming up for final hearing on 26.03.2013
and this Tribunal-cum-Labour Court on 27.03.2013 passed
the following:
AWARD
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 (14 of 1947), the Government
2528
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
of India, Ministry of Labour by its Order No-L-12012/48/
2011-IR(B-II) dated 29.05.2012 referred the following
industrial dispute to this Tribunal for adjudication:
"Whether Smt. Syamala L. was in continuous service
with Central Bank of India, Kovalam Branch w.e.f.
1997 and her retrenchment w.e.f. 05.11.2010 was in
accordance with the provisions of Industrial Disputes
Act, 1947? Whether her demand for reinstatement/
regularisation is genuine? To what relief the workman
is entitled?"
2. The workman filed claim statement challenging
the legality and validity of her retrenchment by the
management bank and making the prayer to reinstate her
with back wages and attendant benefits. At the time when
the case stood posted for filing written statement learned
counsel for the workman has submitted that the workman
was appointed in the sub-staff cadre as 'Safai Karmachari-
cum-Peon' w.e.f. 18.03.2013 and hence there is no necessity
to further proceed with this case. An affidavit was filed to
that effect on 22.03.2013. But in the affidavit, it is stated
that the industrial dispute may be treated as settled without
prejudice to the right of the workman to have recourse to
take appropriate steps to realize the monetary benefits based
on her past service in the management bank as a temporary
employee. It was objected to by the learned counsel for the
management submitting that it cannot be termed as a full
and final settlement and hence cannot be accepted to close
the reference. At that time learned counsel for the workman
has submitted that it is not necessary to have any
adjudication about it since the appointment can be accepted
as full and final settlement. A memo was filed to that effect
on 26.03.2013. Therein it is expressly made clear that there
is a full and final settlement and hence there is no necessity
to have any adjudication of the dispute in this case. There
is no reason to further proceed with this case and so the
reference is closed.
The Award will come into force one month after its
publication in the Official Gazette.
Dictated to the personal Assistant, transcribed and
typed by her, corrected and passed by me on this the 27th
day of March, 2013.
D. SREEVALLABHAN, Presiding Officer
APPENDIX-NIL
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 962.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 84 dk 2004½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@46@2004&vkbZ vkj ¼lh&I½]
,eñ dsñ ¯lg] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 962.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 ( 14 of 1947), the Central
Government hereby publishes the Award Ref. 84/2004 of
the Cent. Govt. Indus, Tribunal-Cum-Labour Court No 2,
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL, and their
workmen, received by the Central Government on
26/02/2014.
[No. L-20012/46/2004-IR (C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT: Shri Kishori Ram, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1) (d) of the I.D. Act., 1947
REFERENCE No. 84 OF 2004
PARTIES: :
The Vice President,
Bihar Pradesh Colliery Mazdoor Congress,
Gandhi Road, Dhanbad.
Vs. The General Manager, Kustore Area of
M/s BCCL, Kustore, Dhanbad.
APPEARANCES:
On behalf of the workman/
: Mr. M.N. Rewani,
Union
Ld. Advocate
On behalf of the Management : Mr. U.N. Lal,
Ld. Advocate
State
: Jharkhand
Industry
: Coal
Dated, Dhanbad, the 29th Jan., 2014
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec. 10
(1)(d) of the I.D. Act., 1947 has referred the following dispute
to this Tribunal for adjudication vide their Order No.
L-20012/46/2004-IR(C-I) dt. 28.06.2004.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2529
SCHEDULE
"Whether the action of the Management of Hurriladih
Colliery, Kustore Area of M/s. BCCL, P.O. Kustore,
Dist: Dhanbad in dismissing Sri Khagan Roy, Miner
Loader from the services of the company vide order
dated 10.11.2003 is just, fair and legal? If not, to what
relief is the said workman entitled?.
2. Consequent upon the restoration of Misc Case
No. 2/2006 to the present reference case as per the Order
No. 18 dt. 9.2.2012 of the Tribunal, the reference Case which
was earlier closed as No Dispute as per the Order No. 6 dt.
12.7.2005 again came into existence from proper hearing.
3. The case of sponsoring Bihar Pradesh Mazdoor
Congress (B.P.M.C.), Gandhi road, Dhanbad form workman
Khagan Ray is that he was a permanent employee as a
Miner Loader (Pers No. 02939-536) of Hurriladih Colliery,
Kustore Area of M/s. BCCL. On account of his seriously
illness and treatment under Dr. A. Panja, he absented from
his duty w.e.f. 9.8.1996. He was charge sheeted for it on
23.06.1997. Though it was not served upon him, he
submitted his reply to it along with his treatment
documents. Thereafter, the management neither conducted
any enquiry nor permitted him to join his duty despite his
several times efforts for it. When he lastly raised the
Industrial Dispute Case No. 1/41/2003-ALC(R) though the
Union concerned, the management issued him the Inquiry
Notices dt. 1st and 21st March, 2003 respectively, setting
up the inquiry against the workman after a lapse of six
years. The enquiry proceedings was finally but illegally
conducted by the Management on 10.6.2003 during the
pendency of the Industrial dispute by taking his signature
therein, as the workman had though not participated. The
workman had informed of his absence through U.C.P. to
the Management. After alleged enquiry, the Enquiry Officer
submitted his enquiry report, alleging the workman guilty
of the charges levelled against him; likewise the
management without cogent reason dismissed him from
his employment on and from 10.11.2003 under 26.1.1. of the
Certified Standing Order of M/s. BCCL applicable only to
habitual absentee, but he was not a habitual absentee. He
being an illiterate was unaware of the rules and regulations
of the Company.
4. The Union concerned in its rejoinder has
categorically denied all the allegations of the O.P./
Management, stated the workman has no past record of
his absentism. The entire enquiry matter was only the table
task of the Management. The entire enquiry proceeding
after six years of issuing alleged charges on 23.6.1997 was
null and void; so the dismissal of the workman was illegal
without awarding him any minor penalty.
5. Whereas specifically denying the allegations of
the Union/workman, the contra case of O.P./Management
is that workman Khagan Rai was a permanent employee
working as a Miner Loader of the said colliery, but he was
a habitual absentee. For his absentism from 9.8.96, he was
chargesheeted under clause 26.1.1. of the Certified Standing
Orders of the Company as per the chargesheet dt. 23.6.1997.
No written explanation or reply was submitted by him. Mr.
A.K. Jha, the Personnel Manager as the Enquiry Officer as
per the Management's letter dt. 1/22.3.2003 of his
appointment conducted the enquiry in accordance with
the natural justice, as the workman had participated just as
Sri Munilal the Labour Inspector as the Management
Representative had presented in it, and he was given full
opportunity for his defence. He had no complain of the
enquiry. On examination of the past records of the workman,
his attendance was 127, 21 and 17 days in the last three
years 1994 to 1996 respectively. The Enquiry Officer
submitted his enquiry report, holding the charges proved
as levelled against the workman. The Disciplinary
Authority applied his mind to it, and accordingly imposed
upon him the punishment of dismissal as per the letter dt.
10.11.2003. The Industrial dispute was raised by the Union
concerned as per its letter dt. 12.7.2003 by alleging the
workman having been kept by the management away from
his duty. The reply to it was submitted by the Management
as per its letter dt. 10.11.2003. Since the workman was a
habitual absentee, the action of the management in
dismissing the workman from service is just, fair and quite
reasonable; therefore, the workman is not entitled to any
relief. Besides, the management sought an opportunity for
leading evidence to prove the case in case the enquiry
found to be unfair and improper.
FINDING WITH REASONS
6. In the instant case, on acceptance of the Union/
workman to the domestic enquiry as fair and proper as per
his petition dt. 22.11.12, the Tribunal as per its Order No. 17
dt. 11.1.2013 held it fair and in accordance with the priniciple
of natural justice, and accordingly the enquiry papers were
marked as relevant Extts. for consideration. Then, it came
up for hearing final argument of both parties on merits.
Mr. M.N. Rawani, Learned Counsel for the union/
workman concerned submits that due to his illness and
treatment for it under Dr. A. Panja, the workman absented
from 9.8.1996; through he had already submitted his
documents, the management issued him the charge sheet
on 28.6.1997 (Ext. M.1). Further it has been insistently
submitted on his behalf that the managment after the
chargesheet neither conduced and enquiry against the
workman nor permitted him to join his duty despite his
2530
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
efforts; at last, the Industrial dispute No. 1/41/2003 was
filed on his behalf before the A.L.C., (C), and at the receipt
of its notice, the management issued the enquiry notices
on 1st & 3rd/21st March, 2003 (Ext. M-2 series) respectively
after more than six years, and after the enquiry as per the
enquiry proceedings (six sheets dt. 25.3.2003 to 10.6.03—
Ext. M.3), the Enquiry Officer submitted his enquiry report
(dt. 17.6.2003—Ext. M.4) against the workman, and the
Management of Hurriladih Colliery as per its letter dt.
10.11.2003 (Ext. M.5) outright dismissed him which immediate
from the service of the company for the alleged proved
misconduct of absenteeism from 09.08.1996 under sub-
clause 26.1.1. of the Certified Standing Orders of the
Company, and the said dismissal punishment as awarded
to the workman was not legal and proper in view of his
reasonable absentism; moreover, his previous record of
attendance has not been proved by the Management in
the case.
Just contrary to it, Mr. U.N. Lal, the Learned Counsel
for the O.P./Management has contended that in view of
the proved charges of unauthorized absentism against the
workman, the management by taking into account had
rightly awarded him with his dismissal punishment for his
said misconduct.
7. On the perusal and consideration of the materials
on the case record, it appears the indisputable fact that the
workman was Miner Loader of Hurriladih Colliery, Kustore
Area of M/s BCCL, the present chargesheet of Enquiry
Report (Extt. M.1) & 4 respectively nowhere refers to his
such previous misconduct of absentism. At variance with
the facts, I find the following facts:
(i) The workman in his oral statement had justified
for his absentism due to falling sick and his
treatment for it under Dr. A. Panja, though he had
informed of it to the management through the
U.C.P.
(ii) After more than five years of the chargesheet dt.
28.6.1997 related to his absentism w.e.f. 9.8.1996,
the departmentary set in on 01.03.2003
unjustifiably against the workman who had earlier
filed his I.D. Case No. 1/41/2003 before the A.L.C.
At this point, I am of the view as held by the
Hon'ble Apex Court in case of P.V. Mahadevan
V.M.D., Tamil Nadu Housing Board, 2005 LLR(SN)
1010 (SC) that a charge memo as well as the
disciplinary proceeding was initiated after 10 years
(here after more than five years) are liable to be
quashed since it will be very prejudicial to the
delinquent employee. Similarly Hon'ble Delhi High
Court held in the case of M.L. Tahiliani Vs. Delhi
Development Authority, 2002 LLR 981 (Del. H.C.)
that initiation of disciplinary action after four years
of detection of misconduct will be quashed.
(iii) In view of the nature of alleged absentism, the
punishment of dismissal to the workman appears
to be too harsh, smacking vindictiveness and
unfair, labour practice of the management. So the
dismissal order is liable to be set aside.
In result, it is, in the terms of the reference, hereby
responded, and accordingly.
ORDERED
That the Award be and the same is passed that the
action of the management of Hurriladih Colliery, Kustore
Area of M/s. BCCL, P.O. Kustore, Dist: Dhanbad, in
dismissing Shri Khagan Roy, Miner Loader from the service
of the Company vide order dt. 10.11.2003 is quite unjust,
unfair and illegal. Hence, the workman is entitled to his
reinstatement but without back wages. The O.P./
management is directed to implement the Award within one
month from the receipt of its copy following its publication
in the Gazette of India. Let the copies—one soft and one
hard of the Award be sent to the Ministry of Labour,
Government of India, New Delhi for needful.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 963.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 11 dk 2003½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@196@2002&vkbZ vkj ¼lh&I½]
,eñ dsñ ¯lg] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 963.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 11/2003)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL, and their
workmen, received by the Central Government on 26/02/
2014.
[No. L-20012/196/2002-IR(C-I)]
M. K. SINGH, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2531
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.2), AT DHANBAD
PRESENT:
SHRI KISHORI RAM, Presiding Officer.
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act., 1947.
REFERENCE NO.11 OF 2003.
PARTIES : The Secretary,
Rastriya Colliery Workers Federation, Sijua
Area No. 5., Banjora
No. 12, Dhanbad.
Vs. The General Manager,
Sijua Area No. 5 of M/s BCCL, PO: Sijua,
Dhanbad.
APPEARANCES:
On behalf of the workman/Union
:
Mr. S.N. Goswami,
Ld.Advocate
On behalf of the Management
:
Mr. D.K. Verma,
Ld.Advocate
State
:
JHARKHAND
Industry :
Coal
Dated, Dhanbad, the 31th 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-20012/
196/2002/IR(C-I) dt. 10.12.2002
SCHEDULE
"Whether the action of the Management of
Kanakanee Colliery, Sijua Area of M/s BCCL to
dismiss the services of Late Ramjivan Ram w.e.f.
18.06.1998 vide order dated 27.06.1998 is proper and
justified? If not, to what benefits Smt. Babita Devi,
the dependent wife of the workman concerned (since
deceased) is entitled?"
On receipt of the Order No.L-20012/196/2002-IR(C-I)
dated 10.12.2002 of the above mentioned reference from
the Government of India, Ministry of Labour, New Delhi
for adjudication of the dispute, the reference Case No. 11
of 2003 was registered on 7th January, 2003 and accordingly
an order to that effect was passed to issue notices through
the Registered Post to the parties concerned, directing them
to appear in the Court on the date fixed, and to file their
written statements along with the relevant documents. In
pursuance of the said order, notices by the Registered Post
were sent to the parties concerned.
Both the parties made their appearances personally
and through their Ld. Adovactes respectively filed their
pleadings and their documents concerned.
2. The case of the sponsoring Rastriya Colliery
Workers Federation, Sijua Area for workman Ramjivan Ram
is that he was a permanent workman who had been working
as a Miner/Loader since long at Kankanee Colliery of M/s
BCCL there. He had reported for his duty on 21.7.1996, but
after completing his duty, he did not return his home, since
then, he had been missing. Since he was suffering from
mental illness, he directly visited the Indira Gandhi Institute
of Medical Science for his treatment beyond the knowledge
of his family members. When they began to search for him
through his friends and relatives after knowing it, his
whereabouts could not be traced out. Unfortunately he
died in the year 1998, and then his family members got
knowledge of it. Consequently, an F.I.R. was lodged about
his missing, as well as it was also informed of it to the
Management several times, whereas the management was
fully aware of it. Though his wife Babita Devi had duly
reported of his husband missing, then she represented to
the management for the employment under the provisions
of NCWA, the Management informed her of her husband
having been allegedly dismissed w.e.f. 18.6.1998 as per
Order dt. 27.6.1998. Neither a charge sheet nor an enquiry
notice was ever issued, so the plea of dismissal was a
camouflage to deprive her of her employment as dependant
of her late husband. The Management neither took
cognizance of it nor provided her employment. Hence, the
Industrial dispute raised before the Conciliation Officer
ended in failure due to adamant attitude of the
Management, resulting in the reference for an adjudication.
Therefore, the action of the Managing in dismissal of her
husband based on ex-parte enquiry was abinitio illegal,
null and void, and injustified. Dismissal was very harsh
and disproportionate to the alleged misconduct. Therefore,
the dependent wife of the workman is entitled to her
employment retrospectively with all arrears of wages and
consequential benefits.
The Union concerned in its rejoinder categorically
denied all the allegations of the O.P./Management, and
stated that though the family members of the workman had
already informed the management of all those facts, the
management completed all the formality of the alleged
enquiry biasedly.
3. On the other hand, the contra pleaded case of the
O.P./Management with specific denials is that the present
reference is unmaintainable, as workman Ramjivan Ram,
though a permanent worker/Miner Loader of Kankanee
Colliery, began to unauthorizedly absent from his duty w.e.f.
22.7.1996, so he was issued chargesheet No.91/96 dt.
4.11.1996 through Regd. Post for his misconduct under the
2532
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
certified Standing Order of the Company. It was also
published in the News Paper 'Janmat' on 20.6.1997. Despite
these facts, the workman neither reported for duty nor
replied to it nor participated in the enquiry. The Management
appointed the Enquiry Officer to conduct the domestic
enquiry concerning the chargesheet. After fairly and
properly holding the enquiry, according to the principle of
natural justice, the Enquiry Officer submitted his report,
holding the workman guilty of the charge. Then the
Disciplinary Authority dismissed the workman from the
services of the company which was legal and justified. So
Smt. Babita Devi, the wife of the workman is not entitled to
any relief, as the Industrial dispute was raised by the Union
on 3.4.2001 for her employment under clause 9.4.3 of the
NCWA. It provides for no employment to the dependent
of a dismissed employee. Besides, the wife of the workman
as per her application dt. 21.7.1998 had informed the
Management of her husband's missing since 22.7.1996. The
death certificate dt. 30.4.1998 issued by Indira Gandhi
Institute of Medical Science, and other Death Certificate
dt. 28.5.1998 produced by the Union concerned in the
Conciliation proceeding were palpably forged.
4. The O.P./Management in its rejoinder by
categorically denying the allegations of the Union has stated
that the story of the workman's sickness was a concoction
for the case; no Union could disclose the date of knowledge
about the workman's death. Moreover the chargesheet and
all the notices were sent by the Management on his
permanent home address as also published on the daily as
noted above. The dismissal of the workman was legal and
justified.
FINDING WITH REASONS
5. As the reference relates to dismissal of the
workman, so firstly the Management and then the Union
produced their own evidences based on their pleadings at
the preliminary issue as to the fairness and vice versa of
the domestic enquiry. On consideration of the evidence
oral and documentary both the parties, the Tribunal as per
its Order No. 31 dt. 20.07.12 held the domestic enquiry
though ex-parte yet fair, proper and adopting the principle
of natural justice. Hence, the it came up for hearing the
final argument of both the parties on merits.
Mr. S.N. Goswami, the Ld. Advocate for the Union
Representative/Petitioner Babita Devi the dependent wife
of late workman Ramjivan Ram as per his written argument,
has submitted that Late workman Ramjivan Ram as a
permanent employee had been working as SDL Operator at
Kankanee Colliery, Sijua No.-V of M/s BCCL since long
according to the photocopy of the Service Record (Ext.
W.2). The late workman had lastly performed his duty on
21.7.1995 since then he had not returned on his duty, and
absented from his duty thereafter. The matter of missing of
the workman was all along reported by one Rita Devi and
her dauthter (petitioner Babita Devi through their petitions
dt. 23/24.7.1996, 14.5.1997, 24.6.1997, 26-9-97 and 25.3.1998
(Extt. W.1 series) to the Management for her claim. It is also
submitted on her behalf that when the petitioner got the
knowledge through reliable sources that her husband died
on 30.04.1998 at Indira Gandhi Institute of Medical Science,
Shekapura, Patna (the photocopy of his death Certificate
dt. nil-Ext. W.3), as he was mentally disturbed ;thereafter
the petitioner filed her aforesaid representation for her
employment under clause 9.4.2. of NCWA-V, but her
representation was rejected on the ground that her deceased
husband was already dismissed w.e.f. 18.6.1998 as per the
Management's letter 27.6./22.7.1998 (Ext. M.8). After alleged
domestic enquiry, it is also submiteted on her behalf that
the dismissal of the deceased workman was without any
proper enquiry, as such she is entitled to employment under
the said provision.
On the other hand Mr. D.K. Verma, the Ld. Counsel
for the O.P./Management submitted in the term of reference
that the sponsoring union has no locus standi to raise the
I.D. of dead workman, because he was already dismissed
by the Management in the year 1998, after holding due and
proper enquiry for his misconduct of absentism, so his
dismissal was quite justified and proper. It is also contended
for the management no representative case lies during the
life time of the workman concerned who is now Dead, as
such petitioner Babita Devi is not entitled to any relief.
6. On perusal and due consideration of the materials
available on the case record, it appears no dispute as to the
fact that the workman was the employee of the Management
as Miner/Loader of the Kankanee Colliery of M/s BCCL as
per his Service Excerpt (its photocopy-Ext. W.2), which
bears his dates of birth and Appointment on 09.05.1964
and 15.02.1988 respectively as evident from his Absentee
Report of the Project Officer dt. 16.4.1998—Ext. M.6/1).
Besides, the other facts are as under:
(i) The fact of tracelessness or absentism of the
workman from his duty since 22.7.1996 is also
beyond any dispute.
(ii) Despite the Notices of the enquiry (Ext. M.1 and 3
Series) issued to the workmen even on his
permanent house address and its publication in
the daily Janmant dt. 11.6.97 (Ext. M.4) series) for
the domestic enquiry into the charge sheet dt.
4.11.1996 (Ext. M.2), his non-appearance resulted
in the enquiry proceeding as per its proceeding
(Ext. M.6 though ex-parte, yet validily. The enquiry
proceeding clearly reveals that petitioner Babita
Devi is the wife of the workman who had along
represented (her applications between 23.6.97 and
26.8.97—Extt. M.5 Series) for the claim for benefits
of money/employment on the ground of the
tracelessness of her husband. Meanwhile, on the
Enquiry Report dt. 30.7.1997 of the Enquiry Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2533
concerned following its approval of the Manager
on 8.8.97 (Ext. M.7), the workman was dismissed
from the service of the Management w.e.f.
18.6.1998 as per its letter dt. 27.6./22.7.1998 (Ext.
M.8).
(iii) The Death Certificate dt. 30.4.1998 of the workman
Ramjivan Ram (Ext. W.3) the petitioner had got on
the same date from the I.G.I.M.S., Shekhapura,
Patna-14, after knowing through her reliable
serices about the death of her traceless husband
on that date. It evidently indicates the death of
the traceless workman to have taken place at
I.G.I.M.S (Indira Gandhi Institute of Medical
Sciences), Patna, prior to his alleged dismissal as
per the Management's letter dt. 27.6./22.7.1998
w.e.f. 18.6.1998 (Ext. M.8), which is itself
retrospectively. The dismissal is infructuous.
In view of the aforesaid aspects, it is hereby
responded and accordingly:
ORDERED
That the action of the Management of Kanakanee
Colliery, Sijua Area of M/s BCCL to dismiss the services of
Late Ramjivan Ram w.e.f. 18.6.1998 vide order dt. 27.6.1998
is quite improper and unjustified. Hence, Smt. Babita Devi,
dependant wife of the workman concerned (since deceased)
is entitled to her employment under clause 9.5.0. read with
clause 9.3.2. of the N.C.W.A-VI with the Gratuity, C.M.P.F.
and the relevant monetary benefits as the dependent wife
of deceased workman.
O.P./Management concerned is directed to
employment the Award after the receipt of its copy following
its publication in the Gazette of India by the Government of
India.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 964.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 28@2006½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 26@02@2014 dks izkIr gqvk FkkA
[lañ ,y&20012@114@2005&vkbZ vkj ¼lh ,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 964.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 28/2006) of
the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of M/s. CCL,
and their workman, which was received by the Central
Government on 26/02/2014.
[No. L-20012/114/2005-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT:
SHRI KISHORI RAM,
Presiding Officer.
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act, 1947
REFERENCE NO. 28 OF 2006.
PARTIES : Shri Sarlu Mahato,
Vill: Dulmi, PO: Harhand Kandar, Via Ramgarh
Cantt., Hazaribagh
Vs. The Project Officer, Kuju Colliery of M/s
CCL, Kuju, Hazaribagh
APPEARANCES:
On behalf of the workman/Union
:
Mr. U.N. Lal, Ld.
Advocate
On behalf of the Management
:
Mr. D.K. Verma, Ld.
Advocate
State : Jharkhand
Industry : Coal
Dated, Dhanbad, the 29th Jan., 2014
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under See. 10(1)(d)
of the I.D. Act, 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
114/2005-IR(CM-I) dt. 01.06.2006
SCHEDULE
"Whether the action of the Management of Kuju
Colliery of M/s. CCL to terminate Shri Sarlu Mahato,
PRW from the service of the company w.e.f. 14.1.2005
is legal and justified? If not, to what relief is the
workman entitled?"
On receipt of the Order No. L-20012/114/2005-IR
(CM-I) dated 01.06.2006 of the above mentioned reference
from the Government of India, Ministry of Labour, New
Delhi for adjudication of the dispute, the reference Case
No. 28 of 2006 was registered on 26th June, 2006 and
accordingly an order to that effect was passed to issue
notices through the Registered Post to the parties concerned
2534
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
directing them to appear in the Court on the date fixed and
to file their written statements along with the relevant
documents. In pursuance of the said order, notices by the
Registered Post were sent to the parties concerned.
Both the parties made their appearances through their
respective Counsels and filed their pleadings and
photocopies documents. Since the workman accepted the
fairness of the domestic enquiry, it directly came up for
hearing final arguments on merits as the photocopies of
the documents of the Management made available on the
case record.
2. The case of workman Sarlu Mahato is that he was
PR worker was a permanent employee of Kuju Colliery of
M/s. CCL. He is illiterate. Taking advantage of his illiteracy,
the O.P./Management arbitrarily but illegally terminated him
from the service of company as per its order dt. 14.1.2005
without any reasonable enquiry. He was never served with
any chargesheet. He was suffering from T.B. He was
referred to the Central Hospital Naisarai for proper treatment
on 19.09.2002 as also stated by Sr. Medical Officer Dr. S.
Kumar before in the enquiry on 15.7.2004, affirming his
continued treatment. The enquiry report also referred to
the Doctor's remarks about his sickness and fitness. At
recovery, the workman submitted the copy of his treatment
for his duty. He was hospitalized from 13.12.2002 to
26.12.2002 and was declared fit for duty on 27.12.2002 after
10 days rest. Mr. R.P. Verma, the Attendance Clerk in course
of the enquiry produced from "C" Register which showed
his absence from 8.9.2002 and his sick leave duly recorded
therein, authenticated his remaining on Sick leave from
that date. The workman after being fit had reported for his
duty. Despite any proof of any charge, he was served with
the enquiry report. The action of the Management in
terminating his service was not only unjustified but also
against the principle of natural justice, as the workman had
himself absented for his illness. His termination was too
harsh and disproportionate to his alleged absence.
3. The workman in his rejoinder categorically denied
the allegations of the O.P./Management justifying the
maintainability of the reference. He was not a habitual
absentee. There was not any misconduct on his part. The
O.P./Management was biased, so he was unreasonably
punished with dismissal. The similarly the enquiry was not
fairly and properly conducted by the Enquiry Officer.
4. Whereas challenging the reference as
unmaintainable in law and facts, the case of the O.P./
Management with specific denials is that the workman was
a habitual absentee as used to be several times
unauthorizedly in the year 1999 twice chargesheeted and
after due domestic enquiries both times, the workman was
sympathetically allowed to resume his duty on 29.1.1999
and 16.11.2002 lastly with a strict warning. Despite the two
opportunities for his improvement, the workman could not
improve to himself, and started to absent from his duty
unauthorizedly from 8.9.2002. At his chargesheet for his
unauthorized absence from his duty, the management
issued him the charge sheet for his misconduct of habitual
absentism under clause 26(24) and 26(29) of the Certified
Standing Orders. He also replied to the chargesheet. On
finding his rely unsatisfactory, the management appointed
the Enquiry Officer to conduct domestic enquiry. After
holding due enquiry in accordance with the principle of
natural justice, the Enquiry Officer submitted his enquiry
report, holding him guilty of the charges levelled against
the workman. The second Show Cause with enquiry report
was issued to the workman. He submitted his representation
to the second Show Cause. On consideration of the enquiry
report and the representation of the workman, the
Disciplinary Authority decided to terminate the workman
from the service on the ground of the proved misconduct
against him. So the action of the Management in dismissing
the workman is legal and justified. The dismissal of the
workman is quite proportionate to his misconduct of
habitual absentism. The O.P./Management has also urged
for a permission for adducing evidence afresh in case the
enquiry found as unfair.
FINDING WITH REASONS
5. In the instant case, on acceptance of the workman
as per his petition for the fairness of the domestic enquiry,
the Tribunal as per its order No. 13 dt. 10.10.2011 held the
domestic enquiry as fair and proper and in accordance
with the principle of natural justice. It resulted in hearing
the final argument of both the parties on merits.
Mr. U.N. Lal, the Learned Counsel for the workman
submits that in fact the workman, the P.R. Worker and
permanent employee of Kuju Colliery of B.C.C.L. was a
T.B. patient, so he was referred to the Central Hospital,
Naisarai, for proper treatment on 19.9.2002 as admittedly
stated by the Senior Medical Officer Dr. S. Kumar before
the Enquiry Officer on 15.7.2004. Further it has been
submitted on his behalf that the workman got treatment as
an out-door patient, and was also hospitalized in the
Hospital on 13.12.2002, and remained under treatment there
till 26.12.2002; thereafter having been declared fit for duty,
he submitted the treatment papers to the Management.
besides the Management witness R.P. Verma affirmed about
the workman on sick leave from 8.9.2002 as noted in the
Attendance Register (Form-C). Though the charges of
absentism as levelled against the workman could not be
proved, he was Management for it was is quite harsh
punishment for him.
6. Whereas the contention of Mr. D.K. Verma, the
Learned Advocate for the O.P./Management is that the
enquiry has once been found fair; apart from several
warnings, the last one was also given to the workman for
habitual absentism; so he was awarded with the punishment
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2535
of his termination from the service of the Company for his
misconduct of habitual absentism, and the said punishment
by the Management was appropriate to the nature of his
such misconduct.
7. On perusal and consideration of the materials on
the case record, I find that despite satisfactory and
reasonable reasons for his alleged absentism which went
unconsidered by the Management, apart from being
inadequate evidence for it, the dismissal of the workman
for his service appears to be too harsh, and quite
disproportionate to the alleged absentism. It is liable to be
set aside for ends of proper justice to the workman. The
dismissal of an employee will be illegal if also his explanation
has not been considered as held in the case of K.V.
Panduranga Rao Vs. Karnataka Dairy Development
Corporation (1997) 91 F.J.R. 1234. Likewise, the dismisal of
an employee will be quashed in the absence of adequate
evidence, and he will be entitled to reinstatement as held in
the case of P.K. Jain Vs. Commissioner, Municipal Corp. of
Delhi 1999 LLR 951 (Del. H.C.).
In result, it is hereby responded and accordingly.
ORDERED
That the Award be and the same is passed that the
action of the Management of Kuju Colliery of M/s CCL to
terminate Shri Sarlu Mahato PRW from the service of
Company w.e.f. 14.1.2005 is quite illegal and unjustified.
Hence, the workman is entitled to his reinstatement with
50% back wages and concomitant benefits. The O.P./
Management is directed to implement the Award within
one month from the date of its receipt, following its
publication in the Gazette of India by the Government of
India.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 26 Qjojh] 2014
dkñvkñ 965.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y 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@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 43@1998½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26-02-2014 dks izkIr gqvk
FkkA
[lañ ,y&20012@285@1996&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 26th February, 2014
S.O. 965.—In pursurance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 43/1998 of
the Cent.Govt.Indus.Tribunal-cum-Labour Court No. 2,
Dhanbad as shown in the Annexure, in the industrial dispute
between the management of M/S BCCL, and their workmen,
received by the Central Government on 26/02/2014.
[No. L-20012/285/1996-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD
PRESENT :
SHRI KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section 10(1)
(d) of the I.D. Act., 1947.
REFERENCE NO. 43 OF 1998
PARTIES : The Secretary,
Bihar Colliery Kamgar Union, Hirapur,
Dhanbad
Vs. General Manager, Moonidih Area, of
M/s
BCCL Moonidih, Dhanbad,
APPEARANCES :
On behalf of the Workman/Union :
None
On behalf of the Management
:
Mr. U.N. Lal
Ld. Advocate
State : Jharkhand
Industry : Coal
Dhanbad, the 21st 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-
120012/285/96-IR(C-I) dt. 20.02.1998
SCHEDULE
"Whether the action of the management of Moonidih
Washery of M/s BCCL in dismissing Shri P.K. Dhan
Fitter/Operator, w.e.f.21.07.1985 is justified? If not, at
what relief is the concerned workman entitled to.
On receipt of the Order No L-20012/285/96-IR (C-I)
dated 20.02.1998 of the above mentioned Reference from
the Government of India, Ministry of Labour, New Delhi
for adjudication of the dispute, a reference Case No. 43 of
1998 was registered on 16.03.1998. And accordingly an order
to that effect was passed to issue notices through the
Registered Post to the parties concerned directing them to
2536
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
appear in the Court on the date fixed and to file their written
statements along with the relevant documents. In
pursuance of the said order notices by the Registered Post
were sent to the parties concerned.
Both the parties made their appearance through their
respective Counsels and filed their pleadings and
documents.
2. The case of sponsoring Union Bihar Colliery
Kamgar Union workman P.K. Dhar is that he as a permanent
had been working at Moonidih Washery, but the
Management through unauthorized person issued him a
false and frivolous charge-sheet for his absence for duty,
though his absence was for a reasonable cause. Though
he had submitted his satisfactory explanation for it, till
then the management constituted an invalid and irregular
department enquiry through a biased Enquiry Officer who
completed the enquiry in utter violation of the principles of
natural justice. Even in the invalid ex-parte enquiry, the
charge levelled against was not proved, yet he was
dismissed by an authorized person. Despite his
representations several times against his illegal and
arbitrary dismissal, but it went in effective. At last the
Industrial Dispute raised by the Union before the A.L.C.(C),
Dhanbad due to the failure in conciliation owing to adamant
attitude to the management resulted in the reference for an
adjudication. So the action of the Management in
dismissing the workman was illegal and unjstified.
The Union in its rejoinder has specifically denied all
the allegations of the O.P./Management, stating that the
delay in raising the dispute was due to false assurance of
the Management. Neither the workman got any notice of
enquiry, not it was issued to him by a registered post. He
was hastily dismissed from service by completing only
formalities.
3. Whereas with categorical denials, the pleaded case
of the O.P./ Management is that the present reference being
barred by limitation is unmaintainable, as the workman was
dismissed from his service w.e.f., 21.07.1985, but the Union
raised the dispute in the year 1994. It is inordinate delay.
