dk£ed] yksd f'kdk;r rFkk isa'ku ea=kky;
(dk£ed vkSj izf'k{k.k foHkkx)
ubZ fnYyh] 17 vizSy] 2014
dk-vk- 1255 -—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk] 1973 (1974 dk vf/fu;e la- 2) dh /kjk 24 dh mi&/kjk (8) }kjk
iznÙk 'kkfDr;ksa dk iz;ksx djrs gq, fnYYkh mPPk u;k;ky; rFkk loksZPPk U;k;ky;] ubZ fnYYkh esa fnYYkh fo'ks"k iqfyl LFkkiuk (lhchvkbZ) }kjk
vkjksih Jh vkj- oklqnsou vkSj vU; O;fDr;ksa ds fo#¼ vkjlh 03(,)@2009&,lh;w(IX)] ubZ fnYYkh ds laca/ esa vfHk;kstu vihyksa]
iqujh{k.kksa ;k blls mRiUUk vU; ekeyksa dk lapkyu djus ds fy, Jh n;ku Ñ".ku] odhy dks fnYYkh fo'ks"k iqfyl LFkkiuk (dsUnzh; vUos"k.k
C;wjks) ds fo'ks"k yksd vfHk;kstd ds in ij fu;qDr djrh gS A
¹iQk- la- 225@31@2012&, oh Mh&IIº
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 17th April, 2014
S.O. 1255.—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 Dayan Krishnan, Advocate as Special Public
Prosecutor of the Delhi Special Police Establishment (Central Bureau of Investigation) in Delhi High Court and the
Supreme Court at New Delhi for conducting the prosecution appeals, revisions or other matters arising out of the cases
RC 03(A)/2009-ACU (IX), New Delhi against accused Shri R. Vasudevan and others, charge sheeted by the Delhi Special
Police Establishment (CBI).
[F. No. 225/31/2012-AVD-II]
RAJIV JAIN, Under Secy.
1628 GI/2014
(3297)
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- 17]
ubZ fnYyh, vizSy 20—vizSy 26] 2014] 'kfuokj@pS=k 30—oS'kk[k 6] 1936
No. 17]
NEW DELHI, APRIL 20—APRIL 26, 2014, SATURDAY/CHAITRA 30—VAISAKHA 6, 1936
bl 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)
3298
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
foÙk ea=kky;
(foÙkh; lsok,a foHkkx)
ubZ fnYyh] 22 vizSy] 2014
dk-vk- 1256-—dkS'ky fodkl vkSj f'k{kk Í.k ds fy, Í.k xkjaVh dks"k dh LFkkiuk ds fy, eaf=keaMy ds vuqeksnu (ekeyk la-
364) ds vuqlj.k esa Hkkjr ljdkj] ,rn~}kjk] Jh ,l- ,l- HkV~V] egkizca/d] dsujk cSad dks cSafdx {ks=k ds fo'ks"kK ds :i esa fuf/;ksa dh
lacaf/r izca/u lfefr ds lnL; ds :i esa fu;qDr djrh gS A
¹iQk- la- 1@12@2011&vkbZ,iQ&IIº
mn; Hkku flag] voj lfpo
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 22nd April, 2014
S.O. 1256.—Pursuant to the Cabinet approval (case No. 364) for establishment of Credit Guarantee Funds for Skill
Development and Education Loans, the Central Government hereby appoints Shri S. S. Bhat, General Manager, Canara
Bank as member in the respective Management Committees of the Funds as expert of banking sector.
[F. No. 1/12/2011-IF-II]
UDAI BHAN SINGH, Under Secy.
miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=kky;
(miHkksDrk ekeys foHkkx)
(Hkkjrh; ekud C;wjks)
ubZ fnYyh] 11 vizSy] 2014
dk-vk- 1257-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh; ekud
C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gaS] os LohÑr dj fn, x, gSa %—
vuqlwph
Øe
ykblsal
LohÑr djus
ykblsal/kjh dk
Hkkjrh;
Hkk ek
Hkkx
vuq
Ok"kZ
la-
la[;k
dh frfFk]
uke ,oa irk
ekud dk
la[;k
o"kZ@ekg
'kh"kZd
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
1-
2850764
03&02&2014
fejkacks baftfu;fjax
lsiQl
550
1
&
2003
'kSM uacj 18 ls 24] IykV uacj
279] feÙky ,LVsV] mtkyk ldZy
ds ikl] lj[kst vksoj czht ds
uhps] lj[kst] vgenkckn&382210
2-
2850966
03&02&2014
'kfgy xksYM isysl] Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
2349] ekusdukFkth eafnj ds lkeus] vkHkw"k.kksa f'kYidkjh 'kq¼rk
ekusd pkSd] vgenkckn&380001 ,oa eqgjkadu
3-
2850865
04&02&2014 ,p ih Vh fcojsftl]
iSdstcan is;ty (vnj nSu
14543 &
&
2004
184] vkj ts Mh VSDlVkbZy ikdZ]
iSdstM uspqjy feujy okVj)
lwjr&gftjk jksM] bPNkiqj]
rky- pksjklh] lwjr&394510
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3299
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
4-
2851261
04&02&2014 xksihukFk toSylZ]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
4@345] dalkjk cktj] Mksydk]
vkHkw"k.kksa f'kYidkjh 'kq¼rk
vgenkckn&387810
,oa eqgjkadu
5-
2851463
06&02&2014 panu [kq'kky ,aVjizkbZl izk-
doMZ bySDVªksM iQkj eSUkw;y
814
&
&
2004
fyfeVsM] 317] lg;ksx baMfLVª;y
eSVy vkdZ oSyfMax vkWiQ
,LVsV] iksLV dkjsyh] rk- ikylkuk
dkcZu rFkk dkcZu eSaxsfut
lwjr&394310
LVhy
6-
2853265
13&02&2014 Jh cgwpj fcojsftl]
iSdstcan is;ty (vnj nSu
14543 &
&
2004
ch&73] ek:fr VSukesaV] Hkkouk
iSdstM uspqjy feujy
Ldwy ds ikl] oL=kky jksM]
okVj)
vgenkckn&380018
7-
2855067
13&02&2014 fdj.k toSyjh izk- fyfeVsM]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
4&5&105] xksfoan pdyk] LVs'ku
vkHkw"k.kksa f'kYidkjh 'kq¼rk
jksM] foluxj] esglkuk&384315
,oa eqgjkadu
8-
2855168
13&02&2014 lqo.kZÑik vksjukeSaV~l izk- fyfeVsM
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
ch@14] nqxkZ 'kkWfiax lSaVj] uojax
vkHkw"k.kksa f'kYidkjh 'kq¼rk
Ldwy ds ikl] vafcdkuxj]
,oa eqgjkadu
vks<o] vgenkckn&382415
9-
2855269
13&02&2014 ghjke.kh ToSylZ]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
jkeÑik fc¯YMx] ,e th jksM]
vkHkw"k.kksa f'kYidkjh 'kq¼rk
oylkn&396001
,oa eqgjkadu
10-
2855370
17&02&2014 g"kZ bjhxs'ku izk- fyfeVsM]
bZjhxs'ku bD;wieSaV&
14743 &
&
1999
IykV uacj 2907] iQsl 4] vk'kkiqjh
gkbMªkslkbZdyksu fiQyVlZ
gksVy ds ikl] th vkbZ Mh lh
,LVsV] oVok] vgenkckn&380050
11-
2859984
21&02&2014 f'ko 'kfDr fcojsftl] IykV
iSdstcan is;ty (vnj nSu
14543 &
&
2004
uacj 865] lkarst VkbZYl ds ikl]
iSdstM uspqjy feujy
lkarst rk- dyksy] xka/huxj
okVj)
12-
2860161
24&02&2014 xzhle baMLVªht fyfeVsM] IykV
ikyh,y;wfefu;e DyksjkbM
15573 &
&
2005
uacj 1] th vkbZ Mh lh ,LVsV]
foyk;r] Hkk:p&392140
13-
2858073
24&02&2014 ek/o Iyk; baMLVªht]
IykbZoqM iQkj tujy ijil
303
&
&
1989
losZ uacj 375@2] 3] 4] ,V jkmjkiqjk]
,u ,p uacj 8] iksLV lekj[kk]
vkuan&388360
14-
2858982
25&02&2014 xkSjkax ToSylZ]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
y{eh iSysl] cSad jksM] vksaYM cl
vkHkw"k.kksa f'kYidkjh 'kq¼rk
LVSaM ds ikl] ok;jk] rkih&394650
,oa eqgjkadu
15-
2859075
25&02&2014 Jh xk;=kh ToSyl izk- fyfeVsM]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
th&11] fpue; Vkoj] xq#dqy jksM]
vkHkw"k.kksa f'kYidkjh 'kq¼rk
eseuxj] vgenkckn&380052
,oa eqgjkadu
3300
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
16-
2859277
25&02&2014 jhek ,aVjizkbZl]
MkseSfLVd izs'kj dqdj
2347
&
&
2006
deyk jksM] ukfM;kM]
[ksMl&387001
17-
2859479
25&02&2014 fu;ks bLikr izk- fyfeVsM]
gkbZ LVªSaFk fMiQkeMZ LVhy cklZ
1786
&
&
2008
,V rFkk ih vks lksuklu]
rFkk ok;jl iQk dkaØhV
izkafrt] lkcjdkaVk]
jsfuiQkslZeSaV
lksuklu&383210
¹la- lh ,e Mh@13%11º
MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 11th April, 2014
S.O. 1257.—In pursuance of sub-regulation (5) of Regulation 4 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in
the following schedule :—
SCHEDULE
Sl.
Licences
Grant Date
Name and Address of
Title of the Standard
IS No.
Part
Sec. Year
No.
No.
the Party
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
1.
2850764
03-02-2014
Mirarbindo Engineering, Shed
Safes
550
1
-
2003
No. 18 to 24, Plot No. 279,
Mittal Estate, Near Ujala Circle,
Under Sarkhaj Rly Over Bridge,
Sarkhej, Ahmedabad-382210
2.
2850966
03-02-2014
Shahil Gold Palace, 2349,
Gold and gold alloys
1417
-
-
1999
Opp. Maneknathji Mandir,
jewellery/artefacts
Manekchock,
fineness and marking
Ahmedabad-380001
3.
2850865
04-02-2014
HPT Beverages, 184, RJD
Packaged drinking water
14543
-
-
2004
Textile Park Surat-Hazira Road,
(other than packaged
Ichchhapore, Tal Chorasi,
natural mineral water)
Surat-394510
4.
2851261
04-02-2014
Gopinath Jewellers,
Gold and gold alloys
1417
-
-
1999
4/345, Kansara Bajar, Dholka,
jewellery/artefacts
Ahmedabad-387810
fineness and marking
5.
2851463
06-02-2014
Chandan Khushal Enterprise
Covered electrodes for
814
-
-
2004
Pvt. Ltd. 317, Sahyog Industrial
manual metal arc welding
Estate, Post : Kareli, Tal : Palsana, of carbon and carbon
Surat-394310
manganese steel
6.
2853265
13-02-2014
Shree Bahuchar Beverages,
Packaged drinking water
14543
-
-
2004
B-73, Maruti Tenament,
(Other than packaged
Nr. Bhavna School,
natural mineral water)
Vastral Road,
Ahmedabad-380018
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3301
7.
2855067
13-02-2014
Kiran Jewellery Pvt. Ltd.
Gold and gold alloys,
1417
-
-
1999
4-5-105, Govind Chakala,
jewellery/artefacts
Station Road, Visnagar,
fineness and marking
Dist. Mehesana-384315
8.
2855168
13-02-2014
Suvarnakrupa Ornaments
Gold and gold alloys,
1417
-
-
1999
Private Limited,
jewellery/artefacts
B/14, Durga Shopping Centre,
fineness and marking
Nr. Navrang School,
Ambikanagar Odhav,
Ahmedabad-382415
9.
2855269
13-02-2014
Hiramani Jewellers,
Gold and gold alloys,
1417
-
-
1999
Ram Krupa Building,
jewellery/artefacts
M.G. Raod, Valsad-396001
fineness and marking
10.
