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

(dk£ed vkSj izf'k{k.k foHkkx)

ubZ fnYyh] 31 ekpZ] 2014

dk-vk- 1168.—dsUnz ljdkj ,rn~}kjk naM izfØ;k lafgrk]

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

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] vfrfjDr ftyk ,ao l=k

U;k;k/h'k] yqf/;kuk iatkc esa fnYyh fo'ks"k iqfyl LFkkiuk (ds-v-

C;wjks) }kjk laLFkkfir ekeyk vkjlh 10(,l)@2002@lhchvkbZ@

,llh&II@ubZ fnYyh (ckck n'kZu flag ,oa vU;) rFkk blls lEc¼

;k blh laO;ogkj esa vU; ekeyksa esa mifLFkr gksus ds fy,

Jh ,p- ,l- vkscjkW;] vf/oDrk dks fo'ks"k yksd vfHk;kstd ds

:i esa fu;qDr djrh gSA

¹iQk- la- 225@6@2014&,ohMh&IIº

jktho tSu] voj lfpo

MINISTRY OF PERSONNEL, PUBLIC

GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 31st March, 2014

S.O. 1168.—In exercise of the powers conferred by

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

1443 GI/2014

(3001)

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- 15]

ubZ fnYyh, vizSy 6—vizSy 12] 2014] 'kfuokj@pS=k 16—pS=k 22] 1936

No. 15]

NEW DELHI, APRIL 6—APRIL 12, 2014, SATURDAY/CHAITRA 16—CHAITRA 22, 1936

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)

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

hereby appoints Shri H.S. Oberoi, Advocate as Special

Public Prosecutor for appearing in case RC (S)/2002/CBI/

SC-II/New Delhi (Baba Darshan Singh & others) instituted

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

Additional District & Sessions Judge, Ludhiana Punjab

and other matter connected therewith and incidental

thereto.

[F. No. 225/6/2014-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 28 ekpZ] 2014

dk-vk- 1169-—vka/z izns'k iquxZBu vf/fu;e] 2014 (2014

dk 6) dh /kjk 80 dh mi&/kjk (1) }kjk iznRr 'kfDr;ksa dk iz;ksx

djrs gq, dsanz ljdkj ,rn~}kjk fuEufyf[kr vf/dkfj;ksa dh ,d

lykgdkj lfefr dk xBu djrh gS%

1- Jh izR;w"k flUgk] v-Hkk-ls- (ch,p% 69)

vè;{k

2- eq[; lfpo] vkU/z izns'k ljdkj

lnL;

3- fo'ks"k lfpo (vkarfjd lqj{kk)]

x`g ea=kky;] ubZ fnYyh

lnL;

3002

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

4- egkfujh{kd (ou)&lg&fo'ks"k lfpo]

i;kZoj.k ,oa ou ea=kky;] ubZ fnYyh

lnL;

5- vij lfpo (lsok ,oa lrdZrk)]

dkfeZd vkSj izf'k{k.k foHkkx] ubZ fnYyh

lnL;&lfpo

2- lfefr ds fopkjkFkZ fuEufyf[kr fo"k; gksaxs %&

(i) bl vf/lwpuk dh frfFk ds ,d lIrkg ds Hkhrj lfefr

}kjk fu/kZfjr mn~ns';ksa vkSj ikjn'khZ fl¼krksa ds vk/kj ij nks ijorhZ

jkT;ksa uker% vka/z izns'k vkSj rsyaxkuk dh rhuksa vf[ky Hkkjrh;

lsokvksa (vHkkls) vFkkZr~ Hkk-iz-ls-] Hkk-iq-ls- ,oa Hkk-o-ls- ds laoxZ

cy ds fu/kZj.k ls lacaf/r leqfpr fliQkfj'ksa djukA

(ii) laoxZ cy vkSj fl¼karksa ds fu/kZj.k ds lanHkZ esa] bldks

rhuksa v-Hkk-ls- dh lacaf/r osclkbV ij viyksM djus ds ,d

lIrkg dh vof/ esa vkSj mlds i'pkr~] i.k/kjh (i.k/kfj;ksa) }kjk

fn, x, fdlh vkosnu (izfrosnuksa)@[email protected];ksa ij fopkj

djuk ,oa viuk er j[kuk vkSj mlds ckn ,d lIrkg dh vof/

ds Hkhrj bu izfrosnuksa ds ekè;e ls mBk, x, eqíksa ds laca/ esa

mfpr fliQkfj'ksa djukA

(iii) bl vf/lwpuk dh frfFk ls rhu lIrkg ds Hkhrj nks

ijorhZ jkT;ksa uker% vka/z izns'k vkSj rsyaxkuk ds chp vka/z izns'k ds

orZeku laoxZ ds rhuksa vf[ky Hkkjrh; lsokvksa vFkkZr~ Hkk-iz-ls-]

Hkk-iq-ls- ,oa Hkk-o-ls- ds vf/dkfj;ksa ds [email protected] gsrq mn~ns';

,oa ikjn'khZ ekunaMksa dh fliQkfj'k djukA

(iv) mi;qZDr fcanq la[;k (ii) esa mfYyf[kr vuqlkj laoxZ

cy ds fu/kZj.k ds vuqeksnu ds rRdky ckn vFkok mi;qZDr fcanq

la[;k (iii) esa mfYyf[kr vuqlkj l{ke izkf/dkjh }kjk

[email protected] gsrq ekunaMksa ds vuqeksnu ds i'pkr] tks Hkh ckn esa

gks] orZeku vka/z izns'k jkT; ls xfBr gksus oky ijorhZ jkT;ksa uker%

vka/z izns'k vkSj rsyaxkuk gsrq mi;qZDr iSjk (ii) esa mfYyf[kr

vuqlkj lfefr dh vafre fliQkfj'k ds vuqlkj l{ke izkf/dkjh

}kjk vuqeksfnr vuqlkj rhuksa vf[ky Hkkjrh; lsokvksa ds dqy

izkfèkd`r cy dks lh/h HkrhZ dksVk vkSj inksUufr dksVk&okj_ lkekU;]

vU; fiNM+k oxZ] vuqlwfpr tkfr vkSj vuqlwfpr tutkfr&okj

rFkk vkarfjd ,oa ckâ; oxZ&okj iqu% foHkkftr djukA

(v) mi;qZDr fcanq la[;k (iv) esa mfYyf[kr vuqlkj

izkf/d`r laoxZ cy ds iqufoZHkktu ds iwjk gksus ds ,d lIrkg ds

Hkhrj l{ke izkf/dkjh }kjk vuqeksfnr vkoaVu ekunaMksa ds vuqlkj

v-Hkk-ls- ds vf/dkfj;ksa gsrq fof'k"V O;fDrxr [email protected] dh

fliQkfj'k djukA

(vi) mi;qZDr fcanq la[;k (v) esa mfYyf[kr vuqlkj

O;fDrxr [email protected] ds laca/ esa lHkh ds fy, fu"i{k ,oa ,d

tSlk crkZo lqfuf'pr djus ds fy, izfrosnu vkeaf=kr djrs gq, bls

,d lIrkg rd vf[ky Hkkjrh; lsok ds lacaf/r laoxZ fu;a=k.k

izkf/dkjh dh osclkbV ij viyksM djus ds i'pkr~ bl laca/ esa

fdlh vf[ky Hkkjrh; lsok vf/dkjh (vf/dkfj;ksa)] tks blls

izHkkfor gS@gSa] }kjk fd, x, fdlh izfrosnu (izfrosnuksa) ij i.kèkkfj;ksa

ls izfrosnu izkfIr dh vafre rkjh[k ls ,d lIrkg ds Hkhrj mfpr

fliQkfj'ksa] ;fn dksbZ gksa] djukA

¹iQk- la- 13013@1@2013&,vkbZ,l&(I)º

ih-ds- nkl] la;qDr lfpo

New Delhi, the 28th March, 2014

S.O. 1169.—In exercise of the powers conferred by

sub-section (l) of Section 80 of Andhra Pradesh Re-

organization Act, 2014 (6 of 2014), the Central Government

hereby constitutes an Advisory Committee comprising of

the following:

Shri Pratyush Sinha, IAS (BH:69)

Chairman

Chief Secretary, Govt. of Andhra

Pradesh

Member

Special Secretary (IS), MHA,

New Delhi

Member

IG (Forests)-cum-SS, MoE&F,

New Delhi

Member

Additional Secretary (Services

& Vigilance), DOPT,

New Delhi.

Member-Secretary

2. The terms of reference for the Committee would be

as follows :-

(i) To make suitable recommendations regarding

determination of the cadre strength of the three All India

Service (AIS), namely, IAS, IPS & IFOS of the two successor

States namely Andhra Pradesh and Telangana on the basis

of objective and transparent principles to be evolved by

the Committee within one week from the date of this

notification.

(ii) To consider and take a view on any representation

(s)/comment(s) made by the stakeholder(s) with reference

to such determination of cadre strength and principles,

after the same is placed on the respective website of the

three AIS for period of one week and thereafter make

suitable recommendations regarding the issues that any

may be raised through these representations, within a perod

of one week.

(iii) To recommend objective and transparent criteria

for the allocation/distribution of personnel belonging to

the three All India Services, i.e. IAS, IPS & IFoS & borne

on the existing cadre of Andhra Pradesh between the two

successor States namely Andhara Pradesh and Telangana

within three weeks from the date of this notification.

(iv) To further subdivide the total authorized strength

of the three All India Services as approved by the

Competent Authority after final recommendation of the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3003

Committee as mentioned at Para (ii) above, into Direct

Recruitment Quota and Promotion Quota wise; Unreserved,

OBC, SC and ST wise and Insider and Outsider wise for the

two successor States namely Andhra Pradesh and

Telangana arising out of the existing State of Andhara

Pradesh immediately after approval of the determination of

cadre strength, as mentioned at Point No. (ii) above or

approval of the criterion for allocation/distribution by the

Competent Authority, as mentioned at Point No. (iii) above,

whichever is later.

(v) To recommend specific individual allocation/

distribution of AIS officers in accordance with the allocation

guidelines as approved by the competent authoirty, within

one week after completion of the further sub-division of

authoirzed cadre strength, as mentioned at Point No. (iv)

above.

(vi) To consider any representation(s) made by an

All India Service Officer (s) who is/are affected by such

recommendation regarding individual allocation/

distribution, as mentioned at point No. (v) above after the

same is placed in the websites of the respective Cadre

Controlling Authority of AIS, for one week, inviting

representations, in order to ensure a fair and equitable

treatment to all and make appropriate recommendations, if

any, within one week from the closure of accepting

representations from stakeholders.

[F. No. 13013/1/2013-AIS(I)]

P.K. DAS, Jt. Secy.

ubZ fnYyh] 31 ekpZ] 2014

dk-vk- 1170-—dsUnz ljdkj ,rn~}kjk naM izfØ;k lafgrk]

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

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] lqJh rjUuqe phek] vf/

oDrk dks vkjlh- 7(,l)@2005&,llhch&II@Mh,yvkbZ] vkjlh-

8(,l)@2005@,llhch&II@Mh,yvkbZ

,oa

vkjlh

25(,l)@2005@,llh;w @,llhvkj-I @Mh,yvkbZ (¶ds-v- C;wjks cuke

lTtu dqekj ,oa vU;¸] lesfdr vkjksi&i=k) ,oa blls lEcfU/r

o vuq"kkafxd ekeyksa ,oa blls mRiUu vihyksa@iqujh{k.kksa rFkk blls

lEc¼ ;k blh laO;ogkj esa vU; ekeyksa dk lapkyu djus ds fy,

fo'ks"k yksd vfHk;kstd fu;qDr djrh gSA

¹iQk- la- 225@53@2013&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 31st March, 2014

S.O. 1170.—In exercise of the powers conferred by

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

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

hereby appoints Ms Tarannum Cheema, Advocate as

Special Public Prosecutor for conducting prosecution of

RC 7(S)/2005-SCB-II/DLI, RC 8 (S)/2005/SCB-II/DLI & RC

25(S)/2005/SCU.I/SCR.I/DLI (Consolidated Chargesheet,

"CBI Vs Sajjan Kumar and others") in the trial court of

Delhi instituted by the Delhi Special Police Establishment

(C.B.I.) and appeals/revisions or other matters connected

therewith and incidental thereto.

[F. No. 225/53/2013-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 26 ekpZ] 2014

dk-vk- 1171-—dsUnz ljdkj vkijkf/d izfØ;k lafgrk]

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

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Jh jkds'k dqekj [kUuk]

vfrfjDr lkWyhflVj tujy dks fnYyh gkbZdksVZ esa] fnYyh fo'ks"k

iqfyl laLFkkiu (lh-ch-vkbZ) }kjk laLFkkfir] lhchvkbZ dsl vkjlh

4 (,l)@1987&,llh;w&I@ubZ fnYyh ls mn~Hkwr fØfeuy fjohtu

isVh'ku 651@2010] 95@2012] 120@2012 rFkk 268@2012 (,-ds-

ttksfn;k ,oa vU; ds fo:¼ 'kkldh; xksiuh; vf/fu;e ekeyk)

,oa blls lacaf/r o vkuq"kkafxd fdUgh vU; ekeyksa esa] fopkj.k ds

fy,] fo'ks"k yksd vfHk;kstd fu;qDr djrh gSA

¹iQk- la- 225@7@2014&,ohMh&IIº

jktho tSu] voj lfpo

New Delhi, the 26th March, 2014

S.O. 1171.—In exercise of the powers conferred by

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

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

hereby appoints Shri Rakesh Kumar Khanna, Additional

Solicitor General as Special Public Prosecutor for appearing

in Criminal Revision Petitions 651/2010, 95/2012, 120/2012

and 268/2012 arising out of CBI case RC 4 (S)/1987-SCU-I/

New Delhi (Official Secret Act case against A.K. Jojodia &

Others) instituted by the Delhi Special Police Establishment

(C.B.I.) in the Delhi High Court at Delhi and other matters

connected therewith and incidental thereto.

[F. No. 225/7/2014-AVD-II]

RAJIV JAIN, Under Secy.

ubZ fnYyh] 2 vizSy] 2014

dk-vk- 1172-—thou chek fuxe vf/fu;e 1956 (1956

dk 31) dh /kjk 4 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh;

ljdkj] ,rn~}kjk] Jh xqjn;ky flag la/w] lfpo] foRrh; lsok,a

foHkkx dks Jh jktho VdjQ ds LFkku ij rRdky izHkko ls vkSj

vxys vkns'kksa rd mDr fuxe ds lnL; ds :i esa fu;qDr djrh

gSA

¹iQk- la- 14@3@2003&chek&IVº

fiz;k dqekj] funs'kd (chek)

3004

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

New Delhi, the 2nd April, 2014

S.O. 1172.—In exercise of the powers conferred by

Section 4 of the Life Insurance Corporation Act, 1956 (31 of

1956), the Central Government hereby appoints Shri Gurdial

Singh Sandhu, Secretary, Department of Financial Services

as Member of the said Corporation vice Shri Rajiv Takru,

with immediate effect till further orders.

[F. No. 14/3/2003-Ins. IV]

PRIYA KUMAR, Director (Insurance)

foÙk ea=kky;

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 27 ekpZ] 2014

dk-vk- 1173-—Hkkjrh; fu;kZr&vk;kr cSad vf/fu;e]

1981 (1981 dk 28) dh /kjk 6 dh mi/kjk (1) ds [kaM (Ä)

ds mi[kaM (i) }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh;

ljdkj] ,rn~}kjk] Jh vferkHk dkar] lfpo] vkS|kfxd uhfr ,oa

lao/Zu foHkkx] okf.kT; ,oa m|ksx ea=kky;] dks vxys vkns'k gksus

rd Jh lkSjHk pUnz ds LFkku ij Hkkjrh; fu;kZr&vk;kr cSad (,fDte

cSad) ds funs'kd e.My esa funs'kd ds :i esa ukfer djrh gSaA

¹iQk- la- 24@27@2002&vkbZ,iQ&Iº

v'kksd vxzoky] voj lfpo

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 27th March, 2014

S.O. 1173.—In pursuance of the powers

conferred by Sub-Clause (i) of Clause (e) of sub-section (1)

of Section 6 of the Export Import Bank of India Act, 1981

(28 of 1981), the Central Government hereby nominates

Shri Amitabh Kant, Secretary, Department of Industrial

Policy and Promotion, Ministry of Commerce and Industry,

as Director on the Board of Directors of Export Import Bank

of India (Exim Bank) vice Shri Saurabh Chandra until further

orders.

[F. No. 24/27/2002-IF-I]

ASHOK AGGARWAL, Under Secy.

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

(miHkksDrk ekeys foHkkx)

(Hkkjrh; ekud C;wjks)

ubZ fnYyh] 4 iQjojh] 2014

dk-vk- 1174-—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e

7 ds mifu;e (1) ds [kaM ds vuqlj.k esa ,rn~}kjk vf/lwfpr

fd;k tkrk gS fd ftu Hkkjrh; ekudksa ds fooj.k uhps vuqlwph esa

fn;s x;s gSa os jí dj fn, x, gSa vkSj okil ys fy, x;s gSa %

vuqlwph

Ø-

okil fy;s x,

Hkkjr ds jkti=k

fVIi.kh

la-

ekud(dksa) dh

Hkkx 2] [kaM 3]

la[;k vkSj o"kZ

mi[kaM (ii) esa

dk-vk- la[;k

vkSj frfFk izdkf'kr

(1)

(2)

(3)

(4)

vkbZ ,l 7013%

2147]

lfefr us cSBd esa

1981

18&05&1985

fu.kZ; fy;k gS fd

jsfM;ks MkW;y ySEi

vflRkRo esa ugha gS

¹lanHkZ bZVh 23@Vh-15º

vkj-lh- eSF;w] oSKkfud ^,iQ* ,oa izeq[k (fo|qr rduhdh)

MINISTRY OF CONSUMER AFFAIRS, FOOD AND

PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

(BUREAU OF INDIAN STANDARDS)

New Delhi, the 4th February, 2014

S.O. 1174 .—In pursuance of clause (b) of sub-

rule (1) of Rules (1) of Rule 7 of the Bureau of Indian

Standards Rules, it is hereby notified that the Indian

Standards, particulars of which are mentioned in the

Schedule give hereafter, have been cancelled and stand

withdrawn.

SCHEDULE

Sl.

No. & Year

S O No. & Date

Remarks

No. of the Indian

published in the

Standard

Gazette of India

Withdrawn

Part-II, Section-1,

Sub-section (ii)

(1)

(2)

(3)

(4)

IS 7013: 1981

2147 dt.

Committee

Radio dial

18-05-1985

decided in the

lamps (First

meeting that as

revision)

the use of Radio

dial lamps no

longer exists.

[Ref. ET 23/T-15]

R. C. MATHEW, Scientist ‘F’ & Head (Electrotechnical)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3005

ubZ fnYyh] 15 ekpZ] 2014

dk-vk- 1175-—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e (1) ds [kaM ([k) ds vuqlj.k esa Hkkjrh; ekud

C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu Hkkjrh; ekudksa ds fooj.k uhps vuqlwph esa fn, x, gSa os LFkkfir gks x;s gSaA

vuqlwph

Øe

LFkkfir Hkkjrh; ekud (dksa)

LFkkfir frfFk

Hkkjrh; ekud (dksa) tks

jí gksus dh frfFk

la-

dh la[;k o"kZ vkSj

fd jí gksus gSa] vxj gS]

'kh"kZd

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

(1)

(2)

(3)

(4)

(5)

vkbZ ,l 1161 % 2014&bl~ikr

15 ekpZ 2014

vkbZ ,l 1161 % 1998 bLikr

15 ekpZ 2014

ufydk,a lajpukr~ed mi;ksxksa

ufydk,a ljapukRed mi;ksxksa

ds fy;s&fof'kf"V (ikapoka iqujh{k.k)

ds fy,&fof'kf"V (pkSFkk iqujh{k.k)

vkbZ ,l@vkbZ ,l vks 1701&2% 2004

15 ekpZ 2014

vkbZ ,l 2200 (Hkkx 3)% 2002@

15 ekpZ 2014

ifjorhZ m¡QpkbZ okyh Vscy fefyax

vkbZ ,l vks 1701&3%2004 ifjorhZ

e'khuksa dh ijh{k.k 'krsZa ifj'kq¼rk

mapkbZ okyh Vscy fefyax e'khuksa dh

gsrq ijh{k.k Hkkx 2 m/Z~ok/j rdqZ okyh

ijh{k.k 'krsZa ifj'kq¼rk gsrq ijh{k.k

e'khusa

Hkkx 3 m/Z~ok/j rdqZ okyh e'khusa

vkbZ,l 3196 (Hkkx 1)% 2013 vYi

15 ekpZ 2014

vkbZ,l 3196 (Hkkx 1)% 2013 vy~i

15 ekpZ 2014

nkc nzo.kh; xSlksa ds fy, 5 fyVj ls

nko nzo.kh; xSlksa ds fy, 5 fyVj ls

vf/d ty {kerk okys csfYMr vy~i

dkcZu bl~ikr ds flfyaMj

Hkkx 1 nzfor

iSVªksfy;e xSl ,yihth ds fy;s flfyaMj

&fof'kf"V (NBk iqujh{k.k)

&fof'kf"V (ikapoka iqujh{k.k)

vkbZ ,l 3406 (Hkkx 2) % 2014

15 ekpZ 2014

vkbZ ,l 3406 (Hkkx 2) % 2014

15 ekpZ 2014

dkmaVjfld ,oa dkmaVjcksj ds vk;ke

Hkkx 2 dkmaVjcksj (rhljk iqujh{k.k)

Hkkx 2 dkmaVjcksj (nwljk iqujh{k.k)

vkbZ ,l 4081 % 2013 c~ykfLVax vkSj

15 ekpZ 2014

vkbZ ,l 4081 % 2013 c~ykfLVax vkSj

15 ekpZ 2014

lacaf/r fMªfyax dk;Z&lqj{kk lafgrk

(nwljk iqujh{k.k)

(igyk iqujh{k.k)

vkbZ ,l 5916% 2013 xeZ fcVqfeul

15 ekpZ 2014

vkbZ ,l 5916% 1970 xeZ fcVqfeul

15 ekpZ 2014

lkexzh dks iz;qd~r dj fuekZ.k& lqj{kk

lkexzh dks iz;qd~r dj fuekZ.k djus

lafgrk (igyk iqujh{k.k)

ds fy, lqj{kk lafgrk

vkbZ ,l 6255 % 2013 csyukdkj 'kSad

15 ekpZ 2014

vkbZ ,l 6255 % 2013 csyukdkj 'kSad

15 ekpZ 2014

;qd~r MksohVsy dVlZ vkSj izrho

(buolZ) MksohVsy dVlZ

(rhljk iqujh{k.k)

(nwljk iqujh{k.k)

vkbZ ,l 14872 (Hkkx 1) % 2014

15 ekpZ 2014

vkbZ ,l 14872 (Hkkx 1) % 2014

15 ekpZ 2014

vkbZ ,l vks 1&3408 2006 % cky LØw

vkbZ ,l vks 1991% 1&3408 % cky LØw

Hkkx 1 ikfjHkkf"kd 'kc~nkoyh vkSj

vfHkuke (igyk iqujh{k.k)

vfHkuke

3006

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

vkbZ ,l 14872 (Hkkx 3) % 201@3

15 ekpZ 2014

vkbZ ,l 14872 (Hkkx 3) % 201@3

15 ekpZ 2014

vkbZ ,l vks 3408&3% 2006 cky l~Øw

vkbZ ,l vks 3408&3% 1992 cky l~Øw

Hkkx 3 l~ohdj.k fLFkfr;ka vkSj Lohdj.k

ijh{k.k (igyk iqujh{k.k)

ijh{k.k

10-

vkbZ ,l 15248 (Hkkx 1) % 2013

15 ekpZ 2014

vkbZ ,l 15248 %2002@vkbZ ,l vks

15 ekpZ 2014

e'khu vkStkj& nks ihl ds tkW okyh

3442 % 1991 Hkkjrh; ekud e'khu

l~or dsfUnzr pdksa ds vk;ke rFkk

Vwy~l ds fy, nks& ihl tcM+ksa

t~;kferh; ijh{k.k Hkkx 1 thHk ,oa

okyh l~or % dsu~nz.k okyh pd (Vax

[kkWp izdkj ds tcM+ksa okyh

o xzqo VkbZi)&vu~rfoZfue; ;ksx~;

gl~rpkfyr pdsa Hkkx 1 thHk ,oa

eki rFkk Lk~ohdj.k ijh{k.k

[kkWp izdkj ds tcM+ksa okyh

fof'kf"V;ka

gl~rpkfyr pdsa

11-

vkbZ ,l 15248 (Hkkx 2) % 2013

15 ekpZ 2014

e'khu vkStkj& nks ihl ds tkW okyh

l~or dsfUnzr pdksa ds vk;ke rFkk

& &

t~;kferh; ijh{k.k Hkkx 2 thHk ,oa

[kkWp izdkj ds tcM+ksa okyh ikoj

pkfyr pdsa Hkkx 2 thHk ,oa [kkWp

izdkj ds tcM+ksa okyh ikoj pkfyr pdsa

12-

vkbZ ,l 15248 (Hkkx 3) % 2013

15 ekpZ 2014

e'khu vkStkj& nks ihl ds tkW okyh

l~or dsfUnzr pdksa ds vk;ke rFkk

& &

t~;kferh; ijh{k.k Hkkx 3 Ødkfpr

(lsjsVsM)&tcM+ksa okyh ikoj pkfyr

pdsa

13-

vkbZ ,l 15883 (Hkkx 5) % 2013

15 ekpZ 2014

fuekZ.k ifj;kstuk izc/au&fn'kk&

funsZ'k Hkkx 5 l~okl~Fk~; o lqj{kk

& &

izc/au

14-

vkbZ ,l 15975 % 2013 xSl flfyaMj

15 ekpZ 2014

vkbZ ,l 8866 % 1978 xSl flfyaMj

15 ekpZ 2014

&xSl flfyaMjksa dh HkjkbZ dh vol~Fkk,a

esa Hkjh mp~p nkc mo.kh; xSlksa gsrq

Hkj.k vuqikr vkSj laxr mr~iu~u nkc

vkbZ ,l 8867 % 1978 xSl flfyaMj

esa Hkjh fue~u nkc mo.kh; xSlksa gsrq

lar`i~r ok"k~i nkc vkSj ijh{k.k nkc

vkbZ ,l 8868 % 1988 iz;ksx fd, tk

jgs xSl flfyUk~Mjksa ds vkof/d

fujhf{k.k vu~rjky

15-

vkbZ ,l 16054 %2013 vkof/d

31 ekpZ 2014

fujh{k.k ,oa ijh{k.k& nzfor

iSVªksfy;e xSl ,yihth ds fy, 5&

& &

fyVj ls vf/d ty {kerk okys

osfYMr vy~i dkcZu bl~ikr ds

flafyaMj& jhfr lafgrk

(1)

(2)

(3)

(4)

(5)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3007

16-

vkbZ ,l 16059 % 2013 Bksl

15 ekpZ 2014

dkckZbM lekarj 'kSad ,safBr cjek

& &

tkWcj J`a[kyk&fof'kf"V

17-

vkbZ ,l 16060 % 2013 Bksl

15 ekpZ 2014

dkckZbM lekarj 'kSad ,safBr cjek

& &

l~Vc J`a[kyk&fof'kf"V

18-

vkbZ ,l 16136 % 2013 Bksl

15 ekpZ 2014

dkckZbM lrr lekukarj 'kSad

& &

okys ,.M fey&fof'kf"V

19-

vkbZ ,l@vkbZ ,l vks@ Vh ,l

15 ekpZ 2014

800004&4 % 2011

& &

uSuksizkS|ksfxdh 'kc~nkoyh Hkkx

uSuksl~Vªd~pMZ lkefxz;ka

bl Hkkjrh; ekud dh izfr;ka Hkkjrh; ekud C;wjks] ekud Hkou] 9] cgknqj'kkg tiQj ekxZ] ubZ fnYyh 110002 {ks=kh; dk;kZy;ksa% ubZ fnYyh]

dksydrk] p.Mhx<+] psUubZ] eqEcbZ] rFkk 'kk[kk dk;kZy;ksa % vgenkckn] caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn] t;iqj]

dkuiqj] ukxiqj] iVuk] iw.ks rFkk fr:oUkUrkiqje esa fcØh gsrq miyC/ gSaA Hkkjrh; ekudksa dks http://www.standardsbis.in }kjk baVjuSV ij

[kjhnk tk ldrk gSA

¹lanHkZ ih;wch@th,u&1º

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

New Delhi, the 15th March, 2014

S.O. 1175 .—In pursuance of Clause (b) of sub-rule (1) of Rules 7 of the Bureau of Indian Standards Rules, 1987, the

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

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

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

date indicated against them in the fifth column.

SCHEDULE

Sl.

No. & Year of the

Date of

No. & Year of the Indian

Date of

No.

Indian Standards

Establishment

Standards to be cancelled,

cancellation

Established

if any

(1)

(2)

(3)

(4)

(5)

IS 1161 : 2014 Steel Tubes for

15 March 2014

IS 1161: 1998 Steel Tubes for

15 March 2014

Structural Purposes- Specification

(Fifth Revision)

(Fourth Revision)

IS/ISO 1701-2 : 2004 Test

15 March 2014

IS 2200 (Part 3) : 2002/ISO 1701-3 :

15 March 2014

Conditions for Milling Machines

1997 Test conditions for milling

with table of variable height-

machines with table of variable

Testing of Accuracy Part 2 Machines

height-Testing of accuracy Part 3

with vertical spindle

Machines with vertical spindle

(1)

(2)

(3)

(4)

(5)

3008

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

IS 3196 (Part 1) : 2013 Welded Low

15 March 2014

IS 3196 (Part 1) : 2006 Welded Low

15 March 2014

Carbon Steel Cylinders Exceeding

5 Liters Water Capacity for Low

Pressure Liquefiable Gases Part 1

Cylinders for Liquefied Petroleum

Gases (LPG)- Specification (Sixth

Gased (LPG)- Specification (Fifth

Revision)

IS 3406 (Part 2) : 2014 Dimensions

15 March 2014

IS 3406 (Part 2) : 1986 Dimensions

15 March 2014

for countersinks and counterbores

Part 2 Counterbores (Third

Part 2 Counterbores (Second

Revision)

IS 4081 : 2013 Blasting and Related

15 March 2014

IS 4081 : 1986 Safety code for

15 March 2014

Drilling Operations-Code of Safety

blasting and related drilling

(Second Revision)

operations (First Revision)

IS 5916 : 2013 Constructions

15 March 2014

IS 5916 : 1970 Safety code for

15 March 2014

involving Use of Hot Bituminous

construction involving use of hot

Materials- Code of Safety (First

bituminous meterials

Revision)

IS 6255 : 2013 Inverse dovetail

15 March 2014

IS 6255 : 1995 Inverse dove-tail

15 March 2014

cutters and dovetail cutters with

and dove-tail milling cutters-

Cylindrical shank (Third Revision)

Specification (Second Revision)

IS 14872 (Part 1) : 2014/ISO 3408-1 :

15 March 2014

IS 14872 (Part 1) : 2000/ISO 3408-1 :

15 March 2014

2006 Ball Screws-Part 1 Vocabulary

1991 Ball Screws-Part 1 Vocabulary

and designation (First Revision)

and designation

IS 14872 (Part 3) : 2013/ISO 3408-3 :

15 March 2014

IS 14872 (Part 3) : 2000/ISO 3408-3 :

15 March 2014

2006 Ball screws-Part 3 : Acceptance

1992 Ball screws-Part 3 : Acceptance

conditions and acceptence Tests

(First Revision)

10.

IS 15248 (Part 1) : 2013/ISO 3442-1 :

15 March 2014

IS 15248 : 2002/ISO 3442 : 1991 Self- 15 March 2014

2005 Machine tools-Dimensions

centring chucks for machine tools

and geometric tests for self-

with two-piece jaws (tounge and

centring chucks with two-piece

groove type)- Sizes for interchange-

jaws Part 1 Manually operated

ability and acceptance test

chucks with Tongue and Groove

specification

type jaws

11.

IS 15248 (Part 2) : 2013/ISO 3442-

15 March 2014

2 : 2005 Machine tools-Dimensions

- - -

and geometric tests for self- centring

chucks with two-piece jaws Part 2

Power-operated chucks with

Tongue and Groove type jaws

12.

IS 15248 (Part 3) : 2013/ISO 3442-

15 March 2014

3 : 2007 Machine tools-Dimensions

- - -

and geometric test for self- centring

chucks with two-piece jaws Part 3

Power-operated chucks with

serrated jaws

(1)

(2)

(3)

(4)

(5)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3009

13.

IS 15883(Part 5) : 2013 Construction

15 March 2014

Project Management- Guidelines :

- - -

Part 5 Health and Safety

Management

14.

IS 15975 : 2013 Gas Cylinders-

15 March 2014

IS 8866 : 1978 Filling ratios and

15 March 2014

Conditions for Filling Gas

corresponding developed

Cylinders

pressure for high pressure

liquefiable gases contained in

gas cylinder IS 8867 : 1978 Saturated

vapour pressure and test pressure

for low pressure liquefiable gases

contained in gas cylinders IS 8868 :

1988 Periodical inspection interval

of gas cylinders in use

15.

IS 16054 : 2013 Periodic

31 March 2014

- - -

31 March 2014

Inspection and Testing-Welded

Low Carbon Steel Cylinders

Exceeding 5- Liter Water Capacity

for Liquified Petroleum

Gas (LPG)- Code of Practice

16.