Workman P.K. Dhan was a habitual absentee from his duty
without permission. In spite of giving him serval
opportunities to mend his such habit by issuing him
warning letters and usual undertaking disciplinary action
against him time to time, he began to unauthorisedly absent
for more than 10 days from his duty w.e.f. 20.06.1984, for
which he was chargesheted for his misconduct under the
provisions of the Standing Order of the Company applicable
to its establishment neither the workman replied to it nor
he accounted for his unauthorized absence. Sri D.B. Singh,
Dy. Manager (Pers) as the Enquiry Officer and Sr P.M.
Prasad as Management Representative (MR) were
appointed for the departmental enquiry. Despite the notice
of enquiry even by Regs. Post to him at his permanent
home address and its non-copy displayed on the notice
board, the non-appearance of the workman resulted in the
ex-parte proceeding on 10.05.1985 due to his non-
cooperation, then after the enquiry, the Enquiry Officer
submitted his enquiry report, holding him guilty of the
charges levelled against him. On consideration of the
enquiry report, enquiry proceeding and other relevant
papers, the Management as per its decision dismissed the
workman from his service as per its letter dt. 21.7.1985 after
abtaineing its approval from the General Manager of the
Area. So the action of the Management for dismissal of the
workman was legal, bonafide and justified. He is not entitled
to any relief.
The Management in its rejoinder categorically
denying the allegations of the workman has stated that the
workman frequently unauthorizedly absented from his duty
in all the years.
FINDING WITH REASONS
4. In the instant reference, at the failure of the
Management in examination of any of its witnesses at
preliminary point in spite of ample opportunity, the Trinunal
as per its Order No. 38 dt. 13.06.2005 declared the domestic
enquiry unfair and improper.
Consequently, the Management examined its MWI
Ajit Kumar Singh, Sr. Manager, Moonidih Washery on merits,
but no wihness on merits on behalf of the workman could
be produced or examined.
The statement of MWI Ajit Kumar Singh, the Senior
Manager (Pers), Moonidih Washery, on merits affirmed
the facts of the O.P./Management that workman. K. Dhan
was appointed as Fitter/Operator on 15.10.1982 at
Moonidih Coal Washery of M/s BCCL as evident from the
certified copy of his Form B Register (Ext. M.1) But he
began to absent from 20.06.1984 just as previously he used
to do habitually unauthorized absentisms, he was
chargesheeted (Ext. M. 2), but he did not reply to it. Sri
D.B. Singh, the Manager (Pers.) was appointed as the
Enquiry Officer as per the Management's letter dt. 01.03.1985
for holding the domestic enquiry into the charges against
the workman. The workman was given the notices by Regd.
Posts dtt. 18.4.85 and 30.04.1985 (Extt. 3/1 and 3/2). Despite
ample opportunity, the non appearance of the workman in
course of the enquiry resulted in its proceeding ex-parte.
After examinatiion of Sri Jagdish Prasad, Bill Clerk and Sri
Kirti Kumar, the Office Superintendent, the Enquiry Officer
completed the enquiry as per the proceeding (Ext. M 3/3),
and submitted his enquiry report (Ext. M.3/4) and thereafter
the workman was dismissed from his service as per the
dismissal Order dt. 21.7.1985 (Ext. M3/5). He was given full
opportunity for defence in accordance with the principle
of natural justice. There was no complain whatsoever from
the side of the workman in course of the domestic enquiry.
So the dismissal order to the Management against the
workman was quite legally justified and proper. The
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2537
Management witness to the court on query responded
that the chargesheet do not refer to the previous absentism
of the workman.
In the light of the aforesaid fact, Mr. U.N. Lal, Leaned
Counsel for the O.P./Management has submitted that on
holding the domestic enquiry quite fairly and properly, the
Enquiry Officer submitted his Enquiry report based on
findings and documents, and consequent upon the
application of mind to it, the Disciplinary authority decided
to dismiss the workman on the proof of the misconduct
under 15 'N' & "D" of the Standing Order of the Company
for his unauthorized absentism against him, his dismissal
by the Management was justified, so he deserves not any
relief.
On perusal and consideration of the aforesaid facts
and documents, it stands quite obvious that the workman
had been a habitual absentee of unauthorized absentism
w.e.f. 20.06.84 as in his previous years of services in the
years 1982-83 as evident from the Enquiry report (Ext. M.3/
4). In the circumstances I am of the opinion as also held in
the case of P.M. Raju Vs. P.O. Labour Court & Other,
Madurai (2001) LLN 903 that the dismissal of an employee
habitually absenting will be justified. The workman who is
in the habit of unauthroized adsentism appears to be highly
unaccountable to his job under the Management. In nature
of the regular gross misconduct of the workman his
dismissal from his service with immediate effect in the year
1985 appears to be not harsh, rather quite proportionate.
In result, in the terms of the reference, it is responded
and accordingly, hereby
ORDERD
The action of the Management of Moonidih
Washerey of M/s BCCL in dismissing Sri P.K. Dhan, fitter/
Operator w.e.f. 21.07.85 is quite justified. So he is not entitled
to any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 27 Qjojh] 2014
dkñvkñ 966.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUæh; ljdkj eSllZ ,Q lh
vkbZ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV ¼lanHkZ la[;k
929@2005½ dks izdkf'kr djrh gS] tks dsUæh; ljdkj dks 27-02-
2014 dks izkIr gqvk FkkA
[lañ ,y&22012@428@1999&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 27th February, 2014
S.O. 966.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 929/
2005) of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No.2, Chandigarh 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 27.02.2014.
[No. L-22012/428/1999-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : Sri Kewal Krishan, Presiding Officer
Case No. I.D. No. 929/2005
Registered on 14.9.2005
Sh. Lakhbir Singh, Tek Chand Sharma, 25, Sant Nagar, Civil
Lines, Ludhiana
...Petitioner
Versus
The District Manager, Food Corportion of India, 804,
Gurdev Nagar, Ludhiana.
...Respondent
APPEARANCES
For the Workman
:
Sh. Tek Chand Sharma, Adv.
For the Management
:
Sh. Ravi Kant Sharma, Adv.
AWARD
(Passed on 04.02.2014)
Central Government vide Notification No. L-22012/
428/99-IR(CM-II) dated 29.2.2000/7.3.2000, by exercising
its pwoers 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 Food
Corporation of India, Ludhiana in terminating the
services of Sh. Lakhbir Singh S/o Sh. Sadhu Singh is
legal and justified ? If not, to what relief the concernd
workman is entitled to ?"
In response to the notice the workman appeared and
submitted statement of claim pleading that he joined the
respondent management as Watchman on 89 days basis
and worked from 6.3.1993 to April 1996 continuously. He
was employed against the work which was of permanent
nature and was performing the same functions as performed
by the regular employee and worked under the control of
the officials of the respondent management. He was paid
wages every month which was calculated on the basis of
regular statement of attendance. That his services were
illegally terminated and in violation of the provisions of
the Act.
Respondent management filed written statement
pleading that during procurement season, foodgrains are
2538
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
purchased and are stored in makeshift godowns for a short
period and for that purpose the management engages the
services of private firm/companies to provide watchman/
security guards who issue appointment letters and pay the
wages and also deposit the Provident Fund. That M/s.
Aman Security and Detective Agency was engaged in the
year 1995-96 for a short term of 60 days and the workman
may have been engaged by this said firm. He was not an
employee of the FCI and no relationship of employer and
employee exists between the parties.
In support of its case the workman appeared in the
witness box and filed his affidavit supporting his case as
set out in the claim petition. He has further deposed that
M/s Aman Security and Detective Agency used to send
intimation to the reponsdent about the working of the
deponent and placed on record letters Annexure A to
Annexure M which are of different dates and years. That
the payment was made by the respondent. That he was an
employee of the respondent management and his services
were illegally terminated.
On the other hand, respondent has examined
Sandeep Gosain who filed his affidavit reiterating the case
as set out in the written statement.
I have heard Sh. Tek Chand Sharma, counsel for the
workman and Sh. Ravi Kant Sharma, counsel for the
management.
Learned counsel for the workman carried me through
the affidavit of workman and submitted that he
continuously served with the respondent management for
four years and his services have been terminated without
complying with the provisions of the Act and therefore his
termination is illegal.
I have considered the contention of the learned
counsel.
The workman has set up a definite case that he joined
the service of the respondent management of 89 day basis
and worked from 6.3.1993 to April 1996. Respondent
management in its written statement took the plea that
M/s Aman Security and Detective Agency was given
contract for providing security guards for makeshift
godowns for the protection and security of foodgrains
and the workman may have been employed by the said
agency. The workman has denied this fact in its rejoinder
and did not admit in the pleadings that he was employed
by the said agency but while appearing in the witness box
he himself has placed on file Annexure A and Annexure M,
which are letters sent by M/s Aman Security and Detectives
to the respondent management, showing that the workman
was actually engaged by the said agency on different dates.
Thus the documents relied upon by the workman shows
that he was not engaged by the FCI but by M/s Aman
Security and Detectives and being so, he cannot claim that
he was an employee of the FCI.
Reliance was also placed on Annexure A1 to A4 to
submit that the salary was paid by the respondent
management but the perusal of the said documents shows
that only certificate was issued by the relevant officer for
engaging the security guards for particular months as per
the record maintained by Aman Security Detectives. These
documents do not show at all that the workman was actually
employed by the respondent management. The workman
while appearing in the witness box has admitted in his
cross-examination that he was directly engaged by the
respondent management but no appointment letter was
given to him. It cannot be said that the respondent
management engaged him without issuance of any
appointment letter. The workman claims that he was paid
wages by the Manager of the FCI but no record has been
produced to show that he was actually paid any salary by
the respondent management. Thus taking all these
circumstances into consideration, it is held that workman
has failed to prove that he was an employee of the
respondent management and his services were terminated
by it and he is not entitled to any relief and accordingly the
reference is answered against the workman.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 27 Qjojh] 2014
dkñvkñ 967.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,QlhvkbZ
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@Je
U;k;ky; uañ&2] p.Mhx<+ ds iapkV ¼lanHkZ la[;k 107@2005½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27@02@2014 dks izkIr gqvk
FkkA
[lañ ,y&22012@352@2003&vkbZ vkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi the 27th February, 2014
S.O. 967.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947) the Central
Government hereby publishes the Award Ref. 107/2005 of
the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Chandigarh 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 27.02.2014.
[No. L-22012/352/2003-IR (CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
PRESENT:— Shri Kewal Krishan, Presiding Officer
Case No. I.D. No. 107/2005
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2539
Registered on 19.7.2005
The Secretary, FCI Samooh Palledar Union, Depot Mansa
(Distt. Mansa), Punjab.
...Petitioner
Versus
The Senior Regional Manager, Food Corporation of India,
SCO 356-359, Sector 34A, Chandigarh.
...Respondents
APPEARANCES
For the workman
:
Sh. M.S. Uppal, Adv.
For the Management
:
Sh. Santokh Singh, Adv.
AWARD
(Passed on 5.2.2014)
Central Government vide Notification No. L-22012/
352/2003 IR(CM-II) Dated 8.6.2005, 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 Food
Corporation of India in not absorbing contract labour
workers (list enclosed) in DPS as per the guidelines
of Ishwari Prasad Committee is legal and justified? If
not, to what relief they are entitled?
Shorn of unnecessary details, the relevant facts for
the present controversies are that Food Corporation of
India has 140 depots in Punjab for the storage of
foodgrains. It engages labour for loading, unloading and
handling storage and transit of foodgrains. Initially the
labour was used to be engaged through contractors. In
1992-93, the contract labour system was abolished in 8
depots and the labour was absorbed as a permanent labour
of the FCI. When the matter was agitated, a memorandum
of undertaking was arrived at the Committee was
constituted and direct payment system, as per the
guidelines of Ishwari Prashad Committee in all the depots,
who laid certain conditions for verification of workers and
also to assess the requirement of labour, was introduced.
It is the case of the workers-Union that there were
172 workers engaged by the contractor in Mansa depot of
FCI before the implementation of the report of Ishwari
Prashad Committee who were working for the last 15-20
years. They were got medically checked. There was EPF
Account Numbers of 144 workers and Identity Cards were
issued to 144 workers who were working as handling labour
and the ancillary labours were not issued Identity Card/
EPF Account Number. However 172 workers used to mark
attendance in the register. It is further mentioned in the
statement of claim that 28 workers were working as ancillary
labour in the Mansa Depot. It is further pleaded that on the
introduction of direct payment system, only 97 workers
were selected as handling labour and 18 workers as ancillary
workers w.e.f. 1.4.1997 vide order dated 16/18.10.1997 and
remaining 57 workers were rendered unemployed on
account of the wrong assessment of the strength of labour.
That the work of loading and unloading at Rail Head was
not taken into account. That the FCI Officers/Officials
under whose supervision the work is to be performed at
Mansa Depot have recommended for more labour on need
basis and even wrote a letter dated 19.11.1997 and 30.5.2000
for approval to induct 144 handling labour and 28 ancillary
labour and this number of workers is needed as per the
formula described by the Ishwari Prashad Committee. That
the action of the management in not covering the remaining
57 workers under the scheme is illegal, as they have been
continuously working at Mansa Depot and are required to
be absorbed as per the report of the Committee. That the
said persons be inducted as labourers under the direct
payment system.
The Corporation in its written statement denied that
172 workers were engaged by the contractor Gurpal Singh
and pleaded that only 144 workers were with the contractor
whose EPF etc. was deposited and out of the said workers
97 were selected as handling labour and 18 were selected
as ancillary workers. That the labour was inducted as per
the formula and the guidelines of Ishwari Prashad
Committee and the other workers have no claim and their
claim be dismissed.
In support of the case of the worker-union, Sh.
Kashmira Singh appeared in the witness box as Secretary
of the Union and filed his affidavit reiterating the case as
set out in the claim petition.
On the other hand the management has examined
Sh. C.P. Saharan who filed his affidavit reiterating the case
of the respondents as set up in the written statement.
Learned counsel for both the parties made written
submissions which have been persued by me.
It may be added that the written submissions are on
the lines of the pleadings of the parties. As stated above,
the case of the Union is that there was 172 workes i.e. 142
workers working as handling labour and 28 as ancillary
labour and all were required to be absorbed under the direct
payment system on the basis of Ishwari Prashad Committee.
It may be added that none of the workers who were
employed by the contractor and worked as a labour at
Mansa Depot prior to the implementation of the said scheme
has appeared in the witness box to prove their case that
they were actually working as a labourers at the Mansa
Depot prior to the implementation of the scheme and were
covered as such under the said scheme. It is not denied
that the labour was used to be provided by the contractor
and it is the case of the worker-Union that workers were
working under Gurpal Singh contractor. Again neither
Gurpal Singh has been examined nor his record produced
to show that he actually employed 172 workers for the
Mansa Depot. Thus it cannot be said, in the absence of the
2540
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
above said evidence, simply on the statement of Kashmira
Singh, who is the Secretary of the Union, to hold that there
were 172 workers working as Mansa Depot prior to the
implementation of the direct payment system scheme.
It may be added that in the reference, a list of workers
was attached showing that there were 88 workers who
allegedly claim the relief. But in the statement of claim it is
alleged that 57 workers were left and are required to be
covered under the scheme. Thus it is not clear which of the
workers out of the 88 workers as find mention in the list
attached with the reference were actually working at the
Mansa Depot at the relevant time.
Again there is no evidence that any of the workers
which was left was actually entitled to be covered under
the scheme. If the officers of the respondent management
has written certain letters asking the higher authorities to
provide more labour to carry out the work at Mansa Depot,
it does not mean that the persons, as find mention in the
list attached with the reference, were working with the
contractor at the relevant time and are entitled to be
absorbed under the direct payment system scheme.
Thus the workers have failed to establish their claim
by leading any cogent evidence on the file and therefore
the reference is, accordingly, decided against the workers-
union. Let hard and soft copy of the award be sent to the
Cental Government for further necessary action.
KEWAL KRISHAN, Presiding Officer.
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 968.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ts ldkbZ f'k¯ix
,.M ,fo;s'ku lfoZl izkñ 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@Je U;k;ky;] ,ukZdqye ds
iapkV ¼lanHkZ la[;k 34@2013½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 28&2&2014 dks izkIr gqvk FkkA
[lañ ,y&11012@10@2013&vkbZ vkj ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 968.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947) the Central
Government hereby publishes the Award (Ref. No 34/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court, Ernakulam as shown in the Annexure, in the
Industrial Dispute between the management of M/s. J Sky
Shipping & Aviation Services Pvt. Ltd., and their workman,
received by the Central Government on 28-2-2014.
[No. L-11012/10/2013-IR (CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present: Shri D. Sreevallabhan, B.Sc., LL.B, Presiding
Officer
(Friday the 25th day of October, 2013/03rd Kartika, 1935)
ID 34/2013
Union
: The General Secretary
Kerala Civil Aviation Workers Congress
(INTUC)
VP Marakkar Smaraka Mandiram
Vanchiyoor, Trivandrum
Kerala-695001
Management :
The Managing Director
M/s. J Sky Shipping & Aviation Services
Pvt. Ltd.
(Blue Sky Port Services Private Ltd.),
Regiton Bldg.
Airport Road, Valiyathura, Trivandrum
Kerala-695008
By Adv M/s Suman Chakravarthy
This case coming up for final hearing on 24.10.2013
and this Tribunal-cum-Labour Court on 25.10.2013 passed
the following:
AWARD
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 (14 of 1947), the Government
of India/Ministry of Labour by its Order No-L-11012/10/
2013-IR (CM-I) dated 21.06.2013 referred this industrial
dispute to this tribunal for adjudication.
2. The dispute is:
"Whether the action of the employer i.e. M/s. J. Sky
Shipping & Aviation Services Pvt. Ltd. (Blue Sky
Port Services Private Ltd.), Vallayathura, Trivandrum
in terminating the services of Shri Santhosh Kumar,
Trolley Retriever from 02.11.2012 at Trivandrum
International Airport is legal and justified? To what
relief the concerned workman is entitled to?"
3. After receipt of summons union did not enter
appearance. Management entered appearance. As the
union failed to appear and file claim statement in spite of
several adjournments it was set ex-parte. Management filed
affidavit stating that the reference is to be proceeded with
ex-parte against the union and an award is to be passed.
4. As there is no pleading or any evidence to satisfy
that the termination of the workman is not legal it can only
be held that action of the management in terminating his
service w.e.f. 02.11.2012 is justifiable.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2541
5. In the result an award is passed finding that the
action of the management in terminating the services of
the workman as trolley retriever w.e.f. 02.11.2012 is legal
and justified and hence he is not entitled to any relief.
The award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistant, transcribed and
typed by her, corrected and passed by me on this the 25th
day of October, 2013.
D. SREEVALLABHAN, Presiding Officer
APPENDIX-NIL
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 969.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ts ldkbZ f'k¯ix
,.M ,fo;s'ku lfoZl izkñ 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@Je U;k;ky;] ,ukZdqye ds
iapkV ¼lanHkZ la[;k 35@2013½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 28&2&2014 dks izkIr gqvk FkkA
[lañ ,y&11012@9@2013&vkbZ vkj ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 969.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947) the Central
Government hereby publishes the Award (Ref. No 35/2013)
of the Central Government Industrial Tribunal-cum-Labour
Court, Ernakulam as shown in the Annexure, in the
Industrial Dispute between the management of M/s. J. Sky
Shipping & Aviation Services Pvt. Ltd., and their workmen,
received by the Central Government on 28-2-2014.
[No. L-11012/9/2013-IR (CM-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present: Shri D. Sreevallabhan, B.Sc., LL.B, Presiding
Officer
(Friday the 25th day of October, 2013)
ID 35/2013
Union
: The General Secretary
Kerala Civil Aviation Workers Congress
(INTUC)
VP Marakkar Smaraka Mandiram
Vanchiyoor, Trivandrum
Kerala-695001
Management :
The Managing Director
M/s. J Sky Shipping & Aviation Services
Pvt. Ltd.
(Blue Sky Port Services Private Ltd.),
Regiton Bldg.
Airport Road, Valiyathura, Trivandrum
Kerala-695008
By Adv M/s. Suman Chakravarthy
This case coming up for final hearing on 24.10.2013
and this Tribunal-cum-Labour Court on 25.10.2013 passed
the following:
AWARD
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 (14 of 1947), the Government
of India/Ministry of Labour by its Order No. L-11012/9/
2013-IR (CM-I) dated 21.06.2013 referred this industrial
dispute to this tribunal for adjudication.
2. The dispute is:
"Whether the action of the employer i.e. M/s. J. Sky
Shipping & Aviation Services Pvt. Ltd. (Blue Sky
Port Services Private Ltd.), Vallayathura, Trivandrum
in terminating the services of Shri Pradeep, ex-Trolley
Retriever from 02.11.2012 at Trivandrum International
Airport is legal and justified? To what relief the
concerned workman is entitled to?"
3. After receipt of summons union did not enter
appearance. Management entered appearance. As the
union failed to appear and file claim statement in spite of
several adjournments it was set ex-parte. Management filed
affidavit stating that an award is to be passed by proceeding
with the reference ex-parte against the union.
4. As there is no pleading or any evidence to satisfy
that the termination of the workman is not legal it can only
be held that the action of the management in terminating
his service is justifiable.
5. In the result an award is passed finding that the
action of the management in terminating the services of
the workman as trolley retriever w.e.f. 02.11.2012 is legal
and justified and hence he is not entitled to any relief.
The award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistant, transcribed and
typed by her, corrected and passed by me on this the 25th
day of October, 2013.
D. SREEVALLABHAN, Presiding Officer
APPENDIX-NIL
2542
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 970.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ lh ,l vkbZ
vks ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fnfnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; uañ 2] p.Mhx<+ ds iapkV ¼lanHkZ la[;k
624@2005½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 28@2@2014
dks izkIr gqvk FkkA
[lañ ,y&42012@208@2002&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 970.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 624/
2005) of the Central Government Industrial Tribunal/Labour
Court No. 2, Chandigarh as shown in the Annexure, in the
Industrial Dispute between the management of Central
Scientific Instruments Organisation, and their workman,
received by the Central Government on 28/2/2014.
[No. L-42012/208/2002-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
PRESENT: SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 624/2005
Registered on 24.8.2005
Sh. Kushaldeep Singh, House No. 1459/12,
Sector 29-B, Chandigarh
...Petitioner
Versus
The Director, Central Scientific Instrument
Organization, Sector 30, Chandigarh
...Respondent
APPEARANCES:
For the workman
Sh. R.P. Rana, Adv.
For the Management
Sh. I.S. Sidhu, Adv.
AWARD
(Passed on 3.2.2014)
Central Government vide Notification No. L-42012/
208/2002-IR(CM-II) Dated 5.3.2003, by exercising its powers
under Section 10 Sub-section (1) Clause (d) and Sub-
section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Act') has referred the following
Industrial dispute for adjudication to this Tribunal:—
"Whether the action of the management of CSIO in
terminating the services of Sh. Kushaldeep Singh,
Security Guard w.e.f. 31.1.2001 is legal and justified?
If not, to what relief he is entitled to?"
¦In response to the notice, the workman appeared
and submitted statement of claim pleading that he is an Ex-
Serviceman and the respondent-management sent a
requisition to Zila Sainik Board for sponsoring his
appointment as Security Guard in respondent-
management's campus. In response to the letter dated
25.1.2000 of the management, he was interviewed by the
Security Committee and an appointment letter dated
23.3.2000 was issued to him as Security Guard at the campus
against salary of Rs. 2408 per month. He worked up to
January 2001 when his services were suddently terminated
orally and without issuing any notice and payment of any
compensation. He has completed more than 240 days of
service and was entitled to the grant of temporary status in
pursuance of the scheme issued in 1993 by the Government
of India. His termination being in violations of Section 25F,
25F and 25H of the Act, the management be directed to
reinstate him in service with full back wages.
Respondent-management filed written reply
admitting that the workman was engaged as a Security
Guard w.e.f. 1.3.2000 vide appointment letter dated 23.3.2000
and in the appointment letter, there was a stipulation that
the Director, CSIO, reserve the right to relieve anyone from
the Security arrangement without assigning any reason;
and in view of this Clause, discontinuing the services of
the workman was valid and it cannot be said that he was
retrenched. That the workman is not covered for the grant
of temporary status.
In support of its case the workman appeared in the
witness-box and filed his affidavit reiterating his case as
set out in the claim petition.
On the other hand, the management examined
Sh. A.K. Mukherjee who filed his affidavit on the lines of
the stand taken by the respondent management in the
written statement.
Management was proceeded ex parte vide order dated
16.12.2010. However, later on Mr. I.S. Sidhu, Advocate
appeared and on his request case was adjourned for moving
an application for setting aside the ex parte order. But he
did not move any application and stated that he can join
the proceedings at the stage of arguments.
I have heard Sh. R.P. Rana, counsel for the workman
and Sh. I.S. Sidhu, counsel for the management.
It is not disputed that the workman was appointed
as Security Guard w.e.f. 1.3.2000 vide letter dated 23.3.2000
along with other persons and for the sake of convenience
the letter is reproduced as follows:-
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2543
On the recommendation of the Security Committee
the Director, CSIO has been pleased to approve the
engagement of the following Ex-Servicemen as security
guard for security arrangement in CSIO campus on
remuneration of Rs. 2408 (Two thousand four hundred eight
only) for providing service for the full month (8hours per
day) w.e.f. 1.3.2000.
1. Hav. Baldev Singh,
2. Nk. Ranjit Singh
3. Hav. Sher Singh
4. Nk. Kulwant Singh
5. Hav. Amrik Singh
6. Nk. Suresh Kumar
7. Hav. Kushaldeep Singh
They will be given one weekly off and will work in
shifts. If they work on extra shifts they will be paid @
Rs. 80.26 per shift or if in part @ Rs. 10 per hour. No other
dues or leaves will be given to them apart from those
mentioned above.
The Director, CSIO reserves the right to relieve any
one or all of them from the security arrangement without
assigning any reason for the same.
The learned counsel laid stress on the last lines of
the letter and submitted that the Director had the right to
relieve anyone or all the persons employed from the Security
arrangement without assigning any reason and by using
these powers, the workman was relieved from his duty and
in view of the conditions of the appointment letter the
order is illegal. The learned counsel also drawn my attention
under Section 2(oo)(bb) to submit that since there was
stipulation in the contract regarding the termination of the
service of the workman, and therefore his services were
legally terminated.
I have considered the contention of the learned
counsel.
The workman was employed vide letter dated
23.3.2000 and he worked with the respondent management
up to January 2001 i.e. for more than 10 months. Section
25F provides the conditions for retrenchment of a workman
and it reads as follows:—
No workman employed in any industry who has been
in continuous service for not less than one year under an
employer shall be retrenched by that employer until—
(a) the workman has been given one months's notice
in writing indicating the reasons for retrenchment
and the period of notice has empired, or the
workman has been paid in lieu of such notice,
wages for the period of the notice.
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be
equivalent of 15 days' average pay (for every
completed year of continuous service) or any part
thereof in excess of six months; and
(c) notice in the prescribed manner is served on the
appropriate Government (or such authority as may
be specified by the appropriate Government by
notification in the Official Gazette.)
Thus a workman who has continued in service for
not less than one year cannot be retrenched until the
conditions laid in the said Section are fulfilled.
Section 25B defines 'continuous service' and read as
follows:—
1. a workman shall be said to be in continuous service
for a period if he is, for that period in uninterrupted service,
including service which may be interrupted on account of
sickness or authorized leave or an accident or a strike which
is not illegal, or a lok out or a cessation of work which is not
due to any fault on the part of the workman;
2. where 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 be in continuous service
under an employer—
(a) for a period of one year, if the workman, during a
period 12 calendar months preceding the date with
reference to which calculation is to be made, has
actually worked under the employer for not less
than-
(i) one hundred and ninety days in the case of a
workman employed below ground in a mine;
and
(ii) two hundred and forty days, in any other
case;
(b) for a period six months, if the workman, during a
period six calendar months preceding the date
with reference to which calculation is to be made
has actually worked under the employer for not
less than-
(i) ninety five days, in the case of a workman
employed below ground in a mine; and
(ii) one hundred and twenty days, in any other
case.
Thus a workman who worked for 240 days would be
deemed to be in continuous service for a period of one
year. Thus the services of the workman who worked from
25.3.2000 to January 2001 were not to be terminated without
following the procedure as laid down in Section 25F of the
Act which requires service of notice as well as payment of
compensation.
2544
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
'Retrenchment' is defined in Section 2(oo) which read
as follows:—
Retrenched means the termination by the employer
of the service 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 service 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 service of a workman on the
ground of continued ill-health;]
Since the services of the workman has been
terminated otherwise then as a punishment by way of
disciplinary action, as stated above, it can be safely said
that he was retrenched. The Clause (bb) provides that
retrenchment do not include the termination of the service
of a workman as a result of non-renewal of the contract on
its expiry, or of such contract being terminated under a
stipulation in that behalf contained therein. Thus this
Clause applies where the contract comes to an end on its
expiry or it comes to an end by way of stipulation contained
therein regarding the termination of the contract. But in the
present case the workman was given an appointment letter
and the Clause contained therein, as reproduced above,
giving power to the Director to relieve anyone from the
security arrangement without assigning any reason is not
covered under the said Clause. Since the workman has
completed more than 240 days of service, he was required
to relieve the workman by following the procedure as
prescribed under Section 25F of the Act and not otherwise.
Thus the termination of the services of the workman is no
valid and the workman is entitled to be reinstated in service.
It may be added that the services of the workman
were terminated in January 2001. It is neither pleaded nor
there is anything on the file that the workman remained
without any work from the date of its termination till now.
However, considering the facts and circumstances of the
case, the workman is entitled to 50 per cent of the back
wages.
In result, it is held that the action of the management
in terminating the services of the workman w.e.f. 31.1.2001
is illegal and not justified and he is entitled to be reinstated
in service with 50 per cent back wages. The management
shall reinstate him in service within one month from the
date of publication of the award. Let hard and soft copy of
the award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 971.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV cSad
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k]
tcyiqj ds iapkV ¼lanHkZ la[;k 59@2001½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 27@02@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@409@2000&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 28th February, 2014
S.O. 971.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 59/2001)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur 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
27/02/2014.
[No. L-12012/409/2000-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/59/2001
PRESIDING OFFICER: SHRI R. B. PATLE
Shri Suresh Khande,
Local Secretary,
State Bank of India &
Subsidiary bank Employees Union,
Bhopal Circle, LIG E/10,
Sector I, Devendra Nagar,
Raipur
.......Workman/Union
Versus
Chief General Manager,
State Bank of India,
Local Head Office,
Hoshangabad Road,
Bhopal (MP)
....Management
AWARD
(Passed on this 13th day of February, 2014)
1. As per letter dated 19-3-2001 by the Government
of India, Ministry of Labour, New Delhi, the reference is
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2545
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-12012/
409/2000-IR(B-I). The dispute under reference relates to:
"Whether the action of the management of State Bank
of India in declining reimbursement of medical bills
under improved medical aid scheme to Shri Suresh
Khonde, Naik, State Bank of India, Shastri Market
Branch, Raipur on account of medical expenses of
his wife is justified? If not, to what relief the workman
is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party workman alongwith Secretary of Union
filed Statement of claim at Page 5/1 to 5/9. Case of Ist party
workman is that he is working as Naik in State Bank of
India, Shastri Market Branch at Raipur. He also claims to be
Secretary of the Union. That there is scheme providing
medical aid to the workman, staff circulated on 4-1-96. Said
Scheme provides for reimbursement of hospitalization
expenses for employees and family members. That the wife
of workman Smt. Sushila Khonde was suffering from
rheumatoid arthritis, muscular atrology and anemia with
various kinds of chronic ailments. Smt. Sushila was not
earlier on allopathic treatment but her decease was not
cured. As per advice of Dr. V.N. Pathak, wife of workman
was admitted in Samadhan Hospital, Ganesh Nagar, Nagpur
during the period 17-9-97 to 17-1-98. That the medical
expenses incurred in said hospital was Rs. 79,572.85 was
submitted for reimbursement. As per letter dated 2-2-98 to
Regional office of SBI, Raipur, said bill was forwarded to
local head office, Bhopal for sanction with
recommendations of the Branch Manager. It is submitted
that vide letter dated 5-5-99, Chief Medical Officer informed
Asstt. General Manager about history of the wife of the
workman that she was suffering from pain in both knees,
shoulders and back for last three years and she is unable
to walk and work for her personal hygiene. Workman further
submits that Bank authorities have knowledge about
treatment of his wife in Samadhan Hospital, Nagpur. Dy.
General Manager endorsing medical examination of
Smt. Sushila Khonde informed that medical examination
was carried out by Bank's Sr. Medical Officer Mr. P.C. Jain.
on 21-5-99, Dy. General Manager while writing a letter to
the General Manager (D & PB) informed that the Medical
bills sent by Shri Suresh Khonde have been scrutinized by
Dr. R.R. Verma and countersigned all the bills. Vide letter
dated 15-5-99, Dy. General Manager informed that the
expenses were reasonable and had been recommended.
Asstt. General Manager had decided to send his wife to
Mumbai Hospital or Hinduja Hospital, Mumbai for
treatment but when bills for reinstatement were submitted,
the bills were not reimbursed. Workman had submitted
various representations.
3. That as per Clause-V of the scheme, Bank had
permitted reinstatement of medical expenses for Ayurvedic,
Homeo, Unani medicines. 100% for the employees, 75% for
the family members. Workman has reproduced relevant
clause. That the bills for treatment of his wife was rejected.
Workman faced financial crisis as he had incurred loan of
Rs. 1,00,000 for treatment of his wife. Workman claimed to
have been victimized as he was active office bearer of the
Union, belongs to SC. That he had incurred medical
expenses for treatment of his wife. It is unfair to reject his
bills by management of SBI. On such ground, workman
prays for his reimbursement of the medical bills stated
above.