2855370
17-02-2014
Harsh Irrigation Pvt. Ltd.
Irrigation equipment,
14743
-
-
1999
Plot No. 2907, Phase 4,
hydrocyclone filters
Near Ashapuri Hotel,
GIDC Esstate, Vatva,
Ahmedabad-380050
11.
2859984
21-02-2014
Shiv Skati Beverages,
Packaged drinking water
14543
-
-
2004
Plot No. 865, Near Santej
(Other than packaged
Tiles, Santej, Tal : Kalol,
natural mineral water)
Gandhinagar
12.
2860161
24-02-2014
Grsim Industries Limted,
Polyaluminium chloride
15573
-
-
2005
Plot No. 1, GIDC Estate,
Vilayat, Bharuch-392140
13.
2858073
24-02-2014
Madhav Ply Industries,
Plywood for general
303
-
-
1989
Survey No. 375/2,3, 4,
purposes
AT : Raurapura, N.H.No. 8,
Post : Samarkha,
Anand-388360
14.
2858982
25-02-2014
Gaurang Jewellers,
Gold and gold alloys,
1417
-
-
1999
Laxmi Palace, Bank Road,
jewellery/artefacts
Near Old Bus Stand,
fineness and marking
Vyara, Distt. Tapi-394650
15.
2859075
25-02-2014
Shree Gayatri Jewels Pvt. Ltd.
Gold and gold alloys,
1417
-
-
1999
G-11, Chinmay Tower,
jewellery/artefacts
Gurukul Road, Memnagar,
fineness and marking
Ahmedabad-380052
16.
2859277
25-02-2014
Reema Enterprise,
Domestic pressure cookers 2347
-
-
2006
Kamala Road, Nadiad,
Kheda-387001
17.
2859479
25-02-2014
Neo Ispat Pvt. Ltd.
High strength deformed
1786
-
-
2008
AT & PO : Sonasan Prantij,
steel bars and wires
Sabarkantha, Sonasan-383210
for concrete reinforement
[No. CMD/13 : 11]
Dr. S. L. PALKAR, Scientist ‘F’ & Head
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
3302
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 11 vizSy] 2014
dk-vk- 1258-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh; ekud
C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gaS] os LohÑr dj fn, x, gSa %—
vuqlwph
Øe
ykblsal
LohÑr djus
ykblsal/kjh dk
Hkkjrh;
Hkk ek
Hkkx
vuq
Ok"kZ
la-
la[;k
dh frfFk]
uke ,oa irk
ekud dk
la[;k
o"kZ@ekg
'kh"kZd
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
1-
2861264
05&03&2014 Lokfr ToSYlZ
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
52] fLizax fiQYM] vkdk'k Vkoj
vkHkw"k.kksa f'kYidkjh 'kq¼rk
ds ikl tftl caxyk jksM] oL=kkiqj]
,oa eqgjkadu
vgenkckn&380054
2-
2863369
06&03&2014 Jhth baftfu;¯jx ,aVjizkbZfll]
gSDlkxkWu gSM cksYVl] LozwQl
1363
1
&
2002
160@Mh- th vkbZ Mh lh baMfLVª;y
rFkk uV~l vkiQ izksMDV xzsM lh
,LVsV edjiqjk jksM] oMksnjk&390010
3-
2863672
06&03&2014 Msth baMLVªht
VSDlVkbZYl rkjiksyhu esM izQke
7903
&
&
2011
49@1] iSdh 2] fVech xkWo]
gkbZ MSaflVh ikfyFkyhu oksou
Hkykfj;k eSVy ds ikl]
iSQcfjd
okjksyh czht ds ikl ok;k
latu] oylkn] vacjxkWo& 396150
4-
2864674
06&03&2014 dSesV dSfedYl izk- fyfeVsM
ekykfFk;u MfLVax ikmMj
2568
&
&
1978
IykV uacj& 6230@6231@6215]
th vkbZ Mh lh ,LVsV
Hkk:p] vadys'oj&393002
5-
2864775
06&03&2014 dSesV dSfedYl izk- fyfeVsM
Fkk;je lhM Msª¯lx iQkjewys'ku
4783
&
&
1982
th &12] gseowQV fcfYMax] ,y vkbZ
lh vkfiQl ds ihNs] ch ,e eSVy
gSYFk ds lkeus] vgenkckn&380006
6-
2863773
07&03&2014 gfjvkse oqM izksMDVl]
IykbZoqM iQkj tujy ijil
303
&
&
1989
18@,&tkd baMfLVª;y ,fj;k]
xkWo tkd] ih vks ikj<ksy]rk
nsgxke] xka/huxj&382325
7-
2862064
07&03&2014 x.ks'k okVj lIykbZ
iSdstcan is;ty (vnj nSu
14543 &
&
2004
IykV uacj 620] isQl uacj- 4
iSdsTM uspqjy feujy okVj)
xk;xh eafnj jksM] Mh ,e os czht
vkbZ ,l 14543&2004
ds ihNs] th vkbZ Mh lh] ujksMk
jksM vgenkckn&382345
8-
2865272
07&03&2014 Msth baMLVªht
LiS'ky izqiQM dSuol rFkk Md
6803
&
&
1972
49@1] iSdh2] fVech xkWo]
Hkykfj;k eSVu ds ikl] okjksyh czht
ds ikl] ok;k latu] oylkn]
vacjxkWo&396150
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3303
9-
2867748
10&03&2014 tkosj IykbZ rFkk cksMZ izk fyfeVsM
oqMu iQy'k Mksj 'kVj (lkfyM
2202
1
&
1999
Cykd uacj- 263]264]325@1] dkusjk
dksj VkbZi)
ljlk jksM] [ksMk] dkusjk&387540
10-
2865676
11&03&2014 iwue baMLVªht
iQ£Vykbtj RkFkk dSfedy
14483 &
&
1997
,@1&14] oVok thvkbZMh lh] oVok
batSDVj flLVe
iksLV vkfiQl jksM] isQl 2]
vgenkckn&382445
11-
2864876
12&03&2014 vkj;u ,dok
iSdstcan is;ty (vnj nSu
14543 &
&
2004
th ,iQ] 8ch] 9ch] 10]11] 12
iSdstM uspqjy feujy
,iQ ,iQ 10] vkLFkk vkjdMs]
okVj)
fgEeruxj es/k jksM] fjyk;sal
isVªksy iEi ds lkeus] fotkiqj
esglkuk
12-
2864977
12&03&2014 uhyef.k ToSylZ
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
132] /kuphuh iksy, ,e th gosyh
vkHkw"k.kksa f'kYidkjh 'kq¼rk
jks,] ekusd pkSd] vgeknckn
,oa eqgjkadu
380001
13-
2865979
12&03&2014 'kSys'k ,aVjizkbZl
¯lxy isQl Leky ,lh rFkk
996
&
&
2009
'kSM uacj- 33 vfHkuo baMfLVª;y ,lVsV ;wfuolZy bySfDVªd eksVlZ
lqj&67]6 fxjukj LowQVj daikmaM]
vks<o] vgenckn 382415
14-
2869785
12&03&2014 fMlsaV iEil
lce£lcy iEilSV
8034
&
&
2002
IykV uacj- 169 jksM uacj- 4 dkBokMk
th] vkbZ Mh lh] vgenckn 382430
15-
2871065
12&03&2014 dSesV dSfedyl izk- fyfeVsM
ekykfFk;u beyfliQk,cy
2567
&
&
1978
th&12] gseowQV fcfYMax] ch ,e
daluVsªV
bafLVP;wV ch ,e eSaVy gSYFk ds lkeus
vgenkckn&380006
16-
2869886
18&03&2014 fMlsaV iEil
vksiuoSy lce£lcy iEilSV
14220 &
&
1994
IykV uacj- 169] jksM uacj- 4]
dkBokMk] th vkbZ Mh lh]
vgenkckn 382430
17-
2870164
18&03&2014 dSesV oSVl rFkk iQyksl izk fyfeVsM
iSfLVlkbM Mk;iQ;wcSutjkWu
14186 &
&
1994
Iykv uacj- 129@lh&2] th vkbZ Mh
MCy;w ih
lh ,lVsV] vadys'oj &393002
18-
2871570
19&03&2014 Jh xq:Ñik fcojsftl
iSdstcan is;ty (vnj nSu
14543 &
&
2004
'kSM uacj- 116&ch] iSdh lc IykV
iSdstM uspqjy feyjy okVj)
uacj 6 Hkqous'ojh baMfLVª;y ,LVsV]
U;w th vkbZ Mh lh] dV~Vjxke] lwjr
19-
2865777
19&03&2014 ,lVªky iksfyVSdfud fyfeVsM
DyksfjusfVM iksfyfouk;y
16088 &
&
2012
Cykd uacj 1206]1210]1212]
dyksjkbM lh ih oh lh ikbZil
1263]1264 lkarst] ujesM] jksM+
iQkj vkVkseSfVd Lizhyadyj
xkWo lkarst] rk dyksy] xka/huxj
iQk;j ,Dl¯Vxfo¯'kx flLVe
382721
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
3304
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
20-
2866779
19&03&2014 LVªkax LVsªi izk fyfeVsM
ikfy;,lVj LVsª¯ix
15559 &
&
2004
IykV uacj- 3449] iQsl 4] th
vkbZ Mh lh ,LVsV] ,V Nrjky]
rk dyksy xka/huxj&382729
21-
2867377
19&03&2014 O;kl ,xzks baMLVªht
bZjhxs'ku bD;wieSV&gkbMªks
14743 &
&
1999
IykV uacj lh&1@672] th vkbZ Mh
lkbYyksu fiQYVj
lh] edjiqjk] cMksnjk&390010
22-
2868076
20&03&2014 pksdlh v'kksdoqQekj Hks:yky]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
379] fnYyh xsV ds bulkbZM]
vkHkw"k.kksa f'kYidkjh 'kq¼rk
vgenkckn& 380001
,oa eqgjkadu
23-
2868177
20&03&2014 vk'khokZn ToSylZ
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
105] lfjrk dkEiySDl] tSu eafnj
vkHkw"k.kksa f'kYidkjh 'kq¼rk
ds ikl lhth jksM] uojaxiqjk
,oa eqgjkadu
vgenkckn 380009
24-
2868278
21&03&2014 volj ikfyelZ baMLVªht
vuIykfLVlkbM ihohlh ikbZi
4985
&
&
2000
IykV uacaj- 66 67, lkcj baMfLVª;y
iQkj iksVscy okVj liykbZl
ikoZQ ,V xkWo vly] lkcjdkVk]
fHkyksMk&383355
25-
2869280
24&03&2014 vt; fot; rFkk dEiuh]
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
th@&2] fjVt Ldos;j] buMksj LVsfM;e vkHkw"k.kksa f'kYidkjh 'kq¼rk
ds ikl] xksM MksM jksM] lwjr&395007 ,oa eqgjkadu
26-
2869482
25&03&2014 lwjt LVhy fj&jks¯yx fey
gkbZ LVªsaFk fMiQkeMZ LVhy cklZ
1786
&
&
2008
,l vkj 64@ih] ih vks uokuxj]
rFkk ok;jl iQkj dkaØhV
fgEeruxj] fotkiqj
jsfuiQkslZeSaV
gkbZos] uokuxj cl LVki ds ikl]
lkcjdkaVk] fgEeruxj&383220
27-
2869583
25&03&2014 lqo.kkZ ekgksj
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
th&14 d.kkZorh vikVZeSaV tks/iqj
vkHkw"k.kksa f'kYidkjh 'kq¼rk
xke jksM vgenkckn&380015
,oa eqgjkadu
28-
2869684
25&03&2014 jks;y xksYM
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
4] vij ySoy liQk;j dkEiySDl]
vkHkw"k.kksa f'kYidkjh 'kq¼rk
dkjxks eksVlZ ds ikl] lh th jksM
,oa eqgjkadu
vgenkckn 380009
29-
2870366
25&03&2014 calh baMLVªht
vuIykfLVlkbM ihohlh ikbZi
4985
&
&
2000
IykV uacaj- 227@4] th vkbZ Mh lh]
iQkj iksVscy okVj lIykbZl
ikuksuh] Hkk#p] vadys'oj
30-
2870265
25&03&2014 fo 'kk[kk bjhxs'ku izk fyfeVsM
ikyhFkyhu ikbZi iQkj lIykbZ
14885 &
&
2001
Cykd uacj 792@4ch]2ch]2lh&3
vkiQ xSfl;l iQ;wyl
eksfud baMLVªht ds ikl] ljliqj
jksM] xkWo eksrh cks;u] rk dyksy]
xka/huxj&382721
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3305
31-
2870467
26&03&2014 ,l ,l ToSylZ
Lo.kZ rFkk Lo.kZ /krqvksa ds
1417
&
&
1999
5@1019@20] rkjkfr;k guqeku 'ksjh
vkHkw"k.kksa f'kYidkjh 'kq¼rk
gjhiqjk]
,oa eqgjkadu
lwjr&395003
¹la- lh ,e Mh@13%11º
MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k
New Delhi, the 11th April, 2014
S.O. 1258.—In pursuance of sub-regulation (5) of Regulation 4 of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given in
the following schedule :—
SCHEDULE
Sl.