IS 16059 : 2013 Solid carbide

15 March 2014

parallel shank twist drills jobber

- - -

series-Specification

17.

IS 16060 : 2013 Solid carbide

15 March 2014

parallel shank twist drills

- - -

series-Specification

18.

IS 16136 : 2013 Indian standard

15 March 2014

Solid carbide end mills with

- - -

continuous parallel shank

Specification

19.

IS /ISO/TS 80004-4 : 2011

15 March 2014

Nanotechnologies-

- - -

Vocabulary Part 4

Nanostructured Materials

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

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

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

Pune, Kochi.

[Ref. PUB/GN-1]

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

(1)

(2)

(3)

(4)

(5)

fof/ ,oa U;k; ea=kky;

(U;k; foHkkx)

ubZ fnYyh] 11 ekpZ] 2014

dk-vk- 1176-—jk"Vªifr] Hkkjr ds lafo/ku ds vuqPNsn 222

ds [kaM (2) ds vuqlj.k esa fuEufyf[kr vkns'k djrs gSa] uker% %&

fgekpy izns'k mPp U;k;ky; ds eq[; U;k;k/h'k]

Jh U;k;ewfrZ vt; ekfudjko [kkufoydj (ih ,p lh % cEcbZ)

ftUgsa eè; izns'k mPp U;k;ky; esa LFkkukarfjr fd;k x;k gS] viuh

lsok dh ml vof/ ds fy, tc og vius ewy mPp U;k;ky; ls

ckgj eè; izns'k ds eq[; U;k;k/h'k ds :i esa viuh lsok,a iznku

djsaxs] vius osru ds vfrfjDr] 9000 jQ- (ukS gtkj jQi, ek=k)

izfrekg dk izfriwjd HkÙkk izkIr djus ds ik=k gksaxsA

¹la- ds- 11017@7@2012&;w ,l-Iº

izoh.k xxZ] la;qDr lfpo

3010

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

MINISTRY OF LAW AND JUSTICE

(Department of Justice)

New Delhi, the 11th March, 2014

S.O. 1176 .—In pursuance of Clause (2) of Article

222 of the Constitution of India, the President hereby makes

the following order namely:

Shri Justice Ajay Manikrao Khanwilkar (PHC :

Bombay), Chief Justice, Himachal Pradesh High Court who

has been transferred to Madhya Pradesh High Court, shall

be entitled to receive, in addition to his salary, a

compensatory allowance of Rs. 9000 (Rs. Nine thousand

only) per month, for the period of his service when he

performs his duties as Chief Justice, Madhya Pradesh High

Court outside of his parent High Court.

[No. K. 11017/7/2012-US.I]

PRAVEEN GARG, Jt. Secy.

LokLF; ,oa ifjokj dY;k.k ea=kky;

(LokLF; ,oa ifjokj dY;k.k foHkkx)

ubZ fnYyh] 2 vizSy] 2014

dk-vk- 1177-—tcfd Hkkjrh; fpfdRlk ifj"kn_ la'kks/u

vè;kns'k] 2013 dh /kjk 3d dh mi/kjk (1) }kjk iznRr '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/fu;e] 1956 (1956 dk 102) dh /kjk 3 dh mi/kjk (1) ds

[kaM (x) ds vuqlj.k esa iathd`r vk;qfoZKku Lukrd fuokZpu {ks=kksa

ls lnL;ksa dk fuokZpu fd;k vkSj fuEufyf[kr O;fDr dks bl

vfèklwpuk ds tkjh gksus dh frfFk ls pkj o"kksZa ds fy, Hkkjrh;

vk;qfoZKku ifj"kn ds lnL; ds :i esa fuokZfpr fd;k x;k gSA

vr% vc mDr vf/fu;e dh /kjk 3 dh mi/kjk (1) ds

mica/ ds vuqlj.k esa dsUnz ljdkj }kjk Hkkjr ljdkj ds rRdkyhu

LokLF; ea=kky; dh fnukad 9 tuojh] 1960 dh vf/lwpuk la[;k

dk-vk- 138 esa fuEufyf[kr la'kks/u fd, tkrs gSa_ vFkkZr~ %

Hkkjr ljdkj] LokLF; ,oa ifjokj dY;k.k ea=kky; dh

fnukad 06 uoacj] 2013 dh vf/lwpuk la[;k dk-vk- 3324 (v)

esa vafre izfof"V rFkk rRlaca/h izfof"V esa fuEufyf[kr dks tksM+k

tk,xk] vFkkZr~ %

Ø- iathd`r fpfdRlk fuokZfpr lnL;

fuokZpu dh

la- Lrkud fuokZfpr

dk fooj.k

izfØ;k

{ks=k dk uke

12- vksfM'kk

MkW- fpRrjatu dj]

fuokZfpr

izksiQslj vkWiQ usÚksykWth]

,l lh ch esfMdy dkWyst]

dV~Vd

¹la- oh- 11013@1@2013&,e bZ ih&I (oksy&II)º

vfer fc'okl] voj lfpo

ikn fVIi.kh %

fnukad 9 tuojh] 1960 ds dk-vk- la- 138 ds

rgr Hkkjr ds jkti=k esa eq[; vf/lwpuk

izdkf'kr dh xbZ Fkh vkSj Hkkjrh; vk;qfoZKku

ifj"kn (la'kks/u)] f}rh; vè;kns'k] 2013 (2013

dk 11) ds rgr vafre ckj la'kksf/r fd;k x;k

FkkA

MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health and Family Welfare)

New Delhi, the 2nd April, 2014

S.O. 1177.—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 3A 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:

Name of the

Details of the

Mode of

No. Registered

Elected Member

Election

Medical Graduate

Constituency

12.

Odisha

Dr. Chittaranjan Kar, Elected

Professor of

Nephrology, SCB

Medical College,

Cuttack.

[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).

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3011

Je ,oa jkstxkj ea=kky;

ubZ fnYyh] 24 ekpZ] 2014

dk-vk- 1178-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Mk;jsDVj

gSaMesM isij izksMD'ku [kknh vkSj foyst baMLVªht deh'ku ds

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

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

,oa Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k lh th vkbZ Vh@

,uthih@ 163@2002) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

24&03&2014 dks izkIr gqvk Fkk A

¹la- ,y&42012@36@95&vkbZvkj (Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 24th March , 2014

S.O. 1178 .—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. CGIT/

NGP/163/2002) of the Cent. Govt. Indus. Tribunal/Labour

Court, Nagpur now as shown in the Annexure, in the

industrial dispute between the employer in relation to the

management of the Director, Handmade Paper Production

Khadi &Village Industrial Commission and their

workman, which was received by the Central Government

on 24-03-2014.

[No. L-42012/36/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No.CGIT/NGP/163/2002

Date: 03.03.2014.

Party No.1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No.2

Shri Deochand Tukaramji Pingre,

C/o Sunil Suresh Rao Rewatkar,

R/o Ramnagar, Ward No.27,

Wardha – 442001.

AWARD

(Dated: 3^rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Deochand Tukaramji

Pingre, for adjudication, as per letter No.L-42012/36/95-

IR(DU) dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre,

Khadi and Village Industries Commission, Wardha

in terminating the services of Shri Deochand

Tukaramji Pingre was proper, justified and legal?

If not, to what relief the workman is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri

Deochand Tukaramji Pingre, (‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

semiskilled worker on 01.05.1986 and worked

continuously and he was being paid @ Rs. 675/- per month

and though he himself and 17 other workers engaged by

Party No. 1 worked with Party No. 1 for several years,

they were continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them

all other benefits of permanent employees and soon after

the receipt of the said notice, Party No. 1 did not allow

him and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

3012

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 795 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

It is also pleaded by the workman that Party

No. 1 had issued experience certificate in his favour and

before terminating his services, Party No.1 neither issued

one month’s notice nor paid notice pay in lieu of the notice

or retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

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requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449 the meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 01.05.1986 and

he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the workman

was appointed on 23.09.1991 the claim of the workman

that he had put in continuous service of 240 days is false

and the workman did not join the work after 22.11.1993

and he refused to sign the agreement, as per the condition

imposed in the appointment letter dated 31.01.1991 and as

such, question of not allowing him to join work does not

arise and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 162,164 to167 and 169 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-

Labour Court, Nagpur in case Nos. 160/2002 to 167/

2002 and 169/2002 to 178/2002 is quashed and set

aside. The Tribunal is directed to allow the parties

to lead further evidence, if they so desire and

decided the cases thereafter. The Tribunal is directed

to decide the reference in case Nos. 174/2002 to 178/

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2002 by common or separate awards as he deems fit

and proper on the basis of the evidence led by the

parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1986 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands taken

by the Party No. 1 in the written statement. In paragraph

3 of his affidavit, this witness has stated that, “party no. 2

as well as other employees were never in continuous

employment with Party No. 1. They had not completed

240 days with Party No.1. Despite this, they were offered

with closure compensation alongwith all other legal dues.”

Demolishing his own evidence given in the examination-

in-chief, in his cross-examination, this witness has stated

that he is working with Handmade Paper from 17.07.1992

and the workman was working with Handmade Paper prior

to his joining in service and he was also working even

after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a semiskilled labourer

w.e.f. 01.05.1986 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but his services

were not regularized and the workman was compelled to

sign an illegal agreement and when he did not agree to

sign the same, he was not allowed to join service from

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3015

22.11.1993 and such termination of the workman was

without compliance of the mandatory provisions of Section

25-F of the Act and the termination amounts to

retrenchment and the termination of the workman is illegal,

arbitrary, malafide and contrary to the principles of natural

justice and payment of retrenchment compensation in

1996 cannot cure such illegality and as such, the workman

is entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No.1 that the workman was offered engagement

on daily wages basis as per office order dated 23.09.1991

and he did not join work from 22.11.1993 and refused to

enter into the agreement and the workman has not adduced

any legal evidence on record to show that he had worked

for 240 days in the preceding 12 months of the date of

termination and the onus to prove such fact is on the

workman, but he failed to discharge the onus by adducing

necessary evidence and as such, he is not entitled for the

benefits of the provisions of Section 25-F of the Act and

as per the decision of the commissioner, the production

activities of the unit was closed down and even though,

the workman did not work after 1988, notice pay and

retrenchment compensation was sent to him alongwith

the retrenchment notice dated 09.02.1996 and Party No. 1

did not commit any illegality and the workman is not

entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs.Sowaran Singh),(2005)8

SCC-750(Surendra Nagar District Panchayat vs.

Dahyabhai Amarsingh),(2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. vs. S.C.

Pandey),(2006)5 SCC-173(Municipal Council, Sujanpur vs.

Surinder Singh),(2006)9 SCC-697(Krishna Bhagyajal

Nigam Ltd. vs. Mohd. Rafi),(2006)9 SCC-

132(Surendranagar Distt. Panchayat vs. Ganga Ben

Laljibhai),(2006)9 SCC-124 Chief Engineer Ranjit Sagar Dam

vs. Sham Lal),(2006)6 SCC-275(Rajasthan Tourism

Development Corporation vs. Intejam Alizafri),(2006)5

SCC-127(Nagar Mahapalika vs. State of U.P.),(2006)1 SCC-

106(R.M.Yellati vs. Asstt. Executive Engineer),(2006)2 SCC-

711(State of M.P.vs. Arjunlal Rajak),(2007)13 SCC-

343(Ranip Nagar Palika vs. Babuji Gabhaji

Thakore),(2007)12-172(State of Maharashtra vs. Dattatraya

Digamber Birajdar), 2008 II CLR 1089(State of Haryana vs.

Ramesh Kumar),92008)3 SCC-474(BSNL vs. Mahesh

Chand),(2008)5 SCC-171(Municipal Corporation,

Faridabad vs. Durga Prasad) and (2009)17 SCC-326(Ajnala

Cooperative Sugar Mills Ltd. vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to

that effect and the workman’s affidavit is not sufficient

evidence for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that,

“Immediately after the receipt of the notice dated

18.11.1993, the party No.1 had not allowed the party No.2

and his co-workers, who had issued notice to party No.1,

to resume duty w.e.f. 20.11.1993.” In paragraph 05 of the

statement of claim, it has been mentioned that, “The party

No.2 had approached the party No.1 on 21.11.1993 and

subsequently on 22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

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[PART II—SEC. 3(ii)]

reference, it cannot be said that the reference is not

maintainable. Hence, I find no force in the contention raised

by the learned advocate for the party No.1 in that respect.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from September, 1991 to November, 1993 and

he is entitled for retrenchment compensation for two years

i.e. for 30 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in 1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 60,000/-

(Rupees sixty thousand only) in lieu of reinstatement shall

be appropriate, just and equitable. Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Deochand Tukaramji Pingre is illegal and

unjustified. The workman is entitled for monetary

compensation of Rs.60,000 (Rupees sixty thousand only)

in lieu of reinstatement. He is not entitled for any other

relief. The party no.1 is directed to pay the monetary

compensation of Rs. 60,000 to the workman

Shri Deochand Tukarmji Pingre within 30 days of the

publication of the award in the official gazette failing which,

the amount will carry interest at the rate of 6 per cent per

annum.

J. P. CHAND, Presiding Officer

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3017

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New Delhi, the 24th March , 2014

S.O. 1179.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. CGIT/

NGP/161/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the industrial dispute between the employer in relation to

the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their

workmen, which was received by the Central Government

on 24-03-2014.

[No. L-42012/27/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT,

NAGPUR

Case No.CGIT/NGP/161/2002

Date: 03.03.2014

Party No.1 : The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No.2 : Smt.Shashikala Babarao Auchat,

R/o Hindnagar,

Near Ganesh Mandir,

Ward No.40 Wardha

Tah. & Distt.-Wardha.

AWARD

(Dated: 3^rd March, 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 Handmade Paper Production and Training

Centre and their workman, Smt. Shashikala Babarao

Auchat, for adjudication, as per letter No.L-42012/27/95-

IR(DU) dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre,

Khadi and Village Industries Commission, Wardha

in terminating the services of Shashikala Babarao

Auchat is proper, justified and legal? If not, to what

relief the workman is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Smt. Shashikala Babarao Auchat, ‘‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and she was employed by Party No. 1 as a

unskilled worker on 01.03.1986 and worked continuously

and she was being paid @ Rs. 550 per month and though

she herself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of her appointment, she worked continuously without

any gap and she had put in 240 days of attendance in every

year of service, but she was not made permanent in service

and even though, she was doing the same work as done by

the permanent workers, neither she was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to her and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them

all other benefits of permanent employees and soon after

the receipt of the said notice, Party No. 1 did not allow

her and other temporary workers to resume duty w.e.f.

20.11.1993 and she was informed by Party No.1 through

Shri A. Datta that she would be allowed to resume duty in

case of her consenting to work under the Contractor, but

she refused the offer, as because, she had already worked

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with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though she approached Party No. 1 on

21.11.1993 and 22.11.1993, she was not provided with work,

so she alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, she continuously approached

and requested the Party No. 1 to provide her work, but

Party No. 1 did not pay any heed to her request and after

waiting for a long time, she approached the Labour Court,

Nagpur by filing U.L.P.A. Complaint No. 827 of 1993 and

the Labour Court vide its interim order, directed Party No.

1 to reinstate her in service, but no work was provided to

her by Party No. 1 and Party No. 1 moved a revision

application before the Industrial Court, Nagpur, against

the order of the Labour Court raising objection of the

Labour Court of having no jurisdiction to entertain and

decide the matter pertaining to the establishment of the

Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so she withdrew the case filed by her

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to her and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in her favour and before

terminating her services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section 25-

F of the Act and therefore, her removal/retrenchment from

services is illegal, improper and contrary to law and she is

entitled for reinstatement in services with full back wages

alongwith all monetary benefits of permanent employee,

from the date of joining the service of Party No. 1 till the

date of actual reinstatement and work is still available with

Party No. 1 and Party No.1 engaged new persons on less

wages for more production.

3.The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries

Commission (“KVIC” in short) and KVIC is a statutory

body, which was created by the statute, “Khadi & Village

Industries Commission Act, 1956” and KVIC is functioning

under the Ministry of Industry, Government of India and

to achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991, between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of the appointment of the rest five workers

was that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

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the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449 the meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 01.03.1986 and

she did not work continuously since the date of her

appointment and she worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that she had put in continuous service of

240 days is false and the workman did not join the work as

per the appointment letter dated 31.01.1991 and as such,

question of not allowing her to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that she was

orally terminated w.e.f. 22.11.1993 and due to the

intervention of the ALC, the workers were again allowed

to resume their duties and thereafter, the workers demanded

for their legitimate rights including payment of wages

applicable to them and Party No. 1 with malafide intension

decided to stop the work, instead of implementing the

statutory law and she was provided with work from 1^st ,

February, 1991 as per the order issued to the workers

including herself individually and she worked continuously

till 22.11.1993 and she was orally terminated from services

w.e.f. 22.11.1993, without service of one month’s notice or

payment of one month’s pay in lieu of notice or

retrenchment compensation and her oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160,162 to 167 and 169 to 178 of

2002 had been disposed of by this Tribunal by a common

award dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal -cum-

Labour Court, Nagpur in case Nos. 160/2002 to 167/

2002 and 169/2002 to 178/2002 is quashed and set

aside. The Tribunal is directed to allow the parties

to lead further evidence, if they so desire and

decided the cases thereafter. The Tribunal is directed

to decide the reference in case Nos. 174/2002 to 178/

2002 by common or separate awards as he deems fit

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and proper on the basis of the evidence led by the

parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined herself as a witness

in support of her case did not adduce further evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in her evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in her cross-examination has

stated that she worked continuously from 1986 to

November, 1993. She has denied the suggestion that she

did not work for 240 days in any calendar year..

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

Party No. 2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that Party No. 2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No. 2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8.The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party No. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9.The third witness for Party No.1 is Milind Wakode,

the Divisional Director, Nagpur. In his examination-in-

chief on affidavit, this witness has reiterated the facts

mentioned in the written statement by Party No. 1. This

witness has further stated that the Handmade Paper Unit

at Wardha had been completely closed as per the decision

of the commission in its 449tj meeting held on 25.12.1995

and retrenchment notice alongwith compensation was

sent to all the workers by letter dated 09/10.02.1996. This

witness has also proved the office copy of the termination

order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as an unskilled labourer

w.e.f. 01.03.1986 and from the date of her initial appointment,

the workman worked continuously and she had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but her services

were not regularized and the workman was compelled to

sign an illegal agreement and when she did not agree to

sign the same, she was not allowed to join service from

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22.11.1993 and such termination of the workman was

without compliance of the mandatory provisions of Section

25-F of the Act and the termination amounts to

retrenchment and the termination of the workman is illegal,

arbitrary, malafide and contrary to the principles of natural

justice and payment of retrenchment compensation in

1996 cannot cure such illegality and as such, the workman

is entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 [Ambalal Shivlal Vs Vin (D.M.) and

others], 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when her services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, she did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that she had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but

she failed to discharge the onus by adducing necessary

evidence and as such, she is not entitled for the benefits

of the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after 1988, notice pay and retrenchment

compensation was sent to her alongwith the retrenchment

notice dated 09.02. 1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)

8 SCC-750 (Surendra Nagar District Panchayat vs.

Dahyabhai Amarsingh), (2006) 2 SCC-716 (M.P. State Agro

Industries Development Corpn. Ltd. vs. S.C. Pandey),

(2006) 5 SCC-173 (Municipal Council, Sujanpur vs.

Surinder Singh), (2006) 9 SCC-697 (Krishna Bhagyajal

Nigam Ltd. vs. Mohd. Rafi), (2006) 9 SCC-132

(Surendranagar Distt. Panchayat vs. Ganga Ben Laljibhai),

(2006) 9 SCC-124 Chief Engineer Ranjit Sagar Dam vs.

Sham Lal), (2006) 6 SCC-275 (Rajsthan Tourism

Development Coroporation vs. Intejam Alizafri), (2006)

5 SCC-127 (Nagar Mahapalika vs. State of U.P.), (2006) 1

SCC-106 (R. M. Yellati vs. Asstt. Exucutive Engineer),

(2006) 2 SCC-711 (State of M.P. vs. Arjunlal Rajak), (2007)

13 SCC-343 (Ranip Nagar Palika vs. Babuji Gabhaji

Thakore), (2007) 12-172 (State of Maharashtra vs.

Dattatraya Digamber Birajdar), 2008 II CLR 1089 (State of

Haryana vs. Ramesh Kumar), (2008) 3 SCC-474 (BSNL vs

Mahesh Chand), (2008) 5 SCC-171(Municipal Corporation,

Faridabad vs. Durga Prasad) and (2009) 17 SCC-326 (Ajnala

Cooperative Sugar Mills Ltd. vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No. 2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that she was orally

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terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I find no force in the contention raised

by the learned advocate for the party No.1 in that regard.

13. To prove that she had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given her own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of her such claim, her evidence has been

corroborated by the evidence of the witnesses No.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No. 2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

she is entitled for retrenchment compensation for three

years i.e. for 45 days at the rate of 15 days per year. So, it

is clear from the materials on record that the workman

infact had worked for more than 240 days in the preceding

12 calendar months of the date of his termination i.e.

22.11.1993. It is also found from the materials on record

that before the termination of the workman from services,

the mandatory provisions of Section 25-F of the Act were

not complied with and neither one month’s notice nor one

month’s wages in lieu of notice nor retrenchment

compensation was given to her. So, the termination of the

workman from services amounts to retrenchment and such

termination is illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan

Development Corporation Vs. Gitam Singh) have been

pleased to take into consideration a large number of

decisions delivered by the Hon’ble Apex Court earlier,

including the decisions reported in 2011 II CLR-461

(Devinder Singh Vs. Municipal Council, Sonaur, (2010) 3

SCC-192 (Harjinder Singh Vs. Punjab State Warehousing

Corporation) and (2010) 9 SCC-126 (In charge Officer Vs.

Shankar Setty.) and have been pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of wrongful

termination, reinstatement must follow. This court found

in those cases that judicial discretion exercised by the

labour court was disturbed by the High Court on wrong

assumption that the initial employment of the employee

was illegal. As noted above, with regard to the wrongful

termination of a daily wager, who had worked for a short

period, this court in long line of cases has held that the

award of reinstatement cannot be said to be proper relief

and rather award of compensation in such cases would be

in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party No.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000

(Rupees seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Smt. Shashikala Babarao Auchat is illegal and

unjustified. The workman is entitled for monetary

compensation of Rs.75,000 (Rupees seventy five thousand

only) in lieu of reinstatement. She is not entitled for any

other relief. The party No.1 is directed to pay the monetary

compensation of Rs. 75,000 to the workman,

Smt. Shashikala Babarao Auchat within 30 days of the

publication of the award in the official gazette failing

which, the amount will carry interest at the rate of 6 per

cent per annum.

J. P. CHAND, Presiding Officer

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3023

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New Delhi, the 24th March, 2014

S.O. 1180 .—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. CGIT/

NGP/162/2002) of the Cent. Govt. Indus. Tribunal/Labour

Court, Nagpur now as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their

workmen, which was received by the Central Government

on 24-03-2014.

[No. L-42012/30/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND,

PRESIDING OFFICER, CGIT-CUM-LABOUR

COURT, NAGPUR

Case No. CGIT/NGP/162/2002

Date: 03.03.2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training

Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Prem Shankar Tiwari,

R/o Kelakar Wadi Layout,

Indira Wadi,

Wardha–442001.

AWARD

(Dated: 3^rd March, 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 Handmade Paper Production and Training

Centre and their workmen, Shri Prem Shankar Tiwari, for

adjudication, as per letter No.L-42012/30/95-IR(DU) dated

27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre,

Khadi and Village Industries Commission, Wardha

in terminating the services of Shri Prem Shankar

Tiwari was proper, justified and legal? If not, to

what relief the workman is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri Prem

Shankar Tiwari, (‘the workman” in short), filed the

statement of claim and the management of Handmade

Paper Production and Training Centre (“Party No. 1” in

short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No.1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

semiskilled worker in December,1986 and worked

continuously and he was being paid @ Rs. 675 per month

and though he himself and 17 other workers engaged by

Party No.1 worked with Party No. 1 for several years, they

were continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them

all other benefits of permanent employees and soon after

the receipt of the said notice, Party No. 1 did not allow

him and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

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[PART II—SEC. 3(ii)]

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party No.

1 neither replied to the notice nor provided him any work

and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 794 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

It is also pleaded by the workman that Party

No. 1 had issued experience certificate in his favour and

before terminating his services, Party No.1 neither issued

one month’s notice nor paid notice pay in lieu of the notice

or retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party

No. 1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the incharge of the unit at

Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

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3025

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training

Programme in 1991, they refused to enter into an

agreement and to work on contract basis, refusing to adhere

to the condition of appointment and the workers could

not be continued due to their refusal to enter into the

agreement and their discontinuance from work was on their

own accord and workers had stalled the Research

Programme in 1988 and the unit had to remain close till

1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their

complaint dated 22.11.1993, complaining that they were

illegally terminated and the conciliation proceedings ended

in failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and

it filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis,

the workers gave the undertaking before the Industrial

Court not to proceed with the complaint filed before the

Labour Court and in view of the withdrawal of the

complaint by the workers, it also withdrew the revision

from the Industrial Court on 10.04.1995 and on the basis

of the orders of the Ministry, the Directorate of Handmade

Paper Industry, Central Office at Mumbai moved a note

to the commission to close down the production and

Marketing activities of the unit and subsequently, the

commission in its 449the meeting dated 20.12.1995

decided to close down the activities and retrench all daily

wage workers and on the basis of the commission’s

decision, all workers were served with the retrenchment

notice alongwith the retrenchment compensation on

09.02.1996 and some workers, who had left the work as

far back as 1993 were also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since December,1986

and he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily

wage workers left the work and the unit again started

functioning from 01.02.1991 and at that time, the workman

and other workers were given appointment letters with

conditions that they have to enter into an agreement and

the workman was appointed from 23.09.1991 and the claim

of the workman that he had put in continuous service of

240 days is false and the workman refused to enter into

the agreement and did not join the work after 22.11.1993

and as such, question of not allowing him to join work

does not arise and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention

of the ALC, the workers were again allowed to resume

their duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided

to stop the work, instead of implementing the statutory

law and he was provided with work from Ist, February,

1991 as per the order issued to the workers including

himself individually and he worked continuously till

22.11.1993 and he was orally terminated from services

w.e.f. 22.11.1993, without service of one month’s notice

or payment of one month’s pay in lieu of notice or

retrenchment compensation and his oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160,161, 162 to 167 and 169 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following

orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-

Labour Court, Nagpur in case Nos. 160/2002 to 167/

2002 and 169/2002 to 178/2002 is quashed and set

aside. The Tribunal is directed to allow the parties

to lead further evidence, if they so desire and decided

the cases thereafter. The Tribunal is directed to

decide the reference in case Nos. 174/2002 to 178/

2002 by common or separate awards as he deems

fit and proper on the basis of the evidence led by

the parties.”

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[PART II—SEC. 3(ii)]

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two

witnesses, namely, Khandeswar Pralhad Gondane and

Milind Wakode and produced documentary evidence in

support of its case, besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from December, 1986

to 10.01.1988. He has denied the suggestion that he did

not work for 240 days in any calendar year.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993

informing that they are not ready to work on contract basis

and will work on daily wages. That in absence of entering

into the agreement which was the condition of appointment

the workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the

contrary though the Party No. 2 had not worked after

22.11.1993, nor was entitled to, he was given the benefits

alongwith other workers. The retrenchment notice

alongwith the compensation was sent to all the workers

including the Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands taken

by the Party No. 1 in the written statement. In paragraph

3 of his affidavit, this witness has stated that, “party no. 2

as well as other employees were never in continuous

employment with Party No. 1. They had not completed

240 days with Party No.1. Despite this, they were offered

with closure compensation alongwith all other legal dues.”

Demolishing his own evidence given in the examination-

in-chief, in his cross-examination, this witness has stated

that he is working with Handmade Paper from 17.07.1992

and the workman was working with Handmade Paper prior

to his joining in service and he was also working even

after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No.1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a semiskilled labourer

w.e.f. December,1986 and from the date of his initial

appointment, the workman worked continuously and he

had completed more than 240 days of work in each calendar

year and from the date of completion of 240 days of work,

the workman was entitled for regularization in service, but

his services were not regularized and the workman was

compelled to sign an illegal agreement and when he did

not agree to sign the same, he was not allowed to join

service from 22.11.1993 and such termination of the

workman was without compliance of the mandatory

provisions of Section 25-F of the Act and the termination

amounts to retrenchment and the termination of the

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3027

workman is illegal, arbitrary, malafide and contrary to the

principles of natural justice and payment of retrenchment

compensation in 1996 cannot cure such illegality and as

such, the workman is entitled for reinstatement in service

with continuity, full back wages and all other consequential

benefits.

In support of the contentions, the learned

advocate for the workman placed reliance on the decisions

reported in 1964 II LLJ-271 [Ambalal Shivlal Vs Vin (D.M.)

and others], 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that the workman was offered engagement

on daily wages basis as per office order dated 23.09.1991

and the workman from 22.11.1993 did not join duty after

refusing to enter into the agreement and as such, there is

no question of termination of the services of the workman

and the workman has not adduced any legal evidence on

record to show that he had worked for 240 days in the

preceding 12 months of the date of termination and the

onus to prove such fact is on the workman, but he failed

to discharge the onus by adducing necessary evidence

and as such, he is not entitled for the benefits of the

provisions of Section 25-F of the Act and as per the decision

of the commissioner, the production activities of the unit

was closed down and even though, the workman did not

work after1988, notice pay and retrenchment compensation

was sent to him alongwith the retrenchment notice dated

09.02.1996 and Party No. 1 did not commit any illegality

and the workman is not entitled to any relief.

In support of the contentions, the learned

advocate for the Party No. 1 placed reliance on the

decisions reported in the decisions reported in (2002) 3

SCC-25 (Range Forest Officer Vs. S.T. Hadimani), (2004) 8

SCC-195 (Municipal Corporation, Faridabad Vs. Sri Niwas),

(2005) 8 SCC-481 (Batala Coop. Sugar Mills Ltd. Vs.

Sowaran Singh), (2005) 8 SCC-750(Surendra Nagar District

Panchayat vs. Dahyabhai Amarsingh), (2006)2 SCC-

716(M.P. State Agro Industries Development Corpn. Ltd.

vs. S.C. pandey), (2006)5 SCC-173 (Municipal Council,

Sujanpur vs. Surinder Singh),(2006)9 SCC-697(Krishna

Bhagyajal Nigam Ltd. vs. Mohd. Rafi), (2006) 9 SCC-132

(Surendranagar Distt. Panchayat vs. Ganga Ben Laljibhai),

(2006) 9 SCC-124 Chief Engineer Ranjit Sagar Dam vs. Sham

Lal), (2006)6 SCC-275 (Rajsthan Tourism Development

Corporation vs. Intejam Alizafri),(2006)5 SCC-127 (Nagar

Mahapalika vs. State of U.P.), (2006)1 SCC-106 (R.M.Yellati

vs. Asstt. Exucutive Engineer), (2006)2 SCC-711 (State of

M.P.vs. Arjunlal Rajak), (2007) 13 SCC-343 (Ranip Nagar

Palika vs. Babuji Gabhaji Thakore), (2007) 12-172(State of

Maharashtra vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089 (State of Haryana vs. Ramesh Kumar), 92008)3

SCC-474(BSNL vs. Mahesh Chand), (2008) 5 SCC-171

(Municipal Corporation, Faridabad vs. Durga Prasad) and

(2009) 17 SCC-326 (Ajnala Cooperative Sugar Mills Ltd.

vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

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[PART II—SEC. 3(ii)]

maintainable. Hence I find no force in the contention raised

by the learned advocate for the party No.1 in that respect.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from September, 1991 to November, 1993 and

he is entitled for retrenchment compensation for two years

i.e. for 30 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of Section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajasthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the

present case in hand is to be considered. In this case, it

is admitted that the workman was engaged as a daily

wager in1991, about 23 years back. It is also found that

he continued as such till 22.11.1993, when he was

terminated from services by party no.1. It is also found

that production and marketing activities of the handmade

paper unit, Wardha has been completely closed as per

the decision of the commission in its 449^th meeting held

on 25.12.1995. In a case such as the present one, it

appears that the relief of reinstatement cannot be justified

and instead monetary compensation would meet the ends

of justice. Taking into consideration the facts and

circumstance of the case, in my considered opinion, the

compensation of Rs. 60,000 (Rupees sixty thousand only)

in lieu of reinstatement shall be appropriate, just and

equitable. Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Prem Shankar Tiwari is illegal and unjustified. The

workman is entitled for monetary compensation of

Rs.60,000 (Rupees sixty thousand only) in lieu of

reinstatement. He is not entitled for any other relief. The

party no.1 is directed to pay the monetary compensation

of Rs. 60,000 to the workman Shri Prem Shankar Tiwari

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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3029

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New Delhi, the 24th March , 2014

S.O. 1181.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. CGIT/

NGP/178/2002) of the Central Government Industrial

Tribunal/Labour Court, Nagpur now as shown in the

Annexure, in the Industrial Dispute between the employers

in relation to the management of Director, Handmade Paper

Production Khadi &Village Industrial Commission and

their workman, which was received by the Central

Government on 24-03-2014.

[No. L-42012/120/96-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/178/2002

Date: 03.03.2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Raju Sureshrao Rewatkar,

R/o Ramnagar,

Near Datta Mandir,

Ward No. 27,

Wardha – 442001.