4. IInd party filed Written Statement at Page 8/1 to 8/
5. IInd party submits that the statement of claim filed by
workman is misconceived and deserves to be negated. That
Statement of claim filed by workman claiming Local Secretary
of the union. That the Union is not recognized by the
management. The dispute is not tenable. The industrial
dispute only relating to discharge, dismissal, retrenchment
termination are covered under Section 2-A of the I.D. Act.
The dispute under reference is lot legal. The Tribunal has
no jurisdiction to decide the same. That Rule-4(b) of I.D.
Rules 1957 provides the application and the statement
accompanying shall be signed in the case of workman either
by the President and Secretary of the Trade Union of
representative of the workman. Statement of claim filed by
workman is not in compliance of said rule.
5. IInd party further submits that as per hospitalization
scheme. Prior consultation with Bank's Authorities, Medical
Officer is necessary before admission of employee or his
family member in the hospital. As per circular No. 121/84,
the officers and members of the staff should except emergent
cases consult the Bank's Medical Officer before getting
themselves or family members admitted to a hospital. When
such prior consultation is not possible, after patient is
admitted in hospital, alternative arrangement may be
considered. That Award Staff should seek prior approval
from the concerned Bank whereas Doctors/Medical Officer
before getting themselves or family members admitted in
hospital. Such prior permission from Bank was not obtained
by the workman as per circular dated 5-12-1984 for admission
of his wife in Samadhan Hospital, Nagpur. Letter dated
19-5-99 is clear that Sr. Medical Officer recommended the
case of workman's wife for opinion and treatment by
Hematologist either by Doctor Amin at Bombay Hospital
or Dr. Joshi at Hinduja Hospital, Bombay. However the
workman had taken his wife for treatment to Samadhan
Hospital, Nagpur. It is emphasized that the workman is not
entitled for reinstatement of his medical bills for violation
of circular dated 12/5/84.
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:—
2546
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
(i)
Whether the action of the
management of State Bank of
In Negative
India in declining reimburse-
ment of medical bills under
improved medical aid scheme
to Shri Suresh Khonde, Naik,
State Bank of India, Shastri
Market Branch, Raipur on
account of medical expenses
of his wife is justified?
(ii) If not, what relief the
As per final
workman is entitled to?"
orders
REASONS
7. Ist party workman feeling aggrieved by non-
reimbursement of medical of his wife for Rs. 79,572.85 is
prosecuting the reference. Affidavit of evidence is filed.
He has narrated most of the facts pleaded in his statement
of claim that he was employee of SBI. There is scheme for
medical aid for the staff as per circular dated 4-1-96. Said
scheme regulates reimbursement under medical aid and
reimbursement of hospitalization scheme expenses. That
his wife was patient of rheumatoid arthritis, muscular
atrology and anemia with various kinds of chronic ailments.
She was suffering from swelling and body muscle were
destroyed. His wife was earlier given allopathic treatment
but the decease was not cured. As per advice of Dr. V.N.
Pathak, wife of workman was admitted in Samadhan
Hospital, Ganesh Nagar, Nagpur. She was treated by
Dr. Babukar during the period 17-9-97 to 17-1-98. His wife
got relief. That he incurred expense of Rs. 79,572.85. He
submitted bills for reimbursement on 2-2-98. The bills were
forwarded by Branch Manager to regional office. Regional
office forwarded to Local Head office, Bhopal for sanction.
Said bill was placed for scrutiny by Local Head office,
Bhopal. Correspondence was made with Chief Medical
Officer of the Bank. On 5-5-99, Chief Medical Officer of the
Bank informed as per history, she was suffering from pain
in both knees, shoulders and back for last three years and
she is unable to walk and work for her personal hygiene.
Other body part were also suffering from pain. That
treatment was given in Samadhan Hospital, Nagpur.
Affidavit is further devoted that vide letter dated 19-5-99,
Sr. Medical Officer recommended the case of workman's
wife for opinion and treatment by Hematologist either by
Doctor Amin at Bombay Hospital or Dr. Joshi at Hinduja
Hospital, Bombay. That despite of repeated representations,
the bill was not sanctioned. The scheme provides 100%
reimbursement for employees, 75% for family members. In
the evidence of workman in his cross-examination, workman
admits that without approval, the employees and their
family members suffering from illness would be taken for
treatment to other places. That he had not obtained prior
approval before admission of his wife in Samadhan Hospital
at Nagpur. Permission was sought subsequently from the
Doctors. The bills were countersigned. The evidence of
workman about letter issued by Sr. Medical Officer, about
condition of the wife of the workman that Doctor had
advised for her treatment at Bombay Hospital or Hinduja
Hospital is not challenged in cross-examination. The
documents referred in affidavit of witness, its zerox copies
are produced. There was no denial of those documents in
cross-examination of the workman.
8. So far as evidence of management's witness is
concerned, Vaidya Nath Bhagat is that workman had not
obtained prior approval for admission of his wife in
Samadhan Hospital. That workman had not submitted bills
as per Bank's scheme. He had not sought advise of the
Bank's Medical Officer before admitting him in the hospital.
In his cross-examination, management's witness says
during 1997 to 2000, he was posted at Ambikapur, Churcha
branch from June 12 he was working at Shastri Market
Branch, Raipur. As per circular dated 4-1-96, employees
entitled for reimbursement, circular is produced at Exhibit
W-1. As per record, workman had not requested permission
for treatment of his wife. Prior permission for treatment
could not be obtained. The employee can request
management's ex-post facto permission. The circular Exhibit
M-1 dated 5.12.1984 provides that prior approval of
authorized Doctor before admitting employee or family
member for treatment is necessary. Workman had admitted
that he had not obtained prior permission but his evidence
remained unchallenged that Dr. V.N. Patnaik had advised
for admission of wife in Samadhan Hospital, Nagpur. The
documents produced by workman, letter dated 21.8.1999
finds clear reference for reimbursement of medical bill of
his wife. The letter dated 5.5.1999 sent by Sr. Medical Officer
to Asstt. General Manager Page 58 speaks that Smt. Sushila
Khonde was suffering from paid in both knees, shoulders,
back for last 3 years. She was unable to walk for personal
hygiene. These symptoms get more aggrieved during rainy
and winter season. She was treated in Ayurvedic Centre
and relieved partially. On examination, her general
appearance is bad. She is afebrile and mormotensive. She
is a case of chronic poly arthritis with deformities in fingures
of both hands. Movements are restricted and even active
and passive movements are possible to 10 to 20 degrees.
Joints mainly affected are both shoulders, elbows, wrist
and small joints of both hands. Her both knees and ankle
are edematous. She is not able to walk without support.
Letter dated 7.5.1999 of Dy. General Manager was sent to
General Manager alongwith the letter of Medical Officer.
The zerox copies of the medical bills are produced. The
witness of the management in his cross-examination admits
that wife of workman died of her illness. He claims ignorance
about action taken of bill of Rs. 79,572.85. The approval
was necessary to prevent reimbursement. In present case,
the evidence of workman that Dr. R.R. Verma had found the
bills reasonable is not shattered. The scheme Clause 3(a)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2547
of the scheme Exhibit W-1 provides for reimbursement for
the expenses for Ayurvedic treatment - 75% reimbursement
in case of family members. Evidence on record is clear that
wife of workman is suffering from Arthritis and she died of
said illness. The claim submitted by workman was also
confirmed by Sr. Medical Officer vide letter dated 5.5.1998.
IInd party has not recorded any finding that claim of Medical
bill by workan is exorbitant or fictitious. The prior approval
for admission in medical hospitalization is not obtained
but in case of serious ailment, subsequent approval would
also be accepted. For above reasons, I record my finding in
Point No. in Negative.
9. In view of my finding in Point No. 1 that rejection
of claim of medical bill of Rs. 79,572.85 is illegal, question
arises whether workman is entitled for receiving of whole
amount of bill as per scheme Exhibit W-1. Workman is
entitled only for 75% amount which comes to Rs. 59685/-.
Accordingly I hold and record my finding in Point No. 2.
10. In the result, award is passed as under:—
(1) The action of the management rejecting
reimbursement of the Medical Bill of wife of
workman is illegal.
(2) IInd party is directed to reimburse 75% amount of
the bill i.e. Rs. 59685/-.
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] 28 Qjojh] 2014
dkñvkñ 972.—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 vfèdj.k]
p.Mhx<+ ds iapkV ¼lanHkZ la[;k 275@2005½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 27@02@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@159@2003&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 972.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 275/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court No. II, Chandigarh as shown in the Annexure
in the Industrial Dispute between the management of State
Bank of India and their workman, received by the Central
Government on 27/02/2014.
[No. L-12012/159/2003-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: Shri Kewal Krishan, Presiding Officer.
Case No. ID 275/2005
Registered on
The President, SBI SC & ST Welfare Association, C/o 3086,
Sector 44-D, Chandigarh.
...........Petitioner
Versus
The Assistant General Manager, State Bank of India, LHO,
Sector 17, Chandigarh.
...........Respondent
APPEARANCES:
For the Workman
:
Sh. Raj Kaushik.
For the Management
:
Sh. S.K. Gupta
AWARD
(Passed on 23.10.2013)
Central Government vide Notification No. L-12012/
159/2003-IR(B-II) dated 31.10.2003, by exercising its powers
under Section 10 Sub-Section (1) Clause (d) and Sub-
Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Act') has referred the following
Industrial dispute for adjudication to this Tribunal:—
"Whether the action of the management of State Bank
of India, Chandigarh in awarding the punishment of
bringing down one statges on the scale of pay for
one years with cumulative effect and treating period
suspension as not on duty of Sh. Gurmail Singh, Ex-
Assistant is justified? If not, what relief the workman
is entitled to and from which date?"
In response to the reference, notice was issued to
the workman as well as to the management.
The workman appeared and submitted statement of
claim pleading that he was in the Indian Air Force and an
ex-serviceman and was employed with the management as
Clerk-cum-Typist. He efficiently discharged his work but
the Chief Manager Sh. A.K. Aggarwal placed him under
suspension w.e.f. 17.5.1996 and thereafter a false charge-
sheet dated 25.1.1997 was served on him. He submitted
reply and thereafter an inquiry was conducted. That
charges were not proved against him. However the Inquiry
Officer submitted a report dated 12.5.1999 against him and
after considering the inquiry report, the impugned order
awarding punishment of bringing down two stages of the
scale of pay for two years with cumulative effect was
passed and the said order is illegal being not based on any
evidence.
2548
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
The management filed written reply pleading that
workman was guilty of misconduct and after conducting a
regular inquiry, punishment was awarded to him and the
only punishment of stoppage of one increment for one
year without cumulative effect was passed. The order, thus,
passed is legal and valid.
In support of its case the workman filed his affidavit
reiterating the case as stated in the claim petition. On the
other hand P.K. Kholsa filed his affidavit on behalf of
management.
After hearing the counsel for the parties the inquiry
was held to be fair and proper vide order dated 20.10.2011.
Workman was proceeded ex-parte vide order dated
30.5.2012. Though workman counsel Sh. Raj Kaushik
appeared on 27.8.2013 but again he did not put in its
appearance today.
I have heard Sh. S.K. Gupta counsel for the
management on the question whether the punishment
awarded is justified.
A persual of the charge-sheet shows that the
workman did not complete his work on 1.5.1996. He was
reminded of his default on 2.5.1996 and again on 3.5.1996.
Instead of completing the job, he entered the room of the
Branch Manager and misbehaved with him as much as, he
even abused him. After holding an inquiry in which workman
was given due opportunity to present his case, the charges
were found to be proved against him. Thus the workman is
guilty of misbehaving with his superior and thus spreading
insubordination in the institution in which people repose
faith. The punishing authority passed the order imposing
a penalty of bringing down two stages in scale of pay for
two years with cumulative effect vide order dated 1.11.2000
but the Appellate Authority vide its order dated 26.6.2001
reduced the penalty and only imposed a penalty of
stoppage of one increment for one year with cumulative
effect. The workman has also claimed full wages for the
period he remained under suspension. The punishing
authority while passing the award dated 1.11.2010 treated
the suspension period as not on duty and further found
that the workman was entitled to only subsistence
allowance already paid to him. Since the workman was
suspended and charges were duly proved against him and
it cannot be said that his suspension was without any
basis and he is not entitled to full back wages during the
period he remained under suspension.
Thus considering the circumstances of the case it
cannot be said that the imposed punishment is excessive
or improper. Thus the referrence is decided against the
workman. Let hard and soft copy of the award be sent to
the Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 973.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
lkSjkLVª 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
vfèdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 27@92½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@02@2014 dks izkIr
gqvk FkkA
[lañ ,y&12012@342@91&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 973.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 27/92)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur now as shown in the Annexure, in the
Industrial Dispute between the employers in relation to the
management of State Bank of Saurashtra and their workmen,
received by the Central Government on 27/02/2014.
[No. L-12012/342/91-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/27/92
Presiding Officer: SHRI R. B. PATLE
Shri S.S. Kulkarni,
E-A, Prem Nagar,
Manik Bagh, Palace Road,
Indore
.... Workman
Versus
Regional Manager (A-II),
State Bank of Saurashtra,
Shyam Gokul Society,
Nevrangpura,
.... Management
Ahmedabad
AWARD
(Passed on this 31st day of January, 2014)
1. As per letter dated 25-2-92 by the Government of
India, Ministry of Labour, New Delhi the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-12012/
342/91-IR (B-3). The dispute under reference relates to:
"Whether the action of the management of State Bank
of Saurashtra in dismissing the workman Shri S.S.
Kulkarni from the services of the Bank vide letter No.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2549
AD: STAFF: GM: CON: 331 dated 11-1-90 is 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 his statement of
claim at Page 7 to 19. The preliminary issue is decided on
3-4-2013. The enquiry conducted against workman is found
valid and proper. Their contentions in Statement of Claim
relating to preliminary issue are not narrated. Workman in
his statement of claim contents that he was working in
State Bank of Sourashtra, Indore Branch in 1986. He was
officiating head clerk. Indore Branch falls under jurisdiction
of Regional Manager of Ahmedabad. Chargesheet was
issued to him by Regional Manager on 6-8-86. The
allegations against him were he defrauded Bank by acts of
omissions. The workman filed reply to chargesheet denying
allegations against him. Shri K.M. Pandya was appointed
as Enquiry Officer. After conducting enquiry on various
dates, Enquiry officer held 5 charges against him were
proved. Thereafter he was issued showcause notice. He
was dismissed from service as per order dated 11-1-1990.
The appeal filed by him was heard on 3-9-90.
3. Workman submits that important documents
payslip to show his deposited amount in his State Bank
was not produced. Said document was vital for his defence
that he had not deposited amount. The findings of Enquiry
Officer are totally perverse based on presumption and
assumption. That there is no evidence to show he received
sum of Rs. 28,000 and 18,000. The witness No. 1 to 7 have
stated that they have not paid any amount to the workman.
The charge that amount was withdrawn and received by
workman cannot be proved against him. That Witness No.
8-Shri S. Sinha only stated that signature in the pay slips
appears that of Shri Kulkarni (workman) there is no positive
evidence to show his signature on slip was found by him.
Enquiry Officer presumed and drawn his conclusions. That
Enquiry Officer is not handwriting expert. The other
witnesses who simply stated that he signature look like
Shri Kulkarni is only opinion, forgery of signature cannot
be proved. There is no evidence of handwriting expert about
forgery of signature was committed by him.
4. Workman submits that he alone was made scape
goat. He had not committed any fraud. He was discriminated
and authority who made payments were let off. Punishment
imposed against him is discriminatory. Shri M.K. Srivastava,
Branch Manager at relevant time was issued showcause
notice. However no action was taken against him. That
Branch Manager has manipulated entire case against him
to save himself. He has not given any confession. Pass
book of Saving Account No. 2255 was not produced though
it was most relevant. It resulted in denial of reasonable
opportunity. Workman reiterates that findings of Enquiry
Officer are perverse. Enquiry Officer failed to consider that
the verification of signature on withdrawal forms was
responsibility of the Passing Officer. No action was taken
against Passing Officers who passes withdrawals for
payment tallying signature.
5. Workman further submits though allegation were
about forgery, the incident was not reported to police for
investigation. It shows that the Branch Manager was
involved in the case and tried to safeguard his interest.
There is no evidence that he deposited amount in Saving
Bank Account 2255. On such ground, workman prays for
setting aside order of his termination and his reinstatement
with back wages.
6. Management of IInd party filed Written Statement
at Page 25 to 37. IInd party submits that chargesheet was
issued to workman alleging misconduct, forgery of
signature of Account Holder withdrawing amount of Rs.
8000, 2000, 10,000, 8000 time to time. He again forged
signature of Account Holder and withdrawing amount of
Rs. 8500 which Bank had to refund. Unauthorisely passing
withdrawal of Rs. 2000 withdrawal dated 20-12-85 was
forged. Manipulatedly strike off the debit entry of Rs. 8500
dated 13-3-86 and misguiding the management by making
posting in respect of withdrawals for forgery nature. That
enquiry was conducted against workman. On report of
Enquiry officer, charges were proved against workman. The
punishment of dismissal was imposed by Disciplinary
Authority. IInd party submits that workman was given full
oppurtunity. The enquiry was conducted as per rules.
Workman was not prevented from examining handwriting
expert as his witness. It was not for management to examine
the signature of workman by any expert on questioned
documents. Workman was refused permission to engage
advocate for his defence. That pay slip dated 20-3-86 was
filed by employee and his signatures were identified by
Shri Thakkar, Srivastava in the enquiry. It is denied that
findings of Enquiry Officer are perverse. The opinion of
handwriting expert was submitted by workman alongwith
reply to showcause notice. The handwriting expert was
not available for cross-examination by management. That
punishment of dismissal is imposed for proving misconduct
of workman does not call for interventions. It is denied that
the punishment imposed against workman is discriminatory.
IInd party submits that it is surprising that Ist party made
confession under pressure. It is immaterial that charges are
proved from evidence in enquiry. Workman did not suffer
any prejudice for non-production of pass book. Ist party
cannot fasten his responsibility on others. It is reiterated
that the charges of fraud and forgery are proved against
workman. The punishment of dismissal is proper.
7. The enquiry conducted against workman is found
legal as per order on preliminary issue dated 3-4-2013.
Considering pleadings between parties and order on
preliminary issue, issues No. 3, 4 arise for my consideration
2550
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
and determination are as under. My findings are recorded
against each of them for the reasons as below:—
‘‘(i) Whether the charges of
In Affirmative
misconduct and proved from
Enquiry proceedings?
(ii) Whether the punishment of
In Affirmative
dismissal imposed against
workman is legal and
proper?
(iii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to relief
prayed by him.
REASONS
8. Point No.1.—As per finding on preliminary issue,
enquiry conducted against workman is found legal and
proper. Question arises whether the evidence in Enquiry
Proceedings proves charge alleged against workman. At
the time of argument, learned counsel for workman Shri A.
K. Shashi submits that findings of Enquiry Officer are
perverse. No documents are proved. Amount withdrawn
as in charge No. 3 forging signatures material witness was
not produced, pass baook was not produced in enquiry.
Account holder father of minor was no examined. Even
guardian and mother were not examined. There was no
complaint with respect to Account No. 2256. Charge in
respect of said account cannot be considered. There is no
evidence about payment of Rs. 8000, 2000, 10,000 to Ist
party workman, foregery is not proved. Deposit of
Rs. 18,000 by workman is not proved. That evidence of
management's witness is silent about payment passed by
workman. Workman has no authority to pass any payment.
That any of the charges are not proved against workman.
The representation were submitted by employees about
innocence of workman. It is emphasized that findings of
Enquiry Officer are perverse.
9. In reply to above, counsel for management Mr.
Ashish Shroti argues that Ist party workman was working
as Head Clerk, chargesheet Exhibit M-1 was issued to him.
The Account No. 2256 of minor was operated by his mother
Julekha. Complaint was received by Branch Manager about
withdrawing of amount. Enquiry Officer has discussed
evidence while recording his findings that mother and
guardian of minor Account Holder was examined as witness
No. 13 in Enquiry Proceedings. The pass book was not
produced by Account Holder. The argument about bias
cannot be considered without pleadings. Workman was
interrogated and he admitted withdrawal of amount. The
Enquiry Officer has discussed said part of evidence. The
findings on Charge No. 1, 2 are not perverse/withdrawal
forms were written by workman. Workman is Union Leader
and nobody dares to come against him. The findings of
Enquiry Officer are not perverse. In reply Advocate Shri
A.K. Shashi for workman reiterated that workman was not
authorized to pass pay slip, pass book was not produced
by Account Holder. The father of minor Account Holder
Fakrudin was not examined. Shri N.K. Srivastava Passing
Authority was also not examined. Pay slip was not
produced.
10. Considering tenor of arguments, evidence needs
to be scrutinized whether the charges alleged against
workman are supported by evidence in Enquiry
Proceedings. During course of argument, there was no
dispute that burden of proof in criminal case needs to prove
alleged offence beyond reasonable doubt, such degree of
proof is not required in domestic enquiry. The Enquiry
Officer is in report Page 25 to 46 has discussed the evidence
separately with respect to the charges. While dealing with
Charge No. 1, Enquiry Officer has referred to deposition of
witness Shri S.K. Ladia. Said withdrawal was posted by
him and token No. 4936 was given by him. Said withdrawal
is posted in ledger sheet, said withdrawal is paid by Shri S.
C. Khater. Witnesses S. Sinha, R.K. Srivastava, B. D. Bhatt
have stated about verifying specimen signature card after
authenticating remaining balance in concerned account.
That record of Saving Bank Account Ledger Sheet of
Account No. 2255 finds withdrawal inflicted in said account
after debiting Rs. 8000 (workman) himself has
authenticated balance Rs.10,613.51. This leads to believe
that this sheet was not sent to the officer alongwith the
withdrawal. That Shri S.Sinha identified the signature of
Shri S.S. Kulkarni (workman). That he found from his
deposition that the specimen signature has been kept under
custody of Shri Kulkarni as per branch extant practice.
That Mr. Sinha stick to his earlier deposition with respect
to withdrawal of amount Rs.2000 dated 20-12-85. Enquiry
Officer has discussed that from deposition of Shri Bhatt,
question No. 18 that Shri Kulkarni has filled up withdrawal
form and he confessed that amount was withdrawn by him
from S.B. Account. That Shri B. D. Bhatt deposed that said
withdrawal has been passed for payment by Shri Kulkarni.
That specimen signature appearing on Account No. 2255
was not tallying with signature appearing on withdrawal
form. That the withdrawal in said Account was posted by
Shri Ladia, Saving Bank Clerk. The withdrawal was not
posted by him. The Enquiry Officer has also discussed in
terms of withdrawal with respect to 10-2-86. As deposed
by Shri S.K.Ladia, he has posted the said withdrawal and
paid by Shri S.C.Khater. From the deposition of Shri
Srivastava that Shri Kulkarni has passed withdrawal by
putting his initial on the said withdrawal after verifying the
specimen signature etc. that Shri Srivastava has also
categorically replied that as per Bank's practice generally
the pass book was returned to the account holder after
Head Clerk's initial. With respect to withdrawal of Rs. 8000
dated 12-3-96 Enquiry Officer considered deposition of Shri
S.K. Ladia that payment of withdrawal was made by cashier
Sushil Kumar Badjatiya. He confirmed the statement. That
he considered deposition of Shri Bhatt that Shri Kulkarni
was incharge of S.B. Department. That signature appearing
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2551
on withdrawals doesnot tally with signature on Account.
That signature made on withdrawal appears to have been
made by Shri Kulkarni was confirmed during deposition of
Shri Bhatt. At Page 9 of his report. Enquiry Officer observed
that at the branch, it was practice that Shri Kulkarni used to
send withdrawals or cheque to the officer for their order
by putting his initial after verifying specimen signature
and after authenticating the balance in respective ledger
folio. Smt. Julekha was examined as witness No. 13, the
original pass book was not produced. Enquiry Officer has
extensively discussed evidence.
11. I avoid to reproduce entire evidence adduced
by the Officer. Considering charge No. 1 to 5 against workman
and the question about considering whether the charges
of misconduct and proved from Enquiry proceedings. That
the finding recorded by Enquiry Officer are perverse, the
scope of judicial review is needed. The evidence cannot be
re-appreciated as sitting in an appeal. The statements of
witnesses in Enquiry Proceedings are recorded in the
register Page 1 to 145 produced on record. All 13 witnesses
have confirmed their statements recorded by Investigating
Officer. Witness No. 1 Dhirajlal Mohta and other witnesses
have stated about procedure for withdrawal of amount.
The witnesses have stated that amount was not paid to
Shri Kulkarni ( workman). Witness Ladia says he had issued
token for withdrawal of the amount. He had posted said
amount in ledger. Witness No. 5 Shirolkar in his statement
say he had made payment of Rs.2000. Since it was late
payment, the token was not issued to the party. He says
that payment was not made to Shri Kulkarni. Witness No. 6
Khater says that person who tenders token was made
payment. That he had not made payment to Shri Kulkarni
Witness No. 8 Shri S. Sinha has stated that because the
Head Clerk was there and initialed signify that he had verified
the signature of Account Holder. He did not verify signature
of the Account Holder. The Head Clerk was in custody of
specimen signatures. That Head Clerk used to verify
specimen signatures of Account Holders with specimen
signatures of withdrawals and initial that he was satisfied
that the signature was tallied. In reply to question 18, he
said that Shri S.S. Kulkarni had initialed. In reply to Q.No.19
he says that withdrawal appears to be filled by Shri Kulkarni.
He further says that mode of handwriting appears to be of
Kulkarni's writing. In reply to Q-21, the signature on back
of withdrawal is eligible but mode of writing appears to be
of Shri Kulkarni. That initial entry of Rs. 8500 dated 13-3-86
appears of Shri Kulkarni. The mode of writing of balance
appears in handwriting of Shri S.S.Kulkani. Thus reply to
Q.No.18 to 24, Sinha has specifically said that the relevant
documents bearing initials of Shri S.S.Kulkami or bears his
handwriting. The evidence of Shri Sinha on the above point
is not shattered in his cross-examination. Cross-
examination further shows that this first posting was at
Bombay. He was working under clearing etc. departments.
He was working with Shri Kulkarni about six months prior
to the incident. He claims to be conversant with the
delegated powers of concerned clerk. In reply to Q. No. 20
in cross-examination says that mode of wirting on face of
withdrawal appears to be of Shri S. S. Kulkarni. In reply to
Q. No. 21, he says that he was aware of his mode of writing
certain letters. In reply to Q. No. 21, 26 & 32, he confirmed
that handwriting is Shri S. S. Kulkarni. In reply to Q. No. 34,
Sinha says that only he was conversant of Shri Kulkarni's
signature and intial. He further admits that he did not
identified handwriting of Shri Kulkarni in reply to Q No. 36.
12. Witness No. 10 in his statement has supported
the charges against workman that complaint was received
from Account Holder. He had talk with the husband of
Account Holder Shri Julekha about withdrawal of amount
Rs. 27,500 or so. PW-11 R.K. Srivastava in his statement
says that he relied on Head Clerk while passing withdrawal
of Rs. 10,000. That said withdrawal was filed by Shri Kulkarni
in his handwriting. In reply to Q. No. 15, Shri Srivastava
says from the credit pay-in-slip it seems that amount were
deposited by Shri Kulkarni whose signature appears on
pay slips. Witness No. 12 Bhargav Dharma, Sukhjlal Bhatt
has also supported the charges. Father of Account Holder
met him on 18-3-86 requesting him to find out who had
withdrawn the money from his son's Account No. 2255.
Answer No. 6 of said witness shows that after comparing
the withdrawals it was observed that money was
withdrawn. The withdrawal was made by Saving Bank
withdrawal form. That earlier Shri Kulkarni was working as
Head Clerk in the branch. In reply to Q. No. 16 he says that
withdrawal has been passed by Shri S. S. Kulkarni Head
Clerk. In reply to Q. No. 19, he says during his investigation,
Shri Kulkarni had booked flat at Indore. He had to pay
advance money to the builder. In reply to Q. No. 10 in
cross-examination, Bhatt says that Kulkarni had confessed
orally to him that he had withdrawn amount from S.B. A/c.
No. 2255. Mr. Bhatt had submitted report to higher
authorities about amount fraudulently withdrawn by Shri
Kulkarni. If evidence of witnesses is carefully considered,
any of the witnesses have not suggested that some other
officer in the Bank or Manager are involved in fraudulent
withdrawal of amount. The workman had no reason to re-
deposit the amount in A/c No. 2255. Shri Bhatt in reply to
Q. No. 29 of his cross-examination says that on 20-3-86,
Kulkarni came to his chamber in morning. He has shown
pay-in-slip duly filled for Rs. 18,000 etc. the evidence of
witness No. 13 Julkha supports that he had filed complaint
about fraudulently withdrawing money from authority in
the bank. The charges are supported by evidence to point
out fraudulent withdrawal of money by workman himself.
Therefore I record my finding in Point No. 1 in Affirmative.
13. Point No. 2— In view of finding in Point No. 1 as
charges of fraudulent withdrawal of amount by workman
are supported by evidence. On the point of punishment,
learned counsel for 1st Party workman did not advance
any arguments.
2552
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
14. Learned counsel for management Shri Shroti
submits that fraudulent withdrawal of amount is gross
misconduct. The punishment of dismissal is justified.
Reliance is placed in ratio held in
"Case of Ganesh Santa Ram Sirur versus State Bank
of India and another reported in 2005(1) Supreme
Court Cases 13. Their Lordship dealing with penalty,
quantum of punishment and its propriety held
sanctioning of loan to his spouse by Bank Manager
in contravention of service rules, although the
cheque issued pursuant thereto was not encashed,
held, not an honest decision service rule prohibiting
the Bank Manager to sanction loan to his spouse
held was a rule of integrity. Hence punishment of
removal from service awarded to the Bank Manager
was just and proper."
In case of State Bank of India and others versus Shri
S. N. Goyal reported in 2008(8) Supreme Court Cases 92.
Their Lordship dealing with temporary misappropriation
to customer's money by Bank Manager held it is a serious
misconduct warranting removal from service. Observations
made in a case where a Bank Manager had received cash
payment from two borrowers of loans, temporarily
misappropriated the money and belatedly deposited the
amounts to borrower's account that the relationship
between Banker and customer is of trust. Employees of
bank and in particular Manager are expected to act with
absolute integrity and honesty in handling customer's/
borrower's money. Even a temporary misappropriation of
such money is a serious matter."
In present case, misconduct of Ist party workman is
proved. The punishment of dismissal doesnot call for
interference. I therefore record my finding in Point No. 2 in
Affirmative.
15. In the result, award is passed as under:-
(1) Action of the management of State Bank of
Saurashtra in dismissing the workman Shri S.S.
Kulkarni from the services of the Bank vide letter
No. AD:STAFF:GM:CON:331 dated 11-1-90 is
proper.
(2) Workman is not entitled to relied prayed.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 974.—vkSn~;ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nf{k.k iqoZ jsyos
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkSn~;ksfxd fookn esa dsUnzh; ljdkj vkSn~;ksfxd vf/kdj.k
tcyiqj ds iapkV ¼lanHkZ la[;k 74@97½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 27@02@2014 dks izkIr gqvk FkkA
[lañ ,y&41012@236@95&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 974.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 74/97)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of South Eastern Railway and
their workmen, recieved by the Central Government on
27/02/2014.
[No. L-41012/236/95-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/74/97
PRESIDING OFFICER: SHRI R.B. PATLE
Shri G. Dadel, Ex. Driver,
Special Grade,
South Eastern Railway,
R/o NE Colony, Block No. 1256/H,
PO & Distt. Bilaspur (MP)
....Workman
Versus
Senior Divisional Mechanical Engineer,
South Eastern Railway,
PO & Distt. Bilaspur
...Management
AWARD
(Passed on this 14th day of February 2014)
1. As per letter dated 5-3-97 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-41012/
236/95-IR(B-I). The dispute under reference relates to:
"Whether the action of the management of SE
Railway, Bilaspur in removing Shri G. Dadel, Ex-Driver
Loco from service w.e.f. 28-4-93 vide order No.
M/TAC/106/NRZB/92 dated 27-4-93 is justified? If
not to what relief the workman is entitled to and what
should be the details"
2. After receiving reference, notices were issued to
the parties. 1st party workman filed statement of claim at
Page 2/1 to 2/4. Case of 1st party workman is that he was
working as Driver in SE Railway. He rendered 30 years
unblemished service. He was to retire with period of 2 years.
Suddenly DE was conducted and he was dismissed from
service. That chargesheet was served on him. The
allegation in chargesheet were that he failed to control
train at NRZB station and overshooted the starter signal of
NRZB at danger (2) he was found in possession of liquor
bottles while working on 8400 UP on 10-10-92, (3) he allowed
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2553
to travel unathorized person to travel in locomotive engine
while working on said train. The workman has pleaded that
enquiry conducted against him was not proper and legal.
The findings of Enquiry Officer ar perverse. The workman
himself brought back the train to NKJ without any
disturbance. Enquiry Officer overlooked said fact. The
said fact shows that the wokrman was not under influence
under liquor as he himself had brought back the train to
destination. The witnesses had given contradictory
statements of seizure of liquor. The findings of Enquiry
Officer are not supported by evidence. On such ground,
workman prays for his reinstatement with back wages.
3.IInd party management filed Written Statement at
Page 5/1 to 5/3. IInd party submits that disciplinary action
was initiated against workman considering gravity of the
misconduct, the workman was allowed to take assistance
from defence counsel. He was allowed upto the destination
of overshooting. It was express train. There was no alternate
to avoid public complaint. During Departmental Enquiry, it
is proved that workman had taken alcohol liquor was sezied
from engine cabin. Workman while driving express train,
failed to stop the train at station which was scheduled
hault. After passing the signal, it came into his mind and
the train had to be brought back on the platform. The
findings of Enquiry Officer are based on presumptions.
IInd party prays for rejection of claim.
4. Workman filed rejoinder at Page 9/1 to 9/4
reiterating his contentions in Statement of claim. That he
himself brought train to the schedule destination. He was
not under influence of liquor.
5.The enuqiry conducted against workman is found
legal and proper. Considering pleadings on record. the
points which arise for my consideration and determination
are as under. My findings are recorded against each of
them for the reasons as below:-
(i)
Whether the misconduct of
In affirmative
the delinquent workman is
proved from evidence in
Enquiry Proceedings?