Licences
Grant Date
Name and Address of
Title of the Standard
IS No.
Part
Sec. Year
No.
No.
the Party
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
1.
2861264
05-03-2014
Sweati Jewellers
Gold and gold alloys
1417
1
-
1999
52, Spring Field, Near Akash
jewellery/artefacts
Tower, Judges Bunglow Road,
fineness and marking
Vastrapur, Ahmedabad 380054
2.
2863369
06-03-2014
Shriji Engineering Enterprises
Hexagon head bolts, screws 1363
1
-
2002
160/D. GIDC Industrial Estate
and nuts of product grade ‘c’
Makarpura Road. Vadodara
390010
3.
2863672
06-03-2014
Daisy Industries
Textiles-tarpaulins made
7903
-
-
2011
49/1, Paiki 2, Timbhi Village
from high density
Near Bhallaria Metal, Close
polyethylene woven fabric
To Varoli Bridge, Via Sanjan
valsad Umbergaon-396150
4.
2864674
06-03-2014
Chemet Chemicals Pvt. Ltd.
Malathion dusting Powders 2568
-
-
1978
Plot No. 6230/6231/6215,
GIDC Esttate Bharuch,
Ankleshwar-393002
5.
2864775
06-03-2014
Chemet Chemicals Pvt. Ltd.
Thiram Seed dressing
4783
-
-
1982
G-12, Hemkoot Building Behind
formulations
LIC Office Opp. B. M. Mental
Health, Ahmedabad-380006
6.
2863773
07-03-2014
Hariom Wood Products
Plywood for general
303
-
-
1989
18/A-ZAK Industrial Area
purpose
Vill. ZAK P.O. Pardhal,
Tal : Dehgam
Gandhinagar-382325
7.
2862064
07-03-2014
Ganesh Water Supply
Packaged drinking water
14543
-
-
2004
Plot No. 620, Phase No. 4 Gayatri
(Other than packaged
Mandir Road, Behingd DM
natural mineral water)
way Bridge, GIDC, Naroda Road,
Ahmedabad-382345
(1)
(2)
(3)
(4)
(5)
(6)
(7) (8) (9)
3306
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
8.
2865272
07-03-2014
Daisy Industries
Special proofed canas
6803
-
-
1972
49/1, Paike 2, Timbhi Village,
and duck
Near Bhallaria Metal Close To
Varoli Bridge, VIA : Sanjan,
Umergaon, Valsad Umergaon-
396150
9.
2867748
10-03-2014
Zaver Ply & Boards Pvt. Ltd.
Wooden Flush door
2202
1
-
1999
Block No. 263, 264, 325/1,
shutters (solid core type)
Kanera-Sarsa Road Kheda,
Kanera -387540
10.
2865676
11-03-2014
Poonam Industries
Fertilizer and chemical
14483
1
-
1997
A/1-14, Vatva GIDC,
injector system
Vatva post Office Road,
Phase II Ahmedabad-
382445
11.
2864876
12-03-2014
Aryan Aqua
Packaged drinking water
14543
-
-
2004
G.F. 8B, 9B, 10,11, 12 FF. 10,
(Other than packaged
Astha Arcade Hemmatnagar-
natural minmral water)
Medhana Raod, Opp. Reliance
Petrol Pump, Vijapur Mahesana
12.
2864977
12-03-2014
Nilmani Jewellers
Gold and gold alloys,
1417
-
-
1999
132, Ghanchini Pole, M. G.
Jewellery/artefacts
Haveli Road Manekchowk,
fineness and Marking
Ahmedabad-380001
13.
2865979
12-03-2014
Shailesh Enterprise
Single-phase small ac and
996
-
-
2009
Shed No. 22, Abhinav Ind.
universal electric motors
Estate Sur-67, 6 Girnar Scooter
Compound, Odhav,
Ahmadabad-382415
14.
2869785
12-03-2014
Decent Pumps
Submersible Pumpsets
8034
-
-
2002
Plot No. 169, Road No. 4
Kathwada GIDC, Ahmedabad
382430
15.
2871065
12-03-2014
Chemet Wets & Flows Pvt. Ltd.
Malathion emulsifiable
2567
-
-
1978
G-12, Hemkoot Building,
concentrates
Opp. B. M. Institute, of Mental
Health, Ellisbridge, Ashram Road,
Ahmedabad 380009
16.
2869886
18-03-2014
Decent Pumps
Openwell Submersible
14220
-
-
1994
Plot No. 169, Road No. 4
Pumpsets
Kathwada GIDC
Ahmedabad 382430
17.
2870164
18-03-2014
Chemet Wets & Flows Pvt. Ltd.
Pesticide -diflubenzuron
14186
-
-
1994
Plot No. 129/C-2, GIDC
wp
Estate, Ankleshwar 393002
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3307
18.
2871570
19-03-2014
Shree Gurukrupa Beverages
Packaged drinking water
14543
-
-
2004
Shed No. 116 -B Paiki sub Plot
(Other than packaged
Plot No. 6 Bhuvneshwari natural minmral water)
Industrial Estate New GIDC
Katargam, Surat
19.
2865777
19-03-2014
Astral Polytechnik Limted
Chlorinated Polyvinyl
16088
-
-
2012
Block No. 1206, 12101212,
chloride (cpvc) pipes
1263, 1264, Santej Narmed Road
for automatic sprinkler fire
Village Santej, Taluka Kalol,
extinguishing system
Gandhi Nagar 38 272
20.
2855067
19-03-2014
Strong Strap Pvt. Ltd.
Polyester strapping
15559
-
-
2004
Plot No. 3449, Phase IV GIDC
Estate, at Chhatral Tal,- Kalol
Gandhinagar 382729
21.
2867377
19-03-2014
Vyas Agro Industries
Irrugation equipment
14743
-
-
1999
Plot No. C-1/672, GIDC
hydrocyclone filters
Makarpura, Vadodara 390010
22.
2868076
20-03-2014
Choksi Ashokkumar Bherualal
Gold and gold alloys,
1417
-
-
1999
379, Inside Delhi Gate,
jewellery/ artefacts-
Ahmedabad 380001
fineness and marking
23.
2868177
20-03-2014
Aashiirvad Jewellers
Gold and gold alloys,
1417
-
-
1999
105, Sarita Comples, Near
jewellery/ artefacts-
Jain Temple, C.G. Road, Nav-
fineness and marking
rangpura. Ahmedabad-380009
24.
2868278
21-03-2014
Avsar Polymers Industries
Unplasticized pvc pipes
4985
-
-
2000
Plot No. 66 & 67, Sabar Industrial
for potable water supplies
Park At: Village : Asal Sabarkantha,
Bhiloda-383355
25.
2869280
21-03-2014
Ahay Vijay & CO.
Gold and gold alloys
1417
-
-
1999
G/1-2 Rittz Square, Near Indoor
jewellery/artefacts
Stadium, Ghod-Dod, Road Surat.
fineness and marking
395007
26.
2869482
25-03-2014
Suraj Steel Re-Rolling Mill
High Strength deformed
1786
-
-
2008
S.R. 64/P, P. O. Navanagar,
steel bars and wires for
Himatnagar Vijapur Highway,
concrete reinforcement
NR Navanagar Bus Stop,
Sabarkantha, Himatnagar-
383220
27.
2869583
25-03-2014
Suvarna Mahor
Gold and gold alloys,
1417
-
-
1999
G-14, Karnavati Appartment,
jewellery/artefacts
Jodhpur Gam Road Ahmedabad
fineness and marking
380015
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
3308
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
28.
2869684
25-03-2014
Royal Gold
Gold and gold alloys,
1417
-
-
1999
4, Upper Level Sapphire Complex
jewellery/artefacts
Near Cargo Motors. C.G. Road,
fineness and marking
Ahmedabad-380009
29.
2870366
25-03-2014
Bansi Industries
Unplasticized pvc pipes
4985
-
-
2000
Plot No. 227/4, GIDC,
for potable water supplies
At Panoli Bharuch,
Ankleshwar
30.
2870265
25-03-2014
Vishkha Irrigation Pvt. Ltd.
Polyethylene pipes for the 14885
-
-
2001
Block No. 792/4B, 2B, 2C-3,
Supply of gaseous fuels
Near Monic Industries Sabaspur
Road, Village Moti Bhoyan, Taluka
Kalol. Gandhinagar-382721
31.
2870467
26-03-2014
S S Jewellers
Gold and gold alloys,
1417
-
-
1999
5/1019/20, Taratiya Hanuman
jewellery/ artefacts-
Sheri, Haripura. Surat- 395003
fineness and marking
[No. CMD/13 : 11]
Dr. S. L. PALKAR, Scientist ‘F’ & Head
ubZ fnYyh] 11 vizSy] 2014
dk-vk- 1259 -—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e (5) ds mi&fu;e (6) ds vuqlj.k esa Hkkjrh;
ekud C;wjks ,rn~}kjk vf/lwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jn~n@LFkfxr dj fn;k
x;k gS %—
vuqlwph
Øe
ykblsal
ykblsal/kjh dk
ykblsal ds varxZr oLrq@izde
jnn djus dh frfFk
la-
la[;k
uke ,oa irk
lEc¼ Hkkjrh; ekud dk 'kh"kZd
lh,e@,y&
dksbZ ugha
¹la- lh ,e Mh 13%13º
MkW- ,l- ,y- ikydj] oSKkfud ^,iQ* ,oa izeq[k
New Delhi, the 11th April, 2014
S.O. 1259 .—In pursuance of sub-regulation (6) of Regulation (5)of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below
have been cancelled with effeat from the date indicated against each :—
SCHEDULE
Sl.
Licences
Name & Address of the
Article/Process with relevant
Date of Cancellation
No.
No. CM/L-.
Licensee
Indian Standards covered by
the licence cancelled
Nil
[No. CMD/13:13]
Dr. S. L. PALKAR, SCIENTIST ‘F’ & Head
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8) (9)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3309
ubZ fnYyh] 11 vizSy] 2014
dk-vk- 1260 -—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e (5) ds mi&fu;e (6) ds vuqlj.k esa
Hkkjrh; ekud C;wjks ,rn~}kjk vf/lwfpr djrk gS fd fuEu fooj.k okys ykblsalksa dks muds vkxs n'kkZ;h xbZ rkjh[k ls jn~n@LFkfxr
dj fn;k x;k gS %—
vuqlwph
Øe
ykblsal
ykblsal/kjh dk
ykblsal ds varxZr oLrq@izde
jnn djus dh frfFk
la-
la[;k
uke ,oa irk
lEc¼ Hkkjrh; ekud dk 'kh"kZd
lh,e@,y
1
3827471
I;ksj ds;j fcojsftl
iSdstcan is;ty
20@03@2014
lh@13&15] gk£nd ikdZ]
(vnj nSu iSdtM uspqjy feujy
ukxkjk dSEcs jksM] fMfLVªDV
okVj) vkbZ ,l 14543&2004
vkuan&388620
¹la- lh ,e Mh@13%13º
MkW- ,l- ,y- ikydj] oSKkfud ,iQ ,oa izeq[k
New Delhi, the 11th April, 2014
S.O. 1260 .—In pursuance of sub-regulation (6) of Regulation (5)of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies that the licences particulars of which are given below
have been cancelled with effect from the date indicated against each :—
SCHEDULE
Sl.