AWARD

(Dated: 3^rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Raju Sureshrao Rewatkar,

for adjudication, as per letter No.L-42012/120/96-IR(DU)

dated 09.07.1997, with the following schedule:-

“Whether the action of the management of the

Director, Khadi and Village Industrial Commission,

Handmade Paper Production, Marketing and

Training Centre, J.B. Central Research Institute,

Manganwadi, Wardha in terminating the services

of Shri Raju Sureshrao Rewatkar, an unskilled

worker w.e.f. 12.02.1996 by way of retrenchment is

legal, proper and just? If not, to what relief the

worker is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri Raju

Sureshrao Rewatkar, (“the workman” in short), filed the

statement of claim and the management of Handmade

Paper Production and Training Centre, Wardha (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as an

unskilled worker in February, 1991 and worked

continuously and he was being paid @ Rs. 675/- per month

and though he himself and 17 other workers engaged by

Party No. 1 worked with Party No. 1 for several years,

they were continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them

all other benefits of permanent employees and soon after

the receipt of the said notice, Party No. 1 did not allow

him and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

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[PART II—SEC. 3(ii)]

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to

be made permanent in service as per the representation

dated 18.11.1993 and though he approached Party No.

1 on 21.11.1993 and 22.11.1993, he was not provided

with work, so he alongwith the other 17 temporary

workers on 22.11.1993 issued another notice, but inspite

of the same, no work was provided to them, so they

issued another notice through the advocate on

27.11.1993, but Party No. 1 neither replied to the notice

nor provided him any work and thereafter also, he

continuously approached and requested the Party No.

1 to provide him work, but Party No. 1 did not pay any

heed to his request and after waiting for a long time, he

approached the Labour Court, Nagpur by filing U.L.P.A.

Complaint No. 765 of 1993 and the Labour Court vide

its interim order, directed Party No. 1 to reinstate him in

service, but no work was provided to him by Party No.

1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central

Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

The further case of the workman is that he was

reinstated in service by Party No. 1 in August, 1994 and he

worked till January, 1996 and he was again retrenched from

services vide notice dated 09.02.1996 and the retrenchment

was itself illegal, as because, the Party No. 1 did not pay

all the legal dues at the time of retrenchment compensation

was not paid in accordance with law and his retrenchment

was again challenged before the ALC (C), Nagpur and the

conciliation proceedings ended in failure, the reference

had been made by the Central Govt. for adjudication.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which was

created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and Training

Centers were established including the J.B. Research

Institute at Wardha, to provide artisan training courses for

Handmade Paper Industries, but the unit so established at

Wardha was handed over to a local institution, namely,

“Khadi Gramodhyog Sangh, Manganwadi, Wardha, for the

purpose of continuing the production activities and in 1984,

the management of the said unit was taken over by it and it

was decided to use the said unit as a demonstration-cum-

extension Centre, for conducting experiments and testing

etc. and arranging training of skilled workers and two

technical persons were posted to look after the work and

the unit finally started its Science & Technology (Research)

work and for that some workers were engaged on daily

wages, from November, 1984 and the work involved were of

research and training and therefore not a continuous work

and the workers were engaged as per requirements of work

and after completion of the work, they were discontinued

and none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled, they

would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

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3031

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training

Programme in 1991, they refused to enter into an

agreement and to work on contract basis, refusing to adhere

to the condition of appointment and the workers could

not be continued due to their refusal to enter into the

agreement and their discontinuance from work was on their

own accord and workers had stalled the Research

Programme in 1988 and the unit had to remain close till

1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their

complaint dated 22.11.1993, complaining that they were

illegally terminated and the conciliation proceedings ended

in failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and

it filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis,

the workers gave the undertaking before the Industrial

Court not to proceed with the complaint filed before the

Labour Court and in view of the withdrawal of the

complaint by the workers, it also withdrew the revision

from the Industrial Court on 10.04.1995 and on the basis

of the orders of the Ministry, the Directorate of Handmade

Paper Industry, Central Office at Mumbai moved a note

to the commission to close down the production and

Marketing activities of the unit and subsequently, the

commission in its 449th the meeting dated 20.12.1995

decided to close down the activities and retrench all daily

wage workers and on the basis of the commission’s

decision, all workers were served with the retrenchment

notice alongwith the retrenchment compensation on

09.02.1996 and some workers, who had left the work as

far back as 1993 were also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment from February, 1991 on

temporary basis for a fixed period till 31.12.1991 and he

did not work continuously since the date of his appointment

and he worked intermittently on daily wages, as and when

work was available and as the workers denied to enter

into an agreement, the production activities were stopped

and presently, it is engaged only in providing Artisan

training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily

wage workers left the work and the unit again started

functioning from 01.02.1991 and the workman approached

it for appointment and on assurance of the workman to

enter into an agreement, he was appointed from

23.09.1991, but in November,1993, when the workman

was asked to enter into an agreement, he refused as was

done by other workers and due to the refusal of the

workman for entering into the agreement, which was the

condition of appointment in 1991, he could not be given

work and the workman was not reinstated in service in

August, 1994 and it is false to state that he worked till

January,1996 and the claim of the workman that he had

put in continuous service of 240 days is false and as such,

question of not allowing him to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

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[PART II—SEC. 3(ii)]

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169 to 177 of 2002

had been disposed of by this Tribunal by a common award

dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002,169/2002

to 173 and 175 to 178/2002 is quashed and set aside. The

Tribunal is directed to allow the parties to lead further

evidence, if they so desire and decided the cases thereafter.

The Tribunal is directed to decide the reference in case

Nos. 174/2002 to 178/2002 by common or separate awards

as he deems fit and proper on the basis of the evidence led

by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09.02.1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from January,

1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August, 94 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8.The witness No.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449tj

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

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3033

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III

is the office copy of the order dated 31.01.1991 and Ext.

M-III was issued after the engagement of the workman by

the management and as per condition No.7 of Ext. M-III,

the workman was to execute an agreement as prescribed

by the office of Handmade Paper, Khadi Board, Pune and

as the workman did not agree to execute any agreement,

he was not provided with work or made permanent and

the workman was engaged as labourer on daily wages and

he does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as an unskilled worker from

February, 1991 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and

from the date of completion of 240 days of work, the

workman was entitled for regularization in service, but

his services were not regularized and the workman was

compelled to sign an illegal agreement and when he did

not agree to sign the same, he was not allowed to join

service from 22.11.1993 and the workman was again

reinstated in service in August, 1994 and he worked till

January, 1996 and again he was terminated from services

and such terminations of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 [Ambalal Shivlal Vs Vin (D.M.) and

Others], 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168

(B.M. Gupta Vs State of West Bengal), 1960 I LLJ – 251

(S.C.) (State of Bombay Vs Hospital Mazdoor Sabha) and

1964 I LLJ – 333 (S.C.) (Workmen of Subong Tea Estate

Vs Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the workman

was given appointment on temporary basis for a fixed

period i.e. till 31.12.1991 and he did not work continuously

since the date of his appointment and he worked

intermittently on daily wages as and when work was

available and he did not complete 240 days of work in the

preceding 12 calendar months of the alleged date of

termination and the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after 1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions

reported in the decisions reported in (2002) 3 SCC-25

(Range Forest Officer Vs. S.T. Hadimani), (2004) 8 SCC-

195 (Municipal Coroporation, Faridabad Vs. Siri Niwas),

(2005) 8 SCC-481 (Batala Coop. Sugar Mills Ltd. Vs.

Sowaran Singh), (2005) 8 SCC-750 (Surendra Nagar District

Panchayat Vs. Dahyabhai Amarsingh), (2006) 2 SCC-716

(M.P. State Agro Industries Development Corpn. Ltd. vs.

S.C. Pandey), (2006)5 SCC-173 (Municipal Council,

Sujanpur vs. Surinder Singh), (2006) 9 SCC-697 (Krishna

Bhagyajal Nigam Ltd. vs. Mohd. Rafi), (2006) 9 SCC-132

(Surendranagar Distt. Panchayat vs. Ganga Ben Laljibhai),

(2006) 9 SCC-124 Chief Engineer Ranjit Sagar Dam vs.

Sham Lal), (2006)6 SCC-275(Rajsthan Tourism

Development Coroporation Vs. Intejam Alizafri), (2006) 5

SCC-127 (Nagar Mahapalika Vs. State of U.P.), (2006) 1

SCC-106 (R. M.Yellati vs. Asstt. Exucutive Engineer),

(2006) 2 SCC-711 (State of M. P. Vs. Arjunlal Rajak),

(2007) 13 SCC-343 (Ranip Nagar Palika vs. Babuji

Gabhaji Thakore), (2007)12-172 (State of Maharashtra

vs. Dattatraya Digamber Birajdar), 2008 II CLR 1089 (State

of Haryana vs. Ramesh Kumar), (2008) 3 SCC-474 (BSNL

vs Mahesh Chand), (2008)5 SCC-171 (Municipal

Corporation, Faridabad vs. Durga Prasad) and (2009) 17

SCC-326 (Ajnala Cooperative Sugar Mills Ltd. vs. Sukhraj

Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to

that effect and the workman’s affidavit is not sufficient

evidence for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12.To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

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[PART II—SEC. 3(ii)]

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No. 1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

13. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

from August,1994 to January,1996 and he is entitled for

retrenchment compensation for four and half years i.e. for

67 days at the rate of 15 days per year. So, it is clear from

the materials on record that the workman infact had worked

for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 12.02.1996. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s wages

in lieu of notice nor retrenchment compensation was given

to him. So, the termination of the workman from services

amounts to retrenchment and such termination is illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 12.02.1996.

14.Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan

Development Corporation Vs. Gitam Singh) after taking

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs.

Municipal Council, Sonaur, (2010) 3 SCC-192 (Harjinder

Singh Vs. Punjab State Warehousing Corporation) and

(2010) 9 SCC-126 (In charge Officer Vs. Shankar Setty.)

have been pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in 1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 1,15,000

(Rupees one lakh fifteen thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Raju Sureshrao Rewatkar, is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.1,15,000 (Rupees one lakh fifteen thousand only) in

lieu of reinstatement. He is not entitled for any other

relief. The party no.1 is directed to pay the monetary

compensation of Rs. 1,15,000 to the workman Shri Raju

Sureshrao Rewatkar, within 30 days of the publication of

the award in the official gazette failing which, the amount

will carry interest at the rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1182.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. CGIT/

NGP/177/2002) of the Cent. Govt. Indus. Tribunal/Labour

Court, Nagpur now as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their

workmen, which was received by the Central Government

on 24-03-2014.

[No. L-42012/122/96-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT,

NAGPUR

Case No.CGIT/NGP/177/2002

Date: 03.03.2014

Party No.1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001

Versus

Party No.2

Shri Kishore Tanbaji Madone,

R/o J.B.C.R. Quarters, Ramnagar,

Wardha-442001

AWARD

(Dated: 3^rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Kishore Tanbaji Madone,

for adjudication, as per letter No.L-42012/122/96-IR(DU)

dated 09.07.1997, with the following schedule:-

“Whether the action of the management of the

Director, Khadi and Village Industrial Commission,

Handmade Paper Production, Marketing and

Training Centre, J.B. Central Research Institute,

Manganwadi, Wardha in terminating the services

of Shri Kishore Tanbaji Madone, an unskilled worker

w.e.f. 12.02.1996 by way of retrenchment is legal,

proper and just? If not, to what relief the worker is

entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Shri Kishore Tanbaji Madone, (‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre, Wardha

(“Party No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as an

unskilled worker in February, 1991 and worked

continuously and he was being paid @ Rs. 675 per month

and though he himself and 17 other workers engaged by

Party No. 1 worked with Party No. 1 for several years, they

were continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the Attendance-cum-

Wage Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No. 1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

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[PART II—SEC. 3(ii)]

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party No.

1 neither replied to the notice nor provided him any work

and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 765 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

The further case of the workman is that he was

reinstated in service by Party No. 1 in August, 1994 and he

worked till January, 1996 and he was again retrenched from

services vide notice dated 09.02.1996 and the retrenchment

was itself illegal, as because, the Party No. 1 did not pay

all the legal dues at the time of retrenchment compensation

was not paid in accordance with law and his retrenchment

was again challenged before the ALC (C), Nagpur and the

conciliation proceedings ended in failure, the reference

had been made by the Central Govt. for adjudication.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the incharge of the unit at

Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3037

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training

Programme in 1991, they refused to enter into an

agreement and to work on contract basis, refusing to adhere

to the condition of appointment and the workers could

not be continued due to their refusal to enter into the

agreement and their discontinuance from work was on their

own accord and workers had stalled the Research

Programme in 1988 and the unit had to remain close till

1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449 the meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment from February, 1991 on

temporary basis for a fixed period till 31.12.1991 and he

did not work continuously since the date of his appointment

and he worked intermittently on daily wages, as and when

work was available and as the workers denied to enter

into an agreement, the production activities were stopped

and presently, it is engaged only in providing Artisan

training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily

wage workers left the work and the unit again started

functioning from 01.02.1991 and the workman approached

it for appointment and on assurance of the workman to

enter into an agreement, he was appointed from

23.09.1991, but in November,1993, when the workman

was asked to enter into an agreement, he refused as was

done by other workers and due to the refusal of the

workman for entering into the agreement, which was the

condition of appointment in 1991, he could not be given

work and the workman was not reinstated in service in

August, 1994 and it is false to state that he worked till

January,1996 and the claim of the workman that he had

put in continuous service of 240 days is false and as such,

question of not allowing him to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention

of the ALC, the workers were again allowed to resume

their duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided

to stop the work, instead of implementing the statutory

law and he was provided with work from Ist, February,

1991 as per the order issued to the workers including

himself individually and he worked continuously till

22.11.1993 and he was orally terminated from services

w.e.f. 22.11.1993, without service of one month’s notice

or payment of one month’s pay in lieu of notice or

retrenchment compensation and his oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169 to 176 and 178

of 2002 had been disposed of by this Tribunal by a common

award dated 27.03.2007, directing the reinstatement of the

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[PART II—SEC. 3(ii)]

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002,169/

2002 to 173 and 175 to 178/2002 is quashed and set aside.

The Tribunal is directed to allow the parties to lead further

evidence, if they so desire and decided the cases thereafter.

The Tribunal is directed to decide the reference in case

Nos. 174/2002 to 178/2002 by common or separate awards

as he deems fit and proper on the basis of the evidence led

by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind

Wakode and produced documentary evidence in support

of its case, besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to

November, 1993. He has denied the suggestion that he

did not work for 240 days in any calendar year. The

workman in his cross-examination has further stated that

on 09.02.1996, one registered letter, M-2 was sent to him,

but he returned the same. The workman has admitted that

the factory was closed from 1988 to 1991 and he did not

work from January, 1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993

informing that they are not ready to work on contract basis

and will work on daily wages. That in absence of entering

into the agreement which was the condition of appointment

the workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August, 94 to Jan., 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the

contrary though the Party No. 2 had not worked after

22.11.1993, nor was entitled to, he was given the benefits

alongwith other workers. The retrenchment notice

alongwith the compensation was sent to all the workers

including the Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness No.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands taken

by the Party No. 1 in the written statement. In paragraph

3 of his affidavit, this witness has stated that, “Party No. 2

as well as other employees were never in continuous

employment with Party No. 1. They had not completed

240 days with Party No.1. Despite this, they were offered

with closure compensation alongwith all other legal dues.”

Demolishing his own evidence given in the examination-

in-chief, in his cross-examination, this witness has stated

that he is working with Handmade Paper from 17.07.1992

and the workman was working with Handmade Paper prior

to his joining in service and he was also working even

after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

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3039

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as an unskilled worker from

February, 1991 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but his services

were not regularized and the workman was compelled to

sign an illegal agreement and when he did not agree to

sign the same, he was not allowed to join service from

22.11.1993 and the workman was again reinstated in service

in August, 1994 and he worked till January, 1996 and again

he was terminated from services and such terminations of

the workman was without compliance of the mandatory

provisions of Section 25-F of the Act and the termination

amounts to retrenchment and the termination of the

workman is illegal, arbitrary, malafide and contrary to the

principles of natural justice and payment of retrenchment

compensation in 1996 cannot cure such illegality and as

such, the workman is entitled for reinstatement in service

with continuity, full back wages and all other consequential

benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs. Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs. Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs. State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs. Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs.

Subong Tea Estate).

11. On the other hand, it was submitted by the

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

given appointment on temporary basis for a fixed period

i.e. till 31.12.1991 and he did not work continuously since

the date of his appointment and he worked intermittently

on daily wages as and when work was available and he

did not complete 240 days of work in the preceding 12

calendar months of the alleged date of termination and the

workman has not adduced any legal evidence on record

to show that he had worked for 240 days in the preceding

12 months of the date of termination and the onus to prove

such fact is on the workman, but he failed to discharge the

onus by adducing necessary evidence and as such, he is

not entitled for the benefits of the provisions of Section

25-F of the Act and as per the decision of the commissioner,

the production activities of the unit was closed down and

even though, the workman did not work after1988, notice

pay and retrenchment compensation was sent to him

alongwith the retrenchment notice dated 09.02.1996 and

Party No. 1 did not commit any illegality and the workman

is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions

reported in the decisions reported in (2002) 3 SCC-25

(Range Forest Officer Vs. S.T. Hadimani), (2004) 8 SCC-

195 (Municipal Corporation, Faridabad Vs. Siri Niwas),

(2005) 8 SCC-481 (Batala Coop. Sugar Mills Ltd.

Vs.Sowaran Singh),(2005)8 SCC-750(Surendra Nagar

District Panchayat Vs. Dahyabhai Amarsingh),(2006)2

SCC-716 (M.P. State Agro Industries Development Corpn.

Ltd. Vs. S.C. Pandey), (2006)5 SCC-173 (Municipal Council,

Sujanpur vs. Surinder Singh),(2006)9 SCC-697(Krishna

Bhagyajal Nigam Ltd. Vs. Mohd. Rafi),(2006)9 SCC-

132(Surendranagar Distt. Panchayat vs. Ganga Ben

Laljibhai),(2006)9 SCC-124 Chief Engineer Ranjit Sagar Dam

vs. Sham Lal),(2006)6 SCC-275(Rajsthan Tourism

Development Corporation vs. Intejam Alizafri),(2006)5

SCC-127(Nagar Mahapalika vs. State of U.P.),(2006)1 SCC-

106(R.M.Yellati vs. Asstt. Exucutive Engineer),(2006)2

SCC-711(State of M.P.vs. Arjunlal Rajak),(2007)13 SCC-

343(Ranip Nagar Palika vs. Babuji Gabhaji

Thakore),(2007)12-172(State of Maharashtra vs. Dattatraya

Digamber Birajdar), 2008 II CLR 1089(State of Haryana vs.

Ramesh Kumar),92008)3 SCC-474(BSNL vs. Mahesh

Chand),(2008)5 SCC-171(Municipal Corporation,

Faridabad vs. Durga Prasad) and (2009)17 SCC-326(Ajnala

Cooperative Sugar Mills Ltd. vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the Party No. 1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to

that effect and the workman’s affidavit is not sufficient

evidence for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses No.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

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[PART II—SEC. 3(ii)]

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

13. Apart from the oral evidence, the documentary

evidence produced by the Party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

from August,1994 to January,1996 and he is entitled for

retrenchment compensation for four and half years i.e. for

67 days at the rate of 15 days per year. So, it is clear from

the materials on record that the workman infact had worked

for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 12.02.1996. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s wages

in lieu of notice nor retrenchment compensation was given

to him. So, the termination of the workman from services

amounts to retrenchment and such termination is illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 12.02.1996.

14. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs.

Municipal Council, Sonaur, (2010) 3 SCC-192 (Harjinder

Singh Vs. Punjab State Warehousing Corporation) and

(2010) 9 SCC-126 (In charge Officer Vs. Shankar Setty.)

have been pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of wrongful

termination, reinstatement must follow. This court found

in those cases that judicial discretion exercised by the

labour court was disturbed by the High Court on wrong

assumption that the initial employment of the employee

was illegal. As noted above, with regard to the wrongful

termination of a daily wager, who had worked for a short

period, this court in long line of cases has held that the

award of reinstatement cannot be said to be proper relief

and rather award of compensation in such cases would be

in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by Party No.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 1,15,000

(Rupees one lakh fifteen thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered :—

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Kishore Tanbaji Madone, is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.1,15,000 (Rupees one lakh fifteen thousand only) in

lieu of reinstatement. He is not entitled for any other relief.

The party No.1 is directed to pay the monetary

compensation of Rs. 1,15,000 to the workman

Shri Kishore Tanbaji Madone, within 30 days of the

publication of the award in the official gazette failing

which, the amount will carry interest at the rate of 6 per

cent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1183.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. CGIT/

NGP/176/2002) of the Cent. Govt. Indus. Tribunal/Labour

Court, Nagpur now as shown in the Annexure, in the

industrial dispute between employer in relation to the

management of Director, Handmade Paper Production

Khadi & Village Industrial Commission and their workmen,

which was received by the Central Government on 24-03-

2014.

[No. L-42012/121/96-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No.CGIT/NGP/176/2002

Date: 03.03.2014.

Party No.1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2 :

Shri Suresh Bhauraoji Vasake,

R/o Manganwadi Quarters,

Wardha – 442001.

AWARD

(Dated: 3^rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Suresh Bhauraoji Vasake

for adjudication, as per letter No.L-42012/121/96-IR(DU)

dated 09.07.1997, with the following schedule:-

“Whether the action of the management of the

Director, Khadi and Village Industrial Commission,

Handmade Paper Production, Marketing and

Training Centre, J.B. Central Research Institute,

Manganwadi, Wardha in terminating the services

of Shri Suresh Bhauraoji Vasake, an unskilled worker

w.e.f. 12.02.1996 by way of retrenchment is legal,

proper and just? If not, to what relief the worker is

entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri

Suresh Bhauraoji Vasake, (‘the workman” in short), filed

the statement of claim and the management of Handmade

Paper Production and Training Centre, Wardha (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as an

unskilled worker on 23.09.1991 and worked continuously

and he was being paid @ Rs. 675 per month and though

he himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No. 1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

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[PART II—SEC. 3(ii)]

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 765 of 1993 and the

Labour Court vide its interim order, directed Party No. 1

to reinstate him in service, but no work was provided to

him by Party No. 1 and Party No. 1 moved a revision

application before the Industrial Court, Nagpur, against

the order of the Labour Court raising objection of the

Labour Court of having no jurisdiction to entertain and

decide the matter pertaining to the establishment of the

Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section 25-

F of the Act and therefore, his removal/retrenchment from

services is illegal, improper and contrary to law and he is

entitled for reinstatement in services with full back wages

alongwith all monetary benefits of permanent employee,

from the date of joining the service of Party No. 1 till the

date of actual reinstatement and work is still available with

Party No. 1 and Party No.1 engaged new persons on less

wages for more production.

The further case of the workman is that he was

reinstated in service by Party No. 1 in August, 1994 and

he worked till January, 1996 and he was again retrenched

from services vide notice dated 09.02.1996 and the

retrenchment was itself illegal, as because, the Party

No. 1 did not pay all the legal dues at the time of

retrenchment compensation was not paid in accordance

with law and his retrenchment was again challenged before

the ALC (C), Nagpur and the conciliation proceedings

ended in failure, the reference had been made by the Central

Govt. for adjudication.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries

Commission (“KVIC” in short) and KVIC is a statutory

body, which was created by the statute, “Khadi & Village

Industries Commission Act, 1956” and KVIC is

functioning under the Ministry of Industry, Government

of India and to achieve the object entrusted to KVIC,

several Research and Training Centers were established

including the J.B. Research Institute at Wardha, to provide

artisan training courses for Handmade Paper Industries,

but the unit so established at Wardha was handed over to

a local institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use the

said unit as a demonstration-cum-extension Centre, for

conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis and

the said unit functioned from 1984 to 1988 and when the

unit was doing a prestigious research work of developing

a process for making stiff, thick and hard water proof board

by using completely waste banana stem, the workers

stopped attending the work from 11.01.1988 and when

enquiry was made for their non attendance, it was informed

that they wanted regular work without break and unless

and until their such demand would be fulfilled, they would

not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

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3043

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training

Programme in 1991, they refused to enter into an

agreement and to work on contract basis, refusing to adhere

to the condition of appointment and the workers could

not be continued due to their refusal to enter into the

agreement and their discontinuance from work was on their

own accord and workers had stalled the Research

Programme in 1988 and the unit had to remain close till

1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their

complaint dated 22.11.1993, complaining that they were

illegally terminated and the conciliation proceedings ended

in failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and

it filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis,

the workers gave the undertaking before the Industrial

Court not to proceed with the complaint filed before the

Labour Court and in view of the withdrawal of the

complaint by the workers, it also withdrew the revision

from the Industrial Court on 10.04.1995 and on the basis

of the orders of the Ministry, the Directorate of Handmade

Paper Industry, Central Office at Mumbai moved a note

to the commission to close down the production and

Marketing activities of the unit and subsequently, the

commission in its 449th meeting dated 20.12.1995 decided

to close down the activities and retrench all daily wage

workers and on the basis of the commission’s decision,

all workers were served with the retrenchment notice

alongwith the retrenchment compensation on 09.02.1996

and some workers, who had left the work as far back as

1993 were also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment from 23.09.1991 on

temporary basis for a fixed period till 31.12.1991 and he

did not work continuously since the date of his appointment

and he worked intermittently on daily wages, as and when

work was available and as the workers denied to enter

into an agreement, the production activities were stopped

and presently, it is engaged only in providing Artisan

training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily

wage workers left the work and the unit again started

functioning from 01.02.1991 and the workman approached

it for appointment and on assurance of the workman to

enter into an agreement, he was appointed from

23.09.1991, but in November,1993, when the workman

was asked to enter into an agreement, he refused as was

done by other workers and due to the refusal of the

workman for entering into the agreement, which was the

condition of appointment in 1991, he could not be given

work and the workman was not reinstated in service in

August, 1994 and it is false to state that he worked till

January,1996 and the claim of the workman that he had

put in continuous service of 240 days is false and as such,

question of not allowing him to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention

of the ALC, the workers were again allowed to resume

their duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided

to stop the work, instead of implementing the statutory

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[PART II—SEC. 3(ii)]

law and he was provided with work from 1st February,

1991 as per the order issued to the workers including

himself individually and he worked continuously till

22.11.1993 and he was orally terminated from services w.e.f.

22.11.1993, without service of one month’s notice or

payment of one month’s pay in lieu of notice or

retrenchment compensation and his oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167 and 169 to 175 and

177 to 178 of 2002 had been disposed of by this Tribunal

by a common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002,169/2002

to 173 and 175 to 178/2002 is quashed and set aside. The

Tribunal is directed to allow the parties to lead further

evidence, if they so desire and decided the cases thereafter.

The Tribunal is directed to decide the reference in case

Nos. 174/2002 to 178/2002 by common or separate awards

as he deems fit and proper on the basis of the evidence led

by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09.02.1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from

January, 1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

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3045

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a helper w.e.f. 23.09.1991

and from the date of his initial appointment, the workman

worked continuously and he had completed more than 240

days of work in each calendar year and from the date of

completion of 240 days of work, the workman was entitled

for regularization in service, but his services were not

regularized and the workman was compelled to sign an

illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and the workman was again reinstated in service in August,

1994 and he worked till January, 1996 and again he was

terminated from services and such terminations of the

workman was without compliance of the mandatory

provisions of Section 25-F of the Act and the termination

amounts to retrenchment and the termination of the

workman is illegal, arbitrary, malafide and contrary to the

principles of natural justice and payment of retrenchment

compensation in 1996 cannot cure such illegality and as

such, the workman is entitled for reinstatement in service

with continuity, full back wages and all other consequential

benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168

(B.M. Gupta Vs State of West Bengal), 1960 I LLJ – 251

(S.C.) (State of Bombay Vs Hospital Mazdoor Sabha) and

1964 I LLJ – 333 (S.C.) (Workmen of Subong Tea Estate

Vs Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the workman

was given appointment on temporary basis for a fixed

period i.e. till 31.12.1991 and he did not work continuously

since the date of his appointment and he worked

intermittently on daily wages as and when work was

available and he did not complete 240 days of work in the

preceding 12 calendar months of the alleged date of

termination and the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions

reported in the decisions reported in (2002) 3 SCC-25

(Range Forest Officer Vs. S.T. Hadimani), (2004) 8 SCC-

195 (Municipal Coroporation, Faridabad Vs. Siri Niwas),

(2005) 8 SCC-481 (Batala Coop. Sugar Mills Ltd.

Vs.Sowaran Singh),(2005)8 SCC-750(Surendra Nagar

District Panchayat vs. Dahyabhai Amarsingh),(2006)2

SCC-716(M.P. State Agro Industries Development Corpn.

Ltd. vs. S.C. pandey),(2006)5 SCC-173(Municipal

Council, Sujanpur vs. Surinder Singh),(2006)9 SCC-

697(Krishna Bhagyajal Nigam Ltd. vs. Mohd.

Rafi),(2006)9 SCC-132(Surendranagar Distt. Panchayat

vs. Ganga Ben Laljibhai),(2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam vs. Sham Lal),(2006)6 SCC-

275(Rajsthan Tourism Development Coroporation vs.

Intejam Alizafri),(2006)5 SCC-127(Nagar Mahapalika vs.

State of U.P.),(2006)1 SCC-106(R.M.Yellati vs. Asstt.

Exucutive Engineer),(2006)2 SCC-711(State of M.P.vs.

Arjunlal Rajak),(2007)13 SCC-343(Ranip Nagar Palika

vs. Babuji Gabhaji Thakore),(2007)12-172(State of

Maharashtra vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089(State of Haryana vs. Ramesh Kumar),92008)3

SCC-474(BSNL vs. Mahesh Chand),(2008)5 SCC-

171(Municipal Corporation, Faridabad vs. Durga Prasad)

and (2009)17 SCC-326(Ajnala Cooperative Sugar Mills

Ltd. vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to

that effect and the workman’s affidavit is not sufficient

evidence for that purpose.

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THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses No.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

13. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

from August,1994 to January,1996 and he is entitled for

retrenchment compensation for three and half years i.e.

for 52 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 12.02.1996. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 12.02.1996.

14. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In-charge Officer Vs. Shankar Setty.) have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party No.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 90,000/-

(Rupees ninety thousand only) in lieu of reinstatement

shall be appropriate, just and equitable. Hence, it is

ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Suresh Bhauraoji Vasake is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.90,000/- (Rupees ninety thousand only) in lieu of

reinstatement. He is not entitled for any other relief. The

party No.1 is directed to pay the monetary compensation

of Rs. 90,000/- to the workman Shri Suresh Bhauraoji Vasake

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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3047

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New Delhi, the 24th March , 2014

S.O. 1184.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/175/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper

Production Khadi &Village Industrial Commission and

their workmen, which was received by the Central

Government on 24-03-2014.

[No. L-42012/119/96-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/175/2002

Date: 03-03-2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Vijay G. Kanode,

R/o Near Ramnagar Water Tank J

Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Vijay G. Kanode for

adjudication, as per letter No. L-42012/119/96-IR(DU) dated

10-07-1997, with the following schedule:-

“Whether the action of the management of the

Director, Khadi and Village Industrial Commission,

Handmade Paper Production, Marketing and Training

Centre, J. B. Central Research Institute, Manganwadi,

Wardha in terminating the services of Shri Shri Vijay G.

Kanode, an unskilled worker w.e.f. 12-02-1996 by way of

retrenchment is legal, proper and just ? If not, to what

relief the worker is entitled to ?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri Vijay

G. Kanode, (‘the workman” in short), filed the statement of

claim and the management of Handmade Paper Production

and Training Centre, Wardha (“Party No. 1” in short) filed

their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

skilled labourer in February,1991 and worked continuously

and he was being paid @ Rs. 675/- per month and though

he himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18-11-1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20-11-1993 and he was informed by Party No.1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18-11-1993 and though he approached Party No. 1 on

21-11-1993 and 22-11-1993, he was not provided with work,

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[PART II—SEC. 3(ii)]

so he alongwith the other 17 temporary workers on

22-11-1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27-11-1993, but Party No.

1 neither replied to the notice nor provided him any work

and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 765 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

The further case of the workman is that he was

reinstated in service by Party No. 1 in August, 1994 and he

worked till January, 1996 and he was again retrenched from

services vide notice dated 09-02-1996 and the retrenchment

was

itself

illegal,

because,

the

Party

No. 1 did not pay all the legal dues at the time of

retrenchment compensation was not paid in accordance

with law and his retrenchment was again challenged before

the ALC (C), Nagpur and the conciliation proceedings

ended in failure, the reference had been made by the Central

Govt. for adjudication.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11-01-1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18-01-1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01-02-1991, where

all the six workers could be engaged on daily wages, as

such, the ALC closed the case with the instruction to inform

him about the appointment and appointment letters dated

28-01-1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

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3049

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19-11-1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22-11-1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31-05-1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31-05-1994 and on 17-08-1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10-04-1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449 the meeting dated 20-12-1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09-02-1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment in February, 1991 on

temporary basis for a fixed period till 31-12-1991 and he

did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11-01-1988 to 1991, as the daily

wage workers left the work and the unit again started

functioning from 01-02-1991 and the workman approached

it for appointment and on assurance of the workman to

enter into an agreement, he was appointed from 23-09-

1991, but in November,1993, when the workman was asked

to enter into an agreement, he refused as was done by

other workers and due to the refusal of the workman for

entering into the agreement, which was the condition of

appointment in 1991, he could not be given work and the

workman was not reinstated in service in August, 1994

and it is false to state that he worked till January, 1996 and

the claim of the workman that he had put in continuous

service of 240 days is false and as such, question of not

allowing him to join work does not arise and the workman

is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22-11-1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till

22-11-1993 and he was orally terminated from services w.e.f.