(ii) Whether punishmsent of
In Negative
removal from service of
workman is legal and proper?
(iii) If so, to what relief the
As per final order
workman is entitled?
REASONS
6. As stated above, enquiry conducted against
workman is found legal and proper, question remains to be
decided whether the evidence in Enquriy Proceedings
proves charges against the workman and punishment of
dismissal from service is proper. At the time of argument,
learned counsel for workman Shri V.N. Sharma submits that
charges against workman were of overshooting of train at
Station NRZB. Charge No. 2 carrying liquor bottle in Engine,
(3) allowing unauthorized person. There was no change
against work of driving train under influence of liquor.
That Enquiry Officer did not consider the defence of
workman that evidence of management's witness Shri Parte
shows that workman himself has driven back the train to
its destination. That the evidence about seizure of liquor
bottle is not consistent. The witnesses N. Prasad says he
has not seen liquor bottle. He has not supported the seizure.
The charge about unauthorized travelling was denied. The
evidence is not consistent.
7. Learned counsel for IInd party Shri R.K. Soni
submits that the charge against workman about
overshooting is supported by evidence. The chain was
pulled to stop the train. Liquor bottle was found is engine
cabin. Workman has not explained the same. The evidence
of management's witness is that 3-4 liquor bottles were
found. The breath test was conducted, two boys were found
sleeping in the engine cabin, the charges are proved.
8.Considering the tenure of arguments, evidence in
Enquiry Proceedings needs to be seen. Shri S.B. Parte in
his statement says on 4-10-92 at 12.55 hours, train was
scheduled. Train arrived at 13.50 hours after having normal
stoppage, train had left BRS at about 19.2. hours, While
approaching NRZB home, he felt that the speed of the train
was at higher side, as such tried to control the train by
destroying the vacum gradually. The SLR of the train
ultimately stopped between starter and Advance starter of
NRZB station overshooting starter signal and the engine
was standing after passing Advanced Starter at Danger. In
his further statement, he has stated about that the liquor
bottle was found. He has given memo to the workman. He
had questioned driver. He replied it was his mistake to
have overshoot. When he asked driver whether he could
drive train, he answered in affirmative. In his extensive
cross-examination, he says that he was working as guard.
Train had run normal from Bilaspur to BRS but train have
passed through NRZB, a scheduled haulting station. He
has re-affirmed that when he asked Driver, how it happened,
whether he was in condition of driven, Driver said Yes. In
reply to question No. 9, he says seeking the driver, looking
very drowsy, talking very low, he observed him under
infuence of liquor. In reply to Q.No. 70, he says that he had
not taken action since he had told that grand children of
working Assistant Driver of train were found in the engine.
In reply to Q.No. 22, witness says he found Driver in normal
condition sitting on his seat. In reply to Q.No. 23, the witness
says he was under influence of liquor. In reply to Q. 26
witness says the train was backed very normally. That in
his further cross-examination shows that the empty liquor
bottles were seized in his presence. He signed the seizure
note. The seized material was not recovered from box,
luggage of Driver. That he never noticed that Dadel
workman and Preetam drunken on duty in the past. The
evidence of Shri Parte about overshooting, driver found in
2554
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
possession of liquor bottles carrying two unauthorized
passengers is not shattered. His evidence supports the
finding of Enquiry officer. The evidence of J.N. Singh and
B.B. Rai corroborates the evidence of Shri Parte on above
points. The scope of judicial review is limited. The evidence
cannot be re-appreciated as Appellate Authority. The
witness Shri Rai says train was supposed to stop at NRZB
but it was passing through without haulting. They were
travelling in 3-tier compartment. The passengers in our
compartment got panic and started shouting. They pulled
pulled the Alaram chain. The train went and stopped ahead
of NRZB station after passing cabin, he found Driver and
Assistant Driver in drunken condition. He noticed one
empty quarter bottle of country liquor in empty condition
by the side of the driver, another half bottle with about 100
ml quantity of liquor. In his further cross-examination, he
says seizure memo was prepared at platform of NRZB station
after the train was left. Thus he corroborates the evidence
of MW-1 Parte. In his cross-examination, he says that he
along with escort party were travelling in the 3-tier
compartment. That personally he seized materials as per
seizure note. When he prepared seizure memo at platform,
he went to Driver for their signature but they refused. That
he further says that he had gone to Engine at the stop
where engine was standing after overshooting. MW-4
Prasad says since he was working as LR, he thought that
train must have no stop at NRZB. He confirmed with signals
and found starter signal was shown red, immediately applied
vaccum break. Ultimately train stopped disregarding danger.
The Guard came, 7 porter also came, they given signal for
backing the train. However he says he did not notice liquor
bottle. His evidence cannot be ground for discarding
evidence of other witnesses of the management. The
evidence of MW-1 to 3 supporting the charges against
workman. Therefore it cannot be said that findings of
Enquiry Officer are perverse.
9. Learned cousel for workman Shri B.N. Sharma
relies on cetin of cases. Ratio held in
‘‘Case of Nirmala J. Jhala versus State of Gujarat and
another reported in 2013(138_-FLR-227 is on the point that
standard of proof in disciplinary proceedings is not like
criminal proceedings. Proof beyond reasonable doubt. The
principles of probabilities applies to the disciplinary
proceedings."
From evidence discussed above, it cannot be said
that finding of Enquiry Officer are perverse.
"In case of Vinod Kumar versus Bank of India
reported in 2014-140/FLR-78. The ratio laid down is if
production of document is not even, the contents
have to be proved by examining witnesses."
The ratio cannot be applied beneficially to the
present case as the management witness have supported
seizure of liquor bottles.
"In case of Anil Kumar versus Presiding Officer and
others reported in 1985(3) SSC-378. Ratio is held that
the Enquiry Report should be reasoned, absence of
reason shows non-application of mind."
In present case, Enquiry Officer has discussed
evidence of the management's witnesses. Ratio cannot be
applied to the present case.
10.As evidence discussed above supports charges
against workman, the evidence cannot be re-appreciated.
The findings of Enquiry officer cannot be said perverse.
The evidence is sufficient to prove charges against
workman. Therefore I record my finding in Point No. 1 in
Affirmative.
11.Point No. 2- In view of my finding in Point No. 1,
question arises whether the punishment of dismissal froms
service of workman is proper and legal? He evidence on
record pointed out by learned counsel for workman Shri
B.N. Sharma shows that the train was over-shooted. The
workman himself had brought back train safely. The train
had over-shooted to the point. West cabin NRZB station.
The train was stopped pulling train. There is no charge
that workman was under influence of liquor while driving
the train. Learned counsel Shri B.N. Sharma submits that
punishment of dismissal from service is not proper. In
support of his argument, learned counsel relies on ratio
held in cetin of cases.
"In case of Essel Mining and Industrial Ltd. Versus
Pravakar Mahakud reported in 2012/134/FLR-533. His
Lordship of Orissa court dealing with termination of
service in the case where accident caused leading to
death of a child while driving a heavy vehicle. As the
incident which lead to the unfortunate death of a
child was clearly an accident and no negligence can
be attributed out of such accident. Workman was
holding a valid licence and was competent to drive
heavy vehicle. He was not udner intoxication or
incompetent of driving vehicle. As incident which
lead to the unfortunate death of a child was clearly
an accident and no negligence can be attributed out
of such accident, workman was holding legal licence,
he was competent to drive vehicle, the punishment
of termination was held grossly disproportionate,
reinstatement of workman was directed."
In case of A.L. Kalra versus the Project and Equipment
reported in AIR 1984-SC-1361 dealing with the employment
of workman after his termination held that the workman
was not entitled to salary for the period he was employed.
The ratio is not comparing to the present case at
hand as workman in present case was not in employment
rather the workman has retired after attaining age of
superanuation long back.
In case of AIR-1978-SC-474 submitted in the bunch
of citation has no bearing to present case. There is no
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2555
question of admission of additional evidence or dismissal
of workman without enquiry. In para-5 of the judgment
their Lordship held that Part-IV of constitution, the benefit
of reasonable doubt on law and facts, if there be such
doubt, must go to the weaker section, labour.
In case of Jitendra Singh Rathor versus Shri
Baidiyanath Ayurved Bhawan Ltd. And another reported
in 1984(3) Supreme Court cases 5 held where Tribunal
awarded reinstatement with half back wages, High Court
not justified in substituting its own award of compensation
in lieu of reinstatement-Reinstatement-Constitution of
India."
In Case of management of Hindustan Machine Tools
Ltd. Bangalore versus Mohd. Usman and another reported
in 1984(1) SSC 152. Their Lordship of the Apex Court held
where punishment imposed in excessive, Labour court in
exercise of its discretion under Section 11-A can reduce
the punishment. The punishment of stoppage of increments
for two years imposed by Labour Court setting aside
employer's order of dismissal was upheld.
Similar view was held in case of Jaswant Singh versus
Pepsu Roadways Transport Corporation and another
reported in 1984(1) SSC 35.
In present case for proved charge of overshooting,
possession of liquor bottles and carrying two unauthorized
passenger, the punishment of dismissal is imposed. The
evidence in Enquiry proceeding is clear. The Driver himself
has brought back train to scheduled destination so he was
not under influence of liquor. There was no charge of
workman driving train under influence of liquor. The
overshooting was up to West Cabin. Considering the
proved charges, punishment of dismissal would be
appropriate. The punishment of with-holding 3 increments
would not be appropriate. The punishment of termination
was imposed against workman on 27-4-93. The evidence is
not clear when workman has retired from service. Therefore
withholding three increments of workman, his reinstatement
without back wages would be appropriate. For above
reasons, I record my finding Point No.2 in Negative.
12. Point No. 3-In view of my finding in Point No. 1,2
that termination of workman needs to be set-aside.
Punishment of withholding three increments would meet
the ends of justice. Workman in entitled for reinstatement
without back wages. Accordingly I record my finding on
Point No. 3.
13. In the result, award is passed as under:—
(1) Action of IInd party removing Shri G. Dadel, Driver
from service w.e.f. 28-4-93 is not legal.
(2) IInd party is directed to reinstate workman with
continuity of service without back wages.
Punishment of withholding 3 increments is
imposed instead of termination from service.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 975.—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 lc) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k tcyiqj ds iapkV ¼lanHkZ la[;k 101@2005½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27&02&2014 dks izkIr gqvk FkkA
[lañ ,y&17012@3@2005&vkbZ vkj ¼ch&I ½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 975.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.101/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,.
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Life Insurance Corporation of
India and their workmen, received by the Central
Government on 27-02-2014.
[No. L-17012/3/2005-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/101/2005
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Dinesh Singh,
B-175, Adarsh Nagar,
Hoshangabad Road,
Bhopal.
...Workman
Versus
Regional Manager,
Life Insurance Corporation of India,
Central Zonal Office,
Hoshangabad Road,
Bhopal
...Management
AWARD
(Passed on this 11th day of February, 2014)
1. As per letter dated 27-9-05 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
2556
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Section-10 of I.D. Act, 1947 as per Notification No. L-17012/
3/2005-IR(B-I). The dispute under reference relates to :
"Whether the action of the management of Regional
Manager, Life Insurance Corporation of India, Bhopal
in terminating the services of Shri Dinesh Singh w.e.f.
Feb., 2001 is justified? If not, to what relief the
workman is entitled for?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed Statement of Claim at
Page 3/1 to 3/4. Case of List party workman is that he was
appointed as temporary Care Taker in VIP Guest House
under IInd party from 12-5-94. That work of workman was
excellent no complaints were against him. That relative of
workman falsely registered case for offence under Sections
457 and 380 of IPC relating to incident dated 16-12-2000-
crime No. 102/2001. Due to criminal case registered against
him, his services were terminated from February, 2001.
Workman was paid salary Rs. 1650/- for February, 2001.
Workman was acquitted in criminal case by JMC-I, Bhopal
on 1-5-2003.
3. Workman has written various letters to the IInd
party dated 6-5-03 to Zonal Manager, LIC, 13-5-03, 15-7-03,
26-8-03, 22-9-03 to Chairman, LIC. Legal notice was issued
on 22-11-03 to IInd party. No reply was given to the notice.
Workman submits that he was working form 12-5-94 to
February, 2001 with IInd party. He was removed from service
without complying the legal provisions. Even after his
acquittal in criminal case, he was not allowed to work. On
such ground, workman prays for his reinstatement with
consequential benefits.
4. IInd party filed Written Statement at Page 6/2 to 6/
10. IInd party submits that Ist party workman was never its
employee. There is no sanctioned post of Care Taker in VIP
Guest House on contractual basis. His services were liable
to be terminated without notice. Excellent service record of
workman is denied. Workman was prosecuted for offence
under Sections 457 and 380 of IPC before JMC-I, Bhopal.
The services of workman as contractual care taker were
terminated from February, 2001 as per notesheet. The
corporation thought that a man of doubtful integrity who
was involved in some criminal matter was not a person to
be retained. It was one of the reason but not sole reason
for termination of contract. Workman was initially paid Rs.
1000/- per month. The wages were increased to Rs. 1650/-
per month. Verbal contract was terminated doesnot give
right for reinstatement to workman. Notice given by
workman was replied suitably on 27-11-03. Workman was
given acquittal under benefit of doubt. It was not clear
acquittal. Their exists no dispute between the parties. After
termination of oral contract, IInd party had engaged other
contract worker Mr. Gopal. It is reiterated that post of care
taker is not sanctioned post. That LIC is a statutory
corporation. Its affairs are covered by rules and regulations
under Insurance Act, 1938. The temporary staff could be
employed by the Zonal Manager on temporary basis.
Workman was not employed as workman. That temporary
appointment of Class-IV post is permissible as per strength
of sanctioned peons. That LIC has framed rules under
Section 48-2(cc) of the Life Insurance Corporation of India
Act, 1956. IInd party relying on ratio held in different cases
by Apex Court submits that provisions of I.D. Act are not
applicable to LIC. On such contentions, IInd party prays
that claim of workman cannot be allowed.
5. Workman filed rejoinder at Page 8/1 to 8/3
reiterating his contentions in Statement of Claim. That his
services have been terminated without his fault. He prays
for reinstatement.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
management of Regional
In Negative
Manager, Life Insurance
Corporation of India,
Bhopal in terminating the
services of Shri Dinesh
Singh w.e.f. Feb 2001 is
justified?
(ii) If not, what relief the
As per Final Order
workman is entitled to?"
REASONS
7. Workman is challenging termination of his services.
He has produced document Exhibit W-1. Engagement of
workman from 2-6-94 on salary consolidated amount of Rs.
1000/-. Exhibit W-2 is receipt of payment Rs. 1650/- on 3-3-
2001. Exhibit W-3 is copy of submissions before ALC,
Bhopal. Management has produced notice at Exhibit M-1.
Said notice was sent on behalf of workman by Advocate
Ramesh Chandra Agrawal. Exhibit M-2 is application
submitted by workman for opening Bank Account with the
Bank. M-3 is copy of instructions issued by LRs.
8. Workman filed affidavit of his evidence stating
that he was engaged from 12-5-94. His services were
discontinued from February, 2001. He was paid wages Rs.
1650/-. He was acquitted in criminal case on 1-5-03. He had
repeatedly requested IInd party for reinstatement. That
ratio held in case of Venugopal cannot be applied to present
case as facts are different. Workman in his cross-
examination says about his engagement as Security Guard
at residence of General Manager for 1-2 years. Thereafter
he was working at Guest House from 12-5-94 on contract
basis. He was not interviewed, appointment letter was given
to him. He was paid consolidated pay Rs. 1000, increased
to Rs. 1500, 1650/-. He was not given annual increments.
Provident Fund was not deducted from his pay. He was
¹Hkkx II—[k.M 3(ii)º
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2557
arranging tea, meals etc. in the Guest House at the rates
fixed by the LIC. He was investing his money for purchase
of articles. That he was submitting leave application to Mr.
Gupta but its copy is not with him. One Mr. Gopal is working
in the guest house, he has been regularized. What work he
was doing—the same work is being done by Shri Gopal. In
his further cross-examination, workman denies that he was
engaged under contractor instead he says that he was
employed as temporary employee. That there are 3 Guest
House of LIC, all 3 caretakers were receiving same payment.
9. The evidence of management's witness S.D. Mehra
is on the point that workman was engaged as caretaker in
VIP Guest House on contract basis. He was discontinued
from February, 2001. The notesheet was prepared before
his termination. In the evidence in cross-examination of
management's witness he denies that workman was working
as caretaker during the relevant period. The witness says
that workman was working on contract basis. The
document Exhibit W-1, W-2 are admitted by the witness.
That the services of workman were not terminated but the
contract was terminated. The witness claims ignorance
whether notice for relieving workman is produced on record.
Workman was acquitted in benefit of doubt. Management's
witness claims ignorance whether workman submitted
application for allowing him on duty after his acquittal.
10. The evidence of management's withness shows
that the services of workman were terminated preparing a
note, no enquiry was conducted against workman before
termination of his service. In his note of argument, learned
counsel for management submitted that the Provision of
I.D. Act are not applicable as workman was not employed
as an employee rather he was engaged on contract basis
as care taker. The evidence of management's witness is not
disclosing what were the rates of different articles to be
supplied in VIP Guest House. He was paid Rs. 1650/- in
February 2001.
11. Section 2(s) of I.D. Act defines—
"Workman means any person including an apprentice
employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory
work for hire or reward, whether the terms of
employment be express or implied and for the
purposes of any proceeding under this Act in relation
to an industrial dispute, includes any such person
who has been dismissed, discharged or retrenched
in connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but does not
include any such person—
(i) Who is subject to Air Force Act, 1950 or the Army
Act, 1950 or
(ii) who is employed in the police service or as an
officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or
administrative capacity or
(iv) who being employed in a supervisory capacity,
draws wages exceeding one thousand six hundred
rupees per mensem or exercises a 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."
12. Workman was not working in supervisory or
managerial post. His services were engaged by IInd party
as caretaker in guest House is squarely covered under
Section 2(s) of I.D. Act. His services were terminated
without notice merely as he was prosecuted in a criminal
case. The workman was working from 12-5-94 to February
2001. IInd party has not complied Section 25-F of I.D. Act.
Termination of his service is illegal, therefore I record my
finding in Point No. 1 in Affirmative.
13. In view of my finding on Point No. 1, termination
of services of workman is illegal, question arises whether
the workman is entitled for reinstatement with back wages.
Workman in his cross examination has stated that he is
working as Security Guard in hotel and gets Rs. 2500/- a
month. That his family consists of his wife, daugther. They
are doing work of washing plates in the hotels. From
evidence in cross- examination of workman, it is clear that
the workman is in gainful employment. However his services
are terminated in violation of Section 25-F therefore the
workman deserves his reinstatement but without back
wages. Accordingly I record my finding in Point No. 2.
14. In the result, award is passed as under:—
(1) Action of the management of Regional Manager,
Life Insurance Corporation of India, Bhopal in
terminating the services of Shri Dinesh Singh w.e.f.
Feb. 2001 is illegal.
(2) IInd party is directed to reinstate workman with
continuity of workman but without back wages.
R.B. PATLE, Presiding Officer
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2558
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 28th February, 2014
S.O. 976.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 34/2008)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court
Nagpur as shown in the Annexure, in the industrial dispute
between the management of State Bank of India and their
workmen, which was received by the Central Government
on 27/2/2014.
[No. L-12012/18/2008-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/34/2008
Date: 14.02.2014.
Party No. 1
:
The Assistant General
Manager, State Bank of India,
Zonal Office, S.V. Patel Marg,
Nagpur
V/s.
Party No. 2
:
The Asstt. General Secretary,
State Bank Staff Union,
C/O State Bank of India,
Zonal Office, S.V. Patel Marg,
Nagpur, Maharashtra.
AWARD
(Dated: 14th February, 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 State Bank of India, Zonal Office and their
workman, Shri P.L. Mahadole, for adjudication, as per letter
No. L-12012/18/2008-IR(B-I) dated 16-09-2008, with the
following schedule:—
"Whether the action of the management of the State
Bank of India through its Assistant General Manager,
Region-VI (Disciplinary Authority), Nagpur and Dy.
General Manager (Appellate Authority), Nagpur in
terminating the service of workman, Shri P.L
Mahadole w.e.f 15.09.2005, is legal and justified? To
what relief is the workman concerned 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 P.L. Mahadole,
("the workman" in short) through his union, "State Bank
Staff Union ("the union" in short) filed the statement of
claim and the management of State Bank of India ("party
no. 1" in short) filed the written statement.
The case of the workman as presented in the
statement of claim by the union is that it (union) is a
registered trade union of the employees working with party
no. 1 and the workman is its member and party no. 1 is a
statutory Bank and is an industry within the difinition of
Section 2 (j) of the Act 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 management and their
workmen and a charge sheet under clause 5(p) of the bi-
partite settlement dated 08.11.2004 was issued against the
workman on the allegation of his remaining absent from
duties for a period of more than 30 days and the Disciplinary
authority appointed the Enquiry Officer to conduct the
departmental enquiry and the Enquiry Officer conducted
the departmental enquiry and submitted his report holding
the charges to have been proved against the workman and
the Disciplinary authority by order dated 15.09.2005
awarded the punishment of removal from service without
notice w.e.f. 15.09.2005 and the workman preferred an appeal
against the order of punishment, but the appeal was
dismissed by the Appellate Authority. The further case of
the union on behalf of the workman is that the departmental
enquiry conducted by Shri S.Y. Ingole was not fair and
valid and the entire enquiry came to be concluded during
the proceedings held between 16.12.2004 to 02.02.2005 and
the Enquiry Officer lost sight of the fact that the workman
did not know English and it was therefore, necessary on
the part of the Enquiry Officer to take required steps to
give every opportunity to the workman, but the same was
not done and the documents called for from the Enquiry
Officer, even though ordered to be produced were not
supplied to the workman with an opportunity to study the
same and whatever documents were produced by the
Presenting Officer were given to the workman in the
eleventh hour and no adequate opportunity was given to
the workman and there were no proved documents on the
record of the enquiry and the Enquiry Officer did not take
any pain to see that the documents produced by the
Presenting Office were duly proved and admitted by the
delinquent employee and the presenting Officer preferred
not to examine any witness on behalf of the Bank and he
also did not produce any formal witness to prove the
documents, so the Enquiry Officer should have concluded
the enquiry for want of any evidence on record and he
enquiry is therefore vitiated and the Enquiry Officer was
biased against the workman and took it for granted that his
duty was only to declare the charge as proved without any
document/evidence on record and he conducted the entire
enquiry without proper application of mind and along with
the charge sheet, neither list of documents was supplied
nor list of witnesses was given as a result of which, proper
opportunity was denied to the workman to defend himself
and the charge sheet submitted against the workman was
not plain and specific and the same was completely under
the shadow of the previous disciplinary action taken by
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2559
party no.1 against the workman and by specifying the
previous closed disciplinary action and relying on the same
for the charge sheet in question, establishes bias attitude
of the authorities and the Enquiry Officer submitted his
report without mentioning any date on the same and the
Enquiry Officer lost sight of the fact that he had to give his
findings only basing on the evidence proved before him,
but without any evidence on record, the Enquiry Officer
held the charges levelled against the workman to have
been proved and the report of the Enquiry Officer is most
casual and not based on any evidence and for all these
reasons, the findings of the Enquiry Officer are perverse.
The further case of the workman as presented by the
union is that for declaring the charge proved under para
5(p), it is necessary to prove that workman remained absent
without any intimation, but this was not proved before the
Enquiry Officer and neither the Enquiry Officer nor the
authorities considered this aspect and punishment of
removal from service was without notice was awarded
recklessly and the punishment is therefore, bad in law and
the authorities below did not consider the fact that leave
was taken by him for genunine reasons beyond his control
and the punishment is shockingly disproportionate to the
gravity of the misconduct and the workman had put in 20
years of service and due to the punishment, he was thrown
on the street and he is not in any employment, much less
gainful employment after removal from service.
Prayer has been made by the union for the
reinstatement of the workman in service with continuity in
service and full back wages and all consequential benefits.
3. The party no. 1 in the written statement has pleaded
inter-alia that the workman was working at Wardha branch
of the Bank as Farash-cum-messenger, when the charge
sheet came to be issued to him and the workman remained
unauthorized absent from his duties from 15.10.1996 for
1104 days and as such, charge sheet dated 06.12.2002 was
issued against him and after conducting the enquiry fairly
and properly, the misconduct of the workman was found to
be proved and the Disciplinary Authority took a lenient
view, considering the family problems as stated by the
workman and the promises made by him to follow the leave
Rules and imposed a mild punishment of bringing down
his pay by two stages and the said punishment was
accepted by the workman and the workman again started
remaining unauthorisedly absent without any intimation
from his duties from 28.09.2004 and as such, memo dated
28.10.2004 was given to him, but he did not reply to the
said memo, so the workman was issued with the charge
sheet on 08.11.2004, which was received by him on
19.11.2004 and the Enquiry Officer conducted the enquiry
from 06.12.2004 to 22.02.2005, in five sittings, giving ample
opportunity to the workman to defend his case and after
the enquiry, the Enquiry Officer submitted his enquiry
report to the Disciplinary Authority and the Disciplinary
Authority issued a show cause notice dated 30.06.2005
along with a copy of the enquiry report, proposing the
punishment of removal from services and the workman
submitted his reply dated 23.07.2005, where in, he admitted
to have remained unauthorized absent without intimation
and personal hearing was given to the workman by the
Disciplinary Authority and after considering the relevant
materials, the facts of the case and the report of the Enquiry
Officer , passed the final order dated 15.09.2005, imposing
the punishment of "Removal from service without notice"
in terms of para 6(b) of the Bipartite settlement dated
10.04.2002 and the workman preferred an appeal against
the final order, but the appeal was dismissed on 17.12.2005.
The further case of party no. 1 is that in the charge
sheet, the workman was informed and given clear
understanding of the charge and the workman engaged
his defence representative, Shri S.K. Awathankar and he
was provided with all the documents relied upon by it and
the workman did not dispute the documents provided by it
and on the first date of the enquiry on 16.12.2004, the
charges were read over and explained by the Enquiry Officer
to the workman and he denied the same and the workman
was provided with all the documents relied on by it and so
also the documents demanded by the workman through
his defence representative and he was given seven days
time for verifying the documents and he did not dispute
the correctness of the documents and the workman was
given the opportunity to present his witnesses, but he did
not examine any witness and ir had complied with all the
principles of natural justice while conducting the enquiry
and the Enquiry Officer has also given justifiable reasons
for holding the charges to have been proved against the
workman and having regard to the gross misconduct of
the workman, the punishment of removal of the workman
from services was passed and the Enquiry Officer acted
impartially and without any bias and the charge sheet was
very specific and clear and the previous charges were
mentioned in the charge sheet for the reason that the
workman should be aware that the Bank is going to consider
his past misconduct alongwith the fresh misconduct and
there was no irregularity in the charge sheet and the
workman is not entitled to any relief.
4. As this is a case of termination of the workman
from services, after holding of a departmental enquiry, the
fairness or otherwise of the departmental enquiry was taken
for consideration as a preliminary issue and by order dated
21.11.2013, the departmental enquiry conduced 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 in the entire record
of the departmental proceedings, there is no proved
document and the documents produced by the
management were not duly proved and no witness was
2560
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
examined by the management to prove the documents on
which reliance was placed to prove the charges against the
workman and as such, the findings of the Enquiry Officer
which were based on such documents are perverse. It was
further submitted by the learned advocate for the workman
that the charge sheet submitted by against the workman
was completely under the shadow of previous disciplinary
action taken against the workman by the party No.1, for
which he was duly punished and therefore, the charge
sheet was not proper and valid and the entire enquiry
conducted on the invalid charge sheet was not proper and
the authorities of party No.1 did not consider the fact that
leave taken by the workman was for genuine reasons and
for reasons beyond his control and the punishment of
removal from service is therefore, is shockingly
disproportionate to the gravity of the misconduct and it
was not such a lapse on the part of the workman even if
proved, where punishment from service was warranted and
the order impugned suffers from lawful display of
managerial powers by the party No.1 and as such, the said
order is liable to be set aside in the interest of justice.
It is to be mentioned here that the issue of mentioning
of the previous misconduct of remaining unauthorisedly
absent from duty and the punishment imposed against the
workman had been raised by the learned advocate for the
workman at the time of deciding the preliminary issue of
the fairness or otherwise of the validity of the enquiry and
the same had been duly considered and answered against
the workman while passing the order on 21.11.2013. So,
there is no scope to consider the said issue again.
6. Per contra, it was submitted by the learned advocate
for party No.1 that by order dated 21.11.2013, it has already
been held by this Tribunal that the departmental enquiry
conducted against the workman to be legal, proper and in
accordance with the principles of natural justice and charge
sheet was served on the workman for remaining
unauthorised absent from duty for a period beyond 30
days, which act was "grave misconduct" in terms of para 5
(p) of bi-partite settlement dated 10.04.2002 and the
workman was also informed in the charge sheet about taking
in to consideration the punishment imposed against him
for his past misconduct of remaining unauthorisedly absent
for 1104 days and the Enquiry Officer has given justifiable
reasons for holding the charges levelled against the
workman to have been proved during the enquiry and it
cannot be said that the findings of the Enquiry Officer are
perverse. It was further submitted by the learned advocate
for the party No.1 that the workman was given lighter
punishment for the earlier grave misconduct of remaining
unauthorisedly absent for 1104 days and still then the
workman continued the misconduct and therefore, it cannot
be said that the punishment awarded to the workman is
shockingly disproportionate and the action of party no.1
is legal and justified 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 decisions reported
in (2008) 1 SCC_224 ( L&T Komatsu Ltd. vs. Uday Kumar )
and (2006) 7 SCC-410 (GM Appellate Authority Bank of
India vs. Mohd. Nizamuddin).
7. Before delving into the merit of the matter, I think it
proper to mention about the settled principles enunciated
by the Hon'ble Apex Court in regard to the jurisdiction of
the Tribunal to interfere with the punishment of dismissal
or termination imposed in a departmental inquiry against
the workman. It is well settled by the Hon'ble Apex Court
that, ‘‘In case of dismissal or termination, the jurisdiction
of the industrial tribunal is limited to see as to whether the
impugned order has been passed malafide with improper
nature or is the result of a desire to victimize the workman
or arising out of unfair labour practice. If a proper charge
has been framed and inquiry made, the findings or
conclusions can only interfered, if they are perverse and
are not supported by any evidence or if the trial has been
conducted unfairly in violation of the principles of natural
justice. It is not open to an industrial tribunal to sit in
appeal over the conclusions recorded in the domestic
enquiry.
8. In this case, on perusal of the records of the
departmental enquiry held against the workman, it is found
that on 11.01.2005, the management representative
produced nine documents including the three documents
demanded by the defence representative for the workman
and the said documents were taken on record and copies
of the said documents were given to the defence
representative and the documents were marked as P Ex. 1
to P Ex. 9 and on the request of the defence representative
seven days time was granted by the Enquiry Officer for
verification and the genuineness of the said documents
was not disputed either by the workman or his defence
representative. No witness was examined on behalf of the
management in the departmental enquiry. The defence
representative also placed reliance on the said documents
to show that the charge was not proved against the
workman. So, it cannot be said that there was no proved
document on the record of the departmental enquiry.
9. Admittedly, charge sheet dated 08.11.2004 was
served on the workman under para 5 (p) of the Bipartite
agreement dated 10.04.2002 on the allegation of his not
reporting for duties since 28.09.2004 to 08.11.2004, i.e. more
than 30 days. It is found from record that remaining
unauthorisedly absent without intimation continuously for
exceeding 30 days amounts to gross misconduct and
punishment of dismissal without notice is one of the
punishments prescribed for commission of grave
misconduct by an employee, under para 6 of the said
Bipartite agreement.
10. On perusal of the material on record, it is found
that the findings of the Enquiry Officer are completely
against the evidence on record and so also, in excess of
the charge. The conclusion drawn by the Enquiry Officer
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2561
on the materials on record of the enquiry cannot be that of
a reasonable man and the findings of the Enquiry Officer
are against the whole body of evidence adduced.
In his report, Ext. W-IV, the Enquiry Officer has
mentioned that the workman left the branch on 28th, 29th
and 30th September, 2004 at 3 P.M., 12 noon and 11 A.M.
respectively as recorded in the muster roll, Ext. M-XII. The
said facts clearly show that the workman had attended his
duty on those days, but he left the office before the closing
hours of the office. On perusal of the muster roll, Ext. M-
XII, it is found that the signature of the workman with time
of arrival and departure dated 28th, 29th, and 30th,
September, 2004 have been rounded up and it has been
mentioned, "left at 3 P.M., 12 noon and 11 A.M.",
respectively and such facts have also been mentioned in
the remarks column of the said register. It is not known as
to who made such endorsement and when it was made. It is
also mentioned below the signature of the workman dated
30.09.2004 to deduct the date of absence of the workman
from his leave. There is no material on record to show that
if any explanation was called from the workman for leaving
the office before the schedule time of departure on those
three days or leave was deducted from his account or any
other action was taken against him for the same.
In his report, the Enquiry Officer has also mentioned
about the workman submitting a leave application on
06.10.2004. It is mentioned by the Enquiry Officer that the
leave application dated 06.10.2004 bears neither the period
of leave nor type of leave and reason there for and as such
it is not acceptable. It is to be mentioned that the Enquiry
Officer was not the authority to consider the validity of the
leave application of the workman dated 06.10.2004. The
said leave application has been marked as Ext. M-VI. On
perusal of the same it is found that nothing has been
mentioned on the said application as to whether the same
was considered or not by the competent authority. There
is also no material on record to show as to what action was
taken by party No.1 on Ext. M-VI. It is also found that the
Enquiry Officer has mentioned about the workman
remaining unauthorisedly absent for 1104 days and the
workman was being punished and the light of the above
findings, the charge was proved against the workman. The
above stated facts show that the Enquiry Officer relied on
extraneous materials in holding the charge to have been
proved against the workman.