Licences
Name & Address of the
Article/Process with relevant
Date of Cancellation
No.
No. CM/L-.
Licensee
Indian Standards covered by
the licence cancelled
1 3827471 M/s. Pure care Beverages Packaged drinking water (other than 20/03/2014
C/13-15, Hardik Park, Nagara
Packaged natural mineral water)
Cambay Road, Cambay Distt:
IS 14543: 2004
Anand- 388620
[No. CMD/13:13]
Dr. S. L. PALKAR, Scientist ‘F’ & Head
ubZ fnYyh] 21 vizSy] 2014
dk-vk- 1261 -—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e 4 ds mi&fu;e (5) ds vuqlj.k esa Hkkjrh;
ekud C;wjks ,rn~}kjk vf/lwfpr djrk gS fd ftu ykblsalksa ds fooj.k uhps vuqlwph esa fn, x, gaS] os LohÑr dj fn, x, gSa %—
vuqlwph
Ø
ykblsal la-
LohÑr djus dh
ykblsal/kjh dk
Hkkjrh; ekud dk 'kh"kZ
Hkk- ek- la (Hkkx@
la-
frfFk o"kZ@ekg
uke o iÙkk
vuqHkkx o"kZ
(1)
(2)
(3)
(4)
(5)
(6)
1
4711457
20140311
eSllZ jfo gkbZVsd iEIl
Ñf"k ,oa ty vkiw£r ds fy, vkbZ ,l 9079%2002
6@35] U;w nkew uxj]
fctyh ds eksukslsV iEIl
iqfy;koqQye jksM]
dks;EcÙkwj&641037
3310
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
2
4712358
20140311
esllZ ,l ts ,Dok baMLVªhl iSdstcan is; ty
vkbZ ,l 14543%2004
75&ch] vIihph uxj eq[;
(iSdtcn feujy ty
lM+d] dksUxq uxj]
ds vykok)
fr#Iiqj&641607
3
4717772
20140325
esllZ ,ejkYM Tosyjh jhVsby
LOk.kZ ,oa Lo.kZ feJ/krq,a
vkbZ ,l 1417%1999
la- 24] <kyh jksM]
vkHkw"k.k@ f'kYidkjh&'kq¼rk
mMqeyisV&641126
,oa eqgjkadu
fr:Iiqj (ftyk)
¹la- lh,e Mh@13%11º
,e- lnkf'ko] oSKkfud ^,iQ* ,oa izeq[k
New Delhi, the 21st April, 2014
S.O. 1261 .—In pursuance of sub-regulation (5) of Regulation 4of the Bureau of Indian Standards (Certification)
Regulations 1988, of the Bureau of Indian Standards, hereby notifies notifies the of licences particulars of which are given
in the following schedule :—
SCHEDULE
Sl.
Licence
Grant Date
Name & Address
Title of the Standard
IS No. Part/ Sec. Year
No.
No.
(Factory ) of the Party
1
4711457
20140311
M/s.Ravi Hitech Pumps
Electric Monoset Pumps
IS 9079 : 2002
6/35, New Damu Nagar,
for Clear, Cold Water for
Puliakulam Road,
Agricultural and Water
Commbatore- 641037.
Supply Purposes
2
4712358
20140311
M/s.S.J. Aqua Industries Packaged Drinking Water
IS 14543 : 2004
75-B, Appachi Nagar
(other than Packaged
Main Road, Kongu
Natural Mineral Water)
Nagar Tirupur- 641607.
3
4717772
20140325
M/s.Emerald Jewellery
Gold and Gold Alloys,
IS 1417 : 1999
Retain Limited No. 24,
Jewellery/Artefacts
Dhali Road, Udumalpet
Fineness and Marking
641 126.
Tiruppur (District)
[No. CMD/13:11]
M. SADASIVAM, Scientist‘F’ & Head
laLÑfr ea=kky;
ubZ fnYyh] 16 vizSy] 2014
dk-vk- 1262 -—dsUnz ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx)fu;e] 1976 ds fu;e 10 ds mi&fu;e
(4) ds vuqlj.k esa laLÑfr ea=kky; ds varxZr vkus okys d;kZy;
jk"Vªh; laxzgky; laLFkku] dyk bfrgkl] laj{k.k ,oa laxzgky;
foKku] ubZ fnYyh dks ftlesa 80» ls vf/d deZpkfj;ksa us fganh dk
dk;Zlk/d Kku izkIr dj fy;k gS] vf/lwfpr djrh gS %—
;g vf/lwpuk jkti=k esa izdk'ku dh rkjh[k ls izo`Ùk gksxhA
¹iQk- la- 13016@1@2011&fganhº
Js;k xqgk] la;qDr lfpo
MINISTRY OF CULTURE
New Delhi, the 16th April, 2014
S.O. 1262 .—In pursuance of sub-rule (4) of Rule 10
of the Official Language (Use for official purposes of the
Union) Rules,1976 the Central Govt. hereby notifies the
Office of National Museum Institute, History of Art,
Conservation and Museology, New Delhi under Ministry
of Culture wherein more than 80% staff have acquired
working knowledge of Hindi.
This notification shall come into force into force
f orce from the date of publication in the Official Gazatte.
[F. No. 13016/1/2011-Hindi]
SREYA GUHA, Jt. Secy.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3311
ubZ fnYyh] 16 vizSy] 2014
dk-vk- 1263 -—dsUnz ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx)fu;e] 1976 ds fu;e 10 ds mi&fu;e
(4) ds vuqlj.k esa laLÑfr ea=kky; ds varxZr vkus okys dk;kZy;
jk"Vªh; laxzgky; laLFkku dyk bfrgkl] laj{k.k ,oa laxzgky; foKku]
ubZ fnYyh dks ftlesa 80» ls vf/d deZpkfj;ksa us fganh dk
dk;Zlk/d Kku izkIr dj fy;k gS] vf/lwfpr djrh gS %—
;g vf/lwpuk jkti=k esa izdk'ku dh rkjh[k ls izo`Ùk gksxhA
¹iQk- la- 13016@1@2011&fganhº
Js;k xqgk] la;qDr lfpo
New Delhi, the 16th April, 2014
S.O. 1263 .—In pursuance of sub-rule (4) of Rule 10
of the Offical Language (Use for official pruposes of the
Union) Rules, 1976 the Central Govt. hereby notifies the
Office of National Museum Institute, History of Art,
Conservation and Museology, New Delhi under Ministry
of Culture wherein more than 80% staff have acquired
working knowledge of Hindi.
This notification shall come into force from the date
of publication in the Official Gazatte.
[F. No. 13016/1/2011-Hindi]
SREYA GUHA, Jt. Secy.
ubZ fnYyh] 15 vizSy] 2014
dk-vk- 1264-—dsUnz ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx)fu;e] 1976 ds fu;e 10 ds mi&fu;e
(4) ds vuqlj.k esa laLÑfr ea=kky; ds varxZr vkus okys dk;kZy;
jk"Vªh; laxzgky; laLFkku] dyk bfrgkl] laj{k.k ,oa laxzgky;
foKku] ubZ fnYyh dks ftlesa 80» ls vf/d deZpkfj;ksa us fganh dk
dk;Zlk/d Kku izkIr dj fy;k gS] vf/lwfpr djrh gS %—
;g vf/lwpuk jkti=k esa izdk'ku dh rkjh[k ls izo`Ùk gksxhA
¹iQk- la- 13016@1@2011&fganhº
Js;k xqgk] la;qDr lfpo
New Delhi, the 15th April, 2014
S.O. 1264.—In pursuance of sub-rule (4) of Rule 10
of the Offical Language (Use for official pruposes of the
Union) Rules, 1976 the Central Govt. hereby notifies the
Office of National Museum Institute, History of Art,
Conservation and Museology, New Delhi under Ministry
of Culture wherein more than 80% staff have acquired
working knowledge of Hindi.
This notification shall come into force from the date
of publication in the Official Gazatte.
[F. No. 13016/1/2011-Hindi]
SREYA GUHA, Jt. Secy.
ubZ fnYyh] 15 vizSy] 2014
dk-vk- 1265-—dsUnz ljdkj] jktHkk"kk (la?k ds 'kkldh;
iz;kstuksa ds fy, iz;ksx)fu;e] 1976 ds fu;e 10 ds mi&fu;e
(4) ds vuqlj.k esa laLÑfr ea=kky; ds varxZr vkus okys d;kZy;
dsUnzh; frCcrh vè;;u fo'ofo|ky;] lkjukFk] okjk.klh dks
ftlesa 80» ls vf/d deZpkfj;ksa us fganh dk dk;Zlk/d Kku izkIr
dj fy;k gS] vf/lwfpr djrh gSA
;g vf/lwpuk jkti=k esa izdk'ku dh rkjh[k ls izo`Ùk gksxhA
¹iQk- la- 13016@1@2011&fganhº
Js;k xqgk] la;qDr lfpo
New Delhi, the 15th April, 2014
S.O. 1265.—In pursuance of sub-rule (4) of Rule 10
of the Offical Language (Use for official pruposes of the
Union) Rules, 1976 the Central Govt. hereby notifies the
Office of KendriyaTibbati Adhyayan Vishwavidyalaya,
Sarnath, Varanasi under Ministry of Culture wherein more
than 80% staff have acquired working knowledge of Hindi.
This notification shall come into force from the date
of publication in the Official Gazatte.
[F. No. 13016/1/2011-Hindi]
SREYA GUHA , Jt. Secy.
ukxj foekuu ea=kky;
(,,vkbZ vuqHkkx)
ubZ fnYyh] 24 ekpZ] 2014
dk-vk- 1266-—Hkkjrh; foekuiÙku izkf/dkj vf/fu;e]
1994 (1994 dk la[;k 55)ds [k.M&3 esa var£o"V 'kfDr;ksa dk
iz;ksx djrs gq, dsUnz ljdkj] ,rn~}kjk rRdky izHkko ls Jh ,l-
epsUnzukFku] HkwriwoZ ,l ,l ,.M ,iQ,] ukxj foekuu ea=kky;
ds LFkku ij lqJh ,e- lR;orh] vij lfpo ,oa foÙk lykgdkj]
ukxj foekuu ea=kky; dks Hkkjrh; foekuiÙku izkf/dj.k cksMZ esa
va'kdkyhu lnL; ds :i esa fu;qDr djrh gS A
¹iQk- la- ,oh&24015@5@2013&,,vkbZº
lS;n bejku vgen] voj lfpo
MINISTRY OF CIVIL AVIATION
(AAI Section)
New Delhi, the 24th March, 2014
S.O. 1266.—In exercise of the powers conferred
under Section 3 of the Airports Authority of India Act,
1994 (No. 55 of 1994) the Central Government hereby
appoints Ms. M. Sathiyavathy, Additional Secretary and
Financial Adviser in the Minsitry of Civil Aviation, as part-
time Member on the Board of Airports Authority of India
vice Shri S.Machendranath, former SS&FA, Ministry of
Civil Aviation, with immediate effect.
[F. No. AV- 24015/5/2011-AAI]
SYED IMRAN AHMED, Under Secy.
3312
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
Je ,oa jkstxkj ea=kky;
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1267 -—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj osLVuZ
dksyiQhYMl fyfeVsM ds izcaèkra=k ds lac¼ fu;kstdkas vkSj muds
deZdkjksa ds chp] vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ
la[;k 56@2007) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
09@04@2014 dks izkIr gqvk FkkA
¹la- ,y&22012@220@2007&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 9th April, 2014
S.O. 1267.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 56/2007) of
the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur now as shown in the Annexure in the
Industrial Dispute between the management of Durgapur
O/C. Mine of Western Coalfileds Ltd., and their workmen,
which was received by the Central Government on
09/04/2014.