22-11-1993, without service of one month’s notice or

payment of one month’s pay in lieu of notice or

retrenchment compensation and his oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169 to 174 and 176 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27-03-2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25-08-2008 have been pleased to pass the following orders:-

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“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002,169/2002

to 173 and 175 to 178/2002 is quashed and set aside. The

Tribunal is directed to allow the parties to lead further

evidence, if they so desire and decided the cases thereafter.

The Tribunal is directed to decide the reference in case

Nos. 174/2002 to 178/2002 by common or separate awards

as he deems fit and proper on the basis of the evidence led

by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09-02-1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from January,

1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No. 2 was given appointment vide letter 23-09-1991

on temporary basis. The appointment was for a fixed period

until 31-12-1991, that party No. 2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01-02-1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22-11-1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22-11-1993. It is denied that party No. 2 was reinstated

in service from August, 94 to Jan. 1998. It is denied that

the retrenchment dated 9-2-1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22-11-1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No. 1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17-07-1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25-12-1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10-02-1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09-02-1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31-01-1991 and Ext.M-

III was issued after the engagement of the workman by

the management and as per condition No. 7 of Ext. M-III,

the workman was to execute an agreement as prescribed

by the office of Handmade Paper, Khadi Board, Pune and

as the workman did not agree to execute any agreement,

he was not provided with work or made permanent and

the workman was engaged as labourer on daily wages and

he does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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3051

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a skilled worker from

February, 1991 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but his services

were not regularized and the workman was compelled to

sign an illegal agreement and when he did not agree to

sign the same, he was not allowed to join service from

22-11-1993 and the workman was again reinstated in service

in August, 1994 and he worked till January, 1996 and again

he was terminated from services and such terminations of

the workman was without compliance of the mandatory

provisions of Section 25-F of the Act and the termination

amounts to retrenchment and the termination of the

workman is illegal, arbitrary, malafide and contrary to the

principles of natural justice and payment of retrenchment

compensation in 1996 cannot cure such illegality and as

such, the workman is entitled for reinstatement in service

with continuity, full back wages and all other consequential

benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 [Ambalal Shivlal Vs Vin (D.M.) and

others], 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

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

given appointment on temporary basis for a fixed period

i.e. till 31-12-1991 and he did not work continuously since

the date of his appointment and he worked intermittently

on daily wages as and when work was available and he

did not completion 240 days of work in the preceding 12

calendar months of the alleged date of termination and the

workman has not adduced any legal evidence on record

to show that he had worked for 240 days in the preceding

12 months of the date of termination and the onus to prove

such fact is on the workman, but he failed to discharge the

onus by adducing necessary evidence and as such, he is

not entitled for the benefits of the provisions of Section

25-F of the Act and as per the decision of the commissioner,

the production activities of the unit was closed down and

even though, the workman did not work after1988, notice

pay and retrenchment compensation was sent to him

alongwith the retrenchment notice dated 09-02-1996 and

Party No. 1 did not commit any illegality and the workman

is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)8

SCC-750(Surendra Nagar District Panchayat vs.

Dahyabhai Amarsingh), (2006)2 SCC-716(M. P. State Agro

Industries Development Corpn. Ltd. vs. S.C. pandey),

(2006)5 SCC-173(Municipal Council, Sujanpur vs. Surinder

Singh), (2006)9 SCC-697(Krishna Bhagyajal Nigam Ltd. vs.

Mohd. Rafi), (2006)9 SCC-132 (Surendranagar Distt.

Panchayat vs. Ganga Ben Laljibhai), (2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam vs. Sham Lal),(2006)6 SCC-275

(Rajsthan Tourism Development Coroporation vs. Intejam

Alizafri), (2006)5 SCC-127 (Nagar Mahapalika vs. State of

U.P.), (2006)1 SCC-106 (R.M.Yellati vs. Asstt. Exucutive

Engineer), (2006)2 SCC-711 (State of M.P. vs. Arjunlal

Rajak), (2007)13 SCC-343 (Ranip Nagar Palika vs. Babuji

Gabhaji Thakore), (2007) 12-172 (State of Maharashtra vs.

Dattatraya Digamber Birajdar), 2008 II CLR 1089 (State of

Haryana vs. Ramesh Kumar), (2008)3 SCC-474 (BSNL

vsMahesh Chand), (2008)5 SCC-171 (Municipal

Corporation, Faridabad vs. Durga Prasad) and (2009)17

SCC-326 (Ajnala Cooperative Sugar Mills Ltd. vs. Sukhraj

Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No. 1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No. 1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No. 2 for the party

No. 1 has stated that the workman worked for more than

240 days in every calendar year.

13. Apart from the oral evidence, the documentary

evidence produced by the party No. 1 clinches the issue

in favour of the workman. The party No. 1 has produced

and proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

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[PART II—SEC. 3(ii)]

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

from August, 1994 to January, 1996 and he is entitled for

retrenchment compensation for four and half years i.e. for

67 days at the rate of 15 days per year. So, it is clear from

the materials on record that the workman infact had worked

for more than 240 days in the preceding 12 calendar months

of the date of his termination i.e. 12-02-1996. It is also

found from the material on record that before the

termination of the workman from services, the mandatory

provisions of Section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 12-02-1996.

14. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajasthan Development

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice.Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 1,15,000

(Rupees one lakh fifteen thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered :—

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Vijay G. Kanode, is illegal and unjustified. The

workman is entitled for monetary compensation of Rs.

1,15,000 (Rupees one lakh fifteen thousand only) in lieu

of reinstatement. He is not entitled for any other relief.

The party no.1 is directed to pay the monetary

compensation of Rs. 1,15,000 to the workman Shri Vijay G.

Kanode, within 30 days of the publication of the award in

the official gazette failing which, the amount will carry

interest at the rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1185.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/174/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

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3053

the industrial dispute between the employers in relation

to the management of the Director, Handmade Paper

Production Khadi & Village Industrial Commission and

their workmen, which was received by the Central

Government on 24-03-2014.

[No. L-42012/123/96-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/174/2002

Date: 03-03-2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Manohar Shravanji Somnathe,

R/o Sindhi Meghe, Near Gram

Panchyat,

Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Manohar Shravanji

Somnathe, for adjudication, as per letter No. L-42012/123/

96-IR(DU) dated 09-07-1997, with the following schedule:-

“Whether the action of the management of the

Director, Khadi and Village Industrial Commission,

Handmade Paper Production, Marketing and

Training Centre, J.B. Central Research Institute,

Manganwadi, Wardha in terminating the services

of Shri Manohar Shravanji Somnathe, an unskilled

worker w.e.f. 12-02-1996 by way of retrenchment is

legal, proper and just? If not, to what relief the

worker is entitled to ?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Shri Manohar Shravanji Somnathe, (‘the workman” in

short), filed the statement of claim and the management of

Handmade Paper Production and Training Centre, Wardha

(“Party No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

helper on 23-09-1991 and worked continuously and he

was being paid @ Rs. 675 per month and though he himself

and 17 other workers engaged by Party No. 1 worked with

Party No. 1 for several years, they were continued as

temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18-11-1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20-11-1993 and he was informed by Party No.1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18-11-1993 and though he approached Party No. 1 on

21-11-1993 and 22-11-1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22-11-1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27-11-1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 765 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

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[PART II—SEC. 3(ii)]

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

It is also pleaded by the workman that Party

No. 1 had issued experience certificate in his favour and

before terminating his services, Party No.1 neither issued

one month’s notice nor paid notice pay in lieu of the notice

or retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

The further case of the workman is that he was

reinstated in service by Party No. 1 in August, 1994 and he

worked till January, 1996 and he was again retrenched from

services vide notice dated 09-02-1996 and the retrenchment

was

itself

illegal,

because,

the

Party

No. 1 did not pay all the legal dues at the time of

retrenchment compensation was not paid in accordance

with law and his retrenchment was again challenged before

the ALC (C), Nagpur and the conciliation proceedings

ended in failure, the reference had been made by the Central

Govt. for adjudication.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J. B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11-01-1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18-01-1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01-02-1991, where

all the six workers could be engaged on daily wages, as

such, the ALC closed the case with the instruction to inform

him about the appointment and appointment letters dated

28-01-1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19-11-1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22-11-1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

¹Hkkx II—[k.M 3(ii)º

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3055

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22-11-1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20-01-1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31-05-1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10-04-1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449 the meeting dated 20-12-1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09-02-1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment from 23-09-1991 on

temporary basis for a fixed period till 31-12-1991 and he

did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11-01-1988 to 1991, as the daily

wage workers left the work and the unit again started

functioning from 01-02-1991 and the workman approached

it for appointment and on assurance of the workman to

enter into an agreement, he was appointed from

23-09-1991, but in November,1993, when the workman was

asked to enter into an agreement, he refused as was done

by other workers and due to the refusal of the workman

for entering into the agreement, which was the condition

of appointment in 1991, he could not be given work and

the workman was not reinstated in service in August, 1994

and it is false to state that he worked till January,1996 and

the claim of the workman that he had put in continuous

service of 240 days is false and as such, question of not

allowing him to join work does not arise and the workman

is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22-11-1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till

22-11-1993 and he was orally terminated from services w.e.f.

22.11.1993, without service of one month’s notice or

payment of one month’s pay in lieu of notice or

retrenchment compensation and his oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167 and 169 to 178 of 2002

had been disposed of by this Tribunal by a common award

dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award

dated 27.03.2007 passed by the Industrial Tribunal

–cum-Labour Court, Nagpur in case Nos. 160/2002

to 167/2002,169/2002 to 173 and 175 to 178/2002 is

quashed and set aside. The Tribunal is directed to

allow the parties to lead further evidence, if they so

desire and decided the cases thereafter. The Tribunal

is directed to decide the reference in case Nos. 174/

2002 to 178/2002 by common or separate awards as

he deems fit and proper on the basis of the evidence

led by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

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[PART II—SEC. 3(ii)]

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09.02.1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from January,

1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No. 2 was given appointment vide letter 23-09-1991

on temporary basis. The appointment was for a fixed period

until 31-12-1991, that party No. 2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01-02-1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22-11-1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22-11-1993. It is denied that party No. 2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9-2-1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22-11-1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No. 1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25-12-1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09-02-1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31-01-1991 and Ext.

M-III was issued after the engagement of the workman by

the management and as per condition No. 7 of Ext.

M-III, the workman was to execute an agreement as

prescribed by the office of Handmade Paper, Khadi Board,

Pune and as the workman did not agree to execute any

agreement, he was not provided with work or made

permanent and the workman was engaged as labourer on

daily wages and he does not have any idea as to how the

retrenchment compensation paid to the workman was

calculated and as per Ext. M-II, retrenchment compensation

was paid to the workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a helper w.e.f.

23-09-1991 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but his services

were not regularized and the workman was compelled to

sign an illegal agreement and when he did not agree to

sign the same, he was not allowed to join service from

22-11-1993 and the workman was again reinstated in service

in August, 1994 and he worked till January, 196 and again

¹Hkkx II—[k.M 3(ii)º

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3057

he was terminated from services and such terminations of

the workman was without compliance of the mandatory

provisions of Section 25-F of the Act and the termination

amounts to retrenchment and the termination of the

workman is illegal, arbitrary, mala fide and contrary to the

principles of natural justice and payment of retrenchment

compensation in 1996 cannot cure such illegality and as

such, the workman is entitled for reinstatement in service

with continuity, full back wages and all other consequential

benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

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

given appointment on temporary basis for a fixed period

i.e. till 31.12.1991 and he did not work continuously since

the date of his appointment and he worked intermittently

on daily wages as and when work was available and he

did not complete 240 days of work in the preceding 12

calendar months of the alleged date of termination and the

workman has not adduced any legal evidence on record

to show that he had worked for 240 days in the preceding

12 months of the date of termination and the onus to prove

such fact is on the workman, but he failed to discharge the

onus by adducing necessary evidence and as such, he is

not entitled for the benefits of the provisions of Section

25-F of the Act and as per the decision of the commissioner,

the production activities of the unit was closed down and

even though, the workman did not work after1988, notice

pay and retrenchment compensation was sent to him

alongwith the retrenchment notice dated 09.02.1996 and

Party No. 1 did not commit any illegality and the workman

is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh),(2005)8

SCC-750(Surendra Nagar District Panchayat vs.

Dahyabhai Amarsingh), (2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C. pandey),

(2006)5 SCC-173(Municipal Council, Sujanpur Vs. Surinder

Singh), (2006)9 SCC-697(Krishna Bhagyajal Nigam Ltd. Vs.

Mohd. Rafi), (2006)9 SCC-132 (Surendranagar Distt.

Panchayat vs. Ganga Ben Laljibhai), (2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam vs. Sham Lal), (2006)6 SCC-

275(Rajsthan Tourism Development Coroporation vs.

Intejam Alizafri), (2006)5 SCC-127(Nagar Mahapalika vs.

State of U.P.), (2006)1 SCC-106 (R.M.Yellati vs. Asstt.

Exucutive Engineer), (2006)2 SCC-711 (State of M.P.vs.

Arjunlal Rajak),(2007)13 SCC-343 (Ranip Nagar Palika vs.

Babuji Gabhaji Thakore), (2007)12-172 (State of

Maharashtra vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089 (State of Haryana vs. Ramesh Kumar), (2008)3

SCC-474 (BSNL vs Mahesh Chand), (2008)5 SCC-

171(Municipal Corporation, Faridabad vs. Durga Prasad)

and (2009) 17 SCC-326 (Ajnala Cooperative Sugar Mills

Ltd. vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No. 1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses No.1 and 2

of the party No. 1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No. 1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

13. Apart from the oral evidence, the documentary

evidence produced by the party No. 1 clinches the issue

in favour of the workman. The party No. 1 has produced

and proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

from August, 1994 to January, 1996 and he is entitled for

retrenchment compensation for three and half years i.e.

for 52 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding

12 calendar months of the date of his termination i.e.

12-02-1996. It is also found from the material on record

that before the termination of the workman from services,

the mandatory provisions of section 25-F of the Act were

not complied with and neither one month’s notice nor one

month’s wages in lieu of notice nor retrenchment

compensation was given to him. So, the termination of

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[PART II—SEC. 3(ii)]

the workman from services amounts to retrenchment and

such termination is illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 12.02.1996.

14. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In-charge Officer Vs. Shankar Setty.) have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 90,000/-

(Rupees ninty thousand only) in lieu of reinstatement shall

be appropriate, just and equitable. Hence, it is ordered:-

ORDER

The action of the management of Handmade

Paper Production and Training Centre, Khadi and

Village Industries Commission, Wardha in terminating

the services of Shri Manohar Shravanji Somnathe is

illegal and unjustified. The workman is entitled for

monetary compensation of Rs.90,000 (Rupees ninty

thousand only) in lieu of reinstatement. He is not

entitled for any other relief. The party No.1 is

directed to pay the monetary compensation of

Rs. 90,000 to the workman Shri Manohar Shravanji

Somnathe within 30 days of the publication of the

award in the official gazette failing which, the amount

will carry interest at the rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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,oa Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k lhthvkbZVh@

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New Delhi, the 24th March , 2014

S.O. 1186.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/173/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the industrial dispute between the employers in relation

to the management of Director, Handmade Paper Production

Khadhi &Village Industrial Commission and their workman,

which was received by the Central Government on

24-03-2014.

[No. L-42012/80/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/173/2002

Date: 03.03.2014.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3059

Party No.1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No.2

Smt. Premila Maroti More,

R/o Gorakshan,

Ward No.42,

Tah. & Distt.-Wardha-442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Smt. Premila Maroti More for

adjudication, as per letter No.L-42012/80/95-IR(DU) dated

27.06.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre,

Khadi and Village Industries Commission, Wardha

in terminating the services of Smt. Premila Maroti

More is proper, justified and legal? If not, to what

relief the workman is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Smt. Premila Maroti More (‘the workman” in short), filed

the statement of claim and the management of Handmade

Paper Production and Training Centre (“Party No. 1” in

short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and she was employed by Party No. 1 as a

unskilled worker on 10.04.1984 and worked continuously

and she was being paid @ Rs. 550 per month and though

she herself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of her appointment, she worked continuously without

any gap and she had put in 240 days of attendance in

every year of service, but she was not made permanent in

service and even though, she was doing the same work as

done by the permanent workers, neither she was paid wages

at par with the permanent employees nor given the benefits

of bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the attendance-cum-Wage

Card to her and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow her and

other temporary workers to resume duty w.e.f. 20.11.1993

and she was informed by Party No. 1 through Shri A. Datta

that she would be allowed to resume duty in case of her

consenting to work under the Contractor, but she refused

the offer, as because, she had already worked with Party

No. 1 for years together and was entitled to be made

permanent in service as per the representation dated

18.11.1993 and though she approached Party No. 1 on

21.11.1993 and 22.11.1993, she was not provided with work,

so she alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, she continuously approached

and requested the Party No. 1 to provide her work, but

Party No. 1 did not pay any heed to her request and after

waiting for a long time, she approached the Labour Court,

Nagpur by filing U.L.P.A. Complaint No. 825 of 1993 and

the Labour Court vide its interim order, directed Party No.

1 to reinstate her in service, but no work was provided to

her by Party No. 1 and Party No. 1 moved a revision

application before the Industrial Court, Nagpur, against

the order of the Labour Court raising objection of the

Labour Court of having no jurisdiction to entertain and

decide the matter pertaining to the establishment of the

Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so she withdrew the case filed by her

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to her and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

It is also pleaded by the workman that Party

No. 1 had issued experience certificate in her favour and

before terminating her services, Party No.1 neither issued

one month’s notice nor paid notice pay in lieu of the notice

or retrenchment compensation as provided under Section

25-F of the Act and therefore, her removal/retrenchment

from services is illegal, improper and contrary to law and

she is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party

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No. 1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991, between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of the appointment of the rest five workers

was that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

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retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 10.04.1984 and

she did not work continuously since the date of her

appointment and she worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that she had put in continuous service of

240 days is false and the workman did not join the work as

per the appointment letter dated 31.01.1991 and as such,

question of not allowing her to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that she was

orally terminated w.e.f. 22.11.1993 and due to the

intervention of the ALC, the workers were again allowed

to resume their duties and thereafter, the workers demanded

for their legitimate rights including payment of wages

applicable to them and Party No. 1 with malafide intension

decided to stop the work, instead of implementing the

statutory law and she was provided with work from 1st

February, 1991 as per the order issued to the workers

including herself individually and she worked continuously

till 22.11.1993 and she was orally terminated from services

w.e.f. 22.11.1993, without service of one month’s notice or

payment of one month’s pay in lieu of notice or

retrenchment compensation and her oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169 to 172 and 174 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-

Labour Court, Nagpur in case Nos. 160/2002 to

167/2002 and 169/2002 to 178/2002 is quashed and

set aside. The Tribunal is directed to allow the

parties to lead further evidence, if they so desire

and decided the cases thereafter. The Tribunal is

directed to decide the reference in case Nos. 174/

2002 to 178/2002 by common or separate awards as

he deems fit and proper on the basis of the evidence

led by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined herself as a witness

in support of her case did not adduce further evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in her evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in her cross-examination has

stated that she worked continuously from 1986 to

November, 1993. She has denied the suggestion that she

did not work for 240 days in any calendar year.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No. 2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No. 2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No. 2 was reinstated

in service from August, 1994 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

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has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as an unskilled labourer

w.e.f. 10.04.1984 and from the date of her initial appointment,

the workman worked continuously and she had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but her services

were not regularized and the workman was compelled to

sign an illegal agreement and when she did not agree to

sign the same, she was not allowed to join service from

22.11.1993 and such termination of the workman was

without compliance of the mandatory provisions of Section

25-F of the Act and the termination amounts to

retrenchment and the termination of the workman is illegal,

arbitrary, malafide and contrary to the principles of natural

justice and payment of retrenchment compensation in

1996 cannot cure such illegality and as such, the workman

is entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 [Ambalal Shivlal Vs Vin (D.M.) and

Others], 1969 II LLJ-373 (Sivanandam Vs. Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs. State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs. Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs.

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when her services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, she did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that she had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but

she failed to discharge the onus by adducing necessary

evidence and as such, she is not entitled for the benefits

of the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after 1988, notice pay and retrenchment

compensation was sent to her alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

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In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Sri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)8

SCC-750(Surendra Nagar District Panchayat vs.

Dahyabhai Amarsingh),(2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. vs. S.C. Pandey),

(2006)5 SCC-173(Municipal Council, Sujanpur vs. Surinder

Singh),(2006)9 SCC-697(Krishna Bhagyajal Nigam Ltd. vs.

Mohd. Rafi),(2006)9 SCC-132(Surendranagar Distt.

Panchayat vs. Ganga Ben Laljibhai), (2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam vs. Sham Lal),(2006)6 SCC-275

(Rajsthan Tourism Development Corporation vs. Intejam

Alizafri), (2006)5 SCC-127(Nagar Mahapalika vs. State of

U.P.), (2006)1 SCC-106(R.M.Yellati vs. Asstt. Exucutive

Engineer),(2006)2 SCC-711(State of M.P.vs. Arjunlal

Rajak),(2007)13 SCC-343(Ranip Nagar Palika vs. Babuji

Gabhaji Thakore),(2007)12-172(State of Maharashtra vs.

Dattatraya Digamber Birajdar), 2008 II CLR 1089(State of

Haryana vs. Ramesh Kumar) 9, (2008)3 SCC-474(BSNL vs.

Mahesh Chand),(2008)5 SCC-171(Municipal Corporation,

Faridabad vs. Durga Prasad) and (2009)17 SCC-326(Ajnala

Cooperative Sugar Mills Ltd. vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the Party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the Party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the Party

No.1 had not allowed the Party No.2 and his co-workers,

who had issued notice to Party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The Party No.2 had approached

the Party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that she was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I find no force in the contention raised

by the learned advocate for the Party No.1 in that regard.

13. To prove that she had worked for 240 days in

the preceding 12 months of the date of termination, the

workman has given her own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of her such claim, her evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the Party No. 1. As already mentioned above, Amitabh

Datta, the witness No.1 for Party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the Party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the Party No.1 clinches the issue in

favour of the workman. The Party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

she is entitled for retrenchment compensation for three

years i.e. for 45 days at the rate of 15 days per year. So, it

is clear from the materials on record that the workman

infact had worked for more than 240 days in the preceding

12 calendar months of the date of his termination i.e.

22.11.1993. It is also found from the materials on record

that before the termination of the workman from services,

the mandatory provisions of section 25-F of the Act were

not complied with and neither one month’s notice nor one

month’s wages in lieu of notice nor retrenchment

compensation was given to her. So, the termination of the

workman from services amounts to retrenchment and such

termination is illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

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by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000

(Rupees Seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Smt. Premila Maroti More is illegal and unjustified. The

workman is entitled for monetary compensation of

Rs.75,000 (Rupees Seventy Five thousand only) in lieu of

reinstatement. She is not entitled for any other relief. The

Party no.1 is directed to pay the monetary compensation

of Rs. 75,000 to the workman, Smt. Premila Maroti More

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1187.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/172/2002) of the Cent. Govt. Indus. Tribunal/Labour

Court, Nagpur now as shown in the Annexure, in the

Industrial Dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadhi &Village Industrial Commission and their workmen,

which was received by the Central Government on

24-03-2014.

[No. L-42012/42/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/172/2002

Date: 03.03.2014

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001

Versus

Party No. 2

Smt. Sunil Sureshrao Rewatkar,

R/o Ramnagar, Ward No. 27,

Wardha-442001

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Sunil Sureshrao Rewatkar,

¹Hkkx II—[k.M 3(ii)º

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3065

for adjudication, as per letter No. L-42012/42/95-IR(DU)

dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Sunil Sureshrao Rewatkar was proper,

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

entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri Sunil

Sureshrao Rewatkar, (‘the workman” in short), filed the

statement of claim and the management of Handmade

Paper Production and Training Centre (“Party No. 1” in

short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

skilled worker on 01.05.1985 and worked continuously and

he was being paid @ Rs. 800/- per month and though he

himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No. 1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 766 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party

No. 1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

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[PART II—SEC. 3(ii)]

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 01.05.1985 and

he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

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3067

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that he had put in continuous service of 240

days is false and the workman did not join the work as per

the appointment letter dated 31.01.1991 and as such,

question of not allowing him to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169 to 171 and 173 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and 169/

2002 to 178/2002 is quashed and set aside. The Tribunal is

directed to allow the parties to lead further evidence, if

they so desire and decided the cases thereafter. The

Tribunal is directed to decide the reference in case Nos.

174/2002 to 178/2002 by common or separate awards as he

deems fit and proper on the basis of the evidence led by

the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09.02.1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from January,

1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness No. 2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party No. 2 as well as other employees were never in

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[PART II—SEC. 3(ii)]

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449tj

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a skilled labourer w.e.f.

01.05.1985 and from the date of his initial appointment, the

workman worked continuously and he had completed more

than 240 days of work in each calendar year and from the

date of completion of 240 days of work, the workman was

entitled for regularization in service, but his services were

not regularized and the workman was compelled to sign

an illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and such termination of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs. Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs. Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs. State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs. Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs.

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs.Sowaran Singh),(2005)8

SCC-750 (Surendra Nagar District Panchayat Vs.

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3069

Dahyabhai Amarsingh), (2006) 2 SCC-716 (M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C. pandey),

(2006) 5 SCC-173 (Municipal Council, Sujanpur Vs.

Surinder Singh),(2006) 9 SCC-697 (Krishna Bhagyajal

Nigam Ltd. Vs. Mohd. Rafi), (2006) 9 SCC-132

(Surendranagar Distt. Panchayat Vs. Ganga Ben Laljibhai),

(2006) 9 SCC-124 Chief Engineer Ranjit Sagar Dam Vs. Sham

Lal), (2006) 6 SCC-275 (Rajsthan Tourism Development

Corporation Vs. Intejam Alizafri), (2006) 5 SCC-127(Nagar

Mahapalika Vs. State of U.P.), (2006) 1 SCC-106 (R.M.Yellati

Vs. Asstt. Executive Engineer), (2006) 2 SCC-711 (State of

M.P. Vs. Arjunlal Rajak), (2007) 13 SCC-343 (Ranip Nagar

Palika Vs. Babuji Gabhaji Thakore), (2007) 12-172 (State of

Maharashtra Vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089 (State of Haryana Vs. Ramesh Kumar), (2008) 3

SCC-474 (BSNL Vs. Mahesh Chand), (2008) 5 SCC-171

(Municipal Corporation, Faridabad Vs. Durga Prasad) and

(2009) 17 SCC-326 (Ajnala Co-operative Sugar Mills Ltd.

Vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I do not find any force in the

contention raised by the learned advocate for the Party

No. 1 in that regard.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and he

is entitled for retrenchment compensation for three years

i.e. for 45 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In-charge Officer Vs. Shankar Setty.) have been

pleased to hold that:-

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[PART II—SEC. 3(ii)]

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party No.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000

(Rupees seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Sunil Sureshrao Rewatkar is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.75,000 (Rupees seventy five thousand only) in lieu of

reinstatement. He is not entitled for any other relief. The

party No.1 is directed to pay the monetary compensation

of Rs. 75,000 to the workman Shri Sunil Sureshrao Rewatkar

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1188.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/164/2002) of the Cent. Govt. Indus. Tribunal/Labour

Court, Nagpur now as shown in the Annexure in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their workmen,

which was received by the Central Government on

24-03-2014.

[No. L-42012/29/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/164/2002

Date: 03.03.2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Shankar Rao Z. Bhagatsingh,

R/o Segur Bhawan,

Wardha-442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Shankar Rao Z. Bhagat

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3071

Singh, for adjudication, as per letter No.L-42012/29/95-

IR(DU) dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre,

Khadi and Village Industries Commission, Wardha

in terminating the services of Shri Shankar Rao Z.

Bhagat Singh was proper, justified and legal? If

not, to what relief the workman is entitled to?”

On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri

Shankar Rao Z. Bhagat Singh, (‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

skilled worker on 10.04.1984 and worked continuously and

he was being paid @ Rs. 800 per month and though he

himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the Attendance-cum-

Wage Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No. 1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party No.

1 neither replied to the notice nor provided him any work

and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint of 1993 and the Labour Court

vide its interim order, directed Party No. 1 to reinstate him

in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

reinstated him in service from August, 1994 to January,

1996 and again retrenched him vide notice dated 09.02.1996

and before terminating his services, Party No.1, neither

issued one month’s notice nor paid notice pay in lieu of

the notice or retrenchment compensation as provided

under Section 25-F of the Act and therefore, his removal/

retrenchment from services is illegal, improper and contrary

to law and he is entitled for reinstatement in services with

full back wages alongwith all monetary benefits of

permanent employee, from the date of joining the service

of Party No. 1 till the date of actual reinstatement and work

is still available with Party No. 1 and Party No.1 engaged

new persons on less wages for more production.

It is further pleaded by the workman that party

No.1 reinstated him in service from August,1994 till January,

1996 and he was retrenched by party No.1 vide notice

dated 09.02.1996 and the retrenchment itself is illegal,

because, party No.1 neither paid all the legal dues at the

time of retrenchment and retrenchment compensation was

not paid according to law and the retrenchment was

challenged before the ALC and as the conciliation

proceeding ended in failure, the reference was made for

adjudication by the Central Government.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

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[PART II—SEC. 3(ii)]

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

the workman, Shankar Rao Ingle approached the Labour

Court, Nagpur and a written statement was filed by KVIC

raising the question of jurisdiction and the said case

continued till 1991 without adjudication and there was a

joint discussion on 18.01.1991 between the six workers,

who had made complaint to ALC and the incharge of the

unit at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

the workman, directing them to join work and out of them,

five workers joined their duties and the appointment of

the workman was made with the condition of withdrawal

of the case filed by him, but Shankar Rao Ingle neither

withdrew the case nor joined work and one of the conditions

of appointment of the rest five workers was that they would

enter into an agreement with its management and the

finalization of the agreement took a long time and on

19.11.1993, a meeting was held with all the workers and in

the presence of the then Director, Regional Office, KVIC,

Wardha, the workers were requested to enter into the

agreement, which was at par with another unit of

Handmade Paper at Pune and the workers requested for

two to three days time to give their consent, however, on

22.11.1993, the workers sent a letter informing their

unwillingness to work on contract basis and that they

would work only on daily wages basis and it was surprised

to note that when the workers were provided work on

daily wages basis in 1988, they demanded continuous work

and when they were offered continuous work under

Production Marketing and Training Programme in 1991,

they refused to enter into an agreement and to work on

contract basis, refusing to adhere to the condition of

appointment and the workers could not be continued due

to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449the meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 10.04.1984 (the

year,1984 has been wrongly mentioned as 1994 by the

party No.1 in paragraph 27 of the written statement) and

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3073

he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that he had put in continuous service of 240

days is false and the workman did not join the work as per

the appointment letter and as such, question of not

allowing him to join work does not arise and the workman

is not entitled to any relief. It is also pleaded by party No.1

that the workman was not reinstated in service from

August, 1994 till January, 1996.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and the production of the centre was closed w.e.f.

11.01.1988 to 1991 due to malafide intention of party No.1

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 161 to 163,165 to167 and 169 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and

169/2002 to 178/2002 is quashed and set aside. The

Tribunal is directed to allow the parties to lead further

evidence, if they so desire and decided the cases thereafter.

The Tribunal is directed to decide the reference in case

Nos. 174/2002 to 178/2002 by common or separate awards

as he deems fit and proper on the basis of the evidence led

by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. However, it is to be mentioned that the

workman though has mentioned in the statement of claim

that he was reinstated in service from August, 1994 to

January, 1996, in his examination in chief, he has not

whispered a single word about the same. In his cross-

examination, the workman has stated that he worked from

1977 to 1988 continuously and from 1984 to 1988, he worked

in the factory and prior to that he had worked in Gramyodog

Board. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that the factory was

closed from 1988 to 1991 and he did not work from 1988. It

is clear from the evidence of the workman that he did not

work with party No.1 after January, 1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

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[PART II—SEC. 3(ii)]

in service from August, 94 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“Party No. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

However, such evidence of the two witneses as

mentioned above is of no avail to the workman in view of

his own admission that he did not work with Party No.1

after 1988.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995.

In his cross-examination, this witness has stated

that Ext. M-II is the office copy of the order dated 28.01.1991

and Ext.M-II was issued after the engagement of the

workman by the management and as per condition No.7 of

Ext. M-II, the workman was to execute an agreement as

prescribed by the office of Handmade Paper, Khadi Board,

Pune and as the workman did not agree to execute any

agreement, he was not provided with work or made

permanent and the workman was engaged as labourer on

daily wages.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a skilled labourer w.e.f.

10.04.1984 and from the date of his initial appointment, the

workman worked continuously and he had completed more

than 240 days of work in each calendar year and from the

date of completion of 240 days of work, the workman was

entitled for regularization in service, but his services were

not regularized and the workman was compelled to sign

an illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and such termination of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

28.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and the workman has not adduced any legal evidence on

record to show that he had worked for 240 days in the

preceding 12 months of the date of termination and the

onus to prove such fact is on the workman, but he failed

to discharge the onus by adducing necessary evidence

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and as such, he is not entitled for the benefits of the

provisions of Section 25-F of the Act and as per the decision

of the commissioner, the production activities of the unit

was closed down and even though, the workman did not

work after1988, notice pay and retrenchment compensation

was sent to him alongwith the retrenchment notice dated

09.02.1996 and Party No. 1 did not commit any illegality

and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs.Sowaran Singh),(2005)

8 SCC-750(Surendra Nagar District Panchayat Vs.

Dahyabhai Amarsingh), (2006)2 SCC-716 (M.P. State Agro

Industries Development Corpn. Ltd. vs. S.C.