It is also found from the record of the departmental
proceedings dated 18.01.2005 that the Presenting officer
submitted about the workman giving his explanation on
25.11.2004 for his absence along with a medical certificate
showing that he was under medical treatment from 5th
October, 2004 to 17th November, 2004 and the same
covering the period of absence of the workman from
05.10.2004 to 17.11.2004. However, the Enquiry Officer while
submitting his report did not consider about the plea taken
by the workman and the medical certificate submitted in
support of his illness. The Enquiry Officer has not
mentioned a single word in that respect. Hence, it is clear
that the findings of the Enquiry Officer are perverse.
11. The order of punishment dated 15.09.2005 passed
by the Disciplinary Authority has been marked as Ext. W-
II. In his order, the Disciplinary Authority has mentioned
that the workman remained unauthorized absent for 1321
days up to 08.1l.2005 and he remained unauthorized absent
for 77 days since 08.11.2004 to 31.08.2005 and such absence
affected the customer service. So, it is clear that the findings
of the Disciplinary Authority are also in excess of the charge
levelled against the workman.
Likewise, the Appellate Authority has mentioned in
his order dated 28.02.2006, Ext W-VIII that the workman
remained absent from duty for more than 1321 days and in
his concluding paragraph, he has mentioned that, ‘‘As an
Appellate Authority, I agree with the decision taken by the
appointing authority for the reason that an absence of
more than 1321 days does not allow any leniency in the
punishment. I, therefore, upheld the decision taken by the
appointing authority’’ The Appellate Authority has not
given any finding as to whether from the evidence on the
record of the departmental enquiry, the charge was proved
against the workman. Rather, the findings of the Appellate
Authority are also in excess of the charge levelled against
the workman.
From the materials on record, it is found that the
findings of the Enquiry Officer are against the evidence on
record of the departmental enquiry and therefore are
perverse. As the punishment imposed against the workman
was based on such perverse findings, the same is illegal
and cannot be sustained. Therefore, the punishment of
dismissal from service without notice imposed against the
workman is liable to be quashed and set aside.
12. Now, the question remains for consideration is as
to what relief or reliefs the workman is entitled. The work-
man is certainly entitled for reinstatement in service with
continuity. After taking into consideration the facts and
circumstances of the case, I think that the workman is also
entitled to 25% back wages and all other consequential
service benefits.
In view of the facts and circumstances of the case as
mentioned above, with respect, I am of the view that the
decisions cited by the learned advocate for the party No. 1
have no application to the reference. Hence, it is ordered:
ORDER
The action of the management of the State Bank of
India through its Assistant General Manager, Region-VI
(Disciplinary Authority), Nagpur & Dy. General Manager
(Appellate Authority), Nagpur in terminating the service
of workman, Shri P.L. Mahadole w.e.f. 15.09.2005, is illegal
and unjustified. Therefore, the punishment of dismissal
2562
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
from service without notice imposed against the workman
is quashed and set aside. The workman is entitled for rein-
statement in service with continuity. The workman is also
entitled to 25% of back wages from the date of his dis-
missal from service till the date of his actual reinstatement
in service and all other consequential service benefits. The
party No.1 is directed to implement the award within one
month of the date of notification of the award in the official
gazette.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 977.—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 36@2009½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27@2@2014 dks izkIr gqvk FkkA
[lañ ,y&12012@37@2009&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 977.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 36/2009)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court No. I,
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
27/02/2014.
[No. L-12012/37/2009-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No. 36/2009
Smt. Sheela Devi W/o Late Shri Satya Prakash,
R/o H.No. 445, Village & P.O. Bakhatwarpur,
Delhi-110 036
....Workman
Versus
1. The Asstt. General Manager,
Region-IV, State Bank of India,
Zonal Office, 11, Parliament Street,
New Delhi.
2. The Dy. General Manager,
Delhi Zone Office II,
11, Parliament Street,
New Delhi.
....Management
ORDER
An industrial dispute, referred to this Tribunal for
adjudication, vide order No. L-12012/37/2009-IR (B-I), New
Delhi dated 23.7.2009, was articulated vide award dated on
31.08.2012. Inadvertently in last sentence of the award
clerical mistake occurred, which is detailed as below:
"In view of above discussion, it is concluded that
order of removal from service with superannuation
benefits, which is found proportionate to the
misconduct committed by Smt. Sheela would not
relate back to the date when the bank passed that
order on 13.4.2007. As detailed above, in award dated
27.7.2010, the order of punishment passed by the
bank was held to be non-est, being violative of the
provisions of section 33(2)(b) of the Act. By way of
findings recorded by the Tribunal, it does not attempt
to rejuvenate that order. Resultantly the order of
removal from service would come into operation from
the date of the award. Therefore awarding
punishment of removal from service with
superannuation benefits to Smt. Sheela Devi, an
award is, accordingly, passed. It be sent to the
appropriate Government for publication".
2. Rule 28 of the Industrial Disputes (Central) Rules
1957 provides for correction of errors. For sake of ready
reference aforesaid rule is extracted thus.
"The Labour Court Tribunal, National Tribunal or
Arbitrator may correct any clerical mistake or error
arising from an accidental slip or omission in any
award it/he issues".
3. Clerical error can be defined as an error in a
document which can only by explained by considering it
to be a slip or mistake of the party preparing or copying it.
Literally an error is said to be "clerical" where it is made by
a clerk or some subordinate agent, but actually it means an
error committed it the performance of clerical work, whether
by the Court the draftsman of the Act or by the clerk. It is
an error which cannot reasonably be attributed to the
exercise of judicial consideration or discretion Clerical error
is in the nature of an inadvertent omission or mistake. The
term "clerical error" which is amendable nunc pro tunc is
distinguishable from a "judicial error" which can be
corrected only on review or an appeal. Reference can be
made to precedents in Rosamma Punnose (AIR 1958 Ker.
154) and Mansha Ram L. Jagdish Rai (AIR 1962 Punj. 110).
4. Accidental slip occurs when something is wrongly
put in by an accident and an accidental omission occurs
when something is left out by accident. The expression
"accidental slip" as occurring in section 152 (new) of the
Cofe of Civil Procedure was construed by the Federal Court
in Sachindara Nath Kolya (5 DLP 68), wherein it was
observed as a follows:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2563
"It needs to be stressed that the keyword in the
relevant phrase is "accidental" and it qualifies "omission"
also, with the result that the procedure provided by section
cannot be used to correct omission, however erroneous,
which are intentional, not indeed in the sense of conscious
choice, for no court, is supposed to commit an error
knowing it to be such, but in the sense that the Court
meant not to omit what was omitted".
5. Apex Court in Tulsipur Sugar Company Ltd. [1969
(2) SCC 100] had occasion to consider correctional
jurisdiction of the Labour Court constituted under the UP
Industrial Disputes Act, 1947. In that precedent the Apex
Court made reference to the provisions of Section 152 of
the Code of Civil Procedure and rule 28 of the Rules and
announced that power of correction of error is a limited
one, which can be exercised only to cases where mistake,
clerical or arithmetical or an error arising from an accidental
slip or omission had occurred. It was ruled therein that this
power is limited only to cases where clerical or arithmetical
mistake or errors arising from an accidental slip or omission
have occurred.
6. After ascertaining the scope of powers of correction
of errors available to this Tribunal, now it would be
ascertained as to whether mention of "Therefore awarding
punishment of removal from service with superannuation
benefits to Smt. Sheela Devi, an award is, accordingly
passed", was a conscious act of the Tribunal. Answer lies
in negative. It was recorded on account of accidental
mistake. This Tribunal has power to correct the accidental
mistake. Accordingly, it is ordered that last sentence of the
award recorded as "Therefore, awarding punishment of
removal from service with superannuation benefits to Smt.
Sheela Devi an award is, accordingly, passed", may be
read as "Therefore, punishment of removal from service
with superannuation benefits to Smt. Sheela Devi would
operate from the date of the award, that is 31.08.2012. An
award is, accordingly, passed". Ordered accordingly. The
appropriate Government may be communicated of
correction, so made in the award, for publication.
Dated : 17.02.2014
Dr. R. K. YADAV, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 978.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ikykoku xzkeh.k
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
vfèdj.k@Je U;k;ky;] psUubZ ds iapkV ¼lanHkZ la[;k 91@2011½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@2@2014 dks izkIr gqvk
FkkA
[lañ ,y&12012@78@2011&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 978.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 91/
2011) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Chennai as shown in the Annexure, in the Industiral Dispute
between the management of Pallavan Gramin Bank and
their workmen, received by the Central Govenrment on
27/02/2014.
[No. L-12012/78/2011-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Friday, the 14th February, 2014
Present : K. P. PRASANNA KUMAR, Presiding Officer
Industrial Dispute No. 91/2011
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of Pallavan Gramin Bank and their
workman]
BETWEEN
Sri R. Kumar
:
1st Party/Petitioner
AND
The Chairman
:
2nd Party/Respondent
Pallavan Grama Bank,
Head Office No. 6,
Yercaud Road,
Hasthamaptti
Salem-636007
Appearance:
For the 1st Party/
:
M/s. K.M. Ramesh,
Petitioner
K.G. Vipra Narayanan,
Advocates
For the 2nd Party/
:
M/s. L. Jayakumar &
Management
Associates, Advocates
AWARD
The Central Government, Ministry of Labour &
Employment, vide its Order No. L-12012/78/2011-IR(B-I)
dated 22.11.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Pallavan
Grama Bank, Sulagiri Branch at Dharmapuri in
imposing the penalty of removal from service on
2564
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Sri. R. Kumar, ex-clerk/cashier vide their order dated
03.01.2009, is legal and justified? To what relief the
workman is entitled?"
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 91/2011 and issued notices to both
sides. Both sides have entered appearance through their
counsel and have filed Claim and Counter Statement
respectively. The petitioner has filed rejoinder after the
Counter Statement was filed.
3. The averments in the Claim Statement filed by the
petitioner in brief are these:
The petitioner had joined the service of Adhiyaman
Grama Bank in 1988 as Clerk/Cashier. He had been
discharging his duties efficiently and sincerely without
giving room for any complaint. While he was working as
Clerk/Cashier in Sulagiri Branch, a memo dated 18.09.2007
was issued to him alleging irregularity regarding short credit
of Rs. 1000. The petitioner had submitted his reply to the
said memo. The Bank had issued another memo dated
23.11.2007 alleging the very same irregularities. The
petitioner has given a reply to this also. After this, the
Respondent had issued a Charge sheet dated 19.12.2007 to
the petitioner alleging that on 03.9.2007 he had short
accounted an amount of Rs. 1,000 remitted to SB A/c No.
4803 and had misappropriated this said Rs. 1,000 and that
he had failed to report any excess cash while closing the
cash for the day. Even before the petitioner could submit
his explanation to the Charge Memo, an Enquiry Officer
was appointed to enquire into the charges against the
petitioner. The enquiry was into conducted in a fair and
proper manner. The petitioner was not permitted to peruse
the documents produced. On conclusion of the enquiry a
report was submitted with a finding that the charges are
established. The Disciplinary Authority after issuing a
show Cause Notice to the petitioner imposed the
Punishment of removal from service without disqualification
for future employment against the petitioner. The petitioner
had preferred an appeal to the Board of Directors of the
Respondent against the punishment imposed on him. The
appeal was rejected. Thereafter, the petitioner had raised
the dispute. The petitioner had not committed the
misappropriation alleged. In the branch wherein the
petitioner was working at the time of the alleged incident
power failure was usual. On such occasions, their would
not be sufficient light at the Cash Counter. At the opening
time of business hours, several persons will be throning in
front of the counter. The case of the Respondent is that
even though as per the Challan the amount to be remitted
was Rs. 3,500, the petitioner had entered Rs. 2,500 only as
the amount received and misappropriate the amount of
Rs. 1,000. In all probability the petitioner might have received
5 notes of 500 Rupee denomination and on counting he
might have punched Rs. 2,500/- in the amount column and
500 x 5 into the denomination column. One the impression
that challan amount would be Rs. 2,500, he might have
mechanically affixed the stamp and his initial. This might
have happened because of insufficient light. The petitioner
had not verified the entries in the remittance challan. The
denomination details entered were of the amount actually
received. In the absence of receipt of any excess cash there
was no occasion for the petitioner to report about any
excess to the Manager. The cash had tallied at the close of
the day. The findings of the Enquiry Officer is not based
on the evidence available. The punishment imposed on
the petitioner is illegal and without any justification. An
order may be passed directing the Respondent to reinstate
the petitioner in service with continuity of service, back
wages and all other attendant benefits.
4. The Respondent has filed Counter Statement
contending as follows:
The Respondent came into being in the year 2006 by
merger of Adhiyaman Grama Bank and Vallalar Grama Bank.
The petitioner was working as Clerk/Cashier in the
Respondent Bank. All the allegations made in the Claim
Statement are incorrect. The Respondent had called an
explanation from the petitioner by letter dated 18.09.2007
and issued Show Cause Notice to him on 23.11.2007 for the
misconduct of misappropriation of Rs. 1,000 from SB A/c
No. 4803. Since the reply given by the petitioner was not
satisfactory, Charge Sheet was issued to him alleging
misconduct of misappropriation. It is incorrect to allege
that the petitioner was not given opportunity to give reply
to the Charge Sheet. An enquiry was conducted on the
charges alleged against the petitioner. The charges having
been found proved the punishment of removal from service
was imposed on the petitioner. The petitioner is not entitled
to any relief.
5. In the rejoinder filed by the petitioner in reply to
the Counter Statement he has reiterated the case in the
petition and also denied the allegations made in the Counter
Statement.
6. The evidence in the case consists of oral evidence
of the petitioner examined as WW1 and the documents
marked as Ext.W1 to Ext.W23. No evidence was adduced
on the side of the Respondent.
7. The points for considerations are :
(i) Whether the action of the Respondent in
imposing the penalty of removal from service on
the petitioner is legal and proper?
(ii) What is the relief to which the petitioner is
entitled?
The Points
8. The petitioner had admittedly joined the service of
Adhiyaman Grama Bank in the year 1988. The Respondent
Bank had come into being of amalgamation of Adhiyaman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2565
Grama Bank and Vallalar Grama Bank, in the year 2006.
Consequently the petitioner who was earlier an employee
of Adhiyaman Grama Bank had become the employee of
the Respondent Bank. At the time of the incident he was
working in Sulagiri branch of the Bank as Clerk/Casher.
9. The incident which resulted in the removal of the
peitioner from service had occurred on 03.09.2007. MW2
examined in the enquiry was holding SB A/c No. 4803 in
Shulagiri Branch in which the petitioner was working.
According to the Respondent on this date Rs. 3,500 had
been brought to the Bank for remittance with challan for
the said amount. The allegation is that though MW1 in the
enquiry had approached the petitioner and had entrusted
Rs. 3,500 to him for remittance to the account, he had
remitted Rs. 2,500 only thus short crediting Rs. 1,000 and
had misappropriated the said amount.
10. The petitioner is not disputing the case that the
challan showed Rs. 3,500 itself. According to him, because
of insufficient light and also because several customers
were waiting at the bank even at the beginning of the
business he might have counted the amount that was
entrusted with him by MW1 without verifying the entry in
the challan and the mistake might have occurred in this
manner. According to him, only 5 notes of Rs. 500
denomination amounting to Rs. 2,500 might have been
entrusted with him by MW1. The difference in the challan
and the entry made by him is only because he had
committed the folly of omitting to verify the challan
resulting in his making an entry of the amount that was
entrusted to him by MW1. Even though the petitioner was
asked to make good the amount by remitting Rs. 1,000 to
the credit of A/c No. 4803, he had refused to do so initially
based on his stand that he had not misappropriated any
amount. However subsequently he has remitted the amount.
According to him he had not remitted the amount initially
on the apprehension that it would be interpreted as
admission of misappropriation on his part.
11. It has been argued by the Counsel for the
petitioner that the evidence available in the enquiry is not
sufficient to prove the charge of misappropriation alleged
against the petitioner. The Enquiry Officer had examined
MW1 who had been to the bank to remit the amount and
also MW2 in whose name is the account and had entrusted
the amount with MW1 for remittance. The Management
had marked the cash remittance challan of Rs. 3,500 and
counterfoil of the same in the enquiry proceedings. The
letter written by MW1 to the bank regarding the short
accounting, letter by MW2 complaining the short
accounting and also other documents in the office of MW2
to prove remittance of Rs. 3,500 at the bank on 03.09.2007
are also produced.
12. Though in the Claim Statement, the petitioner
has questioned the fairness of the enquiry also, the counsel
for the petitioner has made endorsement stating that he is
not pursuing with the issue regarding fairness of enquiry.
This amounts to admission on the part of the petitioner
that enquiry was conducted in a fair and proper manner
and that he has been given sufficient opportunity to defend
his case.
13. The question to be considered is whether the
oral and documentary evidence tendered in the enquiry is
sufficient to establish that it is a case where the petitioner
had deliberately and intentionally short credited Rs. 1,000
to the SB A/c No. 4803 and misappropriated the amount of
Rs. 1,000. The witnesses brought in by the Management,
as stated, are MWs 1 and 2. These witnesses have given
evidence in Tamil. An English version of their deposition
has been furnished to me. Account No. 4803 in the Bank in
the name of MW2 seems to be in her capacity as the
Animator of Mahalir Manram. MW1 is a member of the
Manram. MW1 has stated that she had been to the Bank to
deposit the money on 03.09.2007. In answer to the question
by the Presenting Officer how much money she has
deposited, she had answered that she has deposited money
as per two challans as written by IVDP Office. When she
was asked how much amount was shown in the two
challans, she has replied that it was as per TV challan and
Savings challan. She was again asked how much amount
was deposited in TV challan and she has replied that she
had deposited amount as written by IVDP Office. When
she was asked about the letter written by her to the Bank
Manager stating that she has deposited Rs. 3,500, she
stated that when she was asked how much money was
deposited she had informed that it was Rs. 3,500 and that
the one who had questioned her had obtained her signature
also. When she was asked about the denomination of
notes she had remitted she had answered that she could
not say. She then stated that she was told that it was
Rs. 3,500/-. The Presenting Officer again asked her if she
had counted the money she received for remittance. Then
she answered that they themselves had counted and given
the challan. During cross-examination by the defence
representative the witness has stated that she did not see
how much was the amount in the challan, that she had
deposited the money that was given to her from the office
and had not seen it.
14. What is to be deciphered from the evidence of
MW1 is that she was only a carrier of the amount entrusted
with her from the office of MW2. She does not seem to
have verified what is the amount written in the challan and
what was the amount that was entrusted with her. She
merely took the money to the petitioner who was at the
counter. It is the case of the petitioner that he might have
received only Rs. 2,500/- that he might have made the entries
in the records by counting the amount without verifying
the challan. According to him, he had presumed that the
amount in the challan would be the amount that was
entrusted with him. When MW1 who had handed over the
amount to the petitioner herself is not very specific about
2566
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
the amount that has been given there is certainly probability
that she received only Rs. 2,500/- from the office or she
handed over only Rs. 2,500/- to the petitioner. MW1 seems
to have been not very vigilant either at the time of receiving
the amount from the office or at the time of entrusting the
amount to the petitioner. She has stated that she had merely
deposited the amount that was entrusted with her and had
no occasion to verify it.
15. What is the evidence given by MW2? She is the
one in-charge of IVDP office of Sulagiri branch. When she
was asked how she deposits the money of women's group
in the bank, she has stated that her office collects the
money and makes entry in the Resolution Register with
denomination of the notes. When they are back to the
office, they verify the challan and accounts and will send it
to the Bank. She has stated that on 03.09.2007 she had
given a letter to the Bank stating that Rs. 1,000/- had been
short remitted. She used to receive printout of the account
once in a week. On checking the printout she noticed that
Rs. 2,500/- only has come into the account instead of Rs.
3,500/-. She had informed the bank, on noticing this. During
cross-examination she has stated that the Manager had
asked the Cashier about it and the Cashier had informed
that there was no excess money and had offered to verify
again. It could be seen that the evidence of MW2 is only
on the basis that challan is for Rs. 3,500/-. When she noticed
that rather than Rs. 3,500/-, only Rs. 2,500/- has come to the
account, she had informed the bank about it. She had not
stated during her examination that she is the one who
entrusted the amount with MW1. She had not been to the
Bank on the date of the incident. She does not know what
transpired at the Bank on that day. The only person who
could have made assertion on the actual amount that was
remitted was MW1. However, her evidence in this respect
is very vague and unconvincing, as already discussed.
16. The Enquiry Officer has entered a finding against
the petitioner mainly on the basis that the challan is for Rs.
3,500/- and in that case the amount entrusted with the
petitioner must have been Rs. 3,500/- itself. In fact even
from the finding entered by the Enquiry Officer what is
seen is that he himself did not find a case of
misappropriation against the petitioner. He was finding fault
with the petitioner for his dereliction from duty. He has
quoted the admission by the petitioner that ‘‘he used to
affix the seal on the challan and on the counter foil hoping
that it would tally with the amount received’’ and has stated
that it is a direct admission of unhealthy practice followed
by the petitioner which amounts to a dereliction of duty.
The Enquiry Officer has observed that the petitioner is
expected to verify the cash received from the parties by
ensuring its correctness and that any act other than
normal procedure is violative of the rules, that procedures
expected to be obeyed. Nowhere in his except the
concluding portion after discussion of Charge 1, he has
stated that there is misapporpriation by the petitioner.
However, on this aspect there is no discussion of any
kind, in the report. The only conclusion he has arrived at
by analyzing the events is that it was a case of the
petitioner not following the procedure correctly and
properly.
17. What is the legal position regarding cases where
a delinguent is facing the charge of misappropriation? As
early as 1964, as held in the UNION OF INDIA Vs. GOEL
reported in AIR SC 364, the Apex Court has held that the
principle that in punishing the guilty scrupulous care must
be taken to see that the innocent are not punished applies
as much to regular criminal trial as to disciplinary enquiries
held under the statutory rules. This dictum has been
followed by the Apex Court in the decision N.K. PRASAD
VS. STATE OF BIHAR AND OTHERS reported in 1978 2
LLJ 84 also. Here it was held that suspicion cannot be
allowd to take the place of proof even in domestic enquiries
s and that the principle that in punishing the guilty
scrcupulous care must be taken to see that the innoncent
are not punished, applied as much to regular criminal
trials as to disciplinary enquiries held under the statutory
rules also. This principle has been followed in the
decisions of the Madras High Court reported in 1985 1 LLJ
46 and 1995 1 LLJ 193 also.
18. What is to be seen is that there is no clinching or
convincing evidence regarding the malafide intention of
the petitioner of misappropriating the amount. Only
because there was a shortage of Rs. 1,000/- when remittance
was entered, guilt was cast on the petitioner. It is based
on probabilities only that the Enquiry Officer has entered
into such a finding.
19. When the circumstances are considered it
could be seen that the petitioner deserved to have been
treated in a better manner. The man had entered service
of the Bank in 1988. The incident is in 2007, after almost 20
years of his service with the Respondent Bank and its
predecessor. There is no case for the Management that
petitioner who was working as Shroff, who was dealing
with lakhs of rupees daily was ever under even a shadow
of suspcion. It is in fact too much to presume that the
petitioner would have thought of risking his own career
by attempting to pilfer an amount of Rs. 1,000/- from the
account of a women's group. It would not have given him
any gain. Rather he must have been aware that such act
would cost him a lot. One cannot think that the petitioner
would have resorted to such an act deliberately and
intentionally in spite of his awareness of all such adverse
consequences. The paltry amount involved itself
probabilises shows absence of any malafides in the
whole incident.
20. An incident which had occurred on 05.09.2007
would show that the petitioner is not a person who
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2567
would have used an opportunity to make gain on himself
by pocketing the amount obtained from a customer of the
bank. The petitioner has started that on this day excess
amount of Rs. 1,000/- has been remitted by a customer and
that this amount has been returned by the petitioner. MW2
has stated during her examination that on 05.09.2007 one
of the women's group have inadvertently paid Rs. 1,000/-
in excess. The amount was towards an advance for TV
loan and has not been shown in the challan. As pointed
out by the petitioner another challan was filled and the
amount was deposited. The Enquiry Officer has taken
note of this fact but has refused to consider its relevance.
What he has stated is that he is not conisdering the above
reported incident as an act of honesty on the part of the
petitioner and points out to his integrity. In fact the incident
had taken place on the day immediately after the date on
which the alleged misappropiration has taken place. At
the time it was not even noticed that there is difference in
the amount shown in the challan and the amount entered
by the petitioner as remittance. The petitioner had pointed
out to the customer that excess amount of Rs. 1,000/- is
there and had taken seps to see that this amount is also
brought to the account. This is nothing but an act of
honesty on the part of the petitioner. This will certainly
speak about the character of the petitioner. When this is
considered alongwith the absence of any complaint against
the petitioner earlier in the service, it could be seen that he
could not have attempted misappropriation as alleged by
the Management. It was merely based on suspicion arising
out of probabilities, the petitioner was found guilty of the
charge of misappropriation. This finding will not stand
the test of law when considered in the light of judicial
pronouncements on the subject.
21. Other charges against the petitioner are that he
had not reported any excess cash received by him while
closing the cash on 03.09.2007, had not heeded to the
repeated request made by the Branch Manager to remit
the amount short accounted by him and that in spite of
instruction given by the Manager to give a letter stating
reasons for agreeing to remit the disputed amount, he did
not obey. These three charges flow from the fist charge
of misappropriation and have no separate existence.
When the charge of misappropriation is found against,
these charges also are to go.
22. The only fault that could be attributed against
the petitioner without doubt is that he failed to verify the
challan while making the entries regarding remittance. This
certainly is an inadvertence or omission on the part of the
petitioner which amounts to dereliction of duty. However,
by now the petitioner has been sufficiently punished for
his dereliction. He had to go without his job all these
years after he was removed from service. So, I am not
proposing to impose any penalty on the petitioner for his
dereliction. The petitioner is entitled to be reinstated in
service. Considering the circumstances, I am inclined to
allow him 25% of the back wages.
23. In view of my discussion, the Respondent is
directed to renstate the petitioner in service with 25%
back wages and other benefits in proportion, with
continuity of service and all other attendant benefits. The
petitioner will be entitled to interest @ 9% per annum on
the amount payable to him, from the date of publication of
the award.
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 14th February, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined
For the 1st Party/Petitioner
:
WW1, Sri. R. Kumar
For the 2nd Party/Management
:
None
Documents Marked
On the petitioner's side
Ex. No.
Date
Desrciption
Ex. W1
18.09.2007
Memo issued to the First Party
Ex. W2
01.10.2007
First Party's reply to the Memo
Ex. W3
23.11.2007
Show Cause Notice issued to the First
Party
Ex. W4
11.12.2007
First Party's explanation/reply to the
Show Cause Notice
Ex. W5
19.12.2007
Charge Sheet issued to the First Party
Ex. W6
29.01.2008
Enquiry Proceedings
t o
16.05.2008
Ex. W7
-
Defence summing statement submit-
ted to the Enquiry Office on behalf of
the First Party
Ex. W8
20.10.2008
Letter from the Second Party enclos-
ing enquiry findings
Ex. W9
14.10.2008
Findings of the Enquiry Officer
Ex. W10
31.10.2008
Letter from the Second Party of the
First Party
Ex. W11
06.11.2008
First Party's comments on the enquiry
findigs
Ex. W12
15.12.2008
Second Show Cause Notice issued by
the Second Party Proposing punish-
ment
Ex. W13
22.12.2008
First Party's reply of the Second Show
Cause Notice
Ex. W14
26.12.2008
Proceedings of the personal hearning
given to the first Party by the Second
Party.
Ex. W15
03.01.2009
Order of removal from service issued
to the First Party.
Ex. W16
14.02.2009
Letter from the First Party enclosing
appeal
2568
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
Ex. W17
14.02.2009
Appeal preferred by the First Party
before the Board of Directors of Sec-
ond Party Bank.
Ex. W18
21.02.2009
Letter from the First Party to the Sec-
ond Party
Ex. W19
21.02.2009
Letter from the First Party to the Sec-
ond Party
Ex. W20
16.07.2009
Letter from the Second Party com-
municating the decision of the Board
of Directors rejecting the appeal
Ex. W21
27.10.2009
Industrial Dispute raised by the First
Party before the Assistant Labour
Commissioner (Central), Chennai
Ex. W22
02.03.2010
Remarks/reply filed by the Second
Party before the Assistant Labour
Commissioner (Central), Chennai
Ex. W23
03.12.2010
Rejoinder filed by the First Party be-
fore the Assistant Labour Commis-
sioner (Central), Chennai
On the Management's side
Ex. No.
Date
Description
Nil
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 979.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy
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
vfèdj.k@ Je U;k;ky;] paMhx<+ ds iapkV ¼lanHkZ la[;k 452@2005½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 28&2&2014 dks izkIr
gqvk FkkA
[lañ ,y&12011@233@2002&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 979.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No 452/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court No. II, Chandigarh as shown in the Annexure, in the
Industrial dispute between the management of Punjab
National Bank and their workman, which was received by
the Central Government on 28/2/2014.
[No. L-12011/233/2002-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
Present : SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 452/2005
Registered on 19.8.2005
The General Secretary, Punjab National Bank Workers, C/o
Punjab National Bank, Outer Quilla Road, Rohtak.
...Petitioner
Versus
The Regional Manager, Punjab National Bank, (South Delhi)
Region, 10th Floor, Atma Ram House, I Tolstoy Marg, New
Delhi-110001.
...Respondent
APPEARANCES:
For the Workman
:
Sh. Manoj Sood, Adv.
For the Management
:
Sh. Anil Gupta, Adv.
AWARD
Passed on 8.1.2014
Central Government vide Notification No. L-12011/
233/2002 R(B-II) dated 31.8.2003, by exercising its powers
under Section 10 sub-section (1) Clause (d) and sub-section
(2-A) of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'Act') has referred the following Industrial
disputes for adjudication to this Tribunal:—
"Whether the action of the management of Punjab
National Bank in imposing the penalty of stoppage
of one increment without cumulative effect and
recovery of Rs. 21,000/- upon Sh. R.K. Sethi, Clerk-
cum-Cashier is legal and justified? If not, what relief
the concerned workman is entitled to?"
The facts in brief are that Sh. R.K. Sethi workman
while posted as Clerk-cum-Cashier, Old Faridabad, informed
the Chief Manager about the missing of Rs. 50,000 from his
drawer who placed him under suspension. He was charge-
sheeted vide charge-sheet dated 20.4.1996 to which he
submitted reply on 23.4.1996. His suspension order was
revoked and inquiry was conducted and he was found
guilty of misconduct and accordingly punishment of
stoppage of one increment without cumulative effect and
recovery of Rs. 50,000 as an adminstrative action was
imposed.
Now according to the workman a theft of cash was
due to the fact that there was a broken chair, broken drawer
without lock and key, without safety alarm and this was
due to failure of proper safety arrangement. According to
him, the Inquiry Officer was appointed by the Regional
Manager (South Delhi) Regional Office, New Delhi. That
he was charge-sheeted by different authority and the
Inquiry Officer was appointed by another authority which
is not as per law. That the proceedings were not held as per
procedure and documents were not properly proved before
the Inquiry Officer who recorded finding against him. He
submitted reply to the show cause notice which was not
considered and even in appeal his contentions were not
considered. However in appeal the penalty of recovery of
Rs. 50,000 was modified to the extent of the amount
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2569
already recovered. That the order of the authorities
imposing a penalty of Rs. 50,000 and stoppage of one annual
grade increment without cumulative effect is bad.
The respondent bank filed written reply pleading that
service conditions of the bank employees are governed by
Shastri Award, Desai Award and Bipartite Settlement dated
19.10.1996 which inter alia provides which officer is
empowered to hold the inquiry and take disciplinary action
and in view of the provisions the workman was properly
charge-sheeted and after conducting proper inquiry, legel
penalty was imposed. That there is no procedural lapse in
the conduct of the inquiry.
I have heard Sh. Manoj Sood, counsel for the
workman and Sh. Anil Gupta, counsel for the management
and have perused and file carefully.
There is no denial of the fact that Rs. 50,000/- were
found missing from the counter of the workman on 18.4.1996.
Accordingly he was charge-sheeted for doing the act
prejudicial to the interest of the bank and gross negligence
on his part. He submitted reply and after considering the
same an inquiry was orderd which was conducted by an
Inquiry Officer. The Inquiry Officer, after recording the
evidence, came to the conclusion that charges are proved
against the workman. After serving show cause notice on
the employee, the disciplinary authority imposes a penalty
of stoppage of one increment without cumulative effect in
terms of para 19.6(d) of the Bipartite Settlement and also
ordered for the recovery of Rs. 50,000 found missing from
the cash of the workman. Though it is alleged that proper
procedure was not followed in the conduct of the Inqury,
but nothing has been pointed out to show that the inquiry
has not been conducted as per law or the workman was
prejudiced in any way in the conduct of the inquiry. Thus
it is to be held that inquriy conducted was fair and proper.
However the punishment awarded is not legal. The
punishing authority awarded the punishment of stoppage
of one increment without cumulative effect and also ordered
recovery of Rs. 50,000 found missing from his cash. A
persual of the photocopies of the proceedings of the inquriy
file placed on the file of this Court show that he was charge-
sheeted for doing an act prejudicial to the interest of the
bank and causing serious loss to the bank. When the said
charge was proved, the disciplinary authority was required
to award punishment for the said charge and when
increment was stopped without cumulative effect, it was
not right in ordering the recovery of Rs. 50,000 from the
worker. In appeal the workman raised this contention and
the appellate authority found in the last para of the order
as follows:—
However, the contention of Sh. Sethi that the penalty
of recovery should not be imposed upon him has some
merit because he has also been imposed the penalty of
stoppage of one increment without cumulative effect for
the same misconduct. Therefore, on considering the
contentions of Sh. Sethi during the personal hearing before
me on 24.11.2000 I feel that the ends of justice will be met if
no further recovery is made from Sh. Sethi on account of
shortage of cash except the amount already recovered from
him.