[No. L-22012/220/2007-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/56/2007
Date: 24.03.2014
Party No. 1 :
The Sub Area Manager,
Durgapur O/C. Mine of WCL,
Post: Durgapur,
Distt. Chandrapur (MS)
Versus
Party No. 2 : The President,
Koyala Shramik Sabha (HMS)
Post: Durgapur,
Distt.Chandrapur (MS)
AWARD
(24th 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 WCL and their workman, Shri P.S. Tiwari,
for adjudication, as per letter No.L-22012/220/2007-IR (CM-II)
dated 26.09.2007, with the following schedule:-
"Whether the action of the management of M/s.
WCL in dismissing the services of Shri P.S. Tiwari
w.e.f. 31.03.2006 is legal and justified? If not, to
what relief is the workman entitled?"
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman, Shri P.S.
Tiwari, ("the workman" in short) filed the statement of
claim and the management of WCL, ("party no.1" in short)
filed the written statement.
The case of the workman as projected in the
statement of claim is that he was appointed as a Mazdoor
category-I on 21.09.1986 and looking to his good hard
work and clean and unblemished record, he was given
promotion and lastly he was promoted as a driver of
upgraded category-VI w.e.f. 01.01.2004 and on 08.11.2005,
the patrolling team of the management had caught hold
up some persons alongwith two vehicles on the allegations
of committing theft of diesel and the patrolling team also
found two drums and three canes containing
approximately 500 liters' of diesel from the spot and it was
alleged that those persons carrying the said diesel
unauthorisedly and illegally and it was alleged by party
no.1 that he (workman) was also involved in the theft of
diesel and such allegations were altogether baseless, false
and frivolous and he was not involved in such illegal act
or crime and only on the basis of the alleged statement
made by the accused persons of the said crime, charge
sheet no. 1808 dated 12.11.2005 under clauses 26.1 and
26.11 of the Standing Order was submitted against him
and he submitted his reply to the charge sheet by his
letter dated 15.11.2005 with a request to provide all the
relevant and necessary documents, but the said documents
were neither supplied to him nor he was given any further
opportunity to give further reply and party no.1 without
considering his reply dated 15.11.2005, directed to make
enquiry against him and the enquiry officer so appointed
was none other than one of the employees of party no.1
and party No.1 ought to have appointed an independent
and impartial person to conduct the enquiry and though
seven witnesses were examined by the management, none
of them was an eye witness and the evidence of the said
witnesses was hearsay evidence and there were major
contradictions and omissions in the statement of the
witnesses and party no.1 failed to examine the important,
necessary and vital witnesses and he was not afforded an
opportunity to bring the real facts before the enquiry officer
and the enquiry was conducted in a biased manner,
without following the principles of natural justice and fair
play and even though, the major contradictions, omissions
and the manipulation in the official record were brought to
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3313
the notice of the enquiry officer, he deliberately over looked
the same, with an ulterior motive and the Enquiry Officer
submitted his enquiry report, which is altogether illegal,
perverse, malafide, bad in law and without application of
mind and vide letter dated 07.03.2006, he was called upon
to show cause and submit his written explanation to the
enquiry report and he submitted his reply to the same and
without taking his reply into consideration, the party no.1
issued the order of dismissal from services on 31.03.2006
with immediate effect and the said order passed by the
authority is bad in law, illegal, without application of mind,
perverse and contrary to the settled judicial precedents.
It is further pleaded by the workman that the criminal
prosecution initiated against him is pending and as such,
the party No.1 would not have proceed with the
departmental enquiry and order of punishment of dismissal
from services is excessive and as such, the same is liable
to be set aside.
The workman has prayed for his reinstatement in
service with continuity, full back wages and all
consequential benefits.
3. Party No.1 in the written statement has pleaded
inter-alia that the workman was appointed as general
mazdoor w.e.f. 21.09.1986 and subsequently, he was
promoted/ re-designated as operator Excavation. Cat. D
and Cat. C w.e.f. 01.04.1988 and 30.05.1989 respectively
and he was further converted/re-designated as driver cat.-
V from 10.06.1995 and to cat.-VI from 01.01.2004 and the
action of dismissal from service of the workman was the
outcome of the disciplinary action initiated against him
and on 08.11.2005, the workman was on duty in general
shift on diesel browser bearing no. MH 34-A-3507 and it
was reported to the management that as per instructions,
the workman alongwith two helpers filled the diesel in the
field machines and brought back the diesel browser at
about 1.45 PM and parked the same near the store,
Durgapur OCM and again at 4.025 PM, the workman alone
took the diesel browser, without any helper or without
any permission from superior officials and the security
personnel found the workman coming from ANFO Shed
road driving the diesel browser, in a high speed and as the
security personnel also found some outside vehicles
following the diesel browser, on doubt, the patrolling team
chased the outside vehicle and got hold of the same at
nearby sub-station and found that there were two drums
and 3 canes on the said vehicle, which was filled with
about 500 liters of diesel, so, the patrolling party seized
the outside Tata Seira vehicle and on interrogation by the
patrolling party, it was revealed that the workman sold the
diesel to the private unauthorized persons by taking out
the diesel from the diesel browser of the company and it
was therefore decided to initiate disciplinary action against
the workman by issuing charge sheet under the provisions
of the Standing Orders.
The further case of the party No.1 is that the
workman was issued with the charge sheet dated
12.11.2005 and one Shri Ram Deo Rao, Personnel Manager,
(IR) was appointed as the enquiry officer and after due
intimation, the enquiry officer conducted the enquiry on
various dates and in the departmental enquiry, the workman
was allowed to be defended by his co-worker and copies
of documents, which were relied upon by the management
to substantiate the charges were supplied to the workman
and the workman was allowed to cross-examine the
witnesses examined by the management and he was also
given the opportunity to adduce defence evidence and
the workman examined himself in his defence and the
enquiry was closed on 14.01.2006 with the consent of both
the parties and every opportunity to defend the case was
given to the workman and copies of the enquiry proceeding
were supplied to the workman and the enquiry officer
submitted a detailed report after analyzing the evidence
adduced before him by the parties and copy of the enquiry
report was given to the workman and he was offered the
opportunity to submit his say and the findings submitted
by the enquiry officer are based on the evidence recorded
during the course of the enquiry and the disciplinary
authority accepted the findings of the enquiry officer and
after taking into consideration the seriousness and gravity
of the charges, passed the order of punishment of dismissal
from services against the workman w.e.f. 31.03.2006 and
the appeal preferred by the workman against the order of
punishment was also dismissed by the appellate authority.
The further case of the party No.1 is that as the
workman was involved in the case of theft, a police report
came to be made against him in the appropriate police
station and criminal trials and departmental enquiry are
based on different footing and for different purposes and
there is no bar for the management to initiate disciplinary
proceeding for the misconduct committed by the workman
and the order of punishment passed against the workman
is fair and judicious and he is not entitled to any relief.
4. As this is a case of dismissal of the workman
after holding of a departmental inquiry, the legality or
otherwise of the departmental enquiry was taken for
consideration as a preliminary enquiry and by order dated
02.09.2013, the departmental enquiry conducted against
the workman was held to be legal, proper and in accordance
with the principles of natural justice.
5. At the time of argument, it was submitted by the
Learned Advocate for the workman that the Enquiry Officer
appointed by the party No.1 to conduct the enquiry against
the workman was none other than one of the employees
of the management and party No.1 ought to have appointed
an independent and impartial person to conduct the
enquiry and the findings of the Inquiry Officer are perverse,
as because none of the seven witnesses examined in the
enquiry was an eye witness and the evidence of the
3314
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
witnesses is hearsay evidence and there are major
contradictions and omissions in the evidence of the
witnesses and material witnesses were not examined and
the inquiry officer was biased and the report submitted by
the enquiry officer is illegal, perverse and malafide and it
is clear from the evidence on record that the alleged stolen
diesel was not recovered or seized from the possession of
the workman and according to the own case of the party
No.1, there was seizure of 500 liters of diesel from some
outsiders, where as there was shortage of 362 liters of
diesel in the diesel browser, which was alleged to be driven
by the workman, so, the findings of the Inquiry Officer
that the charges have been proved against the workman
cannot be said to be based on evidence on record and the
Disciplinary Authority did not consider the written
explanation submitted by the workman to the show cause
notice, so the punishment imposed against the workman
is illegal and contrary to the judicial precedents and the
punishment imposed is shockingly disproportionate. It
was also submitted by the Learned Advocate for the
workman that a criminal prosecution was sub-judiced
against the workman basing on the same allegations as
made in the charge sheet issued in the departmental inquiry,
so, the party No.1 should not have proceeded with the
departmental inquiry, which was ultimately resulted into
perversity and illegality and the punishment imposed
against the workman is liable to be set aside and the
workman is entitled for reinstatement in service with
continuity, full back wages and all other consequential
benefits.
6. Per contra, it was submitted by the Learned
Advocate for the party No.1 that it has already been held
that the departmental enquiry conducted against the
workman was fair and proper by order dated 02.09.2013
and there is only sweeping allegation regarding the
perversity of findings in the rejoinder without any specific
instances and therefore, such sweeping allegation cannot
be accepted and the findings of the enquiry officer are
based on the documents filed and evidence led in the
enquiry and the enquiry officer has given a rational and
objective report and he has not relied on any extraneous
material and the report is also not contrary or opposed to
the evidence and the report is also not such, which no
reasonable person could have arrived at and as such, the
findings of the enquiry officer cannot be said to be
perverse. It was further submitted by the Learned Advocate
for the management that the allegation of bias against the
enquiry officer has not been substantiated and as such,
such submission cannot be accepted and commission of
serious misconducts has been proved against the
workman in a properly conducted departmental enquiry
and as such, the punishment imposed against the
workman cannot be said to be disproportionate to the
charges proved and as such, there is no scope to interfere
with the punishment.
7. In view of the submissions made by the Learned
Advocate for the parties, I think it proper to mention about
the principles enunciated by the Hon'ble Apex Court
regarding the jurisdiction of the Tribunal to interfere with
punishment awarded by competent authority in
departmental proceedings.
It is settled beyond doubt by the Hon'ble Apex Court
in a chain of decisions that interference with the finding
of fact is permissible only when there is no material for the
said conclusion or that on the materials, the conclusion
cannot be that of a reasonable man and a finding recorded
in a domestic enquiry cannot be characterised as perverse
by the Labour Court unless it can be shown that such a
finding is not supported by any evidence, or is entirely
opposed to the whole body of evidence adduced. In a
domestic enquiry once a conclusion is deducted from the
evidence, it is not permissible to assail that conclusion
even though it is possible for some other authority to
arrive at a different conclusion on the same evidence.
It is also settled by the Hon'ble Apex Court that in a
case where there is no defect in procedure in the course of
domestic enquiry into the charges for misconduct against
an employee, the Tribunal can interfere with an order of
dismissal where the findings are perverse or there is no
prima facie case and in such a case, the Tribunal does not
sit as a court of appeal, weighing or re-appreciating the
evidence for itself, but examines the finding of the enquiry
officer on the evidence in the domestic enquiry as it is and
where there is no failure of the principles of natural justice
in the course of domestic enquiry, if the Tribunal finds
that dismissal of an employee is by way of victimization or
unfair labour practice, it will then have complete
jurisdiction to interfere with the order of dismissal passed
in the domestic enquiry. In that event, the fact that there
is no violation of the principles of natural justice in the
course of domestic enquiry will absolutely lose its
importance or efficacy. Whether and under what facts
and circumstances a Tribunal will accept the plea of
victimization against the employer will depend upon the
judicial discretion.