Pandey),(2006)5 SCC-173(Municipal Council, Sujanpur Vs.

Surinder Singh), (2006)9 SCC-697(Krishna Bhagyajal Nigam

Ltd. Vs. Mohd. Rafi),(2006)9 SCC-132(Surendra Nagar Distt.

Panchayat Vs. Ganga Ben Laljibhai),(2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam Vs. Sham Lal),(2006)6 SCC-

275(Rajsthan Tourism Development Coroporation Vs.

Intejam Alizafri),(2006)5 SCC-127(Nagar Mahapalika Vs.

State of U.P.),(2006)1 SCC-106(R.M.Yellati Vs. Asstt.

Exucutive Engineer),(2006)2 SCC-711(State of M.P. Vs.

Arjunlal Rajak),(2007)13 SCC-343(Ranip Nagar Palika Vs.

Babuji Gabhaji Thakore),(2007)12-172(State of Maharashtra

Vs. Dattatraya Digamber Birajdar), 2008 II CLR 1089(State

of Haryana vs. Ramesh Kumar),92008)3 SCC-474(BSNL

Vs Mahesh Chand),(2008)5 SCC-171(Municipal

Corporation, Faridabad Vs. Durga Prasad) and (2009)17

SCC-326(Ajnala Cooperative Sugar Mills Ltd. Vs. Sukhraj

Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently

on22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I do not find any force in the

contention raised by the learned advocate for the Party

NO.1 in that regard.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. The

workman has not produced any other evidence in support

of his such claim. As already mentioned above, the

workman has admitted that after 1988, he did not work

with party No.1. So, it is clear from the materials available

on record that the workman has failed to prove that he had

worked for 240days in the preceding 12 calendar months

of the date of termination i.e. 22.11.1993. Hence, the

provisions of Section 25-F of the Act are not applicable to

the case of the workman and he is not entitled to any

relief.Hence, it is ordered:-

ORDER

The reference is answered against the workman. The

workman is not entitled to any relief.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1189.—In pursuance of Section 17 of the

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

3076

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

Government hereby publishes the Award (I.D No. CGIT/

NGP/165/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the Industrial Dispute between the employers in relation

to the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their workman,

received by the Central Government on 24-03-2014.

[No. L-42012/41/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOURT COURT, NAGPUR

Case No. CGIT/NGP/165/2002

Date : 03.03.2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Sanjay Shivnarayan Shriwas,

R/o Manganwadi Quarter,

Ramnagar Road, Ward No. 31,

Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Sanjay Shivnarayan

Shriwas, for adjudication, as per letter No.L-42012/41/95-

IR(DU) dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Sanjay Shivnarayan Shriwas was

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

is entitled to?”

On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Shri Sanjay Shivnarayan Shriwas (‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

semiskilled worker on 23.09.1991 and worked continuously

and he was being paid @ Rs. 675 per month and though

he himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the Attendance-cum-

Wage Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No. 1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 796 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

NO. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

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work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party

No. 1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

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[PART II—SEC. 3(ii)]

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449 the meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment order on 23.09.1991 on

temporary basis on condition that he will enter into an

agreement and he did not work continuously since the

date of his appointment and he worked intermittently on

daily wages, as and when work was available and as the

workers denied to enter into an agreement, the production

activities were stopped and presently, it is engaged only

in providing Artisan training and in the year 1993, there

were only two permanent Handmade Paper staff and four

JBCRI staff and at present, there are only one Handmade

Paper staff and three permanent JBCRI staff and the unit

at Wardha had to be closed from 11.01.1988 to 1991, as the

daily wage workers left the work and the unit again started

functioning from 01.02.1991 and at that time, the workman

and other workers were given appointment letters with

conditions that they have to enter into an agreement and

the claim of the workman that he had put in continuous

service of 240 days is false and the workman did not join

the work after 22.11.1993 and as such, question of not

allowing him to join work does not arise and the workman

is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 164,166, 167 and 169 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and

169/2002 to 178/2002 is quashed and set aside. The

Tribunal is directed to allow the parties to lead further

evidence, if they so desire and decided the cases thereafter.

The Tribunal is directed to decide the reference in case

Nos. 174/2002 to 178/2002 by common or separate awards

as he deems fit and proper on the basis of the evidence led

by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 23.09,1991 to

20.11.93. He has denied the suggestion that he did not

work for 240 days in any calendar year. The workman in

his cross-examination has further stated that one

registered letter, M-2 was sent to him, but he returned the

same.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

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work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a semiskilled labourer

w.e.f. 23.09.1991 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but his services

were not regularized and the workman was compelled to

sign an illegal agreement and when he did not agree to

sign the same, he was not allowed to join service from

22.11.1993 and such termination of the workman was

without compliance of the mandatory provisions of Section

25-F of the Act and the termination amounts to

retrenchment and the termination of the workman is illegal,

arbitrary, malafide and contrary to the principles of natural

justice and payment of retrenchment compensation in

1996 cannot cure such illegality and as such, the workman

is entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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[PART II—SEC. 3(ii)]

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs.Sowaran Singh), (2005)8

SCC-750(Surendra Nagar District Panchayat Vs.

Dahyabhai Amarsingh), (2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C. pandey),

(2006)5 SCC-173(Municipal Council, Sujanpur vs. Surinder

Singh), (2006) 9 SCC-697(Krishna Bhagyajal Nigam Ltd.

Vs. Mohd. Rafi), (2006)9 SCC-132(Surendranagar Distt.

Panchayat Vs. Ganga Ben Laljibhai), (2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam Vs. Sham Lal), (2006) 6 SCC-

275(Rajsthan Tourism Development Coroporation Vs.

Intejam Alizafri), (2006)5 SCC-127(Nagar Mahapalika vs.

State of U.P.), (2006) 1 SCC-106 (R.M.Yellati vs. Asstt.

Exucutive Engineer), (2006)2 SCC-711(State of M.P.Vs.

Arjunlal Rajak),(2007)13 SCC-343(Ranip Nagar Palika Vs.

Babuji Gabhaji Thakore), (2007)12-172(State of

Maharashtra Vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089(State of Haryana Vs. Ramesh Kumar), (2008) 3

SCC-474 (BSNL Vs. Mahesh Chand), (2008)5 SCC-171

(Municipal Corporation, Faridabad Vs. Durga Prasad) and

(2009) 17 SCC-326(Ajnala Cooperative Sugar Mills Ltd.

Vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence, I find no force in the contention

raised by the learned advocate for the Party No. 1 in that

respect.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from September, 1991 to November, 1993 and

he is entitled for retrenchment compensation for two years

i.e. for 30 days at the rate of15 days per year. So, it is clear

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3081

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported

in (2013) 5 SCC-136 (Asstt. Engineer, Rajsthan

Development Corporation Vs. Gitam Singh) have been

pleased to take into consideration a large number of

decisions delivered by the Hon’ble Apex Court earlier,

including the decisions reported in 2011 II CLR-461

(Devinder Singh Vs. Municipal council, Sonaur, (2010) 3

SCC-192 (Harjinder Singh Vs. Punjab State Warehousing

Corporation) and (2010) 9 SCC-126 (In charge Officer Vs.

Shankar Setty.) and have been pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 60,000

(Rupees sixty thousand only) in lieu of reinstatement shall

be appropriate, just and equitable. Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri S. Sanjay Shivnarayan Shriwas is illegal and

unjustified. The workman is entitled for monetary

compensation of Rs.60,000 (Rupees sixty thousand only)

in lieu of reinstatement. He is not entitled for any other

relief. The party no.1 is directed to pay the monetary

compensation of Rs. 60,000 to the workman Shri Sanjay

Shivnarayan Shriwas within 30 days of the publication of

the award in the official gazette failing which, the amount

will carry interest at the rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1190.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/166/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the Industrial Dispute between the employers in relation

to the management of the Director, Handmade Paper

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[PART II—SEC. 3(ii)]

Production Khadi &Village Industrial Commission and

their workman, received by the Central Government on

24-03-2014.

[No. L-42012/39/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/166/2002

Date: 03-03-2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Baba Gopal Rao Somnathe,

R/o Sindi(Meghe), Near

Grampanchayat,

Teh./Distt.

Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Baba Gopal Rao Somnathe,

for adjudication, as per letter No.L-42012/39/95-IR(DU)

dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Baba Gopal Rao Somnathe was proper,

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

entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri Baba

Gopal Rao Somnathe, (‘the workman” in short), filed the

statement of claim and the management of Handmade

Paper Production and Training Centre (“Party No. 1” in

short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

skilled worker on 01.10.1984 and worked continuously and

he was being paid @ Rs. 800 per month and though he

himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party No.

1 neither replied to the notice nor provided him any work

and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 797 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

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3083

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party

No. 1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

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[PART II—SEC. 3(ii)]

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 01.10.1984 and

he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that he had put in continuous service of 240

days is false and the workman did not join the work after

22.11.1993 and as such, question of not allowing him to

join work does not arise and the workman is not entitled to

any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 165,167 and 169 to 178 of

2002 had been disposed of by this Tribunal by a common

award dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award

dated 27.03.2007 passed by the Industrial Tribunal

–cum-Labour Court, Nagpur in case Nos. 160/2002

to 167/2002 and 169/2002 to 178/2002 is quashed

and set aside. The Tribunal is directed to allow the

parties to lead further evidence, if they so desire

and decided the cases thereafter. The Tribunal is

directed to decide the reference in case Nos. 174/

2002 to 178/2002 by common or separate awards as

he deems fit and proper on the basis of the evidence

led by the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1984 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that one registered

letter, M-2 was sent to him, but he returned the same.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

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work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449tj

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a skilled labourer w.e.f.

01.10.1984 and from the date of his initial appointment, the

workman worked continuously and he had completed more

than 240 days of work in each calendar year and from the

date of completion of 240 days of work, the workman was

entitled for regularization in service, but his services were

not regularized and the workman was compelled to sign

an illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and such termination of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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[PART II—SEC. 3(ii)]

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Corporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)

8 SCC-750 (Surendra Nagar District Panchayat Vs.

Dahyabhai Amarsingh), (2006) 2 SCC-716 (M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C. Pandey),

(2006) 5 SCC-173 (Municipal Council, Sujanpur Vs.

Surinder Singh),(2006)9 SCC-697 (Krishna Bhagyajal

Nigam Ltd. vs. Mohd. Rafi), (2006) 9 SCC-132

(Surendranagar Distt. Panchayat Vs. Ganga Ben Laljibhai),

(2006) 9 SCC-124 Chief Engineer Ranjit Sagar Dam Vs. Sham

Lal), (2006) 6 SCC-275 (Rajasthan Tourism Development

Corporation Vs. Intejam Alizafri), (2006)5 SCC-127 (Nagar

Mahapalika Vs. State of U.P.), (2006) 1 SCC-106 (R.M.Yellati

Vs. Asstt. Executive Engineer), (2006) 2 SCC-711 (State of

M.P. Vs. Arjunlal Rajak), (2007) 13 SCC-343 (Ranip Nagar

Palika Vs. Babuji Gabhaji Thakore), (2007) 12-172 (State of

Maharashtra Vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089 (State of Haryana Vs. Ramesh Kumar), (2008) 3

SCC-474 (BSNL Vs. Mahesh Chand), (2008) 5 SCC-171

(Municipal Corporation, Faridabad Vs. Durga Prasad) and

(2009) 17 SCC-326 (Ajnala Cooperative Sugar Mills Ltd.

Vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence, I find no force in the contention

raised by the learned advocate for the Party No. 1 in that

regard.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and he

is entitled for retrenchment compensation for three years

i.e. for 45 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

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3087

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajasthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000

(Rupees seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Baba Gopal Rao Somnathe is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.75,000 (Rupees seventy five thousand only) in lieu of

reinstatement. He is not entitled for any other relief. The

party no.1 is directed to pay the monetary compensation

of Rs. 75,000 to the workman Shri Baba Gopal Rao

Somnathe within 30 days of the publication of the award

in the official gazette failing which, the amount will carry

interest at the rate of 6 per cent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1191.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/167/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadi and Village Industrial Commission and their

workman, which was received by the Central Government

on 24-03-2014.

[No. L-42012/43/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

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[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/167/2002

Date: 03-03-2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Kamlakar Narayanrao Sayankar,

H/o 17, P&T Colony,

Ward No. 15,

Near Shriniwas Colony,

Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Kamlakar Narayanrao

Sayankar, for adjudication, as per letter No.L-42012/43/95-

IR(DU) dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Kamlakar Narayanrao Sayankar was

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

is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Shri Kamlakar Narayanrao Sayankar (‘the workman” in

short), filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

Store keeper cum clerk on 16.09.1991 and worked

continuously and he was being paid @ Rs. 975 per month

and though he himself and 17 other workers engaged by

Party No. 1 worked with Party No. 1 for several years, they

were continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No. 1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 765 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a Demonstration-cum-Extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non-attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

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[PART II—SEC. 3(ii)]

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment order on 16.09.1991 on

temporary basis on condition that he will enter into an

agreement and he did not work continuously since the

date of his appointment and he worked intermittently on

daily wages, as and when work was available and as the

workers denied to enter into an agreement, the production

activities were stopped and presently, it is engaged only

in providing Artisan training and in the year 1993, there

were only two permanent Handmade Paper staff and four

JBCRI staff and at present, there are only one Handmade

Paper staff and three permanent JBCRI staff and the unit

at Wardha had to be closed from 11.01.1988 to 1991, as the

daily wage workers left the work and the unit again started

functioning from 01.02.1991 and at that time, the workman

and other workers were given appointment letters with

conditions that they have to enter into an agreement and

the claim of the workman that he had put in continuous

service of 240 days is false and the workman did not join

the work after 22.11.1993 and as such, question of not

allowing him to join work does not arise and the workman

is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 166 and 169 to 178 of 2002

had been disposed of by this Tribunal by a common award

dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and 169/

2002 to 178/2002 is quashed and set aside. The Tribunal is

directed to allow the parties to lead further evidence, if

they so desire and decided the cases thereafter. The

Tribunal is directed to decide the reference in case Nos.

174/2002 to 178/2002 by common or separate awards as he

deems fit and proper on the basis of the evidence led by

the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 23.09,1991 to

20.11.1993. He has denied the suggestion that he did not

work for 240 days in any calendar year. The workman in

his cross-examination has further stated that one

registered letter, M-2 was sent to him, but he returned the

same.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No. 2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

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including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August, 94 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a Store Keeper-cum-Clerk

w.e.f. 16.09.1991 and from the date of his initial appointment,

the workman worked continuously and he had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but his services

were not regularized and the workman was compelled to

sign an illegal agreement and when he did not agree to

sign the same, he was not allowed to join service from

22.11.1993 and such termination of the workman was

without compliance of the mandatory provisions of Section

25-F of the Act and the termination amounts to

retrenchment and the termination of the workman is illegal,

arbitrary, malafide and contrary to the principles of natural

justice and payment of retrenchment compensation in

1996 cannot cure such illegality and as such, the workman

is entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 [Ambalal Shivlal Vs. Vin (D.M.) and

others], 1969 II LLJ-373 (Sivanandam Vs. Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs. State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs. Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs.

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

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[PART II—SEC. 3(ii)]

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)

8 SCC-750 (Surendra Nagar District Panchayat Vs.

Dahyabhai Amarsingh), (2006) 2 SCC-716 (M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C. Pandey),

(2006) 5 SCC-173 (Municipal Council, Sujanpur Vs.

Surinder Singh), (2006 )9 SCC-697 (Krishna Bhagyajal

Nigam Ltd. Vs. Mohd. Rafi), (2006) 9 SCC-132

(Surendranagar Distt. Panchayat Vs. Ganga Ben Laljibhai),

(2006) 9 SCC-124 Chief Engineer Ranjit Sagar Dam Vs. Sham

Lal), (2006) 6 SCC-275 (Rajsthan Tourism Development

Coroporation Vs. Intejam Alizafri), (2006) 5 SCC-127 (Nagar

Mahapalika Vs. State of U.P.), (2006) 1 SCC-106 (R.M.Yellati

Vs. Asstt. Exucutive Engineer), (2006) 2 SCC-711(State of

M.P. Vs. Arjunlal Rajak), (2007) 13 SCC-343 (Ranip Nagar

Palika Vs. Babuji Gabhaji Thakore), (2007) 12-172 (State of

Maharashtra Vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089 (State of Haryana Vs. Ramesh Kumar), (2008) 3

SCC-474 (BSNL Vs. Mahesh Chand), (2008) 5 SCC-171

(Municipal Corporation, Faridabad Vs. Durga Prasad) and

(2009) 17 SCC-326 (Ajnala Cooperative Sugar Mills Ltd.

Vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently

on22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence, I find no force in the contention

raised by the learned advocate for the Party No. 1 in that

respect.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from September, 1991 to November, 1993 and

he is entitled for retrenchment compensation for two years

i.e. for 30 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

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3093

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party No.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 65,000/-

(Rupees sixty-five thousand only) in lieu of reinstatement

shall be appropriate, just and equitable. Hence, it is

ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Kamlakar Narayanrao Sayankar is illegal and

unjustified. The workman is entitled for monetary

compensation of Rs.65,000/- (Rupees sixty-five thousand

only) in lieu of reinstatement. He is not entitled for any

other relief. The party No. 1 is directed to pay the monetary

compensation of Rs. 65,000/- to the workman Shri Kamlakar

Narayanrao Sayankar within 30 days of the publication of

the award in the official gazette failing which, the amount

will carry interest at the rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1192.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/169/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the industrial dispute between the employers in relation

to the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their workmen,

which was received by the Central Government on

24-03-2014.

[No. L-42012/40/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/167/2002

Date: 03-03-2014

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[PART II—SEC. 3(ii)]

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001

Versus

Party No. 2

Shri Ashok Chandrabhanji

Mendhe, R/o Gorakshsha,

Ward No. 42,

Wardha – 442001

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Ashok Chandrabhanji

Mendhe , for adjudication, as per letter No.L-42012/40/95-

IR(DU) dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Ashok Chandrabhanji Mendhe was

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

is entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Shri

Ashok Chandrabhanji Mendhe (‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

semiskilled worker on 31.01.1991 and worked continuously

and he was being paid @ Rs. 675/- per month and though

he himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No.1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 828 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

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3095

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

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the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was given appointment order on 31.01.1991 on

temporary basis on condition that he will enter into an

agreement and he did not work continuously since the

date of his appointment and he worked intermittently on

daily wages, as and when work was available and as the

workers denied to enter into an agreement, the production

activities were stopped and presently, it is engaged only

in providing Artisan training and in the year 1993, there

were only two permanent Handmade Paper staff and four

JBCRI staff and at present, there are only one Handmade

Paper staff and three permanent JBCRI staff and the unit

at Wardha had to be closed from 11.01.1988 to 1991, as the

daily wage workers left the work and the unit again started

functioning from 01.02.1991 and at that time, the workman

and other workers were given appointment letters with

conditions that they have to enter into an agreement and

the claim of the workman that he had put in continuous

service of 240 days is false and the workman did not join

the work after 22.11.1993 and as such, question of not

allowing him to join work does not arise and the workman

is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from Ist, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167 and 170 to 178 of 2002

had been disposed of by this Tribunal by a common award

dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and 169/

2002 to 178/2002 is quashed and set aside. The Tribunal is

directed to allow the parties to lead further evidence, if

they so desire and decided the cases thereafter. The

Tribunal is directed to decide the reference in case Nos.

174/2002 to 178/2002 by common or separate awards as he

deems fit and proper on the basis of the evidence led by

the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 23.09,1991 to

20.11.93. He has denied the suggestion that he did not

work for 240 days in any calendar year. The workman in

his cross-examination has further stated that one

registered letter, M-2 was sent to him, but he returned the

same.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

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3097

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no. 2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a semiskilled worker w.e.f.

31.01.1991 and from the date of his initial appointment, the

workman worked continuously and he had completed more

than 240 days of work in each calendar year and from the

date of completion of 240 days of work, the workman was

entitled for regularization in service, but his services were

not regularized and the workman was compelled to sign

an illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and such termination of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

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[PART II—SEC. 3(ii)]

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the (2002) 3 SCC-25 (Range Forest Officer Vs. S.T.

Hadimani), (2004) 8 SCC-195 (Municipal Corporation,

Faridabad Vs. Sri Niwas), (2005) 8 SCC-481 (Batala Coop.

Sugar Mills Ltd. Vs.Sowaran Singh),(2005)8 SCC-

750(Surendra Nagar District Panchayat Vs. Dahyabhai

Amarsingh),(2006)2 SCC-716(M.P. State Agro Industries

Development Corpn. Ltd. vs. S.C. pandey),(2006)5 SCC-

173(Municipal Council, Sujanpur vs. Surinder

Singh),(2006)9 SCC-697(Krishna Bhagyajal Nigam Ltd. vs.

Mohd. Rafi),(2006)9 SCC-132(Surendranagar Distt.

Panchayat vs. Ganga Ben Laljibhai),(2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam vs. Sham Lal),(2006)6 SCC-

275(Rajsthan Tourism Development Corporation vs.

Intejam Alizafri),(2006)5 SCC-127(Nagar Mahapalika vs.

State of U.P.),(2006)1 SCC-106(R.M.Yellati vs. Asstt.

Exucutive Engineer),(2006)2 SCC-711(State of M.P.vs.

Arjunlal Rajak),(2007)13 SCC-343(Ranip Nagar Palika vs.

Babuji Gabhaji Thakore),(2007)12-172(State of Maharashtra

vs. Dattatraya Digamber Birajdar), 2008 II CLR 1089(State

of Haryana vs. Ramesh Kumar),92008)3 SCC-474(BSNL

vs. Mahesh Chand),(2008)5 SCC-171(Municipal

Corporation, Faridabad vs. Durga Prasad) and (2009)17

SCC-326(Ajnala Cooperative Sugar Mills Ltd. vs. Sukhraj

Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence, I find no force in the contention

raised by the learned advocate for the Party No. 1 in that

respect.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses no.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and he

is entitled for retrenchment compensation for three years

i.e. for 45 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

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3099

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajasthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the Labour Court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the Labour Court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000

(Rupees seventy-five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Ashok Chandrabhanji Mendhe is illegal and

unjustified. The workman is entitled for monetary

compensation of Rs.75,000 (Rupees seventy-five

thousand only) in lieu of reinstatement. He is not entitled

for any other relief. The party no.1 is directed to pay the

monetary compensation of Rs. 75,000 to the workman Shri

Ashok Chandrabhanji Mendhe within 30 days of the

publication of the award in the official gazette failing which,

the amount will carry interest at the rate of 6 per cent per

annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1193.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/170/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their workman,

which was received by the Central Government on

24-03-2014.

[No. L-42012/38/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/170/2002

Date: 03-03-2014.

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[PART II—SEC. 3(ii)]

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Nanda Madhukar Rao Doel

R/o Telengpur,

Ward No. 33,

Teh. & Distt.-Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Nanda Madhukar Rao Doel, for

adjudication, as per letter No.L-42012/38/95-IR(DU) dated

27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Nanda Madhukar Rao Doel is proper,

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

entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman, Nanda

Madhukar Rao Doel (‘the workman” in short), filed the

statement of claim and the management of Handmade

Paper Production and Training Centre (“Party No. 1” in

short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and she was employed by Party No. 1 as a

semiskilled worker on 01.01.1986 and worked continuously

and she was being paid @ Rs. 675 per month and though

she herself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of her appointment, she worked continuously without

any gap and she had put in 240 days of attendance in

every year of service, but she was not made permanent in

service and even though, she was doing the same work as

done by the permanent workers, neither she was paid wages

at par with the permanent employees nor given the benefits

of bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the Attendance-cum-

Wage Card to her and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow her and

other temporary workers to resume duty w.e.f. 20.11.1993

and she was informed by Party No1 through Shri A. Datta

that she would be allowed to resume duty in case of her

consenting to work under the Contractor, but she refused

the offer, as because, she had already worked with Party

No. 1 for years together and was entitled to be made

permanent in service as per the representation dated

18.11.1993 and though she approached Party No. 1 on

21.11.1993 and 22.11.1993, she was not provided with work,

so she alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but in spite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, she continuously approached

and requested the Party No. 1 to provide her work, but

Party No. 1 did not pay any heed to her request and after

waiting for a long time, she approached the Labour Court,

Nagpur by filing U.L.P.A. Complaint No. 829 of 1993 and

the Labour Court vide its interim order, directed Party No.

1 to reinstate her in service, but no work was provided to

her by Party No. 1 and Party No. 1 moved a revision

application before the Industrial Court, Nagpur, against

the order of the Labour Court raising objection of the

Labour Court of having no jurisdiction to entertain and

decide the matter pertaining to the establishment of the

Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so she withdrew the case filed by her

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to her and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

It is also pleaded by the workman that Party No.

1 had issued experience certificate in her favour and before

terminating her services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, her removal/retrenchment

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from services is illegal, improper and contrary to law and

she is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No. 1

till the date of actual reinstatement and work is still available

with Party No. 1 and Party No.1 engaged new persons on

less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991, between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of the appointment of the rest five workers

was that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

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its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 01.01.1986 and

she did not work continuously since the date of her

appointment and she worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that she had put in continuous service of

240 days is false and the workman did not join the work as

per the appointment letter dated 31.01.1991 and as such,

question of not allowing her to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that she was

orally terminated w.e.f. 22.11.1993 and due to the

intervention of the ALC, the workers were again allowed

to resume their duties and thereafter, the workers demanded

for their legitimate rights including payment of wages

applicable to them and Party No. 1 with malafide intension

decided to stop the work, instead of implementing the

statutory law and she was provided with work from 1st

February, 1991 as per the order issued to the workers

including herself individually and she worked continuously

till 22.11.1993 and she was orally terminated from services

w.e.f. 22.11.1993, without service of one month’s notice or

payment of one month’s pay in lieu of notice or

retrenchment compensation and her oral termination is

illegal, improper and contrary to law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169 and 171 to 178 of

2002 had been disposed of by this Tribunal by a common

award dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and 169/

2002 to 178/2002 is quashed and set aside. The Tribunal is

directed to allow the parties to lead further evidence, if

they so desire and decided the cases thereafter. The

Tribunal is directed to decide the reference in case Nos.

174/2002 to 178/2002 by common or separate awards as he

deems fit and proper on the basis of the evidence led by

the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined herself as a

witness in support of her case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in her evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in her cross-examination has

stated that she worked continuously from 1986 to

November, 1993. She has denied the suggestion that she

did not work for 240 days in any calendar year.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

Party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that Party No. 2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that Party No.2 was reinstated

in service from August,94 to Jan. 1998. It is denied that the

retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

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In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness No. 2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“Party No. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as an semiskilled labourer

w.e.f. 01.01.1986 and from the date of her initial appointment,

the workman worked continuously and she had completed

more than 240 days of work in each calendar year and from

the date of completion of 240 days of work, the workman

was entitled for regularization in service, but her services

were not regularized and the workman was compelled to

sign an illegal agreement and when she did not agree to

sign the same, she was not allowed to join service from

22.11.1993 and such termination of the workman was

without compliance of the mandatory provisions of Section

25-F of the Act and the termination amounts to

retrenchment and the termination of the workman is illegal,

arbitrary, malafide and contrary to the principles of natural

justice and payment of retrenchment compensation in

1996 cannot cure such illegality and as such, the workman

is entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs. Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs. Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs. State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs. Hospital Mazdoor Sabha) and 1964

I LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs.

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when her services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, she did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that she had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but

she failed to discharge the onus by adducing necessary

evidence and as such, she is not entitled for the benefits

of the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

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[PART II—SEC. 3(ii)]

compensation was sent to her alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Corporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)8

SCC-750(Surendra Nagar District Panchayat Vs.

Dahyabhai Amarsingh), (2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C. Pandey),

(2006)5 SCC-173(Municipal Council, Sujanpur vs. Surinder

Singh), (2006)9 SCC-697(Krishna Bhagyajal Nigam Ltd. Vs.

Mohd. Rafi), (2006)9 SCC 132(Surendranagar Distt.

Panchayat Vs. Ganga Ben Laljibhai), (2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam Vs. Sham Lal), (2006)6 SCC-

275(Rajsthan Tourism Development Corporation Vs.

Intejam Alizafri), (2006)5 SCC-127(Nagar Mahapalika Vs.

State of U.P.), (2006)1 SCC-106(R.M.Yellati Vs. Asstt.

Exucutive Engineer), (2006)2 SCC-711(State of M.P.vs.

Arjunlal Rajak), (2007)13 SCC-343(Ranip Nagar Palika vs.

Babuji Gabhaji Thakore), (2007)12-172(State of

Maharashtra Vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089(State of Haryana Vs. Ramesh Kumar), (2008)3

SCC-474(BSNL Vs Mahesh Chand), (2008)5 SCC-

171(Municipal Corporation, Faridabad vs. Durga Prasad)

and (2009)17 SCC-326(Ajnala Cooperative Sugar Mills Ltd.

Vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No. 1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that she was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I find no force in the contention raised

by the learned advocate for the party No.1 in that regard.

13. To prove that she had worked for 240 days in

the preceding 12 months of the date of termination, the

workman has given her own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of her such claim, her evidence has been

corroborated by the evidence of the witnesses No.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and

she is entitled for retrenchment compensation for three

years i.e. for 45 days at the rate of 15 days per year. So, it

is clear from the materials on record that the workman

infact had worked for more than 240 days in the preceding

12 calendar months of the date of his termination i.e.

22.11.1993. It is also found from the materials on record

that before the termination of the workman from services,

the mandatory provisions of Section 25-F of the Act were

not complied with and neither one month’s notice nor one

month’s wages in lieu of notice nor retrenchment

compensation was given to her. So, the termination of the

workman from services amounts to retrenchment and such

termination is illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

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The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) have been pleased to take

into consideration a large number of decisions delivered

by the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) and have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party No.1. It is also found that production and

marketing activities of the Handmade Paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000

(Rupees seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Nanda Madhukar Rao Doel is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.75,000 (Rupees seventy five thousand only) in lieu of

reinstatement. She is not entitled for any other relief. The

party No. 1 is directed to pay the monetary compensation

of Rs. 75,000 to the workman, Nanda Madhukar Rao Doel

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1194.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/171/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the Industrial Dispute between the management of

Director, Handmade Paper Production Khadhi &Village

Industrial Commission and their workman, which was

received by the Central Government on 24-03-2014.

[No. L-42012/26/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/171/2002

Date: 03-03-2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001

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[PART II—SEC. 3(ii)]

Versus

Party No. 2

Shri Sanjay Deoraoji Murdeo,

R/o Circus Ground, Ramnagar,

Wardha – 442001.

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Sanjay Deoraoji Murdeo,

for adjudication, as per letter No.L-42012/26/95-IR(DU)

dated 27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Sanjay Deoraoji Murdeo was proper,

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

entitled to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Shri Sanjay Deoraoji Murdeo, (‘the workman” in short),

filed the statement of claim and the management of

Handmade Paper Production and Training Centre (“Party

No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

skilled worker on 10.04.1984 and worked continuously and

he was being paid @ Rs. 800 per month and though he

himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc.

and as Party No. 1 did not issue the Attendance-cum-

Wage Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No.1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party No.

1 neither replied to the notice nor provided him any work

and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 793 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party No.

1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

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3107

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

Commission Act, 1956” and KVIC is functioning under

the Ministry of Industry, Government of India and to

achieve the object entrusted to KVIC, several Research

and Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the in charge of the unit

at Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

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[PART II—SEC. 3(ii)]

The specific case of the Party No. 1 is that the

workman was not in its employment since 10.04.1984 and

he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that he had put in continuous service of 240

days is false and the workman did not join the work as per

the appointment letter dated 31.01.1991 and as such,

question of not allowing him to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from 1st, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 160 to 167, 169, 170 and 172 to

178 of 2002 had been disposed of by this Tribunal by a

common award dated 27.03.2007, directing the

reinstatement of the workman and other petitioners. Being

aggrieved by the said award, the Party No. 1 approached

the Hon’ble High Court, Nagpur Bench in Writ Petition

No. 4503/2007 and the Hon’ble High Court by order dated

25.08.2008 have been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal -cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and 169/

2002 to 178/2002 is quashed and set aside. The Tribunal is

directed to allow the parties to lead further evidence, if

they so desire and decided the cases thereafter. The

Tribunal is directed to decide the reference in case Nos.

174/2002 to 178/2002 by common or separate awards as he

deems fit and proper on the basis of the evidence led by

the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09.02.1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from January,

1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August, 94 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

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3109

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness No. 2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party No. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

learned advocate for the workman that the workman was

working with the Party No. 1 as a skilled labourer w.e.f.

10.04.1984 and from the date of his initial appointment, the

workman worked continuously and he had completed more

than 240 days of work in each calendar year and from the

date of completion of 240 days of work, the workman was

entitled for regularization in service, but his services were

not regularized and the workman was compelled to sign

an illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and such termination of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 (Ambalal Shivlal Vs Vin (D.M.) and

others), 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

learned advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

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

in the statement of claim filed by the workman also, there

is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

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[PART II—SEC. 3(ii)]

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the learned advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Coroporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs.Sowaran Singh),(2005)8

SCC-750(Surendra Nagar District Panchayat Vs.

Dahyabhai Amarsingh),(2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. Vs. S.C.

pandey),(2006)5 SCC-173(Municipal Council, Sujanpur vs.