Thus, the appellate authority itself agreed that
penalty of recovery should not have been imposed on the
workman but restricted it to the amount already recovered
from him. Thus, when workman was awarded punishment
of stoppage of one increment without cumultative effect,
imposing the penalty of recovery of Rs. 50,000 to the extent
of amount already recovered from him, when the appellate
authority passed the order, is not legal and valid and
accordingly the punishment order vide which recovery of
Rs. 50,000 was ordered from him is liable to be set aside
and I order accordingly. However the awarding of penalty
of stoppage of one increment without cumulative effect do
not call for any interference.
In result, it is held that the action of the management
for recovering Rs. 21000 from the workman is not legal and
justified and workman is entitled to refund of the same and
management would pay him the same within four months
from the publication of the award failing which the
management shall pay him interest at the rate of six per
cent per annum from today till recovery. The workman is
not entitled to any other relief. The reference is accordingly
answered in the above terms. Let hard and soft copy of the
award be sent to the Central Government and one copy of
the award be sent to the District Judge, Rohtak for
information and further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 980.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dksphu iksVZ VªLV
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;] bjukdqye ds iapkV ¼lanHkZ la[;k 4@2011½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 28&2&2014 dks izkIr gqvk FkkA
[lañ ,y&35011@03@2010&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 980.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No 4/2011)
of the Central Government Industrial Tribunal-cum-Labour
Court, Ernakulam as shown in the Annexure, in the
Industrial dispute between the management of Cochin Port
Trust and their workman, which was received by the Central
Government on 28/2/2014.
[No. L-35011/03/2010-IR (B-II)]
RAVI KUMAR, Section Officer
2570
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present :
Shri D. Sreevallabhan, B.Sc., LL.B,
Presiding Officer
(Friday the 19th day of July, 2013/21st Ashadha, 1935)
I.D. 4/2011
Unions
:
1. The General Secretary
Cochin Port Trust Thozhilali Union
Vankitaraman Road
Willington Island
Cochin-682009
2. The General Secretary
Cochin Thuramugha Thozhilali Union
Willington Island
Cochin
3. The General Secretary
Cochin Port & Dock Employees Union
Near Port Fire Station
Willington Island
Cochin
By Advs. Shri Youseff & Smt. Aysha
Management :
The Chairman
Cochin Port Trust
Willington Island
Cochin
By M/s. Menon & Pai
This case coming up for final hearing on 18-07-2013
and this Tribunal-cum-Labour Court on 19-07-2013 passed
the following:
AWARD
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 (14 of 1947), the Government
of India/Ministry of Labour by its Order No. L-35011/03/
2010-IR(B-II) dated 25-02-2011 referred this industrial
dispute to this tribunal for adjudication.
2. The dispute is:
"Whether the action of the management of Cochin
Port Trust in withdrawing a cutomary benefit hither
to enjoyed by the composite workmen without proper
notice is justifiable? What relief the concerned
workmen are entitled to?"
3. After receipt of summons unions 1 to 3 did not
enter appearance and file any claim statement. Management
after entering appearance remained absent continuously
on the subsequent posting dates and hence set ex-parte.
Thereby an award was passed by this tribunal on
25th July, 2011. Afterwards it was set aside as per order
dated 05th July, 2012 on IA 72/2011 filed by the 3rd union
and on IA 93/2011 filed by the management.
4. After setting aside the award 3rd union filed claim
statement alleging that in the year 1990, the Cochin Dock
Labour Board merged with the Cochin Port Trust with the
objective of total integration and inter-changeability of the
labour force of both the agencies and accordingly an
agreement was entered into on 06.06.1994 with regard to
the merger of the two agencies. Afterwards the workmen
under both the agencies were working as a composite gang
under the Traffic Manager, Assistant Traffic Manager and
Administrative Superintendent. They are dealing with the
cargo of different types. The nature of the work depends
upon the nature of the cargo and hence in all the cargoes it
is not necessary to continuously work for eight hours. As
per the existing system the workers are able to come down
to the workplace and refresh themselves. Even they are
allowed to go home so that they may take rest and be ready
for the work in the next shift. It is a time tested system and
was existing in the larger interest of the productivity and
outturn of work and the interest of the management as well
as the workers. The worker who completes the prescribed
work within a particular time was allowed to go out so as to
make the atmosphere and situation in the port more
comfortable for the other workers. Clause 36 of the
settlement dated 02.08.2000 which came into effect on
01.01.1997 provides protection for the existing benefits
enjoyed by employees and such benefits cannot be
withdrawn unilaterally by the management. The
management in total violation of the aforesaid clause altered
the practice hitherto followed in the cargo section
unilaterally by issuing circulars under the guise of ensuring
Access Control and Security in the port area. All the trade
unions agreed to the introduction of Access Control
System to all the sections of Cochin Port Trust except to
the composite gang workers. In the meeting convened by
the management on 31.01.2009 it was decided that the
problems of the workers will be studied by the Chief
Engineer/Traffic Manager and Heads of Departments along
with the representatives of trade unions. The management
assured that necessary steps would be taken to redress
the grievance of those workers but nothing was done to
fulfill the same. The action of the management to curtail the
existing benefits of the workers in the composite gang being
enjoyed by virtue of the above said settlement is arbitrary
and illegal. They are entitled to enjoy all the existing benefits
irrespective of the unilateral decision of the management.
5. Management filed written statement contending
that Cochin Port Trust is a major port constituted under
the Major Port Trust Act, 1963 and it is a public utility
service as defined under Section 2(n) of the Industrial
Disputes Act, 1947. The third union is representing only 35
out of the 2759 workmen in the port. The policy changes in
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2571
labour matters are finalized in Cochin Port Trust in
consultation with the modality unions having a strength
of at least 15%. The third union represents only a
microscopic minority with 1.3% of the workmen. The Access
Control System was introduced in the port w.e.f. 10.01.2009
as per the instructions of the Government of India to tighten
the security arrangements in the port area. As it is necessary
to prevent unregulated movements of persons the workers
had to stay at the work place till the end of the shift duty in
spite of the fact that there was work allotment or not. The
early departure of the workmen is not an approved benefit
and does not require any notice for its withdrawal. It was
withdrawn after having discussion with the modality
unions. Hence the withdrawal of such a practice without
notice is legal and justified. So the concerned workmen are
not entitled to any relief.
6. Third union did not file any rejoinder after filing
the written statement. Afterwards when the case was posted
for evidence the unions remained absent continuously
without any representation on the several posting dates
and hence set ex-parte. Management filed affidavit to prove
the case put forward in the written statement that the
justifiable of the stoppage of the practice of earlier departure
of the workmen during duty hours is legal and justifiable.
As there is nothing on record to controvert the same it can
be held that the action of the management of the Cochin
Port Trust is legal and justifiable.
7. In the result an award is passed finding that the
action of the management in withdrawing the benefit of
earlier departure of the workmen during duty hours without
notice is justifiable and the workmen are not entitled to any
relief.
The award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistant, transcribed and
typed by her, corrected and passed by me on this the 19th
day of July, 2013.
D. SREEVALLABHAN, Presiding Officer
Appendix
Nil
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 981.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fot;k 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;] bjukdqye ds iapkV ¼lanHkZ lañ 19@2010½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 28-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12012@15@2010&vkbZvkj ¼ch&II)]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 981.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 19/2010)
of the Central Government Industrial Tribunal-cum-Labour
Court, Ernakulam as shown in the Annexure, in the
industrial dispute between the management of Vijaya Bank
and their workmen, received by the Central Government on
28.02.2014.
[No. L-12012/15/2010-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM
Present :
Shri D. Sreevallabhan, B.Sc., LL.B,
Presiding Officer
(Tuesday the 23rd day of April, 2013/03rd Vaisakha, 1935)
ID 19/2010
Workman
:
Shri K. Radhakrishnan
Lakshmi Vilas
Vellakinar
Alappuzha (Kerala)
By Adv. Shri C. Anilkumar
Management :
The Chairman and Managing Director
Vijaya Bank
Head Office
41/2, MG Road
Trinity Circle
Bangalore-560001
By M/s. B.S. Krishnan Associates
This case coming up for final hearing on 08.04.2013
and this Tribunal-cum-Labour Court on 23.04.2013 passed
the following:
AWARD
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(14 of 1947), the Government
of India/Ministry of Labour by its Order No. L-12012/15/
2010-IR(B-II) dated 16.04.2010 referred this industrial
dispute for adjudication to this tribunal.
2. The dispute is:
"Whether the action of the management of Vijaya
Bank in imposing the punishment of removal from
the service of the bank with superannuation benefits
as would be due otherwise and without
disqualification from future employment on Shri K.
Radhakrishnan, Special Assistant is justified? What
relief the concerned workman is entitled?"
2572
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
3. Workman was employed as a Special Assistant in
the management bank. While he was working in the
Alappuzha branch of the bank he was placed under
suspension on 29.04.2005 for his alleged acts of misconduct.
After having a detailed investigation chargesheet dated
29.03.2006 was issued to him. In his reply to it he denied all
the seven charges levelled against him. Hence an enquiry
was conducted by appointing Shri N.S. Sukumar Shetty,
Chief Manager, Regional Office, Uduppi as enquiry officer.
Workman had participated in the enquiry by availing the
service of a defence representative. From the side of the
management, four witnesses were examined as MWs 1 to 4
and MEX 1 to MEX-87 were marked. DEX 1 to DEX-12
were got marked from the side of the workman without
adducing any oral evidence. After considering the evidence
the enquiry officer found that five charges levelled against
him were proved and the remaining two charges were not
proved. After getting the enquiry report the disciplinary
authority, after affording an opportunity of being heard to
the workman, imposed the penalty of "removal from service
of the bank with superannuation benefits as would be due
otherwise and without disqualification from future
employment". The appeal preferred by him challenging that
order was dismissed by the appellate authority. As per the
direction of the Hon'ble High Court in WP(C) No. 33202/
2008 filed by him the appeal was again heard by the appellate
authority and was disposed of vide order dated 30.03.2009
upholding the punishment imposed on him by the
disciplinary authority. Hence he raised the industrial
dispute and the same has resulted in this reference.
4. Workman after appearance before this tribunal filled
claim statement in the form of a memorandum of appeal
challenging the order of the appellate authority and with
the prayer to set aside the order of removal from service
passed against him and also for allowing him to realize the
salary from 31.05.2007 onwards from the Deputy General
Manager, the General Manager (Personal) and the Chairman
& Managing Director arrayed as the three respondents in
the claim statement. Challenge is made on the grounds that
the appellate authority entered into the findings on charge
No. 1 to 4 and 6 in the chargesheet without having a proper
appreciation of the evidence and bindly following the order
of the disciplinary authority without application of mind.
The workman was found guilty of those charges after
exonerating there higher officials who were chargesheeted
based on the same allegations. The findings were entered
into on all those charges without considering the fact that
the crime registered against him by the police was referred
as mistake of fact and also improperly placing reliance on
the evidence of Shri R. Gopakumar who was the then
Branch Manager chsrgesheeted along with him for the
alleged illegal acts. The punishment imposed by the
appellate authority is unjust and has no nexus with the
charges alleged against him.
5. Management filed written statement denying all
those grounds raised in the claim statement to challenge
the findings of the appellate authority and contending that
the enquiry was conducted fully in compliance with the
legal procedure and without violating the principles of
natural justice. Disciplinary authority proposed the
punishment after carefully considering the findings of the
enquiry officer and related pleadings and documents and
the punishement was imposed after affording an
opportunity of being hard to the workman. The appellate
authority upheld the punishment imposed on him by the
disciplinary authority after considering the pleadings,
evidence and the submissions of the workman. There is no
reason to interfere with the findings of the enquiry office
with regard to the charges 1 to 4 to 6 as those findings were
entered into after properly and metculously analyzing all
the relevant materials, documents and pleadings. The
punishment imposed on the workman is legal and proper
and it is in proportion to the charges proved in the enquiry.
Criminal proceedings have no bearing on the decision of
the appellate authority. The proceedings in the criminal
case and the domestic enquiry are on entirely different
charges. No reliance was placed either by the disciplinary
authority or the appellate authority on the evidence of
Shri Gopakumar. There was proper appreciation of evidence
by the enquiry officer, disciplinary authority and the
appellate authority in entering into the findings against
the workman. The punishment was imposed since the
charges against him relate to gross misconduct as per the
provisions of the Bipartite Settlement. The punishment
imposed on him is appropriate and it does not call for any
interference. Hence he is not entitled to any relief.
6. Workman did not file any rejoinder in spite of the
opportunity given to him for that purpose.
7. The validity of the enquiry was considered as a
preliminary issue. The copy of the enquiry file in two parts
was produced by the management and the same was marked
as Ext. M-1 and M-1(a) without any objection. As the
enquiry report in Ext.M-1 does not contain the last page
the original enquiry report was produced later and got
marked as Ext. M-2. The enquiry was found to be valid as
per order dated 21.11.2013. After that the case was posted
for final hearing and the arguments for both sides were
heard.
8. Learned counsel for the workman has submitted
that the charges levelled against the workman are not
specific and the findings of the enquiry officer on the
various charges are perverse. It was further submitted by
him that the penality imposed is not proportionate to the
charges found to be proved against him.
9. Learned counsel for the management on the other
hand has argued that all the findings were entered into by
the enquiry officer based on evidence after having careful
scrutiny and by assiging valid reasons and the same cannot
¹Hkkx II—[k.M 3(ii)º
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2573
be held to be perverse. It was further submitted by him that
the penalty imposed cannot be held to be shockingly
disproportionate as the bank incurred huge financial loss
due to the alleged misconduct of the workman.
10. The points for determination are:—
(i) Whether the findings entered into against the
workman in the enquiry calls for any interference
in this reference?
(ii) Whether the punishment imposed on the workman
is legal and justified?
11. Point No. 1:—The charges under seven heads
are levelled against the workman after furnishing the
particulars in detail in the chargesheet. Those seven charges
are as follows:—
1. Your acts of allowing cash withdrawals in the SB
Accounts of the borrowers, when the said accounts
were already showing debit balance due to non-
payment of previous Credit Card dues and your
failure to obtain the necessary authorization from
the Branch Manager thereby concealing the facts
from the knowledge of the higher authorities amount
to doing acts prejudicial to the interest of the Bank
involving serious financial loss, which constitutes
gross misconduct under Sub-clause (j) of Clause 5
of the Memorandum of Settlement on Disciplinary
Action Procedure for Workmen dated 10.04.2002.
2. Your acts of passing cheques in the SB Accounts
of the credit card holders resulting in overdrawings,
and failure obtain authorization from the Branch
Manager for such overdrawings, thereby concealing
the facts from the knowledge of higher authorities
amount to doing acts prejudicial to the interest of
the Bank involving serious financial loss which
constitutes gross misconduct under sub-clause (j)
of Clause 5 of the Memorandum of Settlement on
Disciplinary Action Procedure for Workmen dated
10.04.2002.
3. Your acts of allowing overdrawings in the Current
Account of M/s Prince Fuels and in the CC(M)
account of M/s. Athira Agencies to the extent
exceeding Branch Manager's delegated powers and
not entering the same in the Cheque Referred Register
and thereby suppressing the facts from the
knowledge of the higher authorities amount to doing
acts prejudicial to the interest of the Bank involving
serious financial loss which constitutes gross
misconduct under Sub-clause (j) of Clause 5 of the
Memorandum of Settlement on Disciplinary Action
Procedure for Workmen datd 10.04.2002.
4. Your acts of involving in the affairs of M/s Empire
Music World, run in the name of your son, which
has resorted to various malpractices by swiping the
Credit Cards sanctioned by the branch through the
merchant establishment facility extended by the Bank
to swindle Bank's money in an ingenious manner
amount to doing acts prejudicial to the interest of
the Bank involving serious financial loss, which
constitutes gross misconduct under Sub-clause (j)
of Clause 5 of the Memorandum of Settlement on
Disciplinary Action Procedure for Workmen dated
10.04.2002.
5. Your acts of exclusively handling certain branch
records/registers pertaining to transcations
connected with M/s Empire Music World in order to
facilitate smooth execution of clearing Credit Card
charges slips pertaining to the said firms and to
hoodwink the branch officials from noticing the
malpractices/suspicious activities of M/s. Empire
Music World and affording credits to the said firm
amount to doing acts prejudicial to the interest of
the Bank involving serious financial loss, which
constitutes gross misconduct under Sub-clause (j)
Clause 5 of the Memorandum of Settlement on
Disciplinary Action Procedure for Workmen dated
10.04.2002.
6. Your act of using funds/proceeds of the M/s.
Empire Music World for your personal purposes by
transferring amounts from Current A/c No.785 of
M/s. Empire Musice World to your SB A/c No. 5064
jointly held with your another son to pass the cheques
issued by you and to withdraw the money which
establishes your active involvement in the business
activities of the said merchant establishment and
authorizing such transactions personally, amount to
doing acts prejudicial to the interest of the Bank
involving serious financial loss and engaging in trade
or business outside the scope of your duties, which
constitutes gross misconduct under Sub-clause (j)
and (a) Clause 5 of the Memorandum of Settlement
on Disciplinary Action Procedure for Workmen dated
10.04.2002.
7. Your act of involvement in the affairs of M/s.
Empire Music World, who was showing fictitious
sales through credit card transactions without any
purchase being made by the card holders, amounts
to doing act prejudicial to the interest of the Bank
involving serious loss, which constitutes gross
misconduct under Sub-clause (j) of Clause 5 of the
Memorandum of Settlement on Disciplinary Action
Procedure for Workmen dated 10.04.2002.
12. The charges are levelled against based on the
full particulars given in chargesheet. On going through it,
it cannot be said that the charges are not specific or vague
as submitted by the learned counsel for the workman. It is
also to be noted that reply was submitted by him to the
chargesheet without any such complaint. Hence the
charges cannot be said to be not specific or is vague.
2574
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
13. The enquiry officer found that charge Nos. 1 to 4
and 6 are proved and the remaining charges are not proved.
Hence it is to be considered whether there is any reason to
hold that the findings on charge Nos. 1 to 4 and 6 of the
enquiry officer are perverse or it calls for any interference
for the purpose of considering the proportionality of the
punishment imposed on him.
14. Before considering the evidence it is to be
pointed out that in disciplinary proceedings the standard
of proof required is that of preponderance of probability
and not proof beyond reasonable doubt like in a criminal
case. If there are some relevant materials accepted by the
disciplinary authority which reasonably support the
conclussion that the officer is guilty it is not the function
of the tribunal to review the materials and if the enquiry
has been properly held, the question of adequacy of
reliability of evidence cannot be canvassed before the
tribunal.
15. In the decision reported in BC Chathurvedi Vs.
Union of India, (1995) 6SCC749 it was held:
"Neither the technical rules of Evidence Act nor of
proof of fact or evidence as defined therein apply to
disciplinary proceeding. When the authority accepts
the evidence and conclusion receives support there
from, the diciplinary authority is entitled to hold that
the delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does
not act as Appellate Authority to reappreciate the
evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may
interfere, where the authority hold the proceedings
against the delinquent officer in a manner
inconsistent with the rules or natural justice or in
violation of statutory rules prescribing the mode of
enquiry or whether the conclusion or finding reached
by the disciplinary authority is based on no evidence,
if the conclusion or findings be such as no reasonable
person would have been reached, the court/tribunal
may interfere with the conclusion or finding and
mould the relief so as to make it appropriate to the
facts of the case".
16. The jurisdiction of the tribunal to interfere with
disciplinary matters for punishment cannot be equated with
an appellate jurisdiction and the tribunal cannot interfere
with the findings of the enquiry officer or competent
authority where they are not arbitrary or utterly perverse.
If there has been an enquiry consistent with the rules and
in accordance with the principles of natural justice what
punishement 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 the authority.
17. In the decision reported in The General Secretary,
South Indian Cashew Factories Workers' Union Vs. The
Managing Director, Kerala State Cashew Development
Corporation Ltd. & Ors. AIR-2006 SC 2208 it was held by
the Apex Court that when enquiry was conducted fairly
and properly in the absence any of the allegations of
victimization or malafides or unfair labour practice Labour
Court has no power to interfere with the punishment
imposed by the management.
18. It is also to be pointed out that in Chaturvedi's
case (Supra) it was held:
"A review of the above legal position would establish
that the disciplinary authority and in appeal the
Appellate Authority being fact finding authorities
have exclusive power to consider the evidence with
a view to maintain discipline. They are invested with
the discretion to impose appropriate punishment
keeping in view the magnitude or gravity of
misconduct. The High Court/Tribunal while
exercising power of judicial review cannot normally
substitute its own conclusion or penalty and impose
some other penalty. If the punishement imposed by
the disciplinary authority or Appellate Authority
shocks the conscience of the High Court/Tribunal it
would appropriately mould the relief, either directly,
the disciplinary/Appllate Authority to reconsider the
penalty imposed, or to shorten the litigation, it may
by itself, in exceptional and rare cases, impose
appropriate punishment with congent reason in
support threof."
19. Keeping in mind the above principles enunciated
in those decisions it is to be considered whether there is
any reason to interfere with the penalty imposed on the
workman as it is already found that the enquiry was
conducted in a fair and proper manner without violating
the principles of natural justice. There is no scope for any
interference with the findings of the disciplinary authority
unless it is perverse or is based on no evidence. From all
the seven charges levelled against the workman charge
Nos. 1 to 4 and 6 are found to be proved by the enquiry
officer based on documentary evidence.
20. Workman was a Special Assistant and was in
charge of SB Current Account Section. At that time there
was withdrawal of amounts when there debit balance in
the accounts. It was because of his failure to hot list the
credit cards even though those were due for hot-listing.
The enquiry officer after considering MEX-63 to MEX-69
entered into the finding that charge No.1 is proved. By
relying on MEX-61 and MEX-62 he found that charge No.2
is proved. By placing reliance on MEX-73 to 78 and MEX-
80 to 85 the finding was entered into on charge No.3 as
proved. Based on MEX-10, 11 and 14 charge No.4 is found
to have been proved. Charge No.6 is found to be proved
after considering MEX-50 to 53 and MEX-55 and 56.
¹Hkkx II—[k.M 3(ii)º
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2575
Workman cannot be heard to say that he is to be exonerated
for the reason that his higher officials who were
chargesheeted were found not guilty. There is ample
evidence in this case to prove that the workman has
committed acts of gross misconduct inviting major penalty.
21. On a careful scrutiny of the evidence I do not find
any reason to interfere with those findings of the enquiry
officer which was accepted by the disciplinary authority
and upheld by the appellate authority. The enquiry officer
has analyzed the evidence produced in the enquiry in a
rational and logical manner and entered into the findings
based on relevant and acceptable evidence. Cogent reasons
have been assigned by the enquiry officer in support of
the findings. It is not necessary to have a detailed
discussion of the evidence in the departmental enquiry by
this tribunal as there is no reason to hold that the findings
are perverse. The findings of the enquiry officer are based
on the evidence produced during the departmental enquiry.
Conclusion reached by the enquiry officer cannot be said
to be in such a nature as no reasonable person would have
ever reached. Hence it cannot be said that the findings of
the enquiry officer are perverse. After going through the
evidence I do not find any reason to interfere with the
findings of the enquiry officer on the charge proved against
the workman.
22. Point No.2:- Now it is to be considered whether
the penalty imposed on the workman calls for any
interference by this tribunal. So far as the proportionability
of the punishment is concerned it is to be pointed out that
the penalty imposed by the disciplinary authority was
upheld by the appellate authority after assigning valid
reasons. It is a case of gross misconduct proved against
the workman in a properly conducted departmental enquiry
against him.
23. A bank officer is required to exercise higher
standards of honesty and integrity. He deals with money
of the depositors and the customers. Every officer/
employee of the bank has to take all possible steps to
protect the interests of the bank and to discharge his duties
utmost integrity, honesty, devotion and diligence and to
do nothing which is unbecoming of a bank officer. Good
conduct and discipline are inseparable from the functioning
of every officer/employee of the bank. It is not a defence
for him to say that there was no loss or profit resulted in
case, when the officer/employee acted without authority.
The very discipline of a bank is depended upon each of its
officers acting and operating within their allotted sphere.
Acting beyond ones authority is by itself a breach of
discipline and is a misconduct.
24. The punishment imposed against the workman
cannot be said to be shockingly disproportionate to the
proved misconduct against him. At the time of argument
learned counsel for management has submitted that the
workman was convicted in the criminal case against him
based on the said allegations and the same is not disputed
by the learned counsel for the workman. The workman was
holding a position of trust where honesty and integrity are
inbuilt requirements of functioning and hence the matter is
to be dealt with firmly and not leniently. He was to act with
highest degree of integrity and trustworthiness in the
discharge of his official duties. Taking into consideration
of the facts and circumstances of the case and applying
the principles enunciated in the decisions cited above to
this case in hand there is no scope to interfere with the
punishment imposed against the workman.
25. In the result an award is passed finding that the
action of the management bank in imposing the punishment
of removal from service of the bank with superannuation
benefits as will be otherwise due and without
disqualification for future imployment is justified. Hence
he is not entitled to any relief.
The award will come into force one month after its
publication in the Official Gazette.
Dictated to the Personal Assistance, transcribed and
typed by her, corrected and passed by me on this the 23rd
day of April, 2013.
D. SREEVALLABHAN, Presiding Officer
APPENDIX
Witness for the workman
-
NIL
Witness for the management
MW1 04.11.2011
Shri N S Sukumar Shetty
Exhibits for the workman
-
NIL
Exhibits for the management
M1 - Copy of the enquiry file
M1(a)-Bound volume of copy of documents in the enquiry
file
M2 - Original Enquiry Report
ubZ fnYYkh] 28 Qjojh] 2014
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New Delhi, the 28th February, 2014
S.O. 982.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref.90/2002 of
the Cent.Govt. Indus.Tribunal-cum-Labour Court, Lucknow
as shown in the Annexure, in the industrial dispute between
2576
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
the management of Punjab National Bank and their
workmen, received by the Central Government on 28/02/2014.
[No. L-12012/6/2002-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, LUCKNOW
Present :
Dr. Manju Nigam, Presiding Officer
I.D. No. 90/2002
Ref.No L-12012/6/2002-IR (B-II) dated: 29.04.2002
BETWEEN
Sh. Devendra Pratap Singh S/o Sh. Uma Pratap Singh
R/o 10-A, Balipur (Pandit)
Pratapgarh (UP) 230 001
AND
The Regional Manager
Punjab National Bank
Regional Office, The Mall, Varanasi Cantt
Varanasi (U.P.) 221 001
AWARD
1. By order No. L-12012/6/2002-IR (B-II) dated:
29.04.2002 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub section (1) and sub section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Sh. Devendra Pratap Singh S/o
Sh. Uma Pratap Singh, R/o 10-A, Balipur (Pandit),
Pratapgarh (UP) and the Regional Manager, Punjab National
Bank, Regional Office, The Mall, Varanasi Cantt, Varanasi
(U.P.) for adjudication.
2. The reference under adjudication is:
''WHETHER
THE
ACTION
OF
THE
MANAGEMENT OF PUNJAB NATIONAL BANK
IN IMPOSING THE PUNISHMENT OF
COMPULSORY RETIREMENT OF SHRI
DEVENDRA PRATAP SINGH W.E.F. 28.02.2001 IS
LEGAL AND JUSTIFIED? IF NOT, WHAT RELIEF
HE IS ENTITLED FOR?''
3. It is admitted case of the parties is that the workman,
Devendera Pratap Singh, was working as clerk/cashier in
the Naini branch of the bank when he was served upon a
charge sheet dated 06.08.94 for alleged gross misconduct
by the Regional Manager, Varanasi, the Disciplinary
Authority for alleged gross misconduct of making forged
signatures of authorized signatories on the fraudulent TPO
and thereby causing a loss of Rs. 75,000/- to the Bank. The
workman submitted his explanation to the charge sheet
dated 06.08.94 and denied the charges and the management
of the bank being unsatisfied with the reply of the workman
instituted an domestic enquiry into the charges leveled
against the workman and the enquiry officer after
conducting such enquiry submitted his report before
Disciplinary Authority on 10.03.99 who, after issuing show
cause notice to the workman, imposed the punishment of
compulsory retirement from service vide order dated
28.02.2001. Aggrieved from penalty order the workman
preferred an appeal before Appellate Authority, which too
was rejected.
4. It is a case of the workman is that the management
conducted the enquiry proceedings in violation to the
principles of natural justice. He has further alleged that the
management did not provide him the documents which
formed basis of its charges; also it did not provide any
copy of the complaint, preliminary inquiry report, report of
Hand Writing Expert, FIR and order documents. It has further
been alleged that the management could not prove the
charges leveled against the workman, through cogent
evidence as it was not able to produce the key withnesses;
hence the inquiry report of the Inquiry Officer was based
on assumptions. Accordingly the workman prayed to set
aside the impugned order dated 28.02.2001 with
consequential benefits.
5. The management of the bank has denied the
allegation of the workman with submission that the workman
was afforded all reasonable opportunity to defend himself
and was supplied all relevant papers etc. and the inquiry
was conducted fully in accordance with the principles of
natural justice. It is also submitted by the Bank that Inquiry
Officer after taking into consideration the entire material
on the record submitted his report dated 10.03.99 to the
Disciplinary Authority, holding charges as proved; and
the Disciplinary Authority after giving show cause to the
workman and considering his reply to the show cause
notice rightly imposed the punishment vide order dated
28.02.2001 and there is no illegality with it. Accordingly,
the management of the Bank has prayed that the claim of
the workman be rejected without any relief being extended
to the workman.
6.The workman has filed rejoinder whereby it has
only reiterated its averments in the statement of claim and
has introduced nothing new.
7. The management of the Bank submitted photo
copy of the entire enquiry proceedings in support of their
respective case. Following preliminary issue were framed
on 08.10.2002 by the Tribunal:
(i) Whether the departmental enquiry conducted by
the management is in violation of the principle of
natural justice? If so, its effect.
8. The workman examined himself whereas the
management examined Shri Vijay Kumar, Inquiry Officer, in
¹Hkkx II—[k.M 3(ii)º
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2577
support of their stand on preliminary issue. After hearing
arguments of the parties, preliminary issued were decided
in favour of the workman vide order dated 14.12.2009, which
reads as under:
''The departmental enquiry against the workman is
vitiated as the same is in violation of principle of
natural justice and perverse. Therefore, opportunity
is given to the opposite party to prove the alleged
charges against the workman before the Tribunal.''
9. Accordingly, the case was listed on 10.02.2010 with
direction to the management to file documentary evidence
and list of witnesses. The management file the affidavit of
one of its witness viz. Shri M.R. Singh on 28.06.2011 and
cross-examined him on the next date and also, sought time
to produce one more witness accordingly, 28.09.2011 was
fixed for management's evidence. On 28.09.2011 the
management remained absent, which led to closure of their
opportunity of evidence. The workman filed its evidence
on 12.10.2011 but the management again failed to cross-
examine the workman and accordingly, the opportunity of
the management to cross-examine the workman was closed
vide order dated 11.01.2012 and next date was fixed for
argument on 14.02.2012. The order dated 11.01.2012 was
recalled at the written request of the authorized
representative of the management and the workman was
cross-examined by the authorized representative of the
management, and next date i.e. 19.11.2012 was fixed for
arguments.
10. The argument of the parties could not be
forwarded on serveral dated at one pretext or the other and
on 13.02.2013, the authorized representative of the
management moved an application, M-85 to recall the order
dated 28-09-2011 and to avail the management an
opportunity to produced one more witness viz. Nanhu Ram
to prove the charges leveled against the workman. It had
been submitted the management that the proposed witness.
Nanhu Ram was the custodian of the T.P.O. who issued
T.P.O. Book every day to the related employees and before
closure of the Bank, the same was kept by him in his custody,
therefore, his evidence is very uch necessary to bring the
truth before this Tribunal. The recall application was
opposed by the workman even then application of the
management was allowed in the interest of justice and the
workman was given an opportunity to produce its witness,
Nanhu Ram on 13.03.2013.
On the date fixed, 13.03.2013, the management moved
an application, M-86, stating therein that the MW, Nanhu
Ram has retired from Bank services in December, 1993 and
has expired on 20.07.2002; and accordingly, requested to
fix the next date for arguments. Accordingly, the next date
i.e. 25.04.2013 was fixed for arguments.
11. Heard learned representatives of the parties and
perused entire material on record.
12. The learned representative on behalf of the
workman has contended that this Tribunal found the
department inquiry conducted by the management of the
Bank to be unfair one and accordingly vitiated the same
vide order dated 14.12.2009 with opportunity to the
management to prove the allegations/ charges leveled upon
the workman before this Tribunal, but the management of
the Bank utterly failed to do so as the Bank could not
produce the key witnesses in support of its charge sheet
and has examined only witness viz. Shri M.R. Singh. The
workman has submitted that the workman has been charged
with the allegation of making forged signatures of the
authorized signatories on a T.P.O. and thereby causing
loss to the Bank. He has further submitted that the workman
never worked on the T.P.O. issue seat and were kept in the
custody of Nanhu Ram; and also, the workman was not on
duty on the date when the T.P.O. leaf was found missing.
The workman has also stressed that Nanhu Ram neither
appeared in the domestic inquiry nor before this Tribunal
to make a statement that he has not made signatures on
T.P.O. under question. The authorized representative of
the workman has contended that the workman was neither
concerned with the T.P.O. work at all nor did he issue T.P.O.
in the Robertsganj branch. Moreover, it is submitted that
Shri Yashwant Pal Singh, clerk was entrusted with
preparation of T.P.O. and Shri M.R. singh and Nanhu Ram
were required to put their signatures on it; and also, the
preliminary report submitted by Shri J.P. Banarwal and Shri
Amarjeet Singh does not find his name nor he has been
held responsible for the misdeed. It is also contended that
the Hand Writing Expert submitted his report without
examining the signatures from the specimen signature of
authorized signature, hence the report of the Hand Writing
Expert could not be relief upon.