It is also settled by the Hon'ble Apex Court that,
"the disciplinary authority is the sole judge of facts and in
case an appeal is presented to the appellate authority, the
appellate authority has also the power/and jurisdiction to
re-appreciate the evidence and come to its own conclusion,
on facts, being the sole fact-finding authorities. Once
findings of fact, based on appreciation of evidence are
recorded, the High Court in writ jurisdiction may not
normally interfere with those factual findings unless it
finds that the recorded findings were based either on no
evidence or that the findings were wholly perverse and/or
legally untenable. The adequacy or inadequacy of the
evidence is not permitted to be canvassed before the High
Court. Since the High Court does not sit as an appellate
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3315
authority over the factual findings recorded during
departmental proceedings, while exercising the power of
judicial review, the High Court cannot, normally speaking,
substitute its own conclusion, with regard to the guilt of
the delinquent, for that of the departmental authorities.
Even insofar as imposition of penalty or punishment is
concerned, unless the punishment or penalty imposed by
the disciplinary or the departmental appellate authority, is
either impermissible or such that it shocks the conscience
of the High Court, it should not normally substitute its
own opinion and impose some other punishment or
penalty. Both the Learned Single Judge and the Division
Bench of the High Court, it appears, ignored the well-
settled principle that even though judicial review of
administrative action must remain flexible and its dimension
not closed, yet the Court, in exercise of the power of judicial
review, is not concerned with the correctness of the
findings of fact on the basis of which the orders are made
so long as those findings are reasonably supported by
evidence and have been arrived at through proceedings
which cannot be faulted with for procedural illegalities or
irregularities which vitiate the process by which the
decision was arrived at. Judicial review, it must be
remembered, is directed not against the decision, but is
confined to the examination of the decision-making
process."
So, keeping in view, the settled principles as
mentioned above, now the present case in hand is to be
considered.
8. The first contention raised by the Learned
Advocate for the workman is that the inquiry officer
appointed by the party No.1 to conduct the inquiry against
the workman was no body other than an employee of the
party No.1 itself and as such, the entire enquiry was
vitiated.
However, it is found that there is no force in the
contention raised by the Learned Advocate for the
workman, as because, it is well settled by the Hon'ble Apex
Court in a number of decisions that, "It is well known that
inquiries of this type are generally conducted by officers
of the employer companies and in absence of any special
bias attributed of a particular officer, it is has never been
held that the enquiry is bad because it is conducted by an
officer of the company.
9. So far the allegation of bias against the Inquiry
Officer is concerned, it is well settled that bias against the
Inquiry Officer must be specifically pleaded and proved
before the Judicator. In this case, the workman has neither
specifically pleaded nor proved bias against the Inquiry
Officer. Except the allegation of bias made by the workman
against the Inquiry Officer, there is no acceptable material
on record to infer bias against the Inquiry Officer. Hence I
find no force in the contention raised by the Learned
Advocate for the workman on that score.
10. So far the submission made regarding the
initiation of the departmental inquiry proceeding with the
same during the pendency of the criminal proceeding
against the workman is concerned, it is well settled by the
Hon'ble Apex Court in number of decisions that,
"proceedings in a criminal case and departmental
proceedings can go simultaneously, except where
departmental proceeding and the criminal case are based
on the same set of facts and the evidence in both the
proceedings is common and basis for this proposition is
that proceedings in a criminal case and departmental
proceedings operate in distinct and different jurisdictional
areas. In departmental proceedings, factors operating in
the mind of disciplinary authority may be many, such as
enforcement of discipline, or to investigate level of integrity
of delinquent or other staff. The standard of proof required
in those proceedings is also different from that required in
a criminal case. While in departmental proceedings, the
standard of proof is one of preponderance of probabilities,
in a criminal case, the charge has to be proved by the
prosecution beyond reasonable doubt. The departmental
proceedings and proceedings in criminal case can proceed
simultaneously as there is no bar in there being conducted
simultaneously, though separately".
Hence, there is no force in the contention raised by
the Learned Advocate for the petitioner.
11. Now, the present case at hand is to be considered
with the touch stone of the principles enunciated by the
Hon’ble Apex Court as mentioned above. On perusal of
the materials on record, it is found that the enquiry officer
has based his findings on the materials on record of the
departmental proceeding. He has assigned cogent reasons
in support of such findings. This is not a case of no
evidence. It is also not a case that the findings of the
enquiry officer are totally against the evidence on record
or that the findings of the enquiry officer are as such,
which cannot be arrived at by a prudent man on the
evidence on record. Hence, it cannot be said that the
findings of the enquiry officer are perverse.
12.So far the question of punishment is concerned;
it is found that serious misconducts have been proved
against the workman in a properly held departmental
enquiry. In this instant case, the workman has been found
to be guilty of theft by party No.1. There is nothing wrong
by the party No.1 losing confidence in such an employee
and awarding punishment of dismissal. The workman was
holding a position of trust, where honesty and integrity
were inbuilt requirements of functioning and therefore,
the matter required to be dealt with firmly and not leniently.
Hence, the punishment of dismissal from services of the
workman cannot be said to be shockingly disproportionate
to the proved misconducts. Hence, it is ordered:
ORDER
The action of the management of M/s. WCL in
dismissing the services of Shri P.S. Tiwari w.e.f. 31.03.2006
is legal and justified. The workman is not entitled to any
relief.
J. P. CHAND, Presiding Officer
3316
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1268-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj osLVuZ
dksyiQhYMl fyfeVsM ds izcaèkr=k ds lac¼ fu;kstdksa vkSj muds
deZdkjksa ds chp] vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ
la[;k 79@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
09@04@2014 dks izkIr gqvk FkkA
¹la- ,y&22012@220@2004&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1268.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 79/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure in the Industrial
Dispute between the management of Majri Area Kuchana
of WCL, Western Coalfileds Ltd., (HQ), and their workmen,
received by the Central Government on 09/04/2014.
[No. L-22012/220/2004-IR (CM-II)]
B. M. PATNAIK, Desk Officer.
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/79/2005
Date: 25.03.2014
Party No. 1 :
The Chief General Manager,
Majri Area Kuchana of WCL,
Post: Shembul,
Chandrapur (MS).
:
The Chief Personnel Manager
(IR),
WCL (HQ), Coal Estate,
Civil Lines,
Nagpur-440001.
Versus
Party No. 2
:Shri Lomesh Khartad, General
Secretary,
National Colliery workers congress,
Dr. Ambedkar Nagar, Ballarpur,
Tah. Ballarpur, Distt. Chandarpur
(MS).
AWARD
(Dated: 25th 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 WCL and their union, “NCWC” for
adjudication, as per letter No.L-22012/220/2004-IR
(CM-II) dated 28.09.2005, with the following schedule:-
“Whether the action of the management of Majri
Area of WCL in recovering the penal rent at market
rate from the concerned employees who were in
occupation of company’s quarters is legal and
justified? If not, to what relief they are entitled?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the union, “National
Colliery workers congress”, (“the union” in short), filed
the statement of claim and the management of WCL,
(“Party No. 1” in short) filed their written statement.
The case of the union as presented in the statement
of claim is that it is a registered trade union under the
Trade Unions Act, 1926 and the service conditions of the
employees are governed by certified standing order,
payment wages Act, other Acts and National Coal Wage
Agreements (“NCWA” in short) and the terms and
conditions contained in the NCWAs are mandatory and
binding on all the parties and party No.1 is a state within
the meaning of Article-12 of the Constitution of India and
there is specific mention in NCWA that the management
of the Coal companies, on their part will not resort to
unilateral interpretation of the Agreement and in case of
any doubt or difficulty in interpretation on any clause of
the agreements, the same shall be referred to and settled
by JBCCI or a Sub-Committee constituted by the JBCCI
and there is also specific provision that the employees,
who have not been provided with company’s
accommodation, will be entitled for house rent allowance
per month and there is also further provision that the
employees, who have been provided with sub-standard
quarters, shared accommodation, seat in barracks, mess
or hostels and single room etc. will also be paid house rent
allowance and it is further provided that unauthorized
occupants of house will not be entitled to any house rent
allowance, until they vacate the houses and there is no
question of deduction of penal rent.
It is further pleaded by the union that Tulsi
Rampandey, Dumper operator was working at Rajura
colliery, where he was allotted with company’s
accommodation and due to exigencies of job, he was
transferred to Chargaon w.e.f. 27.06.1995 and he used to
attend duties from Rajura colliery and as he was facing
acute trouble in coming and going from Chargaon to
Rajura, he applied for allotment of accommodation at
Chargaon to party No.1 and the committee members of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3317
accommodation allotment committee recommended his
case for allotment of accommodation and quarters were
allotted to others including juniors, but the case of the
Shri Tulsi Ram Pandey (“the workman” in short) was not
considered and he was ordered to vacate the
accommodation at Rajura and the party No.1, without
following the procedure of law and in utter disregard to
the provisions of NCWAs and payment of wages Act
started deducting penal rent of Rs.1720 per month from
August, 2000 to 30.06.2002 from the wages of the workman
and though the workman and the union approached the
management through letters, party No.1 did not pay any
heed and the action of party No.1 is illegal and against the
principles of natural justice and the workman is entitled
for refund of the penal rent deducted from his wages with
@ 18% simple interest there on.
3. The party No.1 in the written statement has
pleaded inter-alia that the union is not an union of the
workers of either Rajura colliery or Chargaon colliery to
which establishment the alleged dispute is raised and the
union is not authorized to espouse the dispute.
It is further pleaded by party No.1 that the workman
was transferred from Rajur colliery to Chargaon open cast
mine and he was allotted with a quarters at Rajur, but he
was not allotted with any quarters at Chargaon, due to
non-availability of quarters and eventhough, the workman
was not entitled to retain the quarters at Rajura, after being
transferred to Chargaon, the management did not deduct
any penal rent and the workman, while occupying the
quarters at Rajura, unauthorizedly occupied another
quarters at Majri in August, 2000 and for such unauthorized
occupation of quarters at Majri, the management had to
charge penal rent and deduct the same from his wages
with effect from August, 2000 to May, 2002 at the rate of
Rs. 1720 per month, according to the Rules of the Company
and there is no condition of service that every employees
of the company must be provided with quarters and
allotment of quarters depends upon its availability and
subject to fulfillment of House Allotment Rules and its
action is therefore, is perfectly justified and lawful and the
workman is not entitled to any relief.
4. In the rejoinder, the union has pleaded that the
preliminary objections raised by the party No.1 are not
maintainable and it is authorized to espouse the dispute
on behalf of the workman.
5. In support of their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence. The union has examined the
workman as a witness, whereas, one J.S. Sayare has been
examined as a witness on behalf of the party No.1.
6. The workman in his evidence on affidavit has
reiterated the facts mentioned in the statement of claim.
However, in his cross-examination, the workman has stated
that he cannot say the Rules or provisions, under which,
it was necessary for the management to allot a quarters to
him at the place of his transfer immediately, about which
he has mentioned in paragraph 6 of his affidavit and he
was allotted with a quarters at Rajura and he did not vacate
the said quarters, even after his joining at Chargaon and
as no quarters was allotted to him at Chargaon, he was
allowed to draw house rent allowance and he received
house rent allowance from Chargaon, even though, he
had retained the quarters at Rajura and he has not filed
any document to show that he vacated the quarters at
Rajur a in August, 2000. The workman has admitted that
at Chargaon, he was staying in Miner’s quarters No. 108
and he has not filed any document to show that he was
allotted with quarters No. 108 at Chargaon. The workman
has further admitted that charge sheet dated 26.08.2000
was issued by the management of Chargaon colliery
against him on the allegation of unauthorized occupation
of quarters No. 108 and he submitted his reply to the said
charge sheet as per Ext. W-II and in Ext. W-II, he had
mentioned that he started occupying quarters No. 108 of
Majri colliery from August, 2000. The workman has
categorically admitted that as he occupied quarters No.
108, without allotment of the same unauthorizedly from
August, 2000 till May, 2002, management deducted
Rs. 1720 per month as penal rent.