Surinder Singh),(2006)9 SCC-697(Krishna Bhagyajal

Nigam Ltd. Vs. Mohd. Rafi),(2006)9 SCC-

132(Surendranagar Distt. Panchayat Vs. Ganga Ben

Laljibhai),(2006)9 SCC-124 Chief Engineer Ranjit Sagar Dam

vs. Sham Lal),(2006)6 SCC-275(Rajsthan Tourism

Development Coroporation Vs. Intejam Alizafri),(2006)5

SCC-127(Nagar Mahapalika Vs. State of U.P.),(2006)1 SCC-

106(R.M.Yellati Vs. Asstt. Exucutive Engineer),(2006)2

SCC-711 (State of M.P.vs. Arjunlal Rajak),(2007)13 SCC-

343(Ranip Nagar Palika Vs. Babuji Gabhaji

Thakore),(2007)12-172 (State of Maharashtra vs.

Dattatraya Digamber Birajdar), 2008 II CLR 1089 (State of

Haryana Vs. Ramesh Kumar),92008)3 SCC-474(BSNL Vs.

Mahesh Chand),(2008)5 SCC-171(Municipal Corporation,

Faridabad Vs. Durga Prasad) and (2009)17 SCC-326(Ajnala

Cooperative Sugar Mills Ltd. Vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the learned advocate for the party No. 1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the learned

advocate for the party No.1 regarding the non-mention of

the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently

on22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I do not find any force in the

contention raised by the learned advocate for the Party

No. 1 in that regard.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses No. 1 and

2 of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and he

is entitled for retrenchment compensation for three years

i.e. for 45 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the learned advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

¹Hkkx II—[k.M 3(ii)º

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The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajsthan Development

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000/-

(Rupees seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Sanjay Deoraoji Murdeo is illegal and unjustified.

The workman is entitled for monetary compensation of

Rs.75,000/- (Rupees seventy five thousand only) in lieu of

reinstatement. He is not entitled for any other relief. The

party no.1 is directed to pay the monetary compensation

of Rs. 75,000/- to the workman Shri Sanjay Deoraoji Murdeo

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1195.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. CGIT/

NGP/160/2002) of the Cent. Govt. Indus. Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Director, Handmade Paper Production

Khadi &Village Industrial Commission and their workmen,

which was received by the Central Government on

24-03-2014.

[No. L-42012/28/95-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE SHRI J. P. CHAND,

PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/160/2002

Date: 03-03-2014.

Party No. 1

The Director,

Handmade Paper Production

Marketing and Training Centre,

Khadi & Village Industries

Commission,

Wardha-442001.

Versus

Party No. 2

Shri Sudhir V. Khodake,

R/o Jain Mandi Ramnagar,

Wardha – 442001.

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[PART II—SEC. 3(ii)]

AWARD

(Dated: 3rd March, 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 Handmade Paper Production and Training

Centre and their workman, Shri Sudhir V. Khodake, for

adjudication, as per letter No.L-42012/28/95-IR (DU) dated

27.03.1996, with the following schedule:-

“Whether the action of the management of

Handmade Paper Production and Training Centre, Khadi

and Village Industries Commission, Wardha in terminating

the services of Shri Sudhir V. Khodake was proper, justified

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

to?”

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and

written statement and accordingly, the workman,

Shri Sudhir V. Khodake, (‘the workman” in short), filed the

statement of claim and the management of Handmade

Paper Production and Training Centre (“Party No. 1” in

short) filed their written statement.

The case of the workman as presented in the

statement of claim is that Party No. 1 is a Central

Government undertaking and is engaged in manufacturing

and production of Handmade Papers and in the factory of

Party No. 1 at Wardha, about 250 permanent employees

were working and he was employed by Party No. 1 as a

skilled worker on 21.04.1985 and worked continuously and

he was being paid @ Rs. 800/- per month and though he

himself and 17 other workers engaged by Party No. 1

worked with Party No. 1 for several years, they were

continued as temporary workers.

The further case of the workman is that since the

date of his appointment, he worked continuously without

any gap and he had put in 240 days of attendance in every

year of service, but he was not made permanent in service

and even though, he was doing the same work as done by

the permanent workers, neither he was paid wages at par

with the permanent employees nor given the benefits of

bonus, E.S.I. Schemes and Provident Fund Scheme etc

and as Party No. 1 did not issue the attendance-cum-Wage

Card to him and the other 17 temporary workers, on

18.11.1993, all of them issued a notice through an advocate

to Party No. 1 to make them permanent and to give them all

other benefits of permanent employees and soon after the

receipt of the said notice, Party No. 1 did not allow him

and other temporary workers to resume duty w.e.f.

20.11.1993 and he was informed by Party No.1 through

Shri A. Datta that he would be allowed to resume duty in

case of his consenting to work under the Contractor, but

he refused the offer, as because, he had already worked

with Party No. 1 for years together and was entitled to be

made permanent in service as per the representation dated

18.11.1993 and though he approached Party No. 1 on

21.11.1993 and 22.11.1993, he was not provided with work,

so he alongwith the other 17 temporary workers on

22.11.1993 issued another notice, but inspite of the same,

no work was provided to them, so they issued another

notice through the advocate on 27.11.1993, but Party

No. 1 neither replied to the notice nor provided him any

work and thereafter also, he continuously approached and

requested the Party No. 1 to provide him work, but Party

No. 1 did not pay any heed to his request and after waiting

for a long time, he approached the Labour Court, Nagpur

by filing U.L.P.A. Complaint No. 798 of 1993 and the Labour

Court vide its interim order, directed Party No. 1 to reinstate

him in service, but no work was provided to him by Party

No. 1 and Party No. 1 moved a revision application before

the Industrial Court, Nagpur, against the order of the

Labour Court raising objection of the Labour Court of

having no jurisdiction to entertain and decide the matter

pertaining to the establishment of the Central Government.

The further case of the workman is that out of the

rest 17 retrenched workers, five workers approached the

Asstt. Labour Commissioner (Central), Nagpur (“the ALC”

in short) and the said five workers were provided with

work by Party No. 1, so he withdrew the case filed by him

in the Labour Court, Nagpur and approached the ALC by

filing an application under Section 2-A of the Act and the

five workers, who had been provided work by Party No. 1

after their approaching the ALC were juniors to him and

the ALC issued notice to Party No. 1 and Party No. 1 did

not agree for any amicable settlement, so there was failure

of the conciliation proceedings and the ALC submitted

the failure report to the Central Government.

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

had issued experience certificate in his favour and before

terminating his services, Party No.1 neither issued one

month’s notice nor paid notice pay in lieu of the notice or

retrenchment compensation as provided under Section

25-F of the Act and therefore, his removal/retrenchment

from services is illegal, improper and contrary to law and

he is entitled for reinstatement in services with full back

wages alongwith all monetary benefits of permanent

employee, from the date of joining the service of Party

No. 1 till the date of actual reinstatement and work is still

available with Party No. 1 and Party No.1 engaged new

persons on less wages for more production.

3. The Party No. 1 in the written statement has

pleaded inter-alia that it does not have any Managing

Director, but only a Director of Handmade Paper Industry,

which runs under Khadi and Village Industries Commission

(“KVIC” in short) and KVIC is a statutory body, which

was created by the statute, “Khadi & Village Industries

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3113

Commission Act, 1956” and KVIC is functioning under the

Ministry of Industry, Government of India and to achieve

the object entrusted to KVIC, several Research and

Training Centers were established including the J.B.

Research Institute at Wardha, to provide artisan training

courses for Handmade Paper Industries, but the unit so

established at Wardha was handed over to a local

institution, namely, “Khadi Gramodhyog Sangh,

Manganwadi, Wardha, for the purpose of continuing the

production activities and in 1984, the management of the

said unit was taken over by it and it was decided to use

the said unit as a demonstration-cum-extension Centre,

for conducting experiments and testing etc. and arranging

training of skilled workers and two technical persons were

posted to look after the work and the unit finally started

its Science & Technology (Research) work and for that

some workers were engaged on daily wages, from

November, 1984 and the work involved were of research

and training and therefore not a continuous work and the

workers were engaged as per requirements of work and

after completion of the work, they were discontinued and

none of the workers was engaged on continuous basis

and the said unit functioned from 1984 to 1988 and when

the unit was doing a prestigious research work of

developing a process for making stiff, thick and hard water

proof board by using completely waste banana stem, the

workers stopped attending the work from 11.01.1988 and

when enquiry was made for their non attendance, it was

informed that they wanted regular work without break and

unless and until their such demand would be fulfilled,

they would not join the work.

It is further pleaded by Party No. 1 that six of the

daily wages workers lodged complaint with the ALC and

worker Shankar Rao Ingle approached the Labour Court,

Nagpur and a written statement was filed by KVIC raising

the question of jurisdiction and the said case continued

till 1991 without adjudication and there was a joint

discussion on 18.01.1991 between the six workers, who

had made complaint to ALC and the incharge of the unit at

Wardha and it was informed to the ALC that under

Production Marketing and Training Programme of KVIC,

the unit would start functioning from 01.02.1991, where all

the six workers could be engaged on daily wages, as such,

the ALC closed the case with the instruction to inform him

about the appointment and appointment letters dated

28.01.1991 were issued to the said six workers including

Shankar Rao Ingle, directing them to join work and out of

them, five workers joined their duties and the appointment

of Shankar Rao Ingle was made with the condition of

withdrawal of the case filed by him, but Shankar Rao Ingle

neither withdrew the case nor joined work and one of the

conditions of appointment of the rest five workers was

that they would enter into an agreement with its

management and the finalization of the agreement took a

long time and on 19.11.1993, a meeting was held with all

the workers and in the presence of the then Director,

Regional Office, KVIC, Wardha, the workers were

requested to enter into the agreement, which was at par

with another unit of Handmade Paper at Pune and the

workers requested for two to three days time to give their

consent, however, on 22.11.1993, the workers sent a letter

informing their unwillingness to work on contract basis

and that they would work only on daily wages basis and it

was surprised to note that when the workers were provided

work on daily wages basis in 1988, they demanded

continuous work and when they were offered continuous

work under Production Marketing and Training Programme

in 1991, they refused to enter into an agreement and to

work on contract basis, refusing to adhere to the condition

of appointment and the workers could not be continued

due to their refusal to enter into the agreement and their

discontinuance from work was on their own accord and

workers had stalled the Research Programme in 1988 and

the unit had to remain close till 1991.

Party No. 1 has further pleaded that five workers

approached the ALC (Central), Nagpur vide their complaint

dated 22.11.1993, complaining that they were illegally

terminated and the conciliation proceedings ended in

failure and on submission of the failure reports by the

ALC (Central), Nagpur, the Central Government refused

to refer the cases of the said five workers for adjudication,

by order dated 20.01.1995.

The further case of the Party No. 1 is that in the

meantime, in the complaints filed by the workers in the

Labour Court, Nagpur interim order was passed on

31.05.1994 directing it to reinstate the complainants and it

filed revision before the Industrial Court against the order

dated 31.05.1994 and on 17.08.1994, by way of pursis, the

workers gave the undertaking before the Industrial Court

not to proceed with the complaint filed before the Labour

Court and in view of the withdrawal of the complaint by

the workers, it also withdrew the revision from the

Industrial Court on 10.04.1995 and on the basis of the

orders of the Ministry, the Directorate of Handmade Paper

Industry, Central Office at Mumbai moved a note to the

commission to close down the production and Marketing

activities of the unit and subsequently, the commission in

its 449th meeting dated 20.12.1995 decided to close down

the activities and retrench all daily wage workers and on

the basis of the commission’s decision, all workers were

served with the retrenchment notice alongwith the

retrenchment compensation on 09.02.1996 and some

workers, who had left the work as far back as 1993 were

also given the retrenchment benefit.

The specific case of the Party No. 1 is that the

workman was not in its employment since 21.04.1985 and

he did not work continuously since the date of his

appointment and he worked intermittently on daily wages,

as and when work was available and as the workers denied

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[PART II—SEC. 3(ii)]

to enter into an agreement, the production activities were

stopped and presently, it is engaged only in providing

Artisan training and in the year 1993, there were only two

permanent Handmade Paper staff and four JBCRI staff

and at present, there are only one Handmade Paper staff

and three permanent JBCRI staff and the unit at Wardha

had to be closed from 11.01.1988 to 1991, as the daily wage

workers left the work and the unit again started functioning

from 01.02.1991 and at that time, the workman and other

workers were given appointment letters with conditions

that they have to enter into an agreement and the claim of

the workman that he had put in continuous service of 240

days is false and the workman did not join the work as per

the appointment letter dated 31.01.1991 and as such,

question of not allowing him to join work does not arise

and the workman is not entitled to any relief.

4. In the rejoinder, the workman has denied the

allegations made in the written statement and reiterated

the facts mentioned in the statement of claim. It is further

pleaded by the workman in the rejoinder that he was orally

terminated w.e.f. 22.11.1993 and due to the intervention of

the ALC, the workers were again allowed to resume their

duties and thereafter, the workers demanded for their

legitimate rights including payment of wages applicable

to them and Party No. 1 with malafide intension decided to

stop the work, instead of implementing the statutory law

and he was provided with work from 1st, February, 1991 as

per the order issued to the workers including himself

individually and he worked continuously till 22.11.1993

and he was orally terminated from services w.e.f. 22.11.1993,

without service of one month’s notice or payment of one

month’s pay in lieu of notice or retrenchment compensation

and his oral termination is illegal, improper and contrary to

law.

5. It is to be mentioned here that this reference

alongwith references No. 161 to 167 and 169 to 178 of 2002

had been disposed of by this Tribunal by a common award

dated 27.03.2007, directing the reinstatement of the

workman and other petitioners. Being aggrieved by the

said award, the Party No. 1 approached the Hon’ble High

Court, Nagpur Bench in Writ Petition No. 4503/2007 and

the Hon’ble High Court by order dated 25.08.2008 have

been pleased to pass the following orders:-

“In view of the above, the impugned award dated

27.03.2007 passed by the Industrial Tribunal –cum-Labour

Court, Nagpur in case Nos. 160/2002 to 167/2002 and 169/

2002 to 178/2002 is quashed and set aside. The Tribunal is

directed to allow the parties to lead further evidence, if

they so desire and decided the cases thereafter. The

Tribunal is directed to decide the reference in case Nos.

174/2002 to 178/2002 by common or separate awards as he

deems fit and proper on the basis of the evidence led by

the parties.”

According to the direction of the Hon’ble High

Court, the parties were given the chance of leading further

evidence.

The workman, who had examined himself as a

witness in support of his case did not adduce further

evidence.

However, the Party No. 1 examined two witnesses,

namely, Khandeswar Pralhad Gondane and Milind Wakode

and produced documentary evidence in support of its case,

besides the evidence already adduced.

6. The workman in his evidence on affidavit has

reiterated the facts mentioned in the statement of claim

and rejoinder. The workman in his cross-examination has

stated that he worked continuously from 1985 to November,

1993. He has denied the suggestion that he did not work

for 240 days in any calendar year. The workman in his

cross-examination has further stated that on 09.02.1996,

one registered letter, M-2 was sent to him, but he returned

the same. The workman has admitted that the factory was

closed from 1988 to 1991 and he did not work from January,

1988.

7. The first witness for Party No. 1 is Amitabh Datta,

an Asstt. Director of Party No. 1. The evidence of witness,

Amitabh is on affidavit. In his examination in chief on

affidavit, in paragraph 8, this witness has stated that, “the

party No.2 was given appointment vide letter 23.09.1991

on temporary basis. The appointment was for a fixed period

until 31.12.1991, that party No.2 however did not join the

work.” In paragraph 11 of his affidavit this witness has

stated that, “However the unit was again started from

01.02.1991 and the Party No. 2 were served appointment

letter dated 28.01.1991 to join, with conditions that they

have to enter into an agreement. That when in 1993 the

workers including Party No. 2 was asked to sign the

agreement. Instead of signing the agreement the workers

including Party No. 2 sent letter dated 22.11.1993 informing

that they are not ready to work on contract basis and will

work on daily wages. That in absence of entering into the

agreement which was the condition of appointment the

workers could not be given work and they did not work

after 22.11.1993. It is denied that party No.2 was reinstated

in service from August, 94 to Jan. 1998. It is denied that

the retrenchment dated 9.2.1996 was illegal, on the contrary

though the Party No. 2 had not worked after 22.11.1993,

nor was entitled to, he was given the benefits alongwith

other workers. The retrenchment notice alongwith the

compensation was sent to all the workers including the

Party No. 2.”

In his cross-examination, this witness has stated

that he was posted at Wardha from 1984 to 1995 and he

knows the workman and the workman was working from

1985 at Wardha. In his cross-examination, this witness

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3115

has categorically admitted that the workman had worked

continuously from 1991 to 1993.

8. The witness no.2 examined by Party No. 1 is

Khandeswar Pralhad Gondane. The examination-in-chief

on affidavit of this witness is in the line of the stands

taken by the Party No. 1 in the written statement. In

paragraph 3 of his affidavit, this witness has stated that,

“party no. 2 as well as other employees were never in

continuous employment with Party No. 1. They had not

completed 240 days with Party No.1. Despite this, they

were offered with closure compensation alongwith all other

legal dues.” Demolishing his own evidence given in the

examination-in-chief, in his cross-examination, this witness

has stated that he is working with Handmade Paper from

17.07.1992 and the workman was working with Handmade

Paper prior to his joining in service and he was also working

even after his joining service in 1992. This witness has

categorically admitted that the workman worked for more

than 240 days in every calendar year.

9. The third witness for Party No. 1 is Milind

Wakode, the Divisional Director, Nagpur. In his

examination-in-chief on affidavit, this witness has

reiterated the facts mentioned in the written statement by

Party No. 1. This witness has further stated that the

Handmade Paper Unit at Wardha had been completely

closed as per the decision of the commission in its 449th

meeting held on 25.12.1995 and retrenchment notice

alongwith compensation was sent to all the workers by

letter dated 09/10.02.1996. This witness has also proved

the office copy of the termination order as Ext. M-II.

In his cross-examination, this witness has stated

that Ext. M-II is dated 09.02.1996 and he cannot say the

exact date of termination of the workman and Ext. M-III is

the office copy of the order dated 31.01.1991 and Ext.M-III

was issued after the engagement of the workman by the

management and as per condition No.7 of Ext. M-III, the

workman was to execute an agreement as prescribed by

the office of Handmade Paper, Khadi Board, Pune and as

the workman did not agree to execute any agreement, he

was not provided with work or made permanent and the

workman was engaged as labourer on daily wages and he

does not have any idea as to how the retrenchment

compensation paid to the workman was calculated and as

per Ext. M-II, retrenchment compensation was paid to the

workman for 3 years i.e. for 45 days.

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

Learned Advocate for the workman that the workman was

working with the Party No. 1 as a skilled labourer w.e.f.

21.04.1985 and from the date of his initial appointment, the

workman worked continuously and he had completed more

than 240 days of work in each calendar year and from the

date of completion of 240 days of work, the workman was

entitled for regularization in service, but his services were

not regularized and the workman was compelled to sign

an illegal agreement and when he did not agree to sign the

same, he was not allowed to join service from 22.11.1993

and such termination of the workman was without

compliance of the mandatory provisions of Section 25-F

of the Act and the termination amounts to retrenchment

and the termination of the workman is illegal, arbitrary,

malafide and contrary to the principles of natural justice

and payment of retrenchment compensation in 1996

cannot cure such illegality and as such, the workman is

entitled for reinstatement in service with continuity, full

back wages and all other consequential benefits.

In support of the contentions, the Learned Advocate

for the workman placed reliance on the decisions reported

in 1964 II LLJ-271 [Ambalal Shivlal Vs Vin (D.M.) and

others], 1969 II LLJ-373 (Sivanandam Vs Press

Superintendent, S. Railway, Madras), 1979 I LLJ-168 (B.M.

Gupta Vs State of West Bengal), 1960 I LLJ – 251 (S.C.)

(State of Bombay Vs Hospital Mazdoor Sabha) and 1964 I

LLJ – 333 (S.C.) (Workmen of Subong Tea Estate Vs

Subong Tea Estate).

11. On the other hand, it was submitted by the

Learned Advocate for the Party No. 1 that the terms of the

reference is vague and not specific and though, the

reference is for adjudication of the legality or otherwise of

the termination of the services of the workman, the alleged

dated of such termination has not been mentioned in the

schedule of reference and the date of the alleged

termination is very crucial, in absence of which it is not

possible for effective adjudication of the dispute and on

that score, the reference is not maintainable. It was also

submitted by the Learned Advocate for the Party No. 1

that in the statement of claim filed by the workman also,

there is no specific pleading as to when his services were

terminated and on that count also, the reference is to be

answered in the negative.

It was further submitted by the learned advocate for

the Party No. 1 that though the workman was offered

engagement on daily wages basis as per office order dated

31.01.1991, he did not join duty and as such, there is no

question of termination of the services of the workman

and even for the sake of argument, it is held that the

workman worked as per office order dated 31.01.1991 on

daily wages, the workman has not adduced any legal

evidence on record to show that he had worked for 240

days in the preceding 12 months of the date of termination

and the onus to prove such fact is on the workman, but he

failed to discharge the onus by adducing necessary

evidence and as such, he is not entitled for the benefits of

the provisions of Section 25-F of the Act and as per the

decision of the commissioner, the production activities of

the unit was closed down and even though, the workman

did not work after1988, notice pay and retrenchment

compensation was sent to him alongwith the retrenchment

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[PART II—SEC. 3(ii)]

notice dated 09.02.1996 and Party No. 1 did not commit

any illegality and the workman is not entitled to any relief.

In support of the contentions, the Learned Advocate

for the Party No. 1 placed reliance on the decisions reported

in the decisions reported in (2002) 3 SCC-25 (Range Forest

Officer Vs. S.T. Hadimani), (2004) 8 SCC-195 (Municipal

Corporation, Faridabad Vs. Siri Niwas), (2005) 8 SCC-481

(Batala Coop. Sugar Mills Ltd. Vs. Sowaran Singh), (2005)8

SCC-750(Surendra Nagar District Panchayat vs.

Dahyabhai Amarsingh), (2006)2 SCC-716(M.P. State Agro

Industries Development Corpn. Ltd. vs. S.C. Pandey),

(2006)5 SCC-173(Municipal Council, Sujanpur vs. Surinder

Singh), (2006)9 SCC-697(Krishna Bhagyajal Nigam Ltd. vs.

Mohd. Rafi), (2006)9 SCC-132(Surendranagar Distt.

Panchayat vs. Ganga Ben Laljibhai), (2006)9 SCC-124 Chief

Engineer Ranjit Sagar Dam vs. Sham Lal), (2006)6 SCC-

275(Rajsthan Tourism Development Corporation vs.

Intejam Alizafri), (2006)5 SCC-127(Nagar Mahapalika vs.

State of U.P.),(2006)1 SCC-106(R.M.Yellati vs. Asstt.

Exucutive Engineer), (2006)2 SCC-711(State of M.P.vs.

Arjunlal Rajak), (2007)13 SCC-343(Ranip Nagar Palika vs.

Babuji Gabhaji Thakore), (2007)12-172(State of

Maharashtra vs. Dattatraya Digamber Birajdar), 2008 II

CLR 1089 (State of Haryana vs. Ramesh Kumar), (2008)3

SCC-474(BSNL vs. Mahesh Chand), (2008)5 SCC-

171(Municipal Corporation, Faridabad vs. Durga Prasad)

and (2009)17 SCC-326(Ajnala Cooperative Sugar Mills Ltd.

vs. Sukhraj Singh).

It is settled beyond doubt by the Hon’ble Apex Court

in different judgments including the judgments cited by

the Learned Advocate for the party No.1 that where the

workman’s claim that he had worked for more than 240

days in the year preceding his termination was denied by

the employer, it is for the claimant to lead evidence to that

effect and the workman’s affidavit is not sufficient evidence

for that purpose.

Keeping in view the principles as mentioned above,

now, the present case at hand is to be considered.

12. So far the first contention raised by the Learned

Advocate for the party No.1 regarding the non-mention

of the date of termination of the workman from services in

the schedule of reference and in the statement of claim is

concerned, admittedly, the alleged date of termination of

the workman has not been mentioned in the schedule of

reference. However, in the statement of claim, in paragraph

4, it has been mentioned by the workman that, “Immediately

after the receipt of the notice dated 18.11.1993, the party

No.1 had not allowed the party No.2 and his co-workers,

who had issued notice to party No.1, to resume duty w.e.f.

20.11.1993.” In paragraph 05 of the statement of claim, it

has been mentioned that, “The party No.2 had approached

the party No.1 on 21.11.1993 and subsequently on

22.01.1993, but work was not provided.”

In the rejoinder, the workman has specifically in

paragraphs 1 and 2 has pleaded that he was orally

terminated from services w.e.f. 22.11.1993. From the

materials on record, it is found that for non-mention of the

date of the termination of the workman in the schedule of

reference, it cannot be said that the reference is not

maintainable. Hence I do not find any force in the

contention raised by the Learned Advocate for the Party

No.1 in that regard.

13. To prove that he had worked for 240 days in the

preceding 12 months of the date of termination, the

workman has given his own evidence on affidavit. Though,

the workman has not produced any other evidence in

support of his such claim, his evidence has been

corroborated by the evidence of the witnesses No.1 and 2

of the party No.1. As already mentioned above, Amitabh

Datta, the witness No.1 for party No.1 has stated that the

workman worked continuously from 1991 to 1993.

Khandeswar Pralhad Gondane, witness No.2 for the party

No.1 has stated that the workman worked for more than

240 days in every calendar year.

14. Apart from the oral evidence, the documentary

evidence produced by the party No.1 clinches the issue in

favour of the workman. The party No.1 has produced and

proved the notice of retrenchment dated 09/12.02.1996

issued to the workman as Ext. M-II. In Ext. M-II, it has

been mentioned that the workman joined in February, 1991

and worked from February, 1991 to November, 1993 and he

is entitled for retrenchment compensation for three years

i.e. for 45 days at the rate of 15 days per year. So, it is clear

from the materials on record that the workman infact had

worked for more than 240 days in the preceding 12 calendar

months of the date of his termination i.e. 22.11.1993. It is

also found from the material on record that before the

termination of the workman from services, the mandatory

provisions of section 25-F of the Act were not complied

with and neither one month’s notice nor one month’s

wages in lieu of notice nor retrenchment compensation

was given to him. So, the termination of the workman from

services amounts to retrenchment and such termination is

illegal.

Applying the principles enunciated by the Hon’ble

Courts in the decisions cited by the Learned Advocate for

the workman to the case in hand, it is found that the

issuance of the retrenchment notice as per Ext. M-II and

sending of the demand draft towards retrenchment

compensation and one month’s wages on 09/10.02.1996

does not cure the illegality of termination of the services

of the workman w.e.f. 22.11.1993.

15. Now, the question remains for consideration is

as to what relief or reliefs the workman is entitled.

The Hon’ble Apex Court in the decision reported in

(2013) 5 SCC-136 (Asstt. Engineer, Rajasthan Development

¹Hkkx II—[k.M 3(ii)º

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3117

Corporation Vs. Gitam Singh) after taking into

consideration a large number of decisions delivered by

the Hon’ble Apex Court earlier, including the decisions

reported in 2011 II CLR-461 (Devinder Singh Vs. Municipal

Council, Sonaur, (2010) 3 SCC-192 (Harjinder Singh Vs.

Punjab State Warehousing Corporation) and (2010) 9 SCC-

126 (In charge Officer Vs. Shankar Setty.) have been

pleased to hold that:-

“In our view, Harjinder Singh and Devinder Singh

do not lay down the proposition that in all cases of

wrongful termination, reinstatement must follow. This

court found in those cases that judicial discretion exercised

by the labour court was disturbed by the High Court on

wrong assumption that the initial employment of the

employee was illegal. As noted above, with regard to the

wrongful termination of a daily wager, who had worked for

a short period, this court in long line of cases has held that

the award of reinstatement cannot be said to be proper

relief and rather award of compensation in such cases

would be in consonance with the demand of justice. Before

exercising its judicial discretion, the labour court has to

keep in view all relevant factors, including the mode and

manner of appointment, nature of appointment, length of

service, the ground on which the dispute before grant of

relief in an industrial dispute.”

In the light of the principles enunciated by the

Hon’ble Apex Court as mentioned above, now, the present

case in hand is to be considered. In this case, it is admitted

that the workman was engaged as a daily wager in1991,

about 23 years back. It is also found that he continued as

such till 22.11.1993, when he was terminated from services

by party no.1. It is also found that production and

marketing activities of the handmade paper unit, Wardha

has been completely closed as per the decision of the

commission in its 449^th meeting held on 25.12.1995. In a

case such as the present one, it appears that the relief of

reinstatement cannot be justified and instead monetary

compensation would meet the ends of justice. Taking into

consideration the facts and circumstance of the case, in

my considered opinion, the compensation of Rs. 75,000/-

(Rupees seventy Five thousand only) in lieu of

reinstatement shall be appropriate, just and equitable.

Hence, it is ordered:-

ORDER

The action of the management of Handmade Paper

Production and Training Centre, Khadi and Village

Industries Commission, Wardha in terminating the services

of Shri Sudhir V. Khodake is illegal and unjustified. The

workman is entitled for monetary compensation of

Rs.75,000/- (Rupees seventy five thousand only) in lieu of

reinstatement. He is not entitled for any other relief. The

party no.1 is directed to pay the monetary compensation

of Rs. 75,000/- to the workman Shri Sudhir V. Khodake

within 30 days of the publication of the award in the official

gazette failing which, the amount will carry interest at the

rate of 6 percent per annum.

J. P. CHAND, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1196.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 45/2000)

of the Central Government Industrial Tribunal/Labour

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

industrial dispute between the employers in relation to

the management of the Archaeological Survey of India,

New Delhi and their workmen, which was received by the

Central Government on 24-03-2014.

[No. L-42011/121/99-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT-II

Present :- Shri Harbansh Kumar Saxena

ID No. 45/2000

Smt. Shanti Devi &

Smt. Santosh Devi

Versus

Archaeological Survey of India N.D.

AWARD

The Central Government in the Ministry of Labour

vide notification No L-42011/121/99- IR(DU) dated 3.3.2000

referred the following Industrial Dispute to this tribunal

for the adjudication :-

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[PART II—SEC. 3(ii)]

“Whether the action of the Director General and the

Dy. Superintending Horticulturist Division, Archaeological

Survey of India, Horticulture Division No. II , New Delhi in

stopping from services on verbal orders to Smt. Shanti

Devi, Mali and Smt. Santosh Devi , Mali w.e.f 25.10.97 is

reasonable , valid , legal and justified? If not, to what relief

they are entitled?”

On 19/4/2000 reference was received in this tribunal.

Which was register as I.D No. 45/2000 and claimant was

called upon to file claim statement with in fifteen days

from date of service of notice. Which was required to be

accompanied with relevant documents and list of

witnesses.

Claimants/workmen on 11.07.2000 filed Claim

Statement. Wherein they mentioned as follows:-

1. That Smt. Shanti Devi on 23.01.1983 and Smt.

Santosh Devi on 10.5.1983 appointed as daily wager Mali

in Archeological Survey of India. Their last salary was Rs.

68.60/- per day.

2. That their main work was to look after flowers and

plants etc.

3. That during their service tenure they have been

sent to different branches for performing their duties.

4.That they afforded no chance to their officers to

complaint against them during their service tenure.

5. That they were not provided with appointment

Letter, Attendance card, Dress, Medical Facility card etc.

by the manager. Against which they orally protested.

6. That applicants made aforesaid demands to

managers due to which they became annoyed and they

maliciously and in revengeful sprit. They tried to search

out a ground to terminate the workmen. Ultimately they

illegally terminated workmen on 25.10.1997 Udhan Branch

No.2, Safdarjung Madarsa, New Delhi without any reason

and prior information.

7. That after termination workmen were harassed on

the pretext of re-employment nor promised to be employed.

8. That they made demand against their illegal

termination through union. Which was sent through speed

post No.5567-68 dated 31.5.1999 no reply of that demand

letter was given nor they were re-employed.

9. That they raised Industrial Dispute before

Assistant Labour Commissioner (Central) Kasturba

Gandhi Marg-110001 but managers has not reinstated

workmen. Ultimately Asst. Labour Commissioner sent his

report to secretary Labour Department, Labour Ministry

Union Government of India which in turn sent to this

tribunal for adjudication.

10. That managers has appointed new employees in

place of claimants after their termination claimants could

not get job inspite of their best efforts and they are still

unemployed.

11.That managers have without reason and prior

intimation maliciously and illegally terminated the services

of the applicants in violation of Sec 25-f Industrial Dispute

Act,1947.

12. That Claimants/workmen on the basis of previous

continuous services are entitled for reinstatement with

back wages because manager has violated the provision

of Section 25-F of Industrial Dispute Act, 1947.

13. Claimants/workmen reserve their rights for

amendment as per necessity.

On the basis of aforesaid averments claimants prayed

for reinstatement with back wages as management violated

of provision of 25-F of Industrial Dispute Act, 1947.

In reply to claim statement Deputy Superintending

Horti Culturist , Archeological Survey of India filed written

statement on 4.1.2001. Wherein he mentioned as follows:-

That Smt. Shanti Devi and Santosh Devi was not

appointed Mali on 10.5.83 . As no post of Mali is there in

the alleged branch so no process of selection has been

made. Smt Shanti Devi was appointed only for 6 days on

daily wages to meet out the exigency of grass cutting of

lawn. They have not been provided work for 240 days in a

calendar year in want of proof allegation of claimants/

workmen are false because there is no post of mali.