13. Per contra, the learned representative on behalf
of the Bank has urged that a leaf of T.P.O. was lost in the
month of April, 1987 from the custody of the custodian,
Shri Nanhu Ram, Assistance Manager. It has been
contended by the management that the workman procured
the said T.P.O. form and by manipulating forged signatures
of authorized signatories, cause a loss of Rs. 75,000/- to
the Bank. The management has contended that the
management witness, Shri M.R. Singh the then Branch
Manager has well deposed the matter and has well proved
that the workman misused the T.P.O. by putting forged
signatures of the authorized signatories, which was
established in the report of the Hand Writing Expert; who
reported that the alleged forged signatures were in the
hand writing of the workman. Thus, there was no infirmity
with the impugned order of the Disciplinary Authority dated
28.02.2001. The management has relied on Managing
Director, United commercial Bank vs. Pc. Kakkar AIR 2003
SC 1571 and Damoh Panna Sagar Rural Regional Bank vs
Munna Lal Jain AIR 2005 SC 584.
2578
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
14. I have given my thoughtful consideration to the
rival submission of the parties and scanned entire evidence
on reocrd in light thereof.
15. From pleadings of the parties it comes out that
the workman, Devendera Pratap Singh was charged with
making forged signatures of the authorized signatories,
which resulted into a loss of Rs. 75,000/- to the Bank The
management of the Bank conducted a preliminary inquiry
into the matter under Shri J.P. Baranwal and Shri J.D. Singh,
who submitted their report dated 22.12.1987 to the
management. Thereafter, the management served upon the
workman the charge sheet dated 06.08.94 and on receipt of
reply of the workman to the charges, the management
decided to initiate a domestic inquiry into the charges
leveled upon the workman. During the inquiry the
management relied upon the evidence of Shri M.R. Singh,
Branch Manager and Shri S.I.H. Taj, the Hand Writing
Expert, who submitted his report in respect of the alleged
forged signatures. The Inquiry Officer has given his inquiry
report as the charges to be found proved, replying upon
the evidence of Mr. M.R. Singh, Branch Manager and Shri
S.I.H. Taj, Hand Writing Expert. Shri S.I.H. Taj, Hand Writing
Expert, who was not produced before this Tribunal, by the
management, in order to prove the charges, before this
Tribunjal, has admitted/stated during his cross-examination
before the domestic inquiry that "he has not seen the
original signature which is available on page No. 10487 of
the specimen signature book". It is also evident from the
material available on record that the management's hand
writing expert had to examine as the whether the signatures
available in the TPO under question is of Sh. M.R. Singh
and Sh. Nanhu Ram or the signatures of Shri M.R. Singh
and Nanhu Ram were made by some other employee of the
Bank. In this regard the specimen signature of Shri M.R.
Singh, Sh. Nanhu Ram and five over employees viz.
Ravindra Kumar Singh, indra Kumar Singh, Devendra
pratap Singh, Krishan Mohan Lal and Ashok, were provided
to the Hand Writing Expert. But the Expert was not provided
with the specimen signatures of the authorized signatories
from the Specimen Signature Book, available in the bank.
hence, the report of the Hand Writing Expert which was
not based on the signatures of Shri M.R. Singh, Sh. Nanhu
Ram, available in Specimen Signatures Book, could not be
replied upon, inasmuch as the management has not
produced him before this Tribunal for cross-examination.
16.The other two key witnesses from the
management's point of view could be Shri M.R. Singh, Sh.
Nanhu Ram; but the management did not bother to
produced both of them in evidence. The management has
preferred Shri M.R. Singh, the then Branch Manager in
support of the charges. It is pertinent to mention here that
Shri Nanhu Ram was the custodian of the TPO in question
and was also one of the authorized signatories of the TPO.
Had Shri Nanhu Ram was produced in evidence then he
could have well deposed that as when the TPO was found
missing and also that he could have denied his signatures
on the TPO; but this could not be done due his non-
appearance before the inquiry i.e. domestic as well as before
this Tribunal. However, the management was directed with
order dated 14.12.2009 to file list of witnesses but it preferred
to produced only Mr. M.R. Singh in support of their charges
and when it decided to adduce Shri Nanhu Ram was very
late, Shri Nanhu Ram had been reported to be died on
20.07.2002.
The management witness who appeared before this
Tribunal, Shri M.R. Singh, the then Branch Manager, stated
in his cross-exmination that the workman, D.P. Singh was
not on duty on the day, when the TPO leaf was lost. He
further stated that TPO were in custody of Shri Nanhu
Ram. Asstt. Manageer who used to give the same to the
clerk, issuing TPO in the morning and the concerned clerk
after whole day of working used to return the same to the
custodian and entrty in this regard were made on prescribed
register. He also stated that on return the TPO were used to
get verified and discrepancy, if any, could be traced out the
same day. He could not recall the detail of duty assigned to
the workman. It was further stated that the custodian of
TPO, Nanhu Ram informed his about the loss of TPO on
25.04.87 and also admitted that the payment was made
against lost TPO in Bulanala Branch on 11.04.87. It was
also stated that he has no knowledge as to whether the
TPO book was ever given to the workman, D.P. Singh to
issue the TPO; he further stated that in this regard the TPO
in charge can make statement. However, the management
could not produce the TPO in charge, Shri Nanhu Ram,
Asstt. Manager neither before inquiry nor this Tribunal
due to his death on 20.07.2002.
In rebuttal, the workman has stated, in cross-
examination that in the Robertsganj branch of the bank he
was allotted work regarding tallying balance, maintaining
current account and look after saving counter. He also
stated that in the Branch Shri Yashwant Pal, Clerk had power
to issue TPO. He also stated that the Hand Writing Expert,
arranged by the bank, was not provided with the Signature
Authorized book, which was kept by the Assistance
Manager. Moreover he made available the Signature
Authorized Book to the Hand Writing Expert, arranged by
him, who reported the signatures on the disputed TPO
were of Nanhu Ram and M.R. Singh.
17. From the evidence available on record, it is very
much apparent that the custodian of the TPO i.e. Shri Nanhu
Ram, Assistance Manager reported the Manager of the
branch, Shri M.R. Singh about the loss/missing of the TPO
in quesiton on 25.04.87; whereas as per statement of the
MW, Shri M.R. Singh the said TPO was used on 11.04.87.
Also the MW has stated that as per procedure, the TPO
book was given to the TPO issuing clerk in the morning
and was returned back in the evening after making entries
on a prescribed register and any discrepancy in the TPO
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2579
book could be found out on verification of the TPO number
or leaves, then how the missuse of the TPO could not be
reported before 11.04.87 is an unanswere question, which
could have well answered by the custodian of the TPO
book, Shri Nanhu Ram, Asstt. Manager; but; but the
management did not prefer to produce the custodian of
TPO book before the domestic inquiry for the reasons best
known to the management. However, the management
tended to produced Shri Nanhu Ram before this Tribunal
at a very belated stage in the year 2013; but could not do
so due his death on 20.07.2002.
In this regard it is noteworthy that the that this
Tribunal after vitiating the domestic inquiry, conducted by
the management into the charges leveled upon the
workman, vide order dated 14.12.2009, directed the
management to file list of witnesses on 10.02.2010; but the
management did not bother to file the list of witnesses
rather it took alost one and half year to present its first
witness that too was after passing ex-parte order, closing
opportunity to lead evidence. The mangement sought time
to produce its second witness, Shri Nanhu Ram at a very
late stage; but did not produce him, which again led to ex-
parte against the opposite party. The management again
got the order of ex-parte recalled and sought time to produce
Shri Nanhu Ram; who was the custodian of the TPO; but
for more than four years the management could not produce
its employees i.e. Shri Nanhu Ram who was the best witness
to unveil the controversy as to how and when the TPO
under question were found missing/lost and whether the
alleged forged signatures on the lost TPO were of his or
not. It is very late stage, application to the effect has been
moved that Shri Nanhu Ram has died on 20.07.2002. Thus
the management lingered the matter for four years but could
produce the key witness to prove the charges leveled upon
the workman.
Further the management charged the workman to
having forged the signatures of the authorized signatories
on the TPO and for this it arranged a Hand Writing Expert
and relying on the report of the said Hand Writing Expert,
which was against the workman, penalized the workman;
but it is pointed out that the specimen signatures of the
authorized signatories were not provided to the Expert from
the Signature Authorized Book, available in the each branch
of the bank. The management could not forward any
genuine explanation to this flaw as to why they did not
provide the Hand Writing Expert, the Signature Authorized
Book, which was meant only for ascertaining the
genuineness of the signatures. On the contrary the Hand
Writing Expert, arranged by the workman, was provided
with the specimen signatures of the authorized signatories
from the Signature Authorized Book, who reported that the
alleged signature were of Shri nanhu Ram and Shri M.R.
Singh.
When the domestic inquiry, conducted by the
management was vitiated, it was incumbent upon the
management to come forward with the fresh evidence in
support of its charges. It was required from the management
to come with the Hand Writing Expert to examine the
disputed signatures of the authorized signatories on the
forged TPO with those in the Signature Authorized Book;
but it utterly failed to get the signatures of the authorized
signatories examined before this tribunal. secondly, it could
not bring the custodian of the TPO before this Tribunal to
state that circumstances under which the TPO under
question was lost form his custody. Had he been produced
before domestic inquiry then in the even to his death his
evidence before the domestic inquiry could have taken
into account. Hence, the management of the Bank failed to
discharge the burden that lied upon it to prove the charges
before this Court. On the contrary the workman has well
proved that hge was neither custodian of the TPO book
nor he was given duty of preparation of the TPO nor he
was on duty on the day when the TPO leaf was reported to
be lost. This goes to show that the workman had no chance
to prepare a forged TPO at any point of time.
18. Thus, in view of the facts and circumstances of
the case and discussions made hereinabove. I am of the
considered opinion that the management of the Punjab
National bank failed to prove the charges before this
Tribunal regarding alleged involvement of the workman of
making foreged signatures of the authorized signatories
on the TPO under question and thereby causing loss to
the Bank. Hence, I come to the conclusion that the action
of the management of punjab national bank in imposing
the punishment of compulsory retirement of Shri Devendera
pratap Singh w.e.f. 28.02.2001 is neither legal nor justified;
and accordingly, the workman, Devendera Pratap Singh is
entitled for reinstatement with consequential benefits
including continuity in service and full back wages within
six weeks from the date of publication of this award in the
gazette. The reference is answered accordingly.
19. Award as above.
Lucknow
20th January, 2014
DR. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 983.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy
cSad ds izca/kra= ds laca) fu;ktdkas 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; p.Mhx<+ ds iapkV ¼lanHkZ lañ 243@2012½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 28-02-2014 dks izkIr gqvk
FkkA
[lañ ,y&12011@84@2011&vkbZ vkj¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
2580
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 28th February, 2014
S.O. 983.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 243/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
No II, Chandigarh as shown in the Annexure in the
Industrial dispute between the management of Punjab
National Bank and their workmen, received by the Central
Government on 28/02/2014.
[No. L-12011/84/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
Present: SRI KEWAL KRISHAN, Presiding Officer.
Case No. I.D. 243/2012
Registered on 27.7.2012
The District Secretary, PNB Staff Union (Regd), Central
Office, PNB Branch Office, Chaura Bazar, Ludhiana.
...Petitioner
Versus
1. The Chairman-cum-Managing Director Punjab
National Bank, Head Office, Bhikaji Cama Place,
New Delhi.
2. The Circle Head, Punjab National Bank, Circle
Office, Chandigarh Circle, Bank Square, Sector
17B, Chandigarh.
...Respondents
APPEARANCES:
For the Workman
:
Ex parte.
For the Management
:
Ex parte.
AWARD
Passed on 19.12.2013
Central Government vide Notification No. L-12011/
84/2011-IR(B-II) dated 23.5.2012, 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 action of the management of the
Chairman-cum-Managing Director Punjab National
Bank (PNB), Head Office, Bhikaji Cama Place, New
Delhi & Circle Head, PNB, Circle Office, Chandigarh
Circle, Bank Square, Sector 17B, Chandigarh in
inflicting punishment of 'CENSURE' and not paying
the full salary of suspension period to Sh. Ram
Kishore Sharma, Steno/Typist is just, valid and legal?
What relief the workman is entitled to?"
Notice was given to the representative of the
workman through registered cover who did not appear and
was proceeded against ex parte vide separate order of today.
Similarly, none appeared on behalf of management and it
was also proceeded against ex parte. Since the workman or
his authorized representative did not appear did not submit
any statement of claim, the reference is answered against
the workman. Let hard and soft copy of the award be sent
to the Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 984.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc ,.M flaè
cSad ds izca/kra= ds lac) fu;ktdkas vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] p.Mhx<+ ds iapkV ¼lanHkZ lañ 1201@2005½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 28-02-2014 dks izkIr
gqvk FkkA
[lañ ,y&12012@69@2005&vkbZ vkj¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 28th February, 2014
S.O. 984.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 1201/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
No II, Chandigarh as shown in the Annexure in the
Industrial dispute between the management of Punjab and
Sind Bank and their workmen, received by the Central
Government on 28.02.2014.
[No. L-12012/69/2005-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
Present: Sri KEWAL KRISHAN, Presiding Officer.
Case No. I.D. 1201/2005
Registered on 3.10.2005
Sh. Balwinder Singh, S/o Sh. Kashmir Singh, R/o Village
Dholpur, Post-Talwandi Lal Singh, Batala, Punjab.
...Petitioner
Versus
The Deputy General Manager (P), Punjab and Sind Bank,
Head Office, Personnel Department, 21, Rajinder Place, New
Delhi.
...Respondent
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2581
APPEARANCES:
For the Workman
:
Sh. R.P. Rana, Adv.
For the Management
:
Sh. Sapan Dhir, Adv.
AWARD
Passed on 3.2.2014
Central Government vide Notification No. L-12012/
69/2005-IR(B-II) dated 30.8.2005, 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 Punjab
and Sind Bank in terminating the services of
Sh. Balwinder Singh, Ex-Peon w.e.f. 1.2.2002 without
complying with the provisions of Secton 25F, G and
H of the ID Act, 1947 is legal and justified? If not, to
what releif the concerned workman is entitled to and
from which date?"
In response to the notice the workman appeared and
submitted statement of claim pleading that he was engaged
as Temporary Peon paying initial pay scale+DA+HRA w.e.f.
19.8.1989 by the respondent bank and he worked in three
branches from 19.8.1989 to 31.1.2002. His services were
terminated by the Branch Manager on 1.2.2002 without
serving him any notice or paying him compensation and in
violation of Section 25F of the Act. That the management
also violated Section 25G and 25H of the Act and being so,
his termination is illegal and he is entitled to be reinstated
with continuity of service and back wages.
Respondent management admitted that the workman
was engaged as temporary peon purely on temporary basis
to meet the contingencies and he did not complete 240
days of service in a one calendar year. That respondent
management is a statutory body having its rules and
regulations and the appointment of the workman was not
made as per the said rules and therefore his appointment is
illegal. That the workman is making effort to enter into
bank through backdoor which cannot be allowed. That it is
the Zonal Manager who can appoint a person and the
Branch Manager has no authority to appoint a Peon. Since
no appointment letter was issued and the workman was
not properly appointed, there is no violation of any
provision of law.
In support of its case the workman appeared in the
witness box and filed his affidavit reiterating the case as
set out in the claim petition.
On the other hand the management has examined
Sh. Ramesh Kumar who supported the case of the
respondent management as set out in the written statement.
I have heard Sh. R.P. Rana, counsel for the workman
and Sh. Sapan Dhir, counsel for the management.
It is the admitted case that the workman was
employed as a temporary Peon on 19.8.1989 and he worked
up to 31.1.2002. Though, it is pleaded by the management
that breaks were given in the service but no cogent evidence
has been produced to prove this fact. Rather Ramesh Kumar
who was examined by the management admitted that he
did not calculate the number of working days during the
period from 1.2.2001 to 31.1.2002. Thus, there is absolutely
no evidence that there was any break in the service of the
workman.
It is again admitted case that no compensation was
paid to the workman when his services were terminated.
The workman was entitled to the protection of Section 25F
of the Act, even though his appointment was not legal and
valid. Since the management did not comply with the
provisions of Section 25F which read as follow:-
No workman employed in any industry who has been
in continuous service for not less than one year under an
employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice
in writing indicating the reasons for retrenchment
and the period of notice has expired, or the
workman has been paid in lieu of such notice,
wages for the period of the notice.
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be
equivalent to 15 days' average pay (for every
completed year of continuous serivce) any part
thereof in excess of six months; and
(c) notice in the prescribed manner is served on the
appropriate Government (or such authority as may
be specified by the appropriate government by
notification in the Official Gazette.)
the termination of the services of the workman are to be
held to be not legal and he is entitled to reinstatement.
In similar cases and against the present respondent
management, a writ petition No. 1854 of 2007 titled Baljit
Singh Vs. The Presiding Officer and Others, the Hon'ble
High Court ordered the reinstatment of the workman with
countinuity of service but without back wages. The learned
counsel for the workman also conceded that workman be
not given back wages.
In result it is held that the action of the management
in terminating the service of workman w.e.f. 1.2.2002 is not
legal and he is entitled to be reinstatement with continuity
of service but without back wages. Respondent
management is directed to take him back in service within
one month of the publication of the award. The reference is
answered in favour of the workman. Let hard and softcopy
of the award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
2582
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 28 Qjojh] 2014
dkñvkñ 985.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u 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;] p.Mhx<+ ds iapkV ¼lanHkZ lañ 171@2005½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 28-02-2014 dks izkIr gqvk FkkA
[lañ ,y&12012@194@2001& vkbZ vkj ¼ch&II)]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 28th February, 2014
S.O. 985.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.171/2005) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No. II,
Chandigarh as shown in the Annexure, in the industrial
dispute between the management of Indian Bank and their
workmen, received by the Central Government on
28/02/2014.
[No. L-12012/94/2001-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
Present: Sri KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 171/2005
Registered on 1.8.2005
Sh. Romesh Kumar, S/o Sh. Babu Singh, C/o Sh. Janakraj
Sharma Advocate, 614 Court Road, Opp. Bank of Baroda
Ambala (Haryana).
...Petitioner
Versus
The Regional Manager, Indian Bank, Vijay Ratan Chowk,
Ambala Cantt.
....Respondent
APPEARANCES:
For the Workman
:
Sh. Satyavir A.R.
For the Management
:
Sh. Naresh K. Nanda Adv.
AWARD
Passed on 6.2.2014
Central Government vide Notification No. L-12012/
94/2001-IR(B-II)) Dated 16/23.8.2001, 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 Indian
Bank represented through the manager, Indian Bank,
Rai Market Ambala Cantt. (earlier Vijay Rattan Chowk)
and Regional Manager, Indian Bank, Chandigarh in
terminating the services of Sh. Romesh Kumar S/o
Sh. Babu Singh, Water-Boy-cum-Peon w.e.f. 8.3.1997,
is just and legal? If not, what relief the workman is
entitled to?''
In response to the notice, the workman appeared
and submitted statement of claim pleading that he joined
the respondent-bank on 1.1.1991 as Peon/Waterman and
he was issued an Identity Card. He also got issued a
concessional bus-pass which was signed by the Manager.
Payment was made to him through vochers. His services
were terminated on 9.3.1997 without any reason. He has
not been paid any compensation though he completed
more than 240 days of service. He was given the assurance
that his services would be regularized and till that time
payment would be made to him by collection from the staff,
but that too has been stopped w.e.f. 2.8.1999. Since his
termination is illegal, he is entitled to be reinstated in service
with full back wages and continuity of service.
Repondent management filed written statement
controverting the averments pleading that bank had a
generator and the owner of the generator employed the
workman for its operation. That he is not an employee of
the bank. Sometimes he was asked to bring water for the
bank and for the same he was paid through vouchers.
In support of its case the workman appeared in the
witness box and filed his affidavit reiterating the case as
set out in the claim petition.
On the other hand Sh. B.B. Pahwa was examined by
the respondent who supported its case as set out in written
statement.
I have heard Sh. Satyavir, AR of the workman and
Sh. Naresh K. Nanda counsel for the management.
A.R. of the workman has carried me through the
statement of the workman and submitted that workman
has specifically stated that the was employed by the
respondent management which also get corroboration from
the Identity Card Exhibit W2 issued by the Branch Manager
J.C. Dhuria and an application for issuing of concessional
bus pass Exhibit W1 which was also forwarded by the said
person and submitted that it stands conclusively proved
on the file that the workman was an employee of the
respondent management.
I have considred the contentions.
Respondent management is a nationalized bank and
have its Rules and Regulations for filling various posts. It
is nowhere pleaded or proved how the workman was
employed in the bank on 1.1.1991, It cannot be said on the
simple assertions that he was employed in the bank on the
said date and the document i.e. photocopy of the Identity
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2583
Card (Exhibit W2) and the application (Exhibit W1) which
is allegedly signed by Sh. J.C. Dhuria Branch Manager,
wherein the designation of the workman is mentioned as
waterman, are of no help to him, as his appointment as
such is not proved. According to the workman these are
signed by Sh. J.C. Dhuria. Though he summoned Mr. J.C.
Dhuria but his application was declined vide order dated
18.11.2010 and later on Mr. J.C. Dhuria expired. Even if it is
assumed that these documents are signed by him, it is not
shown that he was ever authorized to employ the workman
as waterman and was authorized to sign the documents as
such. According to the workman, he remained in
employment from 1.1.1991 to 9.3.1997 but he did not make
any effort to produce and prove any record to establish
that he has drawn any salary from the bank at any point of
time and in the absence of any documentary evidence, it
cannot be said that he was ever employed as waterman/
peon by the bank.
Thus it is not established on the file that the workman
was employed as a waterman-cum-peon and his services
were terminated and he is not entitled to any relief. The
reference is accordingly answered against the workman.
Let hard and soft copy of the award be sent to the Central
Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2014
dkñvkñ 986.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lkmFk bZLVuZ
dksyQhYMl 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@Je U;k;ky; tcyiqj ds iapkV ¼lanHkZ
la[;k 08@89½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
03-03-2014 dks izkIr gqvk FkkA
[lañ ,y&22012@57@1988&Mh&4 ¼ch½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 3rd March, 2014
S.O. 986.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 08/89) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 03.03.2014.
[No. L-22012/57/1988-D-4(B)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/8/89
SHRI R.B. PATLE, Presiding Officer
General Secretary,
Madhya Pradesh Koyla Mazdoor Sabha (HMS),
South Jhagrakhand Colliery,
Distt. Surguja (MP)
...Workman/Union
Versus
Dy. C.M.E/Sub Area Manager,
West Jhagrakhand Sub Area
SECL,
Distt. Surguja (MP)
...Management
AWARD
(Passed on this 12th day of December, 2013)
1. As per letter dated 3-1-89 by the Govenment 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-22012/57/88-D-4(B). The dispute under reference relates
to:
"Whether the action of the management in relation
to B Seam Colliery of West Jhagrakhand Sub Area of
SEC.Ltd. in dismissing their workkan Shri Ramadhar
Loader from services w.e.f. 1-11-1986 is legal and
justified? If not, to what relief the workman concerned
is entitled and from what date?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed statement of claim at
Page 3/1 to 3/2. The case of Ist party workman is that he
was working as Loader/dresser in B Seam Colliery managed
by IInd party. On 30-10-86, his services were terminated
without conducting enquiry, issuing showcause notice or
giving any opportunity. That prior to his termination, he
was suspended on 26-10-86. The dispute was raised before
ALC, Shahdol. Ist party workman further submits that he
was Organising Secretary M.P. Koyla Mazdoor Sabha of
B Seam colliery. The management was annoyed with him
as he raised dispute regarding the marking present of loaders
who were absent. That his services were deliberately
terminated without conducting any enquiry. It is reiterated
that he was not given any opportunity, within 5 days period,
the management decided to dismiss his services. Action of
the management is arbitrary, illegal. On such ground,
workman prays for setting aside order of his dismissal and
rays for reinstatement with back wages.
3. IInd party filed Written Statement at Page 2/1 to
2/4. Claim of Ist party workkan is denied. IInd party submits
that Ist party workman was working as labour in B Seam
Colliery, Hasdeo Area. On 28-10-86, around 8.50 AM,
Colliery Manager Mr. Mukherjee was coming from time
office and approaching towards his office. Ist party workman
Ramadhar assaulted Mr. Mukherjee with lathi. Mr.
Mukherjee suffered injuries. Workman inflicted 12-14 lathis
on Mr. Mukherjee who was referred for medical examination.
Different injuries were found on his body like contusion
2584
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
on right forearm about 1 1/2" below elbow joints of size
about 3"x1 1/2" with swelling, Haemotoma on Left Palur,
Abrasion 4"x1 1/8 " on Left Leg, Abrasion 2" x 2" about 3 "
above and behind ilise Right side.
4. IInd party submits that formal enquiry was
conducted by Shri Katare Dy. Personnel Manager, he has
recorded evidence of 10-12 persons present at the time of
incident. On the basis of said evidence collected by Shri
Katare and his findings, Dy. Chief Manager Hasdeo Area
submitted note sheet dated 13-10-86 recommending
dismissal for Ist party workman. General Manager Hasdeo
Area agreed with the same. As such Ist party workman was
terminated from 30-10-86. IInd party further submits that
Ist party workman is in habit of assaulting people working
in the colliery. That earlier Ist party workman was issued
chargesheet on 18-1-86 for disobeying orders of his
superiors, warning was issued to him, on 18-11-86 for
disobeying orders of his superiors, warning was issued to
him, on 18-11-86 chargesheet was issued for disobeying
orders of superiors. On 23-3-86, the chargesheet was issued
to him for disorderly behavior threatening, abusing superior
and the punishment of suspension was imposed. On
29-3-86, chargesheet was issued, workman was severely
warned. On 27-11-86, chargesheet was issued for serious
misconduct, the workman was warned. After receiving
chargesheet dated 27-10-86 workman was under
suspension. He assaulted Mr. Mukherjee on 28-10-86.
5. IInd party further submits that Mr. Mukherjee had
suffered serious injuries from assault by workman. That it
was not possible to conduct departmental enquiry against
workman as he had very bad record of service. The details
are given in termination order dated 30-10-86 issued to the
workman. The management further submits that as formal
enquiry was not conducted against workman, proper action
about misconduct committed by workman is taken. The
management submits that he be permitted to prove charges
against workman. On such ground, IInd party submits that
the dismissal of Ist party workman is justified and prays for
rejection of the claim.
6. Considering pleadings between parties and order
of reference, 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 Affirmative
management of West
Jhagrakhand Sub Area of
SEC.Ltd. in dismissing
their workman Shri
Ramadhar Loader from
services w.e.f. 1-11-1986 is
legal?
(ii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to relief
prayed by him.
REASONS
7. Point No. 1- In present case formal enquiry is not
conducted against workman. The management has
requesting permission to prove misconduct committed by
workman. The evidence of witnesses Shri K.V. Vishwakarma,
Karamat Ali, Chandrika Prasad, Naresh Pal Saini, Durbal,
S/o Ranjas, U.K. Behra Medical Officer, S.A. Mukherjee
Manager, P.K. Sharma, Gaya Prasad Singh, Rajendra Prasad,
Satyadev Pal, Bhola S/o Shankar, Ramashray Satya Dev
Gupta, Ramadhar Loader is adduced on affidavit. The
witnesses were cross-examined. All of witnesses have
supported that delinquent workman Ramadhar assaulted
with stick on Shri Mukherjee, the Mines Manager, inflicted
several blows with sticks causing injuries to him. From
evidence of witness U.K. Behra, the injuries on body of
Mr. Mukherjee were found lacerated wound about 1" x
3/4" x 3/4" on right elbow, contusion on right forearm
21/2" below elbow joints of size 3"x1 1/2" with swelling,
Haemotoma on Left Palur, Abrasion 4"x1 1/8 " on Left Leg,
Abrasion 4" x 1" on left leg, Abrasion 2" x 2" about 3 "
above and behind ilise Right side. The evidence of witness
is not shattered in his cross-examination.
8. Mr. Mukherjee has also stated that he was inflicted
stick blows by delinquent workman. Other witnesses also
corroborates the evidence of Mr. Mukherjee. In his cross-
examination Mr. Mukherjee has denied that workman had
also suffered injuries at the time of incident. Cross-
examination of Mr. Mukherjee shows that after blow inflicted
on him by workman, he was lied down. Copy of judgment
by Criminal Court is produced at the time of argument by
learned counsel for Ist party. From reading of judgment, it
is seen that Ist party was acquitted being benefit of doubt
minor inconsistency in evidence of the witnesses. The legal
position is shattered that burden of proof in criminal case
and domestic enquiry is different. In domestic enquiry, it is
not necessary to prove alleged misconduct beyond
reasonable doubt.
9. Learned counsel for Ist party Shri Shrivastava did
not advance any argument about the evidence adduced
by the management. Learned counsel for Ist party Mr.
Shrivastava submits that the chargesheet is not issued to
the workman. Therefore no enquiry was conducted against
him. In absence of chargesheet, no enquiry can be
conducted against workman, question of law can be raised
at any stage it does not require pleading. In support of his
above argument learned counsel relies on ratio held in.
"Case of UCO Bank and Another versus Rajinder Lal
Capoor reported in 2008(5) Supreme Court Cases 257.
Their Lordship dealing with UCO Bank Officers
Service Regulations 1979 Regulation 20(3)(ii) held
disciplinary proceedngs are initiated from the stage
chargesheet is served and not from the stage of
preliminary enquiry. Legal fiction of deemed pendency
of disciplinary proceedings from the stage of issue
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2585
of showcause notice created by 1979 Regulations
held operates in a different field and therefore does
not apply to 1976 Regulations.
Ratio held in above case is directly permit to prove
misconduct by adducing evidence in Court. Whether
it is necessary to issue formal chargesheet. In present
case the Written Statement filed by IInd party
elaborately narrates the incident dated 18-10-86
around 8.50 AM Shri S.A. Mukherjee was assaulted
by Ist party workman inflicted injuries of different
size, dimensions and formal enquiry made by Shri
Katare. The facts are set out in Para 3 & 4 of the
Written Statement. The workman did not file rejoinder
to it. The evidence of several witnesses is filed. The
witnesses are cross-examined. Workman was also
supplied copy of documents produced. Order of
dismissal Exhibit M-25 also finds elaborate reference
of the incident alleged against the workman. Learned
Counsel for Ist party Mr. Shrivastava further relied
in ratio held in—
Case of Shri Udhav Singh versus Madhav Rao Scindia
reported in 1977(1) Supreme Court Cases 511. In para-
26 of the judgment, their Lordship observed an
objection on ground of non-compliance with the
requirement of Section 82 (b) arises out of allegations
made in the petition itself. Such a plea raises a pure
question of law depending on a construction of the
allegations in the petition, and does not require
evidence for its determination. Such a plea therefore,
can be raised at any time even without formal
amendment of the Written Statement."
The ratio held does not deal with the question
whether formal chargesheet is necessary to be served
on workman when permission is granted by Court to
prove in case when formal enquiry is not held.
Therefore the ratio in above case cannot be
beneficially applied to case at hand. Therefore I do
not find substance in the argument advanced by the
counsel for Ist party.
10. The evidence of witnesses discussed above is
sufficient to prove that the workman inflicted stick blows
on Mr. Mukherjee Mines Manager causing injury to him. I
therefore record my finding in Point No. 1 in Affirmative.
11. Point No. 2- the evidence of the witnesses of the
management clearly shows that the workman inflicited stick
blows causing injury to Mines Manager Mr. Mukherjee. It
is serious misconduct. Assaulting Mine Manager for any
reason does not deserves leniency. Learned counsel for
IInd party has submitted bunch of citations along with
Page 36. I am not inclined to discuss in detail the ratio held
in all those cases. Considering the gravity of misconduct
proved from evidence of witness of the management.,
dismissal of workman cannot be said illegal. No leniency is
justified in the matter. The purnishment of dismissal from
service does not call for interference. Therefore I record
my finding in Pont No. 1 in Affirmative.
12. In the result, award is passed as under:—
(1) The action of management in relation to B Seam
Colliery of West Jhagrakhand Sub Area of SEC.
Ltd. in dissmissing their workman Shri Ramadhar
Loader from services w.e.f. 11.11.1986 is proper
and legal.
(2) Workman is not entitled to any relief prayed by
him.
R.B. PATLE, Presiding Officer
ubZ fnYyh 3 ekpZ] 2014
dkñvkñ 987.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lkmFk bZLVuZ
dksyQhYMl 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@Je U;k;ky; tcyiqj ds iapkV ¼lanHkZ
la[;k 127@95½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
03-03-2014 dks izkIr gqvk FkkA
[lañ ,y&22012@8@1995µvkbZvkj ¼lh&II)]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 3rd March, 2014
S.O. 987.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 127/95)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 03.03.2014.
[No. L-22012/8/1995-IR (C-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/127/95
PRESIDING OFFICER: SHRI R.B. PATLE
General Secretary,
Koyla Shramik Sanga, (UTUC),
Post Dhanpuri,
Distt. Shahdol
... Workman/Union
Versus
Sub Area Manager,
Amlai Sub Area of SECL,
Post Amlai Colliery,
Distt. Shahdol
... Managerment
2586
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
AWARD
(Passed on this 1st day of November, 2013)
1. As per letter dated 10.7.95 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 I.D. Act, 1947 as per Notification No. L-22012/
8/95/IR(C-II). The dispute under reference relates to:
"Whether the action of the Sub Area Manager, Amlai
sub Area of SECL of Sohagpur Area of SECL in
dismissing Shri Ramlalit, Mining Sirdar, T.No. 1829,
Amlai Collieiry from company services w.e.f. 4.6.94 is
legal and justified? If not, to what relief the workman
is entitled to?"
2. After receiving reference, notices were issued to
the parties. Workman submitted Statement of Claim at Page
4/1 to 4/2. The case of workman is that he was working as
Mining Sirdar, Token No. 1829. He joined service in 1973.
That he performed his services with devotion without any
adverse remarks. On 18.7.91, chargesheet was served to
him. He was also suspended. The allegation in chargesheet
were that he had illegally constructed house on land
beloning to IInd party SECL, Sohagpur. As per the Ist party
workman, he did not construct house. His elders are
residing separately with his family. That his family had
constructed the house. He was not concerned with the
construction of house. That the enquiry was conducted
out of vengeance. The workman prayed for his
reinstatement with consequential benefits.