7. The evidence of the witness for the party No.1
on affidavit is in the line of the stands taken by the party
No.1 in the written statement. In his cross-examination,
the witness for the party No.1 has stated that the penal
house rent was recovered from the workman as per the
circular given by the management regarding imposition of
penal rent, which has been filed as annexure-E and the
punishment of recovery of penal house rent from the
workman was imposed against him basing on the charge
sheet, Ext. M-I and punishment of recovery of penal rent
has not been prescribed in the certified standing order of
WCL and in the order of recovery of penal house rent, Ext.
M-II, there is no mention about recovery of penal house
rent as per the circular.
8. At the time of argument, it was submitted by the
learned advocate for the union that the union is authorized
to espouse the industrial dispute on behalf of the workman
and there was no provision either in the standing order or
the NCWAs which are binding on the parties, for recovery
of penal house rent and as such, the recovery of penal
house rent @ Rs. 1720 per month from August, 2000 to
May, 2002 from the wages of the workman was illegal and
the workman is entitled for refund of the amount, after
deduction of the normal house rent for the said period, for
the quarters in occupation of the workman at Chargaon.
9. Per contra, it was submitted by the learned
advocate for the party No.1 that the workman while keeping
the quarters allotted to him at Rajura, he drew house rent
3318
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
allowance at Chargaon and also illegally occupied one
quarters at Chargaon from August, 2000 and remained in
unauthorized possession of the same till May, 2002 and as
such, the party No.1 was entitled to deduct penal rent
from him and there was no illegality in the action of the
party No.1 and the workman is not entitled to any relief.
10.Perused the record including the pleadings of
the parties, evidence, both oral and documentary adduced
by the parties. Considered the submission made by the
learned advocates for the parties. From the materials on
record, the following facts are found to be proved.
(i)
After the transfer of the workman from Rajura
colliery to Chargaon open cast mine, the workman
remained in occupation of the quarters at Rajura.
(ii)
The workman in spite of occupying the quarters
at Rajura, drew house rent allowance at Chargaon.
(iii)
The workman without allotment of the quarters
No. 108 at Chargaon occupied the same illegally
from August, 2000 and remained in occupation
of the same till May, 2002.
(iv)
Penal house rent @ Rs. 1720 per month was
deducted from the wages of the workman for the
period of August, 2000 to May, 2002.
(v)
The charge sheet dated 26.08.2000, under clauses
26.1, 26.14 and 26.22 of the Certified Standing
Order as per Ext. M-I was submitted against the
workman on the allegation of his occupying the
quarters at Chargaon unauthorizedly.
(vi)
Order as per Ext.M-II was passed by party No.1
for recovery of the penal house rent @ 1720 per
month, holding that the explanation submitted to
the charge sheet dated 26.08.2000 not be
satisfactory.
11.Admittedly, the punishment of recovery of penal
rent from an employee has not been provided in the
standing order, so, the order passed by party No.1 as per
Ext. M-II for recovery of penal house rent from the workman
is not legal and cannot be sustained.
12. Now, the question remains for consideration is
as to what relief or reliefs the workman is entitled to.
Admittedly, the validity of the Office Memorandum No. 61
dated 3rd June, 1988 issued by the party No.1 for recovery
of penal house rent for unauthorized occupation has not
been challenged by any union. Hence, the said
memorandum still holds good. According to the said
memorandum, maximum a sum of Rs. 150 per month can be
charged for unauthorized occupation of the quarters. As
the workman was in occupation of the quarters at
Chargaon unauthorizedly from August, 2000 to May, 2002,
he is liable to pay Rs. 150 per month as penalty house rent.
Moreover, it is the admitted case that the workman received
house rent allowance for the said period. So, the workman
is entitled for refund of the amount of penalty house rent,
after deduction of the penalty house rent @ Rs. 150 per
month plus the amount of house rent allowance received
by him for the said period. Hence, it is ordered:-
ORDER
The reference is answered in favour of the workman.
The workman is entitled to refund of the amount of penalty
house rent recovered from his wages for the period from
August, 2000 to May, 2002, after deduction of the penalty
house rent @ Rs. 150 per month plus the house rent
allowance drawn by the workman from August, 2000 to
May, 2002 at Chargaon Mine. The party No.1 is directed
to implement the award within one month of the
notification of the award in the official gazette.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1269 -—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj osLVuZ
dksyiQhYMl fyfeVsM ds izcaèkr=k ds lac¼ fu;kstdksa vkSj muds
deZdkjksa ds chp] vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ
la[;k 69@2002) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
09@04@2014 dks izkIr gqvk FkkA
¹la- ,y&22012@265@2001&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1269.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 69/
2002) of the Central Government Industrial Tribunal-cum-
Labour Court, Nagpur as shown in the Annexure in the
Industrial Dispute between the management of Hindustan
Lalpeth Colliery No. 3 of WCL and their workmen, received
by the Central Government on 09/04/2014.
[No. L-22012/265/2001-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/69/2002
Date: 25.03.2014.
Party No. 1 :
The Sub-Area Manager,
Hindustan Lalpeth Colliery No. .3
of WCL,
PO: Lalpeth, Distt. Chandrapur
(MS).
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3319
Party No. 2 :
The Secretary,
Rashtriya Colliery Mazdoor
Congress,
Hinglaj Bhawani Mandir, Junona
Chowk, Chandrapur, Distt.
Chandrapur (MS)
AWARD
(Dated: 25th 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 WCL and their workman, Shri Vijay Lingaya
Dindewar, for adjudication, as per letter No.L-22012/265/
2001-IR (CM-II) dated 19. 02.2007, with the following
schedule:-
“Whether the action of the management through
the Manager, Hindustan Lalpeth Sub Area, WCL,
Distt. Chandrapur in terminating the services of
Shri Vijay Lingya Dindewar, Badli piece rated Loader
vide their letter WCL/SAM/HLSA/PER/1665/Dtd.
28.10.1990 w.e.f. 28.10.1990 is proper, legal and
justified? If not, to what relief the said workman is
entitled?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the union, Rashtriya
Colliery Mazdoor Congress, (“ the union” in short) filed
the statement of claim on behalf of the workman,
Shri Vijay Lingya Dindewar , (‘the workman” in short) and
the management of Western Coal Fields Ltd., (“Party
No. 1” in short) filed their written statement.
The case of the workman as presented by the union
in the statement of claim is that it is a registered trade
union under the Trade Unions Act, 1926 and party No.1 is
a government company, owned and controlled by the
Central Government and party No.1 is a state within the
meaning of Article 12 of the Constitution of India and due
to exigencies of jobs and to augment coal production on
regular and permanent basis, the party No.1 decided to
appoint a few hundred piece rated loaders in the year 1989
and accordingly, notified the vacancies to the Employment
Exchange, Chandrapur to sponsor the names and other
particulars of the eligible candidates and the Employment
Exchange sponsored the names of about 1000 eligible
candidates for the posts of loader, which were for the
duration of more than three months and the candidates so
sponsored were subjected to hard physical tests,besides
oral interview and basing on such tests, a merit list of the
selected candidates was prepared and letters of
appointment commensurate with the number of vacancies
were issued and the other selected candidates were
excluded and the candidates issued with the appointment
order were subjected to medical examination by the Medical
Board in accordance to the standard prescribed under Rule
29-F of the Mines Rule,1955 and those found fit were
deployed on job of loaders and the workman was also
selected by the party No.1 for the job of loader and he was
appointed as a loader by appointment letter dated
25.11.1989, for a period of three months initially and posted
at Hindustan Lalpeth Mine No.3 and his services were
extended from time-to-time, i.e. from 01.04.1990 to 30.06.1990
and 01.07.1990 to 30.09.1990 and all of a sudden, vide letter
No.1665 dated 28.10.1990, the Sub-Area Manager,
Hindustan Lalpeth Area terminated the services of the
workman with immediate effect on the allegation of
workman’s antecedents found not to be good and the
workman himself and through the union approached the
party no.1 repeatedly to take him back in employment, but
he was not taken back in service and the police inspector,
Chandrapur city police station wrote a letter dated
28.02.1992 to the Sub-Area Manager explaining that the
workman had been fined Rs. 15 and Rs. 30 on 17.08.1981
and 21.12.1984 respectively and the same does not debar
the workman to continue in service and recommended to
take him back in service, but party No.1 did not consider
the case of the workman and though party No.1 issued
letter No. 1976 dated 14.10.1995 and 59 dated 30.01.1996 to
consider his case for re-employment and the workman
reported at the office of party No.1, his case was not
considered and the party No.1 had considered a number
of cases out of the 35 cases raised by the union, but the
case of the workman was not considered and the workman
is entitled for reinstatement in service with full back wages
and consequential benefits w.e.f. 28.10.1990.
It is necessary to mention here that the workman
died during the pendency of the reference and as per order
dated 02.03.2011, the legal heirs of the workman, i.e. his
widow, Smt. Anita Vijay Dindewar, his daughter Sneha Vijay
Dindewar and his son Parag Vijay Dindewar were
substituted in his place.
3. The case of the party No.1 in the written
statement inter-alia is that the appointment of the workman
was purely on temporary basis for three months and it
was stipulated in the said appointment letter that the
appointment was subject to verification of antecedents
and such temporary appointment was extended from time-
to-time till 30.09.1990 and in the mean time, the antecedents
of the workman were got verified through the Suptd. of
Police, Chandrapur, who vide his letter dated 14.09.1990
informed the management that the character of the
workman not to be good and he had been convicted twice
for criminal offence on 17.08.1971 and 31.12.1984 and on
receipt of the report, the services of the workman were
terminated in accordance with the specific terms of his
appointment, after the approval of the Chief General
Manager, vide letter dated 28.10.1990 and at the time of
3320
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
termination of the workman on 28.10.1990, the last
extension of the service of the workman up to 30.09.1990
was already expired and therefore, his services were
deemed to have come to an end automatically on
01.10.1990 and as the Police verification report was to be
processed for obtaining approval of the Chief General
Manager, the issuance of the termination order was delayed
for few days and there was no breach of any rule or service
conditions and there was no illegality in termination of the
services of the workman and as it was evident that the
workman had criminal back ground, it was not considered
desirable to take him back in employment and the letter
written by the Inspector of Police was totally uncalled for
and manipulated and it was not bound to accept the same
and after consideration of the cases raised by the union, it
was found that the case of the workman was outside the
scope of consideration, as his services were terminated
on account of bad antecedents and not due to absenteeism
and the workman is not entitled to any relief.
4. It is necessary to mention here that though the
evidence of One Malesh Asalu Kamtam had been filed on
behalf of the legal heirs of the deceased workman, the said
witness did not appear for his cross-examination. The
union and so also, the legal heirs of the deceased workman
did not appear to take part in the reference. Hence, the
evidence of the witness was expunged and evidence was
closed. It is also to be mentioned that no evidence was
adduced from the side of the management and both the
parties remained absent from 17.02.2014. So, the reference
was closed on 27.02.2014 and was posted for award.
5. It is well settled that when a workman raises a
dispute challenging the validity of the termination of his
services, it is imperative for him to file written statement
before the Industrial Court setting out grounds on which
the order is challenged and he must also produce evidence
to prove his case. If the workman fails to appear or to file
written statement or to produce evidence, the dispute
referred by the Government cannot be answered in his
favour and he could not be entitled to any relief.
6. Moreover, on perusal of the pleadings of the
parties and the documents on record, it is found that that
the initial appointment of the deceased workman was for
three months with some conditions including the condition
of verification of antecedents and the workman accepting
the conditions joined in duty and the temporary
appointment of the workman extended from time to time
till 30.09.1990 and after 30.09.1990, his such appointment
was not extended. It is also found from the materials on
record that as a report from the Superintendent of Police,
Chandrapur was received by party no.1 regarding bad
antecedent of the workman, he was terminated from
services in accordance with the terms and conditions of
his appointment by party no.1. Hence, there was no
illegality in the action of the party no.1 in terminating the
services of the workman. Hence, it is ordered:-
ORDER
The action of the management through the Manager,
Hindustan Lalpeth Sub Area, WCL, Distt. Chandrapur in
terminating the services of Shri Vijay Lingya Dindewar,
Badli piece rated Loader vide their letter WCL/SAM/HLSA/
PER/1665/Dtd. 28.10.1990 w.e.f. 28.10.1990 is proper, legal
and justified. The workman was not entitled to any relief.