That branch Incharge of Archeological Department

took work of grass cutting etc from claimants/workmen

for about 6 days on daily wages as per mustroll.

No appointment letter dress and medical facility was

provided to daily wages claimants/workmen were intimated

at the time of engagement for 6 days work only. Hence

after 6 days of work their period of work already expires

which cannot be turn to be illegal termination. Hence claim

of claimants/workmen is baseless & beyond truth. Daily

wagers are not entitled for reinstatement with back wages

as they were not appointed on any post.

Aforesaid daily wagers suomoto and under

instigation instituted a Industrial Dispute . Although they

have not been appointed and completed a work of 240

days continuously in a calendar year. That Archeological

Survey of India does not earn money. Hence provisions

of 25-F of Industrial Dispute Act, 1947 are is in applicable.

That Archeological Survey of India does not come

within the meaning of Industry.

On the basis of averment made in Written Statement

management prayed dismissal of claim statement.

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3119

On 27/2/11 A/R for the workmen Sh. Subhash Chand

Dubey filed rejoinder on behalf of workmen. Wherein he

denied the allegation of Written Statement.

My Ld predecessors has not framed any issue but

proceed to adjudicate the present reference on the basis

of schedule wherein questions of determination were as

follows:-

“Whether the action of the Director General and the

Dy. Superintending Horticulturist Division, Archaeological

Survey of India, Horticulture Division No. II , New Delhi in

stopping from services on verbal orders to Smt. Shanti

Devi, Mali and Smt. Santosh Devi , Mali w.e.f 25.10.97 is

reasonable , valid , legal and justified? If not, to what relief

they are entitled?”

Workman Smt. Shanti Devi in support of her case

filed her affidavit in his evidence on 25/07/2003.

On 2.8.2005 affidavit of Workman was tendered &

she was cross-examined on same day. His examination-in-

chief and cross-examination is as follows:-

I have filed my affidavit. I have filed my affidavit in

my evidence in this case. The facts mentioned in my

affidavit are true and correct. My affidavit Ex. WW1/A be

read as part of my statement in my evidence. The facts

mentioned in my statement are true and correct. I am

entitled to the relief claimed and I be granted the same.

XXXX by Gyaneshwar, A/R for management.

I am 46 years of age. My name was not sponsored

through Employment Exchange for the employment in

question. However, I was called by the office of the

respondent concerned. I was given the employment letter

at the time of my appointment. The same was taken by

management at the time of joining the job in question. I

have not filed the same in this case. I had given application

for receiving appointment letter but no response was given

to the same. I did not keep any copy of the application. I

was not medically examined. No police verification was

conducted either at the time of my employment or before

that. My duty was to do the cleaning work of the Garden.

I was appointed employed by Pop Singh, Official of the

management. I was not given any termination letter, while

my services were dispensed with or terminated. It is

incorrect to suggest that I was appointed as causal worker

on daily wager on daily wages for doing a particular job

and my appointment/engagement came to an end after the

work was over. It is incorrect to suggest that there is no

provision for giving notice for dispensing or terminating

the service of workman under the law. It is incorrect to

suggest that I have not worked for 240 days in any year.

Vol. I had worked for more than 240 days in a year. It is

correct that I had worked during the year w.e.f. 1988 till

1997. It is incorrect to suggest that I had worked for the

number of days in each year as indicated in Ex. WW1/

MX 1 to MX-10. It is incorrect to suggest that I am deposing

falsely or that I am not entitled to the relief claimed.

Workman Smt. Santosh Devi in support of her case

filed her affidavit in his evidence on 18.07.2003

On 2.8.2005 affidavit of Workman was tendered &

she was cross-examined on same day. His examination-in-

chief and cross-examination is as follows:-

I have filed my affidavit in my evidence in this

case. The facts mentioned therein are true and correct and

I rely on the same. The same be read as part of my statement

in this case. The facts mentioned in my statement of claim

are true and correct. I am entitled to the relief claimed. The

same be given.

XXXXX by Gyaneshwar Advocate, A/R for management.

I am about 50 years old. My husband has died after

I joined the service in this case. Again said I am not aware

if my husband died prior to my joining the service or after

my joining the service. I have mentioned correctly in my

affidavit Ex. WW2 in para 3 thereof that my husband

expired three year before joined the service. It is correct

that I have worked w.e.f 10.1.83 till the year 1997, as

mentioned in my affidavit. It is correct that I have six

children Vol. that there is gap of one year in the birth of my

each child. I do not know how old I was when I gave birth

to my first child. I might be 14 or 15 years old at the time of

birth of my first child.

I was not sponsored through employment

exchange for employment in question. I was given

appointment letter. The same was taken back by the

management. I had given application to the management

for seeking employment. I do not have copy of the

application. I was not medically examined after my joining

the job. Police verification was not conducted before

joining or after joining the job. I do not know the name of

the officer who engaged me. I was not given any

termination letter. It is incorrect to suggest that I used to

be engaged seasonally for weeding out grass etc. and

other elements in the Garden. It is incorrect to suggest

that the job ended as and when the work ended seasonally.

Vol. I was engaged almost continuously and used to work

daily even on holidays. It is incorrect to suggest that I am

deposing falsely or that I am not entitled to the relief

claimed.

Management in support of his case filed affidavit of

Sh. N.K. Ahir, Deputy Superintendent, Horticulturist

Division II , ASI, New Delhi.

On 15.11.2010 affidavit of Management was tendered

& he was cross-examined on same day. His examination-

in-chief and cross-examination is as follows:-

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THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

I tender in evidence my affidavit by way of

examination in chief. It is signed by me at points A & B. It

is Ex.MW1/A. The same be read as part of my statement in

this case.

XXXX: - By Sh. R.P.S Baghel, A/R for both workmen.

I am posted and holding the authority in the

concerned division at Delhi since 2001. I have not got any

document exhibited in my affidavit. It is wrong to suggest

that I have not seen the attendance record of the two

workmen. Smt. Shanti Devi workman joined the

management on 4.12.1985 . It is wrong to suggest that

Smt. Shanti Devi joined the management on 25.1.1983. It is

incorrect to suggest that Smt. Shanti Devi worked

continuously right from the beginning till she was stopped

from doing the service. It is wrong to suggest that

Smt. Shanti Devi started working with the management at

24, Tilak Marg, New Delhi since 25.1.1983. It is correct that

Smt. Shanti Devi worked till 25.10.97 but she did not work

regularly and worked only as and when we required her

services. As and when she was engaged he did work from

9AM to 5 P.M. It is correct that Smt. Shanti Devi worked at

various places in Delhi. It is incorrect to suggest that she

worked continuously from 25.1.83 to 25.10.97. It is correct

that Smt. Shanti Devi worked at various place in Delhi. It is

incorrect to suggest that Smt. Shanti Devi did not work

only on Sundays and other gazetted holidays and worked

continuously otherwise throughout. Likewise,

Smt. Santosh Devi started working with us since 1988. It is

incorrect to suggest that Smt. Santosh Devi had been

working with us a Mali Since 10.01.1983. It is incorrect to

suggest that she worked continuously from 10.1.83 to

25.10.97. In fact, she too had worked only on need basis

as and when required by us and not regularly. It is incorrect

to suggest that she had worked regularly with us.

No notice was required to be given to either

Smt. Shanti Devi or Smt. Santosh Devi and as such no

notice was given to them before asking them to stop

coming to the management as they were merely casual

workers. It is wrong to suggest that Smt. Santosh Devi

started working since 10.1.1983 in CCA Museum. She did

work at various places as and when required by us. As per

the recommendations of the 5th Pay Commission and

various orders of the Govt.of India, we stated getting the

job of the maintenance of the gardens through out-

sourcing due to shortage of staff. The workmen attendance

used to be marked in the muster roll. It is incorrect to

suggest that both the workmen did work for more than 240

days in each completed year of their service prior to their

dis-engagement. . It is wrong to suggest that I have

deposed falsely.

After which on 8/5/2007 no dispute Award was

passed by my Ld. Predecessor against which workmen

moved an application for setting aside the Award. My Ld.

Predecessor on 31.10.07 heard and allowed the application

& set aside the award and fixed 28/1/2008 for cross-

examination of MW. On 15.11.2010 statement of MW1

Sh. N.K. Ahir recorded. His cross-examination is also

recorded. Management closed his evidence then 15/2/2011

was fixed for argument.

I have heard the arguments of Ld A/R’s for the

parties on 17.1.14 and perused the pleadings of Claim

Statement, Written Statement, Rejoinder and Evidence of

the parties and settled law on the points.

Ld.A/R for management placed reliance on principle

laid down by their Lordship of Hon’ble Supreme Court in

case of Secretary, State of Karnataka and others Versus

Uma Devi(3) And Others (2006)4 Supreme Court Cases 1.

Perusal of pleadings and evidence of management

shows that management has challenged the jurisdiction

of this Tribunal to adjudicate the reference. Even than

management has not challenged the reference by way of

filing writ-petition in Hon’ble High Court of Delhi.

Although available remedy to management was to file writ-

petition which has not been availed by the management.

Hence management is estopped to challenge on such

ground.

So far principle laid down in aforesaid cited ruling

cited on behalf of management is concerned, it is relevant

to mention here that such ruling is in applicable in the

instant case because reference by Labour Ministry to this

Tribunal has been made on 3.3.2000 and case of ruling

was decided by their Lordship of Hon’ble Supreme Court

on 10.04.2006. Hence principle of ruling cannot be applied

retrospectively in the instant case.

Perusal of question of determination referred for

adjudication is as follows:-

“Whether the action of the Director General and

the Dy. Superintending Horticulturist Division,

Archaeological Survey of India, Horticulture Division

No. II, New Delhi in stopping from services on verbal

orders to Smt. Shanti Devi, Mali and Smt. Santosh Devi,

Mali w.e.f 25.10.97 is reasonable, valid, legal and justified?

Which in itself indicates that burden of proof is

on management. Management to discharge its burden

produced MW1 Sh.N.K. Ahir whose evidence is not based

on personal knowledge and is based on record available

in the office of the management. Even than neither original

record nor its photostate copies have been produced by

the management witness during his statement in the

Tribunal. Nor management subsequently filed those

papers in support of testimony of MW1 Sh. N.K. Ahir.

In this background evidence adduced on behalf

of management is certainly short of required evidence to

prove the aforesaid question of determination. Moreover

¹Hkkx II—[k.M 3(ii)º

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3121

Claimants/Workmen adduced their direct evidence which

is based on their personal knowledge. Hence their evidence

is credible and reliable inwant of rebuttal evidence through

which they established the fact that Workman Smt. Shanti

Devi was appointed as daily wager Mali Since 23.1.1983

till 25.10.1997 and Workman Smt. Santosh Devi was

appointed as daily wager Mali Since 10.5.1983 to

25.10.1997. But management without their fault stopped

them from services on its verbal orders.

On the basis of evidence on record this Tribunal

has no option to except to decide the aforesaid question

of determination in favour of Claimants/Workmen and

against Management.

Hence aforesaid question of determination is decided

in favour of claimants/Workmen and against management.

In the light of contentions and counter contentions

I perused the settled law of Hon’ble Supreme Court on the

point of reinstatement and grant of back wages. Which

shows that reinstatement is not a necessary consequence

wherever termination is held illegal. Depending upon the

facts of each case a suitable compensation can be awarded.

In Assistant Engineer, Rajasthan Dev. Corporation and

Anr Vs. Gitam Singh, (2013)II LLJ 141 Hon’ble Supreme

Court has held that reinstatement of workman with

continuity of service and 25% back wages was not proper

in the facts and circumstances of the case and the

compensation of Rs.50,000 (Rs. Fifty Thousand Only) shall

meet the ends of justice. In Jagbir Singh Vs. Haryana State

Agriculture Marketing Board & Anr AIR 2009 Supreme

Court 3004, Hon’ble Supreme Court held thus “the award

of reinstatement with full back wages in a case where the

workman has completed 240 days of work in a year

preceding the date of termination particularly, daily wagers

has not been found to be proper by this Court and instead

compensation has been awarded.” In catena of Judgments,

Hon’ble Supreme Court has taken a view that reinstatement

is not automatic, merely because the termination is illegal

or in contravention of S-25-F of the Industrial Dispute

Act. In Talwara Co-operative credit and service society

Limited Vs. Sushil Kumar (2008) 9 SCC 486, Hon’ble

Supreme Court held thus, “grant of relief of reinstatement,

it is trite, is not automatic. Grant of back wages is also not

automatic.”

Workmen of the instant case were not appointed

by following due procedure and as per rules. They had

rendered service with the respondent as a Casual Worker,

thus, Compensation of Rs. 50,000 (Rs. Fifty thousand only)

by way of damages as compensation to each of the

Workman/Claimant by Management after the 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/

Claimants and against Management.

Award is accordingly passed.

Dated:-04.03.2014

HARBANSH KUMAR SAXENA, Presiding Officer

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New Delhi, the 24th March , 2014

S.O. 1197.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 50/1993)

of the Central Government Industrial Tribunal/Labour

Court No. 1, Delhi, now as shown in the Annexure, in the

industrial dispute between the management of the Deputy

General Manager, MTNL, New Delhi and their workmen,

which was received by the Central Government on

24-03-2014.

[No. L-42012/58/92-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.1, KARKARDOOMA COURTS COMPLEX,

DELHI.

I.D. No. 50/1993

Shri Kapil Dev Tiwari

S/o Sh.Tulsi Ram Tiwari,

R/o 12/30, Nehru Nagar,

New Delhi - 110065.

...Workman

Versus

The Deputy General Manager,

MTNL, Ist Floor, Kidwai Bhawan,

New Delhi–110001.

…Management

AWARD

A daily rated mazdoor was engaged by the Divisional

Engineer (Telephones), Department of Telecommunications,

Government of India, New Delhi, in November 1982. In

November 1985, he was engaged in the office of Divisional

Engineer (Telecom) Rajnagar Telephone Exchange,

Ghaziabad, Uttar Pradesh. In March 1986, Mahanagar

Telephone Nigam Ltd. (in short the Nigam) was

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incorporated as a company under the Indian Companies

Act. Being a licensee, the Nigam is an accredited

representative of Department of Telecommunications,

Government of India, New Delhi. The Nigam is responsible

for managing and operating telephone services in Delhi

and Mumbai. The daily rated mazdoor, who worked in the

office of the Divisional Engineer (Telecom) Rajnagar

Telephone Exchange, Ghaziabad, Uttar Pradesh, till

November 1989, was employed in the office of the

Divisional Engineer (Telephone) (ITN –II) in December

1989, where he worked till August 1993.

2. In August 1993, services of daily rated mazdoor

were regularized by the Nigam and he took over as regular

mazdoor on 10.08.1993. When process of his regularization

was pending consideration, he approached the Bharatiya

MTNL Karamchari Sangh (hereinafter referred to as the

sangh), claiming that duties of clerk were obtained from

him while he was being paid as a daily rated mazdoor. The

sangh took up his cause and raised a demand for

regularization of his services on the post of clerk. Demand

raised by the sangh was not conceded to by the Nigam.

The sangh raised an industrial dispute before the

Conciliation Officer. Since the Nigam contested the claim,

conciliation proceedings ended into a failure. On

consideration of failure report, submitted by the

Conciliation Officer, the appropriate Government referred

the dispute to this Tribunal for adjudication, vide order

No.L-42012/58/92-IR(DU) New Delhi dated 21.07.1993, with

following terms:

“Whether action of the management of Mahanagar

Telephone Nigam Ltd. in not designating Shri Kapil

Dev Tiwari as Office Assistant with effect from the

date of appointment or thereafter is justified? If not,

what relief he is entitled to ?”

3. Claim statement was filed by the daily rated

mazdoor, namely, Shri Kapil Dev Tiwari, pleading that he

was appointed as Stenographer on daily rate basis by

Telecommunications Department, Government of India,

New Delhi, with effect from 22.11.1982. He was paid

@Rs.9.00 per day. The Nigam stepped in the shoes of

Telecommunication Department, Government of India, New

Delhi, in metropolitan cities, including Delhi. He presents

that he had been discharging duties of Stenographer/Office

Assistant while wages of an unskilled employee are being

paid to him. He is getting less wages in comparison to

regular employees, who were discharging duties of

Stenographer/Office Assistant. He is discharging duties

of Stenographer/Office Assistant since 1982. Benefits such

as increments, leave facilities, pension etc. are not granted

to him though regular employees are entitled to these

benefits. There were clear vacancies of Stenographer/

Office Assistant, yet he was not made regular in service.

Action of the Nigam is discriminatory and violates

principles of natural justice as well as Article 14 and 16 of

the Constitution of India. The Nigam is a State within the

meaning of Article 12 of the Constitution and cannot be

permitted to adopt different standards with regard to

similarly situated employees. The Nigam is under an

obligation to minimize inequalities in status, facilities and

opportunities amongst individuals of equal status. Hostile

discrimination has been meted out to him when his

services are neither regularized nor equal wages for equal

work are paid to him.

4. Claimant projects that in July 1990, the Nigam

conducted examination for recruitment of Stenographers

Grade III. He appeared in the test. Though he passed the

test, yet with ulterior motive the Nigam cancelled the

examination, vide its order dated 06.12.1990. There are huge

number of skilled/unskilled employees working with the

Nigam from last as many as 10 years, whose services are

yet to be regularized. With ulterior motive to deprive him

benefit of regularization on the post of Stenographer, his

name was kept at serial No.8 of the list circulated vide

order dated 22.07.1993, in respect of daily rated mazdoors,

who were later on regularized as mazdoors. To frustrate

his claim, he was asked to give joining report for the post

of regular mazdoor. Since he was not aware that his dispute

was in the process of being referred for adjudication to an

industrial adjudicator, he gave his joining report. When

he came to now that his dispute has been referred for

adjudication, he raised a protest in that regard on

22.07.1993 detailing therein that his regularization would

be subject to outcome of adjudication by the industrial

adjudicator. He claimed that action of the Nigam, in not

designating him as Stenographer/Office Assistant, may

be held to be illegal, unjustified, besides issuance of

directions to the effect that he is entitled to salary/wages

and other allowances, equal to regular employees working

on the post of Stenographers/Office Assistant, since 1982.

He also claims to be treated regular Stenographer/Office

Assistant.

5. Claim was resisted by the Nigam pleading that it

is a company incorporated under the Indian Companies

Act and accredited representative of the Government of

India, being licensee for operation, functioning and

maintenance of telephone and telex services in

metropolitan cities of Delhi and Mumbai. The Nigam had

taken over all employees working with the Department of

Telecommunication, Government of India in its

employment. Claimant, who was working as daily rated

mazdoor, was also taken in its employment by the Nigam.

A settlement was entered into between the Government

and the unions, representing employees working with the

Nigam, on 17.04.1987 wherein it was agreed that services

of daily rated mazdoors, who had completed seven years

of service as on 31.03.1987, would be regularized by the

Nigam. The said settlement is sought to be assailed by the

claimant by way of raising the dispute, which he cannot

do. The Nigam further pleads that the appropriate

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3123

Government was not competent to refer the dispute for

adjudication in view of the settlement as well as scheme

formulated by the Government known as Casual Labourers

(Grant of Temporary Status and Regularization) Scheme

1993, which came into operation with effect from

01.10.1993.

6. The Nigam pleads that the claimant was working

as daily rated mazdoor. He submitted his joining report as

regular mazdoor, on 10.8.1993 on being regularized as such.

He was never appointed as Stenographer/Office Assistant

nor was asked to perform duties on the aforesaid post.

Merely because that he is a graduate, he cannot ask for

benefits available to the post of Stenographer/Office

Assistant. For appointment to a particular post, one has

to offer his candidature, compete alongwith eligible

candidates and only then becomes eligible for that post,

in case he is found suitable. Claimant had not undergone

process of selection for the post of Stenographer/Office

Assistant and as such has no right to claim wages or

regularization on the aforesaid post. No right vests in the

claimant to seek an award in his favour. Claim put forth is

not maintainable, hence it may be dismissed, pleads the

Nigam.

7. On 03.12.1997, an award was passed by this

Tribunal, holding therein that the Nigam is not an industry

and as such dispute referred for adjudication is not an

industrial dispute.

8. The award was assailed before the High Court of

Delhi, vide writ petition No.WP(C) 3493 of 1998, which

petition was granted vide order dated 09.05.1993, detailing

therein that the Nigam is an industry. Direction was issued

to the Tribunal to adjudicate the dispute preferably within

next nine months, since it was an old matter.

9. When the matter was remitted to this Tribunal

for adjudication, as referred above, parties were called

upon to adduce its evidence. Claimant examined himself

to substantiate his claim. Shri Sohan Lal, Divisional

Engineer, entered the witness box to project case of the

Nigam. No other witness was examined by either of the

parties.

10. Arguments were heard at the bar. Shri J.P. Singh,

authorized representative, advanced arguments on behalf

of the claimant. Shri R.N. Singh, authorized representative,

raised submissions on behalf of the Nigam. 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:-

11. In his affidavit Ex.WW1/A, tendered as

evidence, claimant unfolds that he was appointed as

Stenographer

daily

rate

basis

the

Telecommunications Department, Government of India,

New Delhi, on 22.11.1982. He was paid wages @ Rs. 9.00

per day. He was regularly discharging his duties as

Stenographer. Certificate dated 21.11.1984 has been issued

in that regard, which projects that he was working as

Stenographer/Office Assistant since 22.11.1982. He was

discriminated by the Nigam, in respect of payment of

wages, in comparison to regular employees working on

the post of Stenographer/Office Assistant. During the

course of his cross examination, he concedes that he was

appointed as regular mazdoor, vide appointment letter

Ex.WW1/3. He joined on that position on 10.08.1993. He

further concedes that post of Office Assistant is a group

‘C’ post, recruitment for which post is made through Staff

Selection Commission. He makes a candid admission that

he was never recruited on the post of Office Assistant.

12. In affidavit Ex. MW1/A, tendered as evidence,

Shri Sohan Lal deposes that the claimant was working as

daily rated mazdoor, whose services were regularized as

permanent mazdoor. He took over charge on 10.08.1993 on

the post of regular mazdoor. He submitted his joining report

in that regard. During the course of his cross examination,

he concedes that since beginning, claimant was

discharging duties of Office Assistant till the date he was

regularized as regular mazdoor.

13. As emerge out of the facts, unfolded by the

claimant and Shri Sohan Lal, it is evident that the claimant

was engaged as a daily rated mazdoor. He was asked to

perform duties of Office Assistant. He was never recruited

on the post of Stenographer/Office Assistant. Certificate

Ex.WW1/1 brings it to light that duties of Typist/

Stenographer were performed by the claimant with effect

from 22.11.1982. Ex.WW1/9 further highlights that the

claimant was attached with Additional Divisional Engineer

(Telephone) (ITN-II), where he performed clerical duties.

In Ex.WW1/11 it has further been mentioned that the

claimant was performing clerical duties with the Nigam.

Claimant admits that he had not undergone recruitment

process for the post of a clerk, though he was performing

clerical duties at the instance of authorities of the Nigam.

14. Whether the claimant, who performed clerical

duties without being recruited on the post of a clerk, is

entitled to be treated alike with a regularly recruited clerk?

For an answer to the proposition legal provisions are to

be taken note of. Equality before law and equal protection

of laws are fundamental rights of every person, ordains

Article 14 of the Constitution. The guiding principles laid

in Article 14 are that persons, who are similarly situated,

shall be treated alike both in privileges conferred and

liability imposed, which means that amongst equals the

law should be equal and should be equally administered

and that like should be treated alike. Article 16 of the

Constitution guarantees equality of opportunities for all

citizens in matters relating to employment or appointment

to any office under the State. What is guaranteed is the

equality of opportunity. Like all other employers,

Government is also entitled to pick and choose from

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amongst a large number of candidates offering themselves

for employment. But the selection process must not be

arbitrary. The guarantee given by clause (a) of Article 16

of the Constitution will cover (a) initial appointments (b)

promotions(c) termination of employment and (d) matters

relating to salary, periodical increments, leaves, gratuity,

pension, age of superannuation etc. Matters relating to

employment or appointments include all mattes in relations

to employment both prior and subsequent to the

employment which are incidental to the employment and

form part of the terms and conditions of such employment.

15. Fundamental rights guaranteed by Article 14

forbids class legislation, but does not forbid classification

or differentiation which rests upon reasonable ground of

discretion. Classification is the recognition of the relations,

and in making it the Government must be allowed a wide

latitude of discretion and judgment. In a way, the

consequences of such classification would undoubtedly

be to differentiate persons belonging to that class from

others. The classification must be founded on an

intelligible differentia which distinguishes persons or

things that are grouped together from others left out of

the group and the differentia must have a rational relation

to the object sought to be achieved. Classification may be

made according to the nature of persons, nature of

business, and may be based with reference to time.

16. Concept of equality guaranteed by Article 16 of

the Constitution is something more than formal equality

and enables the underprivileged groups to have a fair share

by having more than equal chance and enables the State

to give favoured treatment to those groups by achieving

real equality with reference to social needs. ‘Protection

discrimination’ enabled the State to adopt new strategy to

bring underprivileged at par with the rest of the society,

by providing all possible opportunities and incentives to

them. Therefore a class may be allowed to have preferential

treatment in the matter relating to employment or

appointment. There cannot be rule of equality between

members of separate and independent group of persons.

Persons can be classified in different groups, based on in

terms of nature of persons, nature of business and with

reference to time.

17. Now it would be considered as to whether the

claimant is entitled for wages of Office Assistant, on which

position he was working since 22.11.1982 till his services

were regularized as permanent mazdoor on 10.08.1993.

Doctrine of “equal pay for equal work” has been enshrined

under Article 39(d) of the Constitution as one of the

directive principles of the State policy, requiring the State

to secure “equal pay for equal work” for both, men and

women. This constitutional goal is capable of attainment

through constitutional remedies by way of enforcement

of constitutional rights, declares the Supreme Court in

Randhir Singh [1982(1) LLJ 344]. In G. Sreenivasa Rao

[1989(2) LLJ 149], the Apex Court announced that right to

“equal pay for equal work” is an accompaniment of the

equality clause enshrined in Article 14 and 16 of the

Constitution of India. Nevertheless, abstract doctrine of

“equal pay for equal work” cannot be read in Article 14.

Reasonable classification, based on intelligible criteria

having nexus with the object sought to be achieved, is

permissible.

18. In Grih Kalyan Kendra Workers Union [1991(1)

LLJ 349] Apex Court had gone to the extent of saying that

“equal pay for equal work” has assumed the status of

fundamental right in service jurisprudence having regard

to the constitutional mandate of equality in Articles 14

and 16 of the Constitution. It was pronounced therein that

it has ceased to be a judge made law as it is the part of the

constitutional philosophy which ensures a welfare

socialistic pattern of State providing equal opportunity to

all and equal pay for equal work for similarly placed

employees of the State. The principles do not apply to the

State only but also applies to the State instrumentalities.

19. In 1976, Equal Remuneration Act 1976 was

enacted to implement provisions of Article 39(d) of the

Constitution. Construing provisions of that Act, Supreme

Court in Audrey D’Costa [1987(1) LLJ 536] pronounced

that the Act does not permit the management to pay to a

section of its employees, doing the same work or work

similar in nature, lower pay contrary to the provisions of

section 4(1) of the Act only because it is not able to pay

equal remuneration to all. The Court further observed that

the applicability of the Act does not depend upon the

financial ability of the management to pay equal

remuneration as provided by it.

20. In deciding whether the work is the same or is

broadly the same, the Nigam should take a broad view and

also adopt a broad approach in ascertaining whether any

differences are of practical importance because from the

subject of ‘similar work’ implies difference in detail. Actual

duties performed should be looked into and not those

that are theoretically possible. Elaborating the concept of

“equal pay for equal work” and its application, the Apex

Court in Randhir Singh (Supra) observes as follows:-

“Where all things are equal that is, where all relevant

considerations are the same, persons holding

identical posts may not be treated differentially in

the matter of their pay merely because they belong

to different departments. Of course, if officers of the

same rank perform dissimilar functions and the

powers, duties and responsibilities of the posts held

by them vary, such officers may not be heard to

complain of dissimilar pay merely because the posts

are of the same rank and the nomenclature is the

same *** and there are different grades in a service,

with varying qualifications for entry into a particular

grade, the higher grade often being a promotional

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3125

avenue for officers of the lower grade. The higher

qualification for higher grade, which may be either

academic qualification or experience based on length

of service, reasonably sustain the classification of

the officers into two grades with different scales of

pay. The principle of “equal pay for equal work”

would be an abstract doctrine not attracting Article

14 if sought to be applied to them”.

21.In Delhi Veterinary Association (AIR 1984 SC

1221), the Supreme Court ruled that apart from the nature

of work, the pay structure should reflect many other values

and observed that the employer should follow certain basic

principles in fixing the pay scales of various posts and

cadres in the Government service. The degree of skill, strain

of work, experience involved, training required,

responsibility undertaken, mental and physical

requirements, disagreeableness of the task, hazard

attendant on work and fatigue involved are, according to

the Third Pay Commission, some of the relevant factors

which should be taken into consideration in fixing pay

scales. The method of recruitment, the level at which the

initial recruitment is made in the hierarchy of service or

cadre, minimum educational and technical qualifications

prescribed for the post, the nature of dealings with the

public, avenues of promotion available and horizontal and

vertical relativity with other jobs in the same service or

outside are also relevant factors, announced the Court.

22. In JP Chaurasia [1989 (1) LLJ 309], the Apex

Court, elaborating the same theme, ruled that apart from

the nature of work or volume of the work done the other

relevant factors to be taken into account, are ‘evaluation

of duties and responsibilities of the respective posts’. In

Hari Narain Bhowal [1995(II) LLJ 328], the Apex Court

pronounced that the principle of “equal pay for equal

work” can be enforced when claiming persons satisfy the

Court that not only the nature of work is identical but in all

other respects they belong to the same class and there is

no apparent reason to treat “equals as unequals”.

23. In Ram Ashray Yadav [1996(II) LLJ 92], the Apex

Court observed that principles of “equal pay for equal

work” will not apply where qualification prescribed, mode

of recruitment and the nature of duties are different for

regular employees and a temporary employee. The claim

of temporary Investigator-cum-Computer for payment of

salary at par with the regular Investigator-cum-Computer

was discarded by the Court in the said case. However

classification of officers into two groups, namely,

deputationists and non-deputationists, for paying

different rates of special pay was held to be not permissible

under Article 14 and 16 of the Constitution, as it did not

bear any rational relation to the objects of the classification.

See M.P. Singh (A.I.R. 1987 S.C. 485).

24. In M.R. Ganesh Babu [2002 (4) SCC 556], the

Apex Court while dealing with the same principles, opined

that principle of equal pay is dependant upon the nature

of work done. It cannot be judged by the mere volume of

work, there may be qualitative difference as regards

reliability and responsibility. Functions may be the same

but the responsibilities make a difference. It was held that

the judgment of administrative authorities concerning the

responsibilities which are attached to the post, and the

degree of reliability expected of an incumbent, would be a

value judgment of the authorities concerned, which if

arrived at is bona fide, reasonably and rationally, was not

open to interference by the Court.

25. In Tilak Raj [2003 (6) SCC 123], the Apex Court

observed that the principle of “equal pay for equal work”

is not always easy to apply. There are inherent difficulties

in comparing and evaluating the work done by different

persons in different organizations, or even in the same

organization. It has been reiterated that this is a concept

which requires for its applicability complete and wholesale

identity between a group of employees claiming identical

pay scales and the other group of employees who have

already earned such pay scales. It has been emphasized

that the problem about equal pay cannot always be

translated into a mathematical formula.

26. In Charanjit Singh [2006 (9) SCC 321], the Apex

Court has reiterated that the doctrine of “equal pay for

equal work” is not an abstract doctrine and is capable of

being enforced in a court of law. But equal pay must be for

equal work of equal value. The principle of “equal pay for

equal work” has no mechanical application in every case.

Article 14 permits reasonable classification based on

qualities or characteristics of persons recruited and

grouped together, as against those who were left out. Of

course, the qualities or characteristics must have a

reasonable relation to the object sought to be achieved.

Enumerating number of factors, it may not warrant the

application of the principle of “equal pay for equal work”,

it has been held that since the said principle requires

consideration of various dimensions of a given job,

normally the applicability of this principle must be left to

be evaluated and determined by an expert body and the

court should not interfere till it is satisfied that the

necessary material on the basis of which the claim is made

is available on record with necessary proof and that there

is equal work of equal quality and all other relevant factors

are fulfilled.

27. In Surjit Singh [2009(123) FLR 38] Apex Court

was confronted with the proposition as to whether the

persons employed as daily wagers in different capacities

by Public Health Department of State of Punjab were

entitled for “equal pay for equal work” to that of the

employees who were appointed against regular posts, by

following process of recruitment. It was ruled therein that

grant of benefit of doctrine of “equal pay for equal work”

depends upon a large number of factors, including equal

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work, equal value, source and manner of appointment,

equal identify of group and wholesale or complete identity

with the employee with whom equality is claimed. The

same threads of thoughts were there in Ramesh Chandra

Bajpai [2009(123) FLR 525] wherein the Apex Court ruled

that similarity in the designation or nature or quantum of

work is not determinative of equality in the matter of pay

scales. It was emphasized that the Court has to consider

the factors like the source and mode of recruitment/

appointment, qualifications, the nature of work, the value

thereof, responsibilities, reliability, experience,

confidentiality, functional need, etc. In other words, the

equality clause can be invoked in the matter of pay scales

only when there is wholesale identity between the holders

of two posts.

28. Relying on above legal precedents, it would be

considered as to whether there is complete and wholesale

identify between the claimant and an Office Assistant,

recruited by the Nigam following recruitment process.