3. IInd party filed Written Statement at Page 7/1 to
7/3. IInd party did not dispute that Ist party workman was
working as Mining Sirdar Token No. 1829 in Amlai Colliery,
Sohagpur Area. That he had constructed a structure near
durga temple on the company's land. The construction
was unauthorized. That Charge No. 989 dated 18.11.91
was issued to the workman. The reply submitted by
workman was not found satisfactory. Shri A.K. Srivastava
was appointed as Enquiry Officer. The enquiry was
conducted. Witnesses of the management were cross-
examined. Reasonable opportunity was given to the
workman for his defence. The charges were provied from
evidence in Enquiry Proceedings. Serious misconduct was
committed by Ist party workman. The punishment was
imposed considering gravity of misconduct. If it is found
that enquiry is vitiated, IInd party be given promotion to
prove misconduct before Court. On such contentions, IInd
party submits that termination of workman from service is
legal. Relief prayed by workman be rejected.
Preliminary issue of legality of enquiry is decided by
my learned predecessor vide order dated 8.11.2010. The
enquiry conducted against workman is found legal and
proper.
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 Sub
In Negative
Area Managter, Amlai sub
Area of SECL of Sohagpur
Area of SECL in dismissing
Shri Ramlalit, Mining Sirdar,
T.No. 1829, Amlai Collieiry from
company services w.e.f. 4.6.94
if legal?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
6. The enquiry conducted against workman is found
legal for deciding Point No. 1, it is necessary to consider
whether the findings of Enquiry Officer are supported by
same evidence, whether the punishment of termination
from service imposed against workman is proper and legal.
I have carefully gone through the record of the Enquiry
Proceedings. All the witnesses of the management have
stated that the construction was made by side of Durga
Temple Road by workman. That son of workman Ashok
Kumar is working as Driver. Learned Counsel for workman
Shri R.C. Shrivastava did not advanced any argument on
the point of findings of Enquiry Officer and evidence in
Enquiry Proceedings. Learned counsel for workman
submits that the encroachment is not proved. That
evidence is subsequently produced. Workman could have
been evicted for unauthorized construction under Public
Premises Eviction Act, 1971. That said officer is appointed
in SECL. The said officer did not make any enquiry for
unauthorized construction of the workman therefore learned
counsel for workman further submits that the misconduct
alleged on part of workman is not proved rather is found to
have made unauthorise to have been removed under
provisions of Public Premises Eviction Act. Learned
counsel for IInd party emphasized that powers of the
employment to hold enquiry for misconduct on part of Ist
party workman are not taken away by the provisions of
said Act, the termination from service is proper and legal.
The evidence whether the punishment imposed on
workman is legal and proper. The gravity of misconduct
needs to be considered therefore the evidence in Enquiry
Proceedings needs to be looked into. Cross-examination
of management's witness Shri Mishra Page 8/22-23 shows
that Wooden Thela was kept by side of road. Said Wooden
Thela was used for repairing bicycles. The size of Thela
was less in area. The Construction made by workman was
of larger size. The charge sheet issued to the workman
does not show the size of construction made by the
workman. Any of the witnesses of the management have
also not stated about the size of the unauhorized
construction made by the workman but from evidence in
cross-eamination of witness Vishnudeo Mishra, it is clear
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2587
that unaouthorised consideration made by workman was
bigger than wooden Thela which was kept by side of road.
The management of IInd party inspite of taking action for
removal of unauthorized construction involving provisions
of Public Premises Eviction Act, 1971 initiated departmental
enquiry. No doubt, the IInd party is competent to conduct
enquiry about the misconduct committed by workman that
the size of unauthorized construction shows very small,
bigger than a Thela. Bicycle repairing work was done by
workman in that construction which shows his intention
to get income from such manner. The map produced by
managerment also shows the small size of unauthorised
construction. The map has not been proved. For small
construction, bigger than a Wooden Thela, punishment of
termination from service is certainly disproportionate. The
termination from service has impact on entire family. I need
not say that it causes civil death of family. Keeping those
aspects in view, in my considered view, the termination of
service is not justified. Accordingly I record my finding in
Point No. 1 in Negative.
7. Point No. 2- In view of my finding in Point No. 1
that the action of management in terminating service of
workman is not justified, question arises as to what relief
the workman is entitled for? In present case, the workman
was working as Mining Sirdar. He was dismissed from
service long back. The denial of back wages would be
sufficient punishment. Accordingly I record my finding in
Point No. 1.
8. In the result, award is passed as under:—
(1) Action of the Sub Area Manager, Amlai sub Area
of SECL of Sohagpur Area of SECL in dismissing
Shri Ramlalit, Mining sirdar, T. No. 1829, Amlai
Collieiry from company services w.e.f. 4.6.94 is
not proper.
(2) IInd party management is directed to reinstate
the workman in service but without back wages.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2014
dkñvkñ 988.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 47½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj osLVuZ dksyQhYMl
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@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 193@94½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 03@03@2014 dks izkIr gqvk
FkkA
[lañ ,y&22012@276@1994&vkbZvkj ¼lh&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 3rd March, 2014
S.O. 988.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.193/94)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of WCL and their workmen,
received by the Central Government on 03/03/2014.
[No. L-22012/276/1994-IR (C-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/193/94
SHRI R.B. PATLE, Presiding Officer.
General Secretary,
SKMS (AITUC),
Post Eklahra,
Distt. Chhindwara (MP)
.... Workman/Union
Versus
Manager,
Rakhikol Colliery of WCL,
Post, Distt. Chhindwara
.... Management
AWARD
(Passed on this 22nd day of November, 2013)
1. As per letter dated 4-10-94 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-22012/
276/94-IR (C-II). The dispute under reference relates to:
"Whether the action of the management of Rakhikol
Colliery of WCL, Kanhan Area PO Rakhikol, Distt.
Chhindwara (MP) in dismissing Shri Sundarlal S/o
Daliram, Tub Loader w.e.f. 7-3-93 is justified? If not,
to what relief the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Workman filed statement of claim at Page 2/1 to
2/2. The case of workman is that he was appointed as tub
loader in Mohan Colliery in 1975. The job of tub loader is of
permanent nature. He claims to be working on permanent
post. That he was availing sick leave, Casual Leave. Paid
leave as other permanent workers availed. That he was
transferred to Rakhikol colliery without legal ground. His
transfer was disputed. That the transfer caused his
inconvenience as he was residing at remote village. There
was no road to go to Rakhikol regularly. The workman also
claimed to be in receiving treatment from company
dispensary and outside. That he was served with
chargesheet for unauthorised absence for period more than
10 days without sufficient cause, without prior permission.
The chargesheet was received on 12-11-90. The workman
2588
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
submits that said chargesheet was condoned vide letter
dated 17-11-90. That despite of it, the management has
dismissed workman on same chargesheet and order dated
20-2-93. The action is taken by management without
considering record. On such ground, Ist party workman
prays for his reinstatement with consequential benefit.
3. IInd party filed Written Statement at Page 4/1 to 4/
3. IInd party submits that workman was employed at
Rakhikol Colliery as Badli Tub Loader. He was in habit to
remaining absent from duty for long period without
informaion, without reasonable cause. Workman was absent
without reasons from 16-9-91 till November, 1992. The
chargesheet was issued to him on 19-7-92 regarding his
habitual unauthorized absnece. The reply given by
workman was not found satisfactory. Enquiry Officer was
appointed. Enquiry Officer issued notice of enquiry dated
12-10-92, 30-10-92. Workman was present. He admitted
charge. However the Presenting Officer was directed to
substantiate the charges. Workman was given opportunity
for his defence.
4. IInd party further submits that Enquiry officer
submitted his findings holding workman guilty of charges
against him of unauthorized absence. Chart of the working
days of workman from 1989 to 1992 are given by IInd party.
Workman was present for 82½ days in 1989, 88 days in
1990, 3 days in 1991, 2 days in 1992. IInd party submits that
workman was unauthorisely absent. It is proved from
evidence in enquiry. Therefore his dismissal from service
is proper and legal.
5. Ist part workman filed rejoinder at Page 5
contending that the action of the dismissal was taken
against him on chargesheet dated 21-11-90 by the
management is illegal. Management filed rejoinder at Page
6/1 to 6/2 and contended that the workman was not
dismissed on same chargesheet. His dismissal is legal and
proper.
6. Vide order dated 19-3-2012, my predecessor has
found enquiry conducted against workman is proper and
legal.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the misconduct
In Affirmative
alleged against workman is
proved from evidence in
Enquiry proceedings?
(ii) Whether the punishment of
In Affirmative
dismissal imposed against
workman is legal and proper?
(iii) To what relief the workman
Relief prayed by
is entitled to?"
workman is rejected.
REASONS
8. The enquiry conducted against workman is found
legal and proper. The copy of Enquiry Proceeding is
produced at exhibit M-1. Workman has admitted charge of
unauthorized absence. In view of admission of his absence
by workman, the misconduct alleged against workman is
proved. I may note that the workman has pleaded that he
was proceeding on sick leave, CL, Paid leave but no
documents were produced in Enquiry Proceedings by
workman that he was sanctioned any kind of such leave
during the period of alleged unauthorized absence. The
workman was authorisely absent. After Issue No. 1 is
decided, workman has not adduced any evidence.
Workman and his counsel remained absent. Any argument
is not adduced on behalf of workman. Considering
unauthorized absence alleged against workman, 16-9-91 to
16-7-92 is long period. I don't find reason to interfere the
punishment of dismissal imposed against workman. For
above reasons, I record my finding on Point No. 1, 2 in
Affirmative.
9. In the result, award is passed as under:—
(1) Action of the management of Rakhikol Colliery of
WCL, Kanhan Area PO Rakhikol, Distt.
Chhindwara (MP) in dismissing Shri Sundarlal
S/o Daliram, Tub Loader w.e.f. 7-3-93 is proper.
(2) Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2014
dkñvkñ 989.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 47½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lkmFk bZLVuZ
dksyQhYMl 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@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 144@2001½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
03@03@2014 dks izkIr gqvk FkkA
[lañ ,y&22012@22@2001&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 3rd March, 2014
S.O. 989.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 144/2001)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 03/03/2014.
[No. L-22012/22/2001-IR (CM-II)]
B. M. PATNAIK, Desk Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2589
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/144/2001
PRESIDING OFFICER: SHRI R.B. PATLE
The Secretary,
Koyla Mazdoor Sabha,
At & PO South Jhagrakhand,
Distt. Korea,
Chhattisgarh
...Workman/Union
Versus
Sub Area Manager,
Jhagrakhand Colliery of SECL,
PO south Jhagrakhand,
Distt. Korea,
Chhattisgarh
...Management
AWARD
(Passed on this 30th day of January, 2014)
1. As per letter dated 31-7-2001 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-22012/
22/2001-IR(CM-II). The dispute under reference relates to:
"Whether the action of the Sub Area Manager, West
Jhagrakhand Sub Area of SECL, PO South
Jhagrakhand Colliery, Distt. Korea (Chhattisgarh) in
not providing employment on compassionate ground
to Smt. Brahaspatiya Bai D/o Late Shri Phirtu Ram,
Ex-employee of Khongapani Colliery is legal and
justified? If not, to what relief she is entitled to?"
2. After receiving reference, notices were issued to
the parties. Management had filed application under
Section 10 of CPC for stay of the proceeding submitting
that the workman has filed Writ Petition No. 970/2002 before
Hon'ble High Court for the similar relief. Copy of said Writ
petition is produced alongwith copies of the documents
produced in writ Petition. My predecessor vide order dated
2-7-09, management was directed to produce last order
passed by Hon'ble High Court. On 25-11-10, it was observed
that Writ Petition is filed in 2002 whereas reference is
pending since 2001. The reference will continue. Parties
were at liberty to take appropriate steps. The workman was
proceeded exparte on 9-8-2012.
3. IInd party management filed exparte Written
Statement contending that workman has not filed Statement
of Claim. Workman is proceeded exparte. That writ Petition
No. 970/2002 is filed for same relief before Hon'ble High
Court, Chhattisgarh. The reference is not tenable. Ist party
is not entitled to employment to employment on
compassionate ground as one of the dependent of workman
Phirturam was provided employment as dependent.
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 Sub
In Affirmative
Area
Manager,
West
Jhagrakhand Sub Area of SECL,
PO South Jhagrakhand Colliery,
Distt. Korea (Chhattisgarh) in not
providing employment on
compassionate ground to Smt.
Brahaspatiya Bai D/o Late Shri
Phirtu Ram, Ex-employee of
Khongapani Colliery is justified?
(ii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to relief
prayed by him.
REASONS
5. Though the terms of reference relates to denial of
employment on compassionate ground to Smt. Brihaspatiya
Bai, D/o Late Phirtu Ram in the colliery, no statement of
claim is filed in support of the said relief by Ist party. Ist
party is proceeded exparte on 9-8-2012. Management filed
exparte Written Statement denying claim of Ist party.
Affidavit of evidence of management's witness G. Shyamla
Rao is filed. The witness of management has stated that
Phirtu Ram was working as General Mazdoor at IWSS Plant.
He was declared medically unfit from 29-3-89. As per
provisions of NCWA, dependent employment is provided
to Shri Daluram, Son in law of Phirtu Ram. Therefore the
claim of Ist party is not liable. Ist party has not participated
in the reference proceeding. Evidence of management's
witness remained unchallenged. I do not find any reason
to disbelieve his evidence. Copies of affidavit of
Brihaspatiyabai is produced. For above reasons, I record
my finding in Point No. 1 in Affirmative.
6. In the result, award is passed as under:—
(1) The action of the Sub Area Manager, West
Jhagrakhand Sub Area of SECL, PO South
Jhagrakhand Colliery, Distt. Korea (Chhattisgarh)
in not providing employment on compassionate
ground to Smt. Brahaspatiya Bai D/o Late Shri
Phirtu Ram, Ex-employee of Khongapani Colliery
is legal and proper.
(2) Ist party is not entitled to any relief.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 3 ekpZ] 2014
dkñvkñ 990.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lkmFk bZLVuZ
2590
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
dksyQhYMl 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@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 153@98½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
03@03@2014 dks izkIr gqvk FkkA
[lañ ,y&22012@12@1997&vkbZ vkj ¼lh&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 3rd March, 2014
S.O. 990.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 153/98)
of the Central Government Industrial Tribunal-Cum Labour
Court, Jabalpur as shown in the Annexure in the industrial
dispute between the management of SECL and their
workmen, received by the Central Government on 03/03/
2014.
[No. L-22012/12/1997-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/153/98
PRESIDING OFFICER: SHRI R.B. PATLE
Joint Secretary,
Rashtriya Colliery Workers Federation,
Jhimar Colliery,
...Workman/Union
Distt. Shahdol (MP)
Versus
The Sub Area Manager,
Ram Nagar, RO SECL,
Post Ramnagar Colliery,
...Management
Distt. Shahdol (MP)
AWARD
(Passed on this 29th day of January 2014)
1. As per letter dated 16-7-98 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-22012/
12/97-IR(C-II). The dispute under reference relates to:
"Whether the action of the Sub Area Manager,
Ramnagar RO of SECL, Hasdeo Area in not
regularizing Shri Ram Lal and Shri Shyam Sunder
(General Mazdoor and Timber Mazdoor in the post
of tub checker i.e. Tub Munshi and also not making
payment to them of difference of wages for higher
nature of work is legal and justified? If not, to what
relief the workmen are entitled?'
2. After receiving reference, notices were issued to
the parties. Ist party filed statement of claim at Page 2/1 to
2/9. The case of 1st Party workman is that he was appointed
as coal loading mazdoor on daily wages on 2-1-80 in
Ramnagar Colliery, SECL. He was designated as General
Mazdoor in March, 1981 and considered on permanent
basis. He was confirmed without break as employee of coal
mines. He was paid monthly salary. Since Ramnagar colliery
was closed, he was transferred to Jhimar colliery on 20.5.95.
He was asked to work as tub writer. Accordingly he was
working as Tub Munshi from December, 1992. The basic
pay of General Mazdoor was Rs. 1300/- per month whereas
basic pay of Tub Munshi was Rs. 2200/- per month. Job of
General Mazdoor was to support the upper roof of mines
by using balli, dressing, cleaning, packing etc. The job of
Tub Munshi is of clerical nature while salary being paid to
Tub Munshi is higher by Rs. 1000/- than General Mazdoor.
Though the work of tub Munshi was extracted from
workman from April, 93 to August, 95, he was not paid
salary of tub Munshi despite of his repeated request. The
grievance was brought to knowledge of Rashtriya Colliery
Workers Federation. He worked for more than 240 days as
Tub Munshi. He was not paid difference of wages for the
post of Tub Munshi. The workman is praying that he may
be regularized on the post of Tub Munshi and also higher
wages and said post be granted to him.
3. IInd party filed Written Statement at page 5/1 to 5/
3. Claim of workman is denied. It is denied that workman
was asked to work as tub writer/Munshi clerical grade. The
claim is based on verbal instruction purported to have been
given by Shri P.K. Pradeep, Manager, Jhimer Colliery,
Ramnagar Sub Area. That Shri P.K. Pradeep was not
confident to give such instructions. Workman was not
expected to act upon verbal instructions. Workman is not
entitled to wages of tub Munshi claimed by him. That
workman cannot claim wages comparing himself with
workers working in different categories. IInd party prays
for dismissal of 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 Sub
In Affirmative
Area Manager, Ramnagar RO
of SECL, Hasdeo Area in not
regularizing Shri Ram Lal and
Shri Shyam Sunder (General
Mazdoor and Timber Mazdoor
in the post of tub checker i.e.
Tub Munshi and also not
making payment to them of
difference of wages for higher
nature of work is justified?
(ii) If not, what relief the
Workmen are not
workman is entitled to?"
entitled to relief
prayed by them.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2591
REASONS
5. Though workman are claiming regularization on
the post of tub Munshi and higher wages of said post, the
workman failed to participate in the reference proceeding.
They did not adduce evidence in support of their claim.
The evidence of workman is closed on 22-12-2010. The
management filed affidavit of evidence of witness of
Shri Arun Kumar Shrivastava covering all contentions in
Written Statement filed by the management. That Manager
is not empowered to employ any person to the post of
Munshi. Shri P.K. Pradeep, the then Manager was not
competent nor engaged the 1st party workman as Munshi
at that time. That Shabhonath Yadav and Shri S.S.
Vishwakarma were working as Timber Mistry in Category
IV and steel prop Mazdoor in Category III respectively. Ist
party workman cannot compare with them. The evidence
of management's witness remained unchallenged. The
management's witness was not cross-examined. I do not
find reason to disbelieve evidence of management's witness.
Workman have failed to adduce evidence in support of
their claim therefore I record my finding in Point No. 1 in
Affirmative.
6. In the result, award is passed as under:—
(1) The action of the Sub Area Manager, Ramnagar
RO of SECL, Hasdeo Area in not regularizing Shri
Ram Lal and Shri Shyam Sunder (General Mazdoor
and Timber Mazdoor in the post of tub checker
i.e. Tub Munshi and also not making payment to
them of difference of wages for higher nature of
work is legal and proper.
(2) Workmen are not entitled to relief prayed by them.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 4 ekpZ] 2014
dkñvkñ 991.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk 1 dh mi /kkjk&¼3½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vizSy] 2014 dks ml
rkjh[k ds :i esa fu;r djrh gS] ftudks mDr vf/kfu;e ds
v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½
v/;k;&5 vkSj 6 [/kkjk &76 dh mi /kkjk & ¼1½ vkSj /kkjk &77] 78]
79 vkSj 81 ds flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k
jktLFkku jkT; ds fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%&
Øe
jktLo xkao dk uke
rglhy dk
ftys dk uke
lañ
uke
1-
2-
4-
5-
1-
dkykMsjk
pkSew
t;iqj
[ lañ ,l&38013@13 @2004&,lñ,lñ 1]
iou dqekj] voj lfpo
New Delhi, the 4th March, 2014
S.O. 991.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st April, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI [except Sub-section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force] of the said Act shall come into force in the following
areas in the State of Rajasthan namely:—
S.
Name of Revenue
Name of
Name of
No.
Village
Tehsil
District
1
2
3
4
5
1
KALADERA
CHOMU
JAIPUR
[No. S-38013/13/2014-S.S.I]
PAWAN KUMAR, Under Secy.
ubZ fnYyh] 4 ekpZ] 2014
dkñvkñ 992.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk &1 dh mi&/kkjk ¼3½ }kjk iznÙk 'kfDr;ksa
dk iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vizSy] 2014 dks ml
rkjh[k ds :i esa fu;r djrh gS] ftudks mDr vf/kfu;e ds v/
;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/
;k;&5 vkSj 6 [èkjk &76 dh mi&/kkjk ¼1½ vkSj /kkjk 77]78] 79
vkSj 81 ds flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k
jktLFkku jkT; ds fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%&
Øe lañ
fooj.k
rglhy dk
ftys dk
uke
uke
1- ftyk ckalokM+k rglhy xuksM+k ds fuEukafdr
xuksM+k
ckalokM+k
jktLo xzke ds vUrxZr vkus okys {ks=%&¼1½
eqaxkuk ¼2½ nkSyr flag dk x<+k ¼3½ vUrdkyh;k
¼4½ pUnwth dk x<+k ¼5½ pkank[ksM+h ¼6½ ukxnyk
¼7½ eksjM+h fupyh ¼8½ eksjM+h Åiyh ¼9½ bljokyk
¼10½ fVdyk ¼11½ cMfy;k ¼12½ fVEck xkeM+h
¼13½ VkfV;k ¼14½ ukS[kk
[ lañ ,l&38013@14@2014&,lñ,lñ 1]
iou dqekj] voj lfpo
New Delhi, the 4th March, 2014
S.O. 992.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st April, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI [except Sub-section (1) of Section 76 and Sections
2592
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
77, 78, 79 and 81 which have already been brought into
force] of the said Act shall come into force in the following
areas in the State of Rajasthan namely:—
S.
Particular
Name of
Name of
No.
Tehsil
District
1
The Following Revenue Villages
Ganora
Banswara
failling within the limit of Ganora
Tehsil, Distt.-Banswara (1)
Mungana (2) Daulat Singh Ka
Gara (3) Antkaliya (4) Chanduji
Ka Gara (5) Chanda Kheri (6)
Nagdala (7) Mordi Nichali (8)
Mordi Upli (9) Isarwala (10) Tekla
(11) Badliya (12) Timba Gamri
(13) Tatiya (14) Noka
[No. S-38013/14/2014-S.S.I]
PAWAN KUMAR, Under Secy.
ubZ fnYyh] 4 ekpZ] 2014
dkñvkñ 993.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi&/kkjk ¼3½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vizSy] 2014 dks ml
rkjh[k ds :i esa fu;r djrh gS] ftudks mDr vf/kfu;e ds
v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½
v/;k;&5 vkSj 6 [/kkjk&76 dh mi/kkjk ¼1½ vkSj /kkjk 77] 78] 79
vkSj 81 ds flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k
jktLFkku jkT; ds fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%
Øe
jktLo xkao dk uke
gn cLr
rglhy dk
ftys dk
lañ
la[;k
uke
uke
1
2
3
4
5
1-
uhe dk Fkkuk
uhe dk Fkkuk
lhdj
2-
uhe dk Fkkuk xzkeh.k
uhe dk Fkkuk
lhdj
3-
ghjk uxj
uhe dk Fkkuk
lhdj
4-
cYyHknkl iqjk
uhe dk Fkkuk
lhdj
5-
[kknjk
uhe dk Fkkuk
lhdj
6-
xkaoMh
uhe dk Fkkuk
lhdj
7-
txrflag uxj
uhe dk Fkkuk
lhdj
8-
ekuiqjk
uhe dk Fkkuk
lhdj
9-
fueksn
uhe dk Fkkuk
lhdj
10-
egkok
uhe dk Fkkuk
lhdj
11-
Hkjkyk
uhe dk Fkkuk
lhdj
12-
cf.k;kyk
uhe dk Fkkuk
lhdj
13-
<k.kh pyk
uhe dk Fkkuk
lhdj
14-
xksMkokl
uhe dk Fkkuk
lhdj
15-
pd pkjkokl
uhe dk Fkkuk
lhdj
16-
ea<ksyh
uhe dk Fkkuk
lhdj
17-
ekdMh
uhe dk Fkkuk
lhdj
18-
';ke uxj
uhe dk Fkkuk
lhdj
19-
l<w dk okl
uhe dk Fkkuk
lhdj
20-
ukikokyh
uhe dk Fkkuk
lhdj
21-
pd e.Mksyh
uhe dk Fkkuk
lhdj
22-
pkj.kokl mQZ
uhe dk Fkkuk
lhdj
iqjkukokl
23-
dksVMk
uhe dk Fkkuk
lhdj
24-
dSjokyh
uhe dk Fkkuk
lhdj
25-
jktuxj
uhe dk Fkkuk
lhdj
26-
vkxokMh
uhe dk Fkkuk
lhdj
27-
dqjcMk
uhe dk Fkkuk
lhdj
28-
eky uxj
uhe dk Fkkuk
lhdj
29-
fljksgh
uhe dk Fkkuk
lhdj
30-
Hkwnksyh
uhe dk Fkkuk
lhdj
31-
c`flokl
uhe dk Fkkuk
lhdj
32-
jk.kklj
uhe dk Fkkuk
lhdj
33-
xksj/kuiqjk
uhe dk Fkkuk
lhdj
34-
Hkxsxk
uhe dk Fkkuk
lhdj
35-
Hkxsxk vkj ,l
uhe dk Fkkuk
lhdj
36-
u;k ckl
uhe dk Fkkuk
lhdj
37-
nsouxj
uhe dk Fkkuk
lhdj
[lañ ,l&38013@15@2014&,lñ,lñ 1]
iou dqekj] voj lfpo
New Delhi, the 4th March, 2014
S.O. 993.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the Ist April, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI [except Sub-section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force] of the said Act shall come into force in the following
areas in the State of Rajasthan namely:—
S.
Name of Revenue
Had Bast
Name of
Name of
No.
Village
Number
Tehsil
District
1
2
3
4
5
1.
Neem ka Thana
Neem ka Thana
Sikar
2.
Neem ka Thana
Neem ka Thana
Sikar
Grameen
3.
Heera Nagar
Neem ka Thana
Sikar
1
2
3
4
5
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % ekpZ 15] 2014@iQkYxqu 24] 1935
2593
4.
Ballabhdas Pura
Neem ka Thana
Sikar
5.
Khadra
Neem ka Thana
Sikar
6.
Gaori
Neem ka Thana
Sikar
7.
Jagatsingh Nagar
Neem ka Thana
Sikar
8.
Manpura
Neem ka Thana
Sikar
9.
Neemod
Neem ka Thana
Sikar
10.
Mahwa
Neem ka Thana
Sikar
11.
Bharala
Neem ka Thana
Sikar
12.
Baniyala
Neem ka Thana
Sikar
13.
Dhani Chala
Neem ka Thana
Sikar
14.
Godawas
Neem ka Thana
Sikar
15.
Chak Charawas
Neem ka Thana
Sikar
16.
Mandoli
Neem ka Thana
Sikar
17.
Makri
Neem ka Thana
Sikar
18.
Shyamnagar
Neem ka Thana
Sikar
19.
Seduka Bas
Neem ka Thana
Sikar
20.
Napawali
Neem ka Thana
Sikar
21.
Chak Mandoli
Neem ka Thana
Sikar
22.
Chanranwas@
Neem ka Thana
Sikar
Purana Bas
23.
Kotra
Neem ka Thana
Sikar
24.
Kairwali
Neem ka Thana
Sikar
25.
Rajnagar
Neem ka Thana
Sikar
26.
Agawari
Neem ka Thana
Sikar
27.
Kurbara
Neem ka Thana
Sikar
28.
Mal Nagar
Neem ka Thana
Sikar
29.
Sirohi
Neem ka Thana
Sikar
30.
Bhoodoli
Neem ka Thana
Sikar
31.
Bar Singh Was
Neem ka Thana
Sikar
32.
Ranasar
Neem ka Thana
Sikar
33.
Gordhan Pura
Neem ka Thana
Sikar
34.
Bhagega
Neem ka Thana
Sikar
35.
Bhagera RS
Neem ka Thana
Sikar
36.
Naya Bas
Neem ka Thana
Sikar
37.
Dev Nagar
Neem ka Thana
Sikar
[No. S-38013/15/2014-S.S. I]
PAWAN KUMAR, Under Secy.
ubZ fnYyh] 4 ekpZ] 2014
dkñvkñ 994.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk ¼3½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj ,rn~}kjk 01 vizSy] 2014 dks ml
rkjh[k ds :i esa fu;r djrh gS] ftldks mDr vf/kfu;e ds vèk;&4
¼44 o 45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½ v/;k;&5
vkSj 6 [/kkjk&76 dh mi/kkjk ¼1½ vkSj /kkjk&77] 78] 79 vkSj 81 ds
flok; tks igys gh izo`Ùk dh tk pqdh gS] ds mica/k rfeyukMq jkT; ds
fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%&
dsUnz
{ks= ds varxZr vkus okys fuEu jktLo xkao
ijeDdqMh dsUnz
ijeDdqMh rkyqd esa
ijeDdqMh rFkk
1- ijeDdqMh uxjikfydk lhek
by;adqMh rkyqd
2- deqnDdqMh
jkeukFkiqje rFkk
3- dkV~Vq ijeDdqMh
floxaxS ftyk
4- mjIiqyh
5- vfj;osany
6- eatwj
7- osarks.kh
8- iksnqoDdqMh
9- lwfM;wj
10- esyIikfrZcuwj
11- ,eusLoje
12- ,eñ dkouwj
13- ikEcwj
14- eatDdksYyS
by;adqMh rkyqd esa
15- dPpkÙk uYywj
[lañ ,l&38013@16@2014&,lñ,lñ 1]
iou dqekj] voj lfpo
New Delhi, the 4th March, 2014
S.O. 994.—In exercise of the powers conferred by
sub-section (3) of Section 1 of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st April, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI [except Sub-section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force] of the said Act shall come into force in the following
areas in the State of Tamil Nadu namely:—
Centre
Area Comprising the Revenue
Villages of
1
2
Paramakudi Centre,
1. Paramakudi Municipal Limit
Paramakudi &
2. Kamuthakudi
Ilayankudi Taluk,
3. Kattuparamakudi
Ramanathapuram &
4. Urappuli
Sivagangai District
5. Ariyanendal
1
2
3
4
5
2594
THE GAZETTE OF INDIA : MARCH 15, 2014/PHALGUNA 24, 1935
[PART II—SEC. 3(ii)]
6. Manjoor
7. Venthoni
8. Pothuvakudi
9. Soodiyur
10. Melaparthibanur
11. Emaneswaram,
12. S. Kavanoor
13. Pamboor
14. Manjakkollai in Paramakudi
Taluk
15. Katchathanallur in Ilayankudi
Taluk
[No. S-38013/16/2014-S.S.I]
PAWAN KUMAR, Under Secy.
ubZ fnYyh] 4 ekpZ] 2014
dkñvkñ 995.—deZpkjh jkT; chek vf/kfu;e] 1948
¼1948 dk 34½ dh /kkjk&1 dh mi /kkjk&¼3½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj ,rn}kjk 01 vizSy] 2014 dks ml
rkjh[k ds :i esa fu;r djrh gS] ftldks mDr vf/kfu;e ds
v/;k;&4 ¼44 o 45 /kkjk ds flok; tks igys ls izo`Ùk gks pqdh gS½
v/;k;&5 vkSj 6 ¹èkjk&76 dh mi /kjk&¼1½ vkSj /kkjk&77] 78] 79
vkSj 81 ds flok; tks igys gh izo`Ùk dh tk pqdh gSº ds mica/k
rfeyukMq jkT; ds fuEufyf[kr {ks=ksa esa izo`Ùk gksaxs] vFkkZr~%
dsUnz
{ks= ds varxZr vkus okys fuEu jktLo xkWao
fo:nquxj ftyk
jktiky;e rkyqd esa
esa fo:nquxj ds miuxj
1-
tehu dksYyaxks.Mku
2-
byafnjSdks.Mku
3-
jsxqukniqje
Jh fofYyiqÙkwj rkyqd esa
4-
fo"kqIiuwj
5-
v;u dfjlydqye
6-
iksUukM+dUuh
fo:nquxj rkyqd esa
7-
ewyhiV~Vh
8-
ukV~VkeZM+xye
9-
lsaM+dqUMªkiqje
flodklh rkyqd esa
10- iqnqDdksV~VS ,oa mlds mixzke lhrekuSdsuiV~Vh
11- dkyS;kjdqfjPph
12- dh"kkUejSukMq
ds varxZr vkus okys jktLo xkWaoA
[lañ ,l&38013@17@2014&,lñ,lñ 1]
iou dqekj] voj lfpo
New Delhi, the 4th March, 2014
S.O. 995.—In exercise of the powers conferred by
sub-section(3) of Section 1 of the Employees 'State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby appoints the 1st April, 2014 as the date on which
the provisions of Chapter IV (except Sections 44 and 45
which have already been brought into force) and Chapter-
V and VI [except sub-section (1) of Section 76 and Sections
77, 78, 79 and 81 which have already been brought into
force] of the said Act shall come into force in the following
areas in the State of Tamil Nadu namely:—
Centre
Area comprising the revenue villages of
Peripheral areas
Areas comprsing the
of Virudhunagar
Revenue Villages of
1.
Zamin Kollan Kondan
2.
Ilanthirai Kondan
3.
Regunathapuram
of Rajapalayam Taluk
4.
Villuppanur
5.
Ion Karishalkulam
6.
Ponnankanni
of Srivilliputhur Taluk
7.
Moolipatti
8.
Nattaramangalam
9.
Sengundrapuram
of Virudhunagar Taluk
10.
Pudhukottai
11.
Kalayarkurichi
12.
Keelanmarai Nadu
of Sivakasi Taluk
in Virudhunagar District
[No. S-38013/17/2014-S.S. I]
PAWAN KUMAR, Under Secy.
1
2
dsUnz
{ks= ds varxZr vkus okys fuEu jktLo xkWao
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.