Answer lies in negative. Claimant was engaged as a daily

rated mazdoor. Subsequently, his services were regularized

as regular mazdoor, on which post he took charge on

10.08.1993. Admittedly, the Nigam stared taking job of

Office Assistant from him. In case he would have made a

lapse in performance of that job, the authorities could not

hold him accountable, since he was not a holder of that

post. The claimant was immune from rigours of disciplinary

action and responsibility. It is evident that the claimant

did not have any identity not to talk of wholesale identity

with a Stenographer/Office Assistant, who was engaged

following recruitment process. Responsibility assigned

to the claimant cannot be said to be of equal value with

that of holder of post of Stenographer/Office Assistant

on permanent basis. Mere factor that the work of the

Office Assistant was taken would not put him at par with

an Office Assistant appointed, following proper

recruitment process. Educational qualification, experience,

method of recruitment and promotion to different

categories of posts of clerk nowhere tallies with the factors

surrounding the claimant. Hence, it cannot be said that

the claimant was in complete and wholesale identity with

an Office Assistant regularly appointed by the Nigam. In

such a situation the claimant cannot invoke the doctrine

of “equal pay for equal work”. The Nigam has not

committed any illegality when wages of an Office

Assistant, appointed by following recruitment rules, were

not paid to him.

29. Claimant relies on precedents in C.P. Sebastian

[2009 (14) SCC 360], Krishna Kant [1995 (5) SCC 75],

Dhirendera Chamoli [1986 (1) SCC 637], Surinder Singh

(1986 1 SCC 639), Bhagwan Dass [1987 (4) SCC 634], Pooran

Chandra Pandey [2007 (11) SCC 92], Charanjit Singh [2008

(1) SCC 321] and Mohd. Khursheet Anwar [2010 (7) SCC

739] to claim equal pay as that of an Office Assistant,

recruited by the Nigam in consonance with the rules. Since

facts of the present controversy are distinct and different,

aforesaid precedents nowhere come to his rescue.

30. Appointment in Govt. service may be on

probation, in temporary capacity or permanent in nature.

At the cost of repetition it is said that the claimant was

appointed by the Nigam as regular majdoor on 10^th of

August, 1993. Prior to that date he was engaged as daily

rated majdoor. Work of Stenographer/Office Assistant was

taken from him by the Nigam since 22.11.1982 till 10.08.1993.

The claimant wants that he may be designated as

Stenographer/Office Assistant. In case his claim is granted

it would amount to a back door entry of the claimant on

that post. Even by any stretch of imagination it cannot be

said that the claimant was irregularly appointed on the

post of Stenographer/Office Assistant. A person who has

been engaged as a daily rated majdoor cannot claim to

have been appointed on the post of Stenographer/Office

Assistant. It is a settled legal position that an appointment

on a post can be made by following a recruitment process,

in consonance with rules. In Uma Devi [2006 (4) SCC 1]

the Apex Court considered the proposition as to whether

the persons who got employment, without following of a

regular procedure or even from the back door or on daily

wages can be ordered to be made permanent in their posts,

to prevent regular recruitment to the posts concerned.

Catena of decisions over the subject were considered and

the court declined the submissions of the workmen to be

made permanent on the posts which were held by them in

temporary or ad-hoc capacity for a fairly long spell. The

Court ruled thus:

“With respect, why should the State be allowed to

depart from the normal rule and indulge in temporary

employment in permanent posts? This Court, in our view,

is bound to insists on the State making regular and proper

recruitments, and is bound not to encourage or shut its

eyes to the persistent transgression of the rules of regular

recruitment. The direction to make permanent, the

distinction between regularization and making permanent,

was not emphasized here–can only encourage the State,

the model employer, to flout its own rules and would

confer undue benefits on a few at the cost of many waiting

to compete. With respect the directions made in Piara

Singh [1992(4) SCC 118] is to some extent inconsistent

with the conclusion in para 45 of the said judgement therein.

With great respect, it appears to us that the last of the

directions clearly runs counter to the constitutional scheme

of employment recognized in the earlier part of the decision.

Really, it cannot be said that this decision has laid down

the law that all ad-hoc, temporary or casual employees

engaged without following a regular recruitment procedure

should be made permanent”.

31. In P.Chandra Shekhara Rao and Others [2006

(7) SCC 488] the Apex Court referred Uma Devi’s Case

(Supra) with approval. It also relied the decision in a Uma

Rani [2004 (7) SCC 112] and ruled that no regularization is

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3127

permissible in exercise of statutory powers conferred in

Article 162 of the Constitution, if the appointments have

been made in contravention of the statutory rules. In

Somveer Singh [2006 (5) SCC 493] the Apex Court ruled

that appointment made without following due procedure

cannot be regularized. In Indian Drugs & Pharmaceuticals

Ltd. [2007 (1) SCC 408] the Apex Court reiterated the law

and announced that the rules of recruitment cannot be

relaxed and court cannot direct regularization of temporary

employees dehors the rules, nor can it direct continuation

of service of a temporary employee (whether called a casual,

ad-hoc or daily rated employee) or payment of regular

salaries to them.

32. In Uma Devi (supra) it was laid that “when a

person enters a temporary employment or get engagement

as contractual or casual worker and the engagement is not

based on a proper selection as recognized by the relevant

rules or procedure, he is aware of the consequence of the

appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed for the post,

when an appointment to the post could be made only by

following a proper procedure or selection in any concerned

cases, in consultation with the public service commission.

Therefore, the theory of legitimate expectation cannot be

successfully advanced by temporary, contractual or casual

employees. It cannot also be held that the State held out

any promise while engaging these persons either to

continue them where they are or to make them permanent.

The State cannot constitutionally make such a promise. It

is also obvious that the theory cannot be invoked to seek

relief of being made permanent in the post. In view of

those precedent neither continuance nor regularization of

services of the claimants can be ordered, since it would

amount to back door entry into Government job”.

33. In the light of legal dictum, facts of the present

controversy would be scanned again. The claimant was

not at all appointed to the post of Stenographer/Office

Assistant, not to talk of irregular or illegal appointment on

the post. After his engagement as daily rated majdoor,

clerical duties were taken from the claimant. Mere fact that

the claimant performed clerical duties would not enable

him to lay claim for being designated as Stenographer/

Office Assistant. For grant of a relief of being designated

as Stenographer/Office Assistant he had to show that there

was right in his favour for being appointed on that post.

On Government job an appointment is to be made strictly

on the basis of invitation of applications from amongst

eligible candidates, completion of selection process on

the basis of criteria and rules laid down in that regard and

the incumbent being found to be meritorious. Any

appointment in violation of constitutional scheme of

equality would be wholly illegal and without jurisdiction.

For these reasons it is announced that the claimant is not

entitled to be designated as Stenographer/Office Assistant.

His claim is liable to be discarded on that count too.

34. For consideration of aspects of social justice,

the Tribunal has to keep in mind that the Industrial

Disputes Act, 1947 (in short the Act) is a beneficiary

legislation calculated to ensure social justice to both

employers and employees and advance progress of

industry by brining harmony and cordial relationship

between the parties. The Act empowers adjudicating

authorities to abrogate conditions in contract of

employment, in the interest of social justice. Social and

economic justice is ultimate ideal of industrial adjudication.

Social and economic justice has been given place of pride

in our Constitution and doctrine of absolute freedom of

contract has thus to yield to the higher claims for social

justice. See Raibahadur Deewan Badri Das [1962 (II) LLJ

366].

35. Social justice is not based on contractual

relations and is not to be enforced on principles of contract

of service. It is something outside these principles and

invoked to do justice without a contract to back out.

Reference can be made to precedent in Rashtriya Mill

Mazdoor Sangh [1960 (II) LLJ 263]. In J.K. Cotton Spinning

& Weaving Mills Company Ltd. [1963 (II) LLJ 435] the

Apex Court ruled that industrial disputes are to be

adjudicated laced with the concept of social justice. It

would be expedient to reproduce the observations made

by the Apex Court which are extracted thus:

“In our opinion the argument that the considerations

of social justice are irrelevant and untenable in

dealing with industrial disputes, has to be rejected

without any hesitation. The development of

industrial law during the last decade and several

decisions of this court in dealing with industrial

matters have emphasized the relevance, validity and

significance of doctrine of social justice………..

Indeed the concept of social justice has now become

such an integral part of industrial law that it would

be idle for any party to suggest that industrial

adjudication can or should ignore the claim of social

justice in dealing with industrial disputes. The

concept of social justice is not narrow or one sided,

or pedantic, and is not confined to industrial

adjudication alone. Its sweep is comprehensive. It

is founded on the basic idea of socio economic

equality and its aim is to assist the removal of socio

economic disparities and inequalities”.

36. In Ahmedabad Manufacturing and Calico

Printing Company Ltd. [1972 (II) LLJ 165] the above

principles were reiterated by the Apex Court. Therefore,

the law laid down by Apex Court makes it clear that the

industrial adjudication cannot and should not ignore the

3128

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

claims of social justice. Same views were expressed in Basti

Sugar Mills Company Ltd. [1978 (II) LLJ 412]. Therefore

this Tribunal has to consider the case on the touch stone

of social justice also.

37. As emerge out of Ex.W1/1. Ex.WW1/9 and

Ex.WW1/11, the Nigam had taken work of Office Assistant

from the claimant. While working as daily rated mazdoor,

claimant had neither any lien on that position nor he was

a civil servant at that time. In such a situation, Fundamental

Rules were not applicable to him. He could not project a

case to get accolade of principles of law laid down in Vijay

Pal Singh [1997(10) SCC 260]. However, as projected by

him, he was being paid Rs.9 per day as his wages. These

facts project that the claimant was being paid minimum

wages, notified by the appropriate Government from time

to time. The appropriate Government notifies minimum

wages for unskilled, semi-skilled and skilled workmen. It

also notifies wages for matriculate clerk and graduate clerk.

As pointed out by the claimant, he was a graduate. The

Nigam nowhere disputes his qualification as well as

performance of clerical duties by him.

38.When duties of Office Assistant were taken, in

that situation, applying principles of social justice, I am of

the view that the claimant is entitled to minimum wages for

the category of graduate clerk from 22.11.1982 till

10.08.1993. Therefore, it is ruled that though the claimant

is not entitled for equal pay as that of an incumbent holding

post of an Office Assistant on regular basis, yet the Nigam

is under an obligation to pay minimum wages notified for

graduate clerk by the appropriate Government, for the

period from 22.11.1982 till 10.8.1993. Since he was paid

minimum wages of unskilled mazdoor he would be entitled

to difference of minimum wages for the category of graduate

clerk and unskilled majdoor, for the period referred above.

The difference of minimum wages, as held above, which

would be paid by the Nigam within a period of three months

from the date the award becomes enforceable under

section17A of the Act. An award is, accordingly, passed.

It be sent to the appropriate Government for publication.

Dated 03-03-2014

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 26 ekpZ] 2014

dk-vk- 1198-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj phiQ tujy

eSustj] Hkkjr lapkj fuxe fyfeVsM ds izca/ra=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k ,oa Je U;k;ky;] HkqcusLoj

ds iapkV (lanHkZ la[;k 22@2013) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 26&03&2014 dks izkIr gqvk Fkk A

¹la- ,y&40012@104@2012&vkbZvkj(Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 26th March , 2014

S.O. 1198.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 22/2013)

of the Central Government Industrial Tribunal/Labour

Court, Bhubneswar now as shown in the Annexure, in the

industrial dispute between the employers in relation to

the management of Chief General Manager, Bharat Sanchr

Nigam Limited & Others and their workmen, which was

received by the Central Government on 26-03-2014.

[No. L-40012/104/2012-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, BHUBANESWAR

Present:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE No. 22/2013

Date of Passing Order – 12^th August, 2013

Between :

3. The Chief General Manager,

Bharat Sanchar Nigam Limited,

Orissa Telecom Circle, PMG Square,

Bhubaneswar (Orissa).

4. Shri Shakti Prasad Ray,

M/s. Shakti Electricals,

N/4, 148, IRC Village Nayapalli,

Bhubaneswar (Orissa) - 15

… 1st Party-Managements.

(And)

Shri Ananta Swain,

AC Operator, BSNL,

Telephone Exchange, PKG AC Plant,

B.J.B. Nagar, Bhubaneswar (Orissa)

...

2nd Party-Workman.

Appearances:

None.

... For the 1st Party-

Managements

None.

...For the 2^nd Party-

Workman

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3129

ORDER

Case taken up. None of the parties is present. The

2nd Party-workman was required to file his statement of

claim in pursuance of the order of reference within fifteen

days of the receipt of the order. But the 2^nd party-workman

has failed to file any statement of claim neither in pursuance

of the order of reference nor having been noticed twice

first on 6.5.2013 by ordinary post and second on 1.7.2013

by regd. post by this Tribunal. This reference was received

in this Tribunal on 1.4.2013 having been referred by the

Government vide its letter dated 26.2.2013. The statutory

mandate is to decide the dispute within three months of

the receipt of the reference. A period of more than four

months has expired, but the 2nd Party-workman has not

shown the least interest in prosecuting his case either by

putting in appearance or by filing his statement of claim.

Without pleadings of the parties the matter under dispute

cannot be adjudicated. It might be that the 2nd Party-

workman has settled his dispute with the 1st Party-

Management amicably out of the court. But instead of

passing a no-dispute award it would be expedient in the

interest of justice to return the reference unanswered to

the Government for taking necessary action at its end.

2. I order accordingly and return the reference

unanswered to the Government for taking necessary action

at its end.

J. SRIVASTAVA, Presiding Officer

ubZ fnYyh] 26 ekpZ] 2014

dk-vk- 1199-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj izkstsDV

Mk;jsDVj us'kuy gkbost vFkkWfjVh vkWiQ bafM;k ds izca/ra=k ds

lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa fu£n"V

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

U;k;ky;] HkqcusLoj ds iapkV (lanHkZ la[;k 04@2014) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 26&03&2014 dks izkIr gqvk Fkk A

¹la- ,y&42025@03@2013&vkbZvkj(Mh;w)]

ih- ds- os.kqxksiky] vuqHkkx vf/dkjh

New Delhi, the 26th March , 2014

S.O. 1199.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (I.D No. 04/2014)

of the Central Government Industrial Tribunal/Labour

Court, Bhubaneswar now as shown in the Annexure, in

the industrial dispute between the employers in relation

to the management of the Project Director, National

Highways Authroity of India and their workmen, which

was received by the Central Government on 26-03-2014.

[No. L-42025/03/2013-IR(DU)]

P. K. VENUGOPAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, BHUBANESWAR

Present:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE No. 4/2014

Date of Passing Order – 26th February, 2014

Between :

1. The Project Director,

National Highways Authority of India,

1st Floor, SETU Bhavan, Nayapalli,

Unit-VIII, Bhubaneswar.

2. The Management of Egle Infra Ltd.,

Tool Plaza, Gangapada,

Dist. Khurda.

...1st Party-Managements

(And)

Shri Sapan Kumar Patra,

S/o. Debendra Patra,

Vill. Chandipur,

Po. Velora, Ps. Basta,

Dist. Baleswar.

...2nd Party-Workman

Appearances:

None.

... For the 1st Party-

Managements.

Shri Sapan Kumar Patra

...For Himself the

2nd Party-Workman.

ORDER

Case presented today before me. The 2nd Party-

workman is present in person. The 1st Party-Management

No. 1 and 2 are absent.

The case is at initial stage. However notices have

been issued to the 1st Party-Managements. The 2nd Party-

workman on 20.02.2014 has moved a petition before this

Tribunal that an amicable settlement has been arrived at

with the company and the company has agreed to re-

appoint him and reinstated him in his previous service. So

he is not willing to continue with the case and permission

to withdraw the case be granted.

2. I have heard the 2nd Party-workman. He still

wants to withdraw the case on the assurance of the

company to re-appoint him. I find no legal impediment in

allowing the petition. Therefore the petition to withdraw

the case is allowed. The 2nd Party-workman is permitted

to withdraw the case.

3. The application filed under section 2-A of the

Industrial Disputes Act, 1947 is accordingly dismissed as

withdrawn.

J. SRIVASTAVA, Presiding Officer

3130

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

ubZ fnYyh] 28 ekpZ] 2014

dk-vk- 1200-—dsUnzh; ljdkj] deZpkjh jkT; chek

vf/fu;e] 1948 (1948 dk 34) dh /kjk 91&d ds lkFk ifBr

/kjk 88 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, fgUnqLrku isij

dkWiksZjs'ku fyfeVsM] dkxtuxj] vle ds ukxako isij fey ds

dkj[kkuksa@LFkkiukvksa ds fu;fer deZpkfj;ksa dks bl vf/fu;e ds

izorZu ls NwV iznku djrh gSA ;g NwV] 30-03-2014 ls ,d o"kZ dh

vof/ ds fy, ykxw jgsxhA

2- mDr NwV fuEufyf[kr 'krks± ds v/hu gS_ vFkkZr~%&

(1) iwoksZRd LFkkiuk ftlesa deZpkjh fu;ksftr gSa] ,d jftLVj

j[ksxh] ftlesa NwV izkIr deZpkfj;ksa ds uke vkSj inuke fn[kk;s

tk;saxs_

(2) bl NwV ds gksrs gq, Hkh] deZpkjh mDr vf/fu;e ds

v/hu ,slh izlqfo/k,a izkIr djrs jgsaxs ftudks ikus ds fy, os bl

vf/lwpuk }kjk nh xbZ NwV ds izo`r gksus dh rkjh[k ls iwoZ lanÙk

va'knkuksa ds vk/kj ij gdnkj gks tkrs gSa_

(3) NwV izkIr vof/ ds fy,] ;fn dksbZ vfHknk; igys gh fd,

tk pqds gksa] rks os okil ugha fd, tk,axs_

(4) mDr dkj[kkus@LFkkiuk dk fu;kstd ml vof/ dh ckcr

ftlds nkSjku ml djk[kkus@LFkkiuk ij mDr vf/fu;e (ftls blesa

blds i'pkr~ mDr vof/ dgk x;k gS) izorZeku Fkk ,slh foojf.k;ka]

,sls izk:i esa vkSj ,slh fof'kf"V;ksa lfgr nsxk tks deZpkjh jkT;

chek (lk/kj.k) fofu;e] 1950 ds v/hu mls mDr vof/ dh

ckcr nsuh visf{kr gksrh Fkha_

(5) fuxe }kjk mDr deZpkjh jkT; chek vf/fu;e dh /kjk

45 dh mi/kjk (1) ds v/hu fu;qDr fd;k x;k dksbZ lkekftd

lqj{kk vf/dkjh ;k fuxe dk bl fufeÙk izkf/Ñr dksbZ vU;

in/kjh_

(i) /kjk 44 dh mi&/kjk (1) ds v/hu] mDr vof/ dh

ckcr nh xbZ fdlh fooj.k dh fof'k"V;ksa dks lR;kfir

djus ds iz;kstukFkZ_ vFkok

(ii) ;g vfHkfuf'pr djus ds iz;kstukFkZ fd deZpkjh

jkT; chek (lk/kj.k) fofu;e] 1950 }kjk ;Fkk

visf{kr jftLVj vkSj vfHkys[k mDr vof/ ds fy,

j[ks x;s Fks ;k ugha_ ;k

(iii) ;g vfHkfuf'pr djus ds iz;kstukFkZ fd deZpkjh]

fu;kstd }kjk fn;s x, mu iQk;nksa dks] ftlds

iQyLo:i bl vf/lwpuk ds v/hu NwV nh tk jgh

gS] udn esa vkSj oLrq :i esa ikus dk gdnkj cuk

gqvk gS ;k ugha_ ;k

(iv) ;g vfHkfuf'pr djus ds iz;kstukFkZ fd ml vof/

ds nkSjku] tc mDr dkj[kkus ds laca/ esa vf/fu;e

ds mica/ izo`r Fks] ,sls fdUgha mica/ksa dk vuqikyu

fd;k x;k Fkk ;k ugha] fuEufyf[kr dk;Z djus ds

fy, l'kDr gksxk%&

(d) iz/ku ;k vklUu fu;kstd ls vis{kk djuk fd og

mls ,slh tkudkjh ns ftls mijksDr vf/dkjh ;k

vU; in/kjh bl vf/fu;e ds iz;kstukFkZ vko';d

le>rk gS _ vFkok

([k) ,sls iz/ku ;k vklUu fu;kstd ds vf/Hkksxk/hu]

fdlh dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj

esa fdlh Hkh mfpr le; ij izos'k djuk vkSj

mlds izHkkjh ls ;g vis{kk djuk fd og O;fDr;ksa

ds fu;kstu vkSj etnwjh ds lank; ls lacaf/r ,sls

ys[kk] cfg;ka vkSj vU; nLrkost] ,sls fujh{kd ;k

vU; in/kjh ds le{k izLrqr djsa vkSj mudh

ijh{kk djus nsa ;k ,slh tkudkjh nsa ftls os vko';d

le>rs gSa_ ;k

(x) iz/ku ;k vklUu fu;kstd dh] mlds vfHkdRkkZ ;k

lsod dh] ;k ,sls fdlh O;fDr dks] tks ,sls

dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj esa

ik;k tk,] ;g fo'okl djus ds ;qfDr;qDr dkj.k

gS fd og deZpkjh gS] ijh{kk djuk_ ;k

(?k) ,sls dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj esa

j[ks x, fdlh jftLVj] ys[kk] cgh ;k vU; nLrkost

dh udy rS;kj djuk ;k m¼j.k ysuk_

(M-) ;Fkkfu/kZfjr vU; 'kfDRk;ksa dk iz;ksx djukA

(6) fofuos'[email protected] ds ekeys esa] iznÙk NwV Lor% jí gks

tk,xh vkSj rc u, izfr"Bku dks NwV gsrq leqfpr ljdkj dh

vuqefr ysuh gksxh

[la- ,l&38014@04@2013&,l-,l&I]

lqHkk"k dqekj] voj lfpo

New Delhi, the 28th March, 2014

S.O. 1200.—In exercise of the power conferred

by section 88 read with section 91-A of the Employees’

State Insurance Act, 1948 (34 of 1948) the Central

Government hereby exempts the regular employees of

Nagaon Paper Mill of Hindustan Paper Corporation Ltd.

Assam from the operation of the said Act. The exemption

shall be effective w.e.f. 30.03.2014 for a period of one

year.

2. The above exemption is subject to the following

conditions namely :—

(1) The aforesaid establishment wherein the employees

are employed shall maintain a register showing the name

and designation of the exempted employees:

(2) Notwithstanding the exemption, the employees

shall continue to receive such benefits under the said Act

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3131

to which they might have become entitled to on the basis

of the contributions paid prior to the date from which

exemption granted by this notification operates;

(3) The contributions for the exempted period, if

already paid, shall not be refundable;

(4) The employer of the said factory/establishment shall

submit in respect of the period during which that factory

was subject to the operation of the said Act (hereinafter

referred as the said period), such returns in such forms

and containing such particulars as were due from it in

respect of the said period under the Employees’ State

Insurance (General) Regulations, 1950;

(5) Any Social Security Officer appointed by the

Corporation under Sub-section (1) of Section 45 of the said

ESI Act or other official of the Corporation authorized in

this behalf by it, shall, for the purpose of:-

(i)

Verifying the particulars contained in any

returned submitted under sub-section (1)

of section 44 for the said period; or

(ii)

Ascertaining whether register and records

were maintained as required by the

Employees’ State Insurance (General )

Regulations, 1950 for the said period; or

(iii)

Ascertaining whether the employees

continue to be entitled to benefits provided

by the employer in cash and kind being

benefits in consideration of which

exemption is being granted under this

notification ; or

(iv)

Ascertaining whether any of the provisions

of the Act had been complied with during

the period when such provisions were in

force in relation to the said factory to be

empowered to :

(a) Require the principal or immediate

employer to furnish to him such

information as he may consider

necessary for the purpose of this Act;

(b) at any reasonable time enter any

factory, establishment, office or other

premises occupied by such principal

or immediate employer at any

reasonable time and require any

person found in charge thereof to

produce to such inspector or other

official and allow him to examine

accounts, books and other documents

relating to the employment of personal

and payment of wages or to furnish to

him such information as he may

consider necessary; or

employer, his agent or servant, or any

person found in such factory,

establishment, office or other

premises or any person whom the said

inspector or other official has

reasonable cause to believe to have

been an employee; or

(d) make copies of or take extracts from

any register, account book or other

document maintained in such factory,

establishment, office or other

premises,

(e) exercise such other powers as may be

prescribed.

6. In case of disinvestment/corporation, the exemption

granted shall become automatically cancelled and then

the new entity will have to approach the appropriate

Government for exemption.

[No. S-38014/ 04/2013-SS-I]

SUBHASH KUMAR, Under Secy.

ubZ fnYyh] 28 ekpZ] 2014

dk-vk- 1201-—dsUnzh; ljdkj] deZpkjh jkT; chek

vf/fu;e] 1948 (1948 dk 34) dh /kjk 91&d ds lkFk ifBr

/kjk 88 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, fgUnqLrku

,UVhokW;ksfVDl fyfeVsM] fiEijh] iq.ks ds dkj[kkuksa@LFkkiukvksa ds

fu;fer deZpkfj;ksa dks bl vf/fu;e ds izorZu ls NwV iznku djrh

gSA ;g NwV] 30-03-2014 ls ,d o"kZ dh vof/ ds fy, ykxw jgsxh A

mDr NwV fuEufyf[kr 'krks± ds v/hu gS_ vFkkZr~%&

(1) iwoksZÙkQ LFkkiuk ftlesa deZpkjh fu;ksftr gSa] ,d

jftLVj j[ksxh] ftlesa NwV izkIr deZpkfj;ksa ds uke

vkSj inuke fn[kk;s tk,axs_

(2)

bl NwV ds gksrs gq, Hkh] deZpkjh mDr vf/fu;e ds

vèkhu ,slh izlqfo/k,a izkIr djrs jgsaxs ftudks ikus ds fy, os bl

vf/lwpuk }kjk nh xbZ NwV ds izo`r gksus dh rkjh[k ls iwoZ lanÙk

va'knkuksa ds vk/kj ij gdnkj gks tkrs gSa_

(3)

NwV izkIr vof/ ds fy,] ;fn dksbZ vfHknk; igys gh

fd, tk pqds gksa] rks os okil ugha fd, tk,axs_

(4)

mDr dkj[kkus @LFkkiuk dk fu;kstu ml vof/ dh ckcr

ftlds nkSjku ml dkj[kkus@LFkkiuk ij mDr vf/fu;e (ftls blesa

blds i'pkr mDr vof/ dgk x;k gS) izorZeku Fkk ,slh foojf.k;ka]

,sls izk:i esa vkSj ,slh fof'kf"V;ksa lfgr nsxk tks deZpkjh jkT;

3132

THE GAZETTE OF INDIA : APRIL 12, 2014/CHAITRA 22, 1936

[PART II—SEC. 3(ii)]

chek (lk/kj.k) fofu;e] 1950 ds v/hu mls mDr vof/ dh

ckcr nsuh visf{kr gksrh Fkha_

(5)

fuxe }kjk mDr deZpkjh jkT; chek vf/fu;e dh /kjk

45 dh mi&/kjk (1) ds v/hu fu;qDr fd;k x;k dksbZ lkekftd

lqj{kk vf/dkjh ;k fuxe dk bl fufeÙk izkf/Ñr dksbZ vU; in/kjh_

(i)

/kjk 44 dh mi&/kjk (1) ds v/hu] mDr vof/

dh ckcr nh xbZ fdlh fooj.k dh fof'kf"V;ksa dks

lR;kfir djus ds iz;kstukFkZ_ vFkok

(ii)

;g vfHkfuf'pr djus ds iz;kstukFkZ fd deZpkjh

jkT; chek (lk/kj.k) fofu;e] 1950 }kjk ;Fkk visf{kr

jftLVj vkSj vfHkys[k mDr vof/ ds fy, j[ks x;s

Fks ;k ugha_ ;k

(iii) ;g vfHkfuf'pr djus ds iz;kstukFkZ fd deZpkjh]

fu;kstd] }kjk fn, x, mu iQk;nksa dks] ftlds

iQyLo:Ik bl vf/lwpuk ds v/hu NwV nh tk jgh

gS] udn esa vkSj oLrq esa ikus dk gdnkj cuk gqvk gS

;k ugha_ ;k

(iv) ;g vfHkfuf'pr djus ds iz;kstukFkZ fd ml vof/

ds nkSjku] tc mDr dkj[kkuksa ds laca/ esa vf/fu;e

ds mica/ izo`Ùk Fks] ,sls fdUgha mica/ksa dk vuqikyu

fd;k x;k Fkk ;k ugha] fuEufyf[kr dk;Z djus ds

fy, l'kDr gksxk%&

(d) iz/ku ;k vklUu fu;kstd ls vis{kk djuk fd og

mls ,slh tkudkjh ns ftls mijksDr vf/dkjh ;k

vU; in/kjh bl vf/fu;e ds iz;kstukFkZ vko';d

le>rk gS_ vFkok

([k) ,sls iz/ku ;k vklUUk fu;kstd ds vf/Hkksxk/hu]

fdlh dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj

esa fdlh Hkh mfpr le; ij izos'k djuk vkSj

mlds izHkkjh ls ;g vis{kk djuk fd og O;fDr;ksa

ds fu;kstu vkSj etnwjh ds lank; ls

lacaf/r ,sls ys[kk] cfg;ka vkSj vU; nLrkost] ,sls

fujh{kd ;k vU; in/kjh ds le{k izLrqr djsa vkSj

mudh ijh{kk djus nsa ;k ,slh tkudkjh nsa ftls os

vko';d le>rs gSa_ ;k

(x)

iz/ku ;k vklUu fu;kstd dh] mlds vfHkdrkZ ;k

lsod dh] ;k ,sls fdlh O;fDr dks] tks ,sls

dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj esa

ik;k tk,] ;g fo'okl djus dk ;qfDr;qDr dkj.k

gS fd og deZpkjh gS] ijh{kk djuk_ ;k

(?k)

,sls dkj[kkus] LFkkiuk] dk;kZy; ;k vU; ifjlj esa

j[ks x, fdlh jftLVj] ys[kk] cgh ;k vU; nLrkost

dh udy rS;kj djuk ;k m¼j.k ysuk_

(Ä) ;Fkkfu/kZfjr vU; 'kfDr;kas dk iz;ksx djuk A

(6)

fofuos'[email protected] ds ekeys esa] iznRr NwV Lor% jí

gks tk,xh vkSj rc u, izfr"Bku dks NwV gsrq leqfpr ljdkj dh

vuqefr ysuh gksxh A

¹la- ,l&38014@15@2013&,l-,l&Iº

lqHkk"k dqekj] voj lfpo

New Delhi, the 28th March, 2014

S.O. 1201.—In exercise of the power conferred

by section 88 read with section 91-A of the Employees

State Insurance Act, 1948 (34 of 1948) the Central

Government hereby exempts the regular employees of

Hindustan Antibiotic Ltd., Pimpri, Pune from the

operation of the said Act. The exeption shall be effective

w.e.f 30.03.2014 for a period of one year.

The above exemption is subject to the following

conditions namely:-

(1)

The aforesaid establishment wherein the

employees are employed shall maintain a register showing

the name and designations of the exempted employees:

(2)

Notwithstanding this exemption, the employees

shall continue to receive such benefits under the said Act

to which they might have become entitled to on the basis

of the contributions paid prior to the date from which

exemption granted by this notification operates;

(3)

The contributions for the exempted period, if

already paid, shall not be refundable;

(4)

The employer of the said factory/establishment

shall submit in respect of the period during which that

factory was subject to the operation of the said Act

(hereinafter referred as the said period), such returns in

such forms and containing such particulars as were due

from it in respect of the said period under the Employees,

State Insurance (General) Regulations, 1950;

(5)

Any Social Security Officer appointed by the

Corporation under Sub-Section (1) of Section 45 of the

said ESI Act or other official of the Corporation authorized

in this behalf by it, shall, for the purpose of :-

(i)

Verifying the particulars contained in any

retured submitted under Sub-section (1) of

Section 44 for the said period, or

(ii)

Ascertaining whether registers and records

were maintained as required by the

Employees, State Insurance (General)

Regulations, 1950 for the said period; or

(iii) Ascertaining whether the employees continue

to be entitled to benefits provided by the

employer in cash and kind being benefits in

consideration of which exemption is being

granted under this notification; or

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % vizSy 12] 2014@pS=k 22] 1936

3133

(iv) Ascertaining whether any of the provisions

of the Act had been complied with during the

period when such provisions were in force in

relation to the said factory to be empowered

to:

(a)

require the principal or immediate

employer to furnish to him such

information as he may consider necessary

for the purpose of this Act; or

(b)

at any reasonable time enter any factory,

establishment, office or other premises

occupied by such principal or immediate

employer at any reasonable time and

require any person found in charge thereof

to produce to such inspector or other

official and allow him to examine accounts,

books and other documents relating to the

employment of personal and payment of

wages or to furnish to him such information

as he may consider necessary; or

(c)

examine the principal or immediate

employer, his agent or servant, or any

person

found

such

factory,

establishment, office or other premises or

any person whom the said inspector or

other official has reasonable cause to

believe to have been an employee; or

(d)

make copies of or take extracts from any

maintained in such factory, establishment,

office or other premises,

(e)

exercise such other powers as may be

prescribed.

(6)

In case of disinvestment/corporatization, the

exemption granted shall become automatically cancelled

and then the new entity will have to approach the

appropriate Government for exemption.

[No. S-38014/15/2013-SS-I]

SUBHASH KUMAR, Under Secy.

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.