Hence, the legal heirs of the deceased workman are also
not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1270 -—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj osLVuZ
dksyiQhYMl fyfeVsM ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ
la[; 74@2000) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
09@04@2014 dks izkIr gqvk FkkA
¹la- ,y&22012@396@1997&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1270.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 74/
2000) of the Central Government Industrial Tribunal-cum-
Labour Court, Nagpur now as shown in the Annexure in
the Industrial Dispute between the management of
Western Coalfields Limited and their workmen, received
by the Central Government on 09/04/2014.
[No. L-22012/396/1997-IR (CM-II)]
B. M. PATNAIK, Desk Officer.
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/74/2000
Date:- 25.03.2014.
Party No.1
:
The Chief General Manager,
Western Coalfields Limited.,
Chandrapur Area,
Po. & Dist. –Chandrapur (MS)
Versus
Party No.2
:
Jt. General Secretary,R.K.K.M.S.,
604, Behind Giripeth Post Office,
Giripeth, Nagpur-440 010.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3321
AWARD
(Dated: 25th 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 Western Coalfields Ltd. and their workman,
Ramesh Shankarrao Yetwar to the Central Government
Industrial Tribunal-cum-Labour Court, Mumbai, for
adjudication, as per letter No.L-22012/396/97-IR(CM-II)
dated 11/15.12.1998, with the following schedule:-
“Whether the action of the management namely
Chief General Manager, M/s. WCL, Chandrapur
Area, PO & Distt. Chandrapur, in terminating Shri
Ramesh Shankarrao Yetwar, Ex-Electrician w.e.f.
03.01.1994 is legal and justified? If not, to what relief
the workman is entitled and from which date?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the union,
“R.K.K.M.S.”, (“the union” in short) filed the statement of
claim on behalf of the workman, Shri Ramesh Yetawar (“the
Workman” in short) and the management of Western
Coalfields Ltd. (“Party No. 1” in short) filed its written
statement.
The case of the workman as presented by the union
in the statement of claim is that it (union) is a registered
trade union under the Trade Unions Act and party no.1 is
a Government Company and is a “State” within the
definition under Article 12 of the Constitution of India and
the workman was initially appointed on 17.08.1970 by party
no.1 and he was rendering able, efficient and loyal services
and he was selected and promoted as Electrician and was
posted at Nandgaon Incline and in the year 1993, the
workman sustained multiple fractures in his right hand on
account of which, he was placed on sick roll at the colliery
hospital and although, the workman was not fully
recovered from the multiple injuries , the doctors declared
him fit and the workman was forced to resume his duties
and the repeated requests of the workman to the doctors
of the colliery hospital to keep him on sick leave even
without pay, as he was not in a position to work as an
electrician without fully recovered from fractured right
hand, were ignored by the said doctors and the genuine
and bonafide inability of the workman to resume his duties
was treated as unauthorized absence from duty by the
party no.1 and a charge sheet dated 01.07.1993 was
submitted against the workman and the workman
submitted his reply to the said charge sheet, but the party
no.1 constituted a departmental enquiry against the
workman and appointed Shri S.A. Basha, Sr. Personnel
Officer as the enquiry officer to conduct the departmental
enquiry against the workman and the enquiry officer
conducted the enquiry in only one sitting on 28.08.1993
and the workman was not given reasonable opportunity
including the assistance of a co-worker to defend himself
in the enquiry effectively and the enquiry office did not
explain the procedure of the departmental enquiry to the
workman and the enquiry was held in camera and the same
was perfunctory and the enquiry officer falsely held the
charges to have been proved against the workman and
the findings of the enquiry officer are unreasonable and
basing on the false and unreasonable findings of the
enquiry officer, the Suptd. of Mines/Manager, Nandgaon
Incline passed the order of dismissal of the workman from
services w.e.f. 03.01.1994 by order dated 02.01.1994 and
while imposing the severe most and harsh punishment of
dismissal, the punishing authority did not take into
consideration the clean and unblemished past service
record of the workman and the punishment is harsh, illegal
unfair and bad in law.
It is further pleaded by the union on behalf of the
workman that before passing of the order of punishment,
the disciplinary authority did not serve the second show
cause notice to the workman, which is mandatory from
November 1991, in view of the judicial pronouncement
made by the Hon’ble Apex Court and the enquiry officer
appointed to hold the enquiry was working as a welfare
officer under the Mines Act and Rules made there under
and the enquiry officer was prohibited from acting as the
enquiry officer as per Rules 73(2) of Mines (Central) Rules,
1957 and as such, the proceedings of the departmental
enquiry and findings there on by the enquiry officer are
illegal and therefore, the order of punishment is required
to be set aside and quash and the union made
representations by letters dated 16.03.1995, 15.04.1996 and
01.07.1996 for reconsideration of the case of the workman,
but party no.1 by letter dated 3/5.11.1996 declined to
reconsider the case of the workman on the ground of the
workman crossing the age of 45 years and on the date of
termination of the services of the workman and filing of
the appeal dated 23.02.1994 and submission of letter dated
16.03.1995 by the union, the workman was less than 45
years of age, so the ground of rejection by the party no.1
to reconsider the case of the workman is also not a valid
ground.
The union has prayed to set aside and quash the
order of punishment passed against the workman and to
reinstate him in service with continuity, full back wages
and consequential benefits.
3. The party no.1 in the written statement, denying
all the adverse allegations made in the statement of claim,
has pleaded inter-alia that according to the terms of
reference, the workman was actually dismissed from
services on the basis of proved misconduct and the
schedule of reference also indicates that the alleged
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[PART II—SEC. 3(ii)]
termination had been done by the Chief General Manager,
which is not at all a fact and the punishment was not
imposed by the Chief General Manager, Chandrapur Area
and even the name of the establishment, where the
workman was working has not been mentioned and due to
incorporation of misleading and misconceived facts in the
reference without application of mind, the reference is not
maintainable in the eyes of law.
It is further pleaded by the party no.1 that the
workman was working as an electrician at Nandgaon Incline
of Hindusthan Lalpeth Sub-Area and as the job of
electrician is a highly skilled and responsible job, remaining
absence from duties by an electrician unauthorisedly
causes tremendous difficulty to it in maintaining the day
to day work and the workman without realizing his
responsibility and position, started unauthorisedly
absenting from his duties quite frequently during the years
1988, 1989, 1990, 1991 and 1992, for which he had been
charge sheeted and warned for habitual neglect of work
and disobedience of lawful orders and the warning issued
to him did not bring any improvement and change in
attitude towards work and attendance to his duty and
from 27.06.1993, the workman again started absenting
unauthorisedly from his duty and therefore, he was charge
sheeted by the Manager, Nandgaon Incline for habitual
and unauthorized absence from duty vide charge sheet
dated 30.06.1993/01.07.1993 and in the charge sheet, month
wise attendance of the workman for the years 1990, 1991,
1992 and upto May, 1993 were specifically indicated and
though the workman was asked to submit his written
explanation within three days of the receipt of the charge
sheet, he did not submit his reply, so a departmental enquiry
was ordered vide letter no. 1230 dated 11/14.07.1993 and
shri S.A. Bhasha was appointed as the enquiry officer and
after constitution of the enquiry, the workman submitted a
written explanation, which was taken on the record of the
disciplinary proceedings and the enquiry officer after
giving due notice to the workman held the enquiry on
28.08.1993 and the workman attended the enquiry and
participated in the proceedings and the proceedings were
recorded in Hindi Language and were duly signed by the
workman.
It is also pleaded by the party no.1 that in the letter
of enquiry itself, it was specifically mentioned that if the
workman so liked, he could take the assistance of a
coworker in the departmental enquiry, but the workman
did not bring any coworker with him and during the course
of the enquiry also, the enquiry officer offered the workman
the opportunity to avail the services of a co-worker, but
he declined the opportunity saying of his having no
necessity for the same and the enquiry officer also read
over his written explanation and explained the charges to
him as contained in the charge sheet and being asked by
the enquiry officer as to whether he admits the charges,
the workman told to be admitting all the charges levelled
against him and after the admission of the workman the
charges levelled against him, there was nothing more to
do in the enquiry, hence the proceedings were closed by
the enquiry officer and as the charge sheet issued against
the workman, the explanation of the workman to the charge
sheet and the proceedings of the enquiry were in Hindi
language and the workman signed the enquiry
proceedings, he was fully aware of the entire proceedings
against him and the enquiry held against the workman
was fully in conformity with the principles of natural
justice and the same is fair and proper and the enquiry
officer submitted his report on 30.08.1993, holding the
workman guilty of the charges and the enquiry proceedings
and report of the enquiry officer were gone into by the
Suptd. of Mines/Manager, Nandgaon Incline and after
applying his own mind independently, he concurred with
the findings of the enquiry officer and considering the
seriousness of the misconduct and background of the
case, the workman was dismissed from services with the
approval of the competent authority, w.e.f. 03.01.1994, vide
order dated 02.01.1994.
The further case of the party no.1 is that no proof of
the alleged accident or supporting medical certificate was
ever filed before the management by the workman and in
the enquiry also, the workman did not make any statement
about his alleged injury/fracture and the absence of the
workman was not on any genuine and bonafide ground
and the record of the proceeding of the enquiry reveals
that the enquiry officer had followed the correct procedure
in conformity with the principles of natural justice and the
workman was not dismissed on the basis of false charges
or unreasonable findings and weightage was given to the
past record of the workman which was most unsatisfactory
and he did not have unblemished service record and the
order of dismissal was not harsh, illegal, unfair and bad in
law.
Party no.1 has pleaded that even if no show cause
notice was given which might have occurred due to
inadvertence, the said technical lacuna will not render its
action to be set aside, unless it is established that any
prejudice was caused to the workman in absence of such
a notice and even, otherwise also, when the workman had
himself admitted his misconduct, any reply from him to
the show cause would not have affected the action which
was taken against him in the background of his repeated
and frequent acts of misconduct and the letter constituting
the enquiry itself reveals that Shri Bhasha, the enquiry
officer was not a welfare officer appointed for Nandgaon
Incline, to which the case related and Shri Bhasha was
neither working nor posted nor functioning as a welfare
officer at Nandgaon Incline and his designation itself
reveals that he was functioning as the Senior Personnel
Officer at Durgapur Rayatwari colliery, a different
establishment and as such, its action cannot be said to be
illegal on that count and there is no provision in law or
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3323
any obligation cast upon the employer to take back
dismissed employees and it had taken a general decision
that such loaders who had been dismissed from service
on account of unauthorized absence may be reconsidered
for employment as badli loaders provided that they were
below the age of 45 years and give undertaking in writing
for good conduct and regular work and as on examination
of the representations of the union in the light of the above
mentioned decision, it was found that the workman had
already crossed the age of 45 years, therefore his case
was not observing the principles of natural justice and the
same is legal and proper.
4. As this is a case of dismissal of the workman
after holding of a departmental enquiry, the fairness or
otherwise of the departmental enquiry was taken up as a
preliminary issue for consideration and by order dated
27.11.2013, the departmental enquiry conducted against
the workman was held to be legal, proper and in accordance
with the principles of justice.
5. At the time of argument, it was submitted by the
union representative that though charge sheet was
submitted against the workman for habitual absenteeism
in the years, 1990,1991,1992 and 1993, the details of the
dates of such absence of the workman were not mentioned
in the charge sheet and the departmental enquiry as
conducted by the Enquiry Officer only in one sitting on
28.08.1993 and no prior written notice of the date of the
departmental enquiry was given to the workman and at
the time of deciding the preliminary issue of fairness of
the departmental enquiry, the fact of such non-supply of
the notice was not considered. It was further submitted
by the union representative that the report of the Enquiry
Officer is just sketches and he did not analyzed the charges
of habitual absenteeism and absence of the workman
unauthorisedly for more than 10 days and though in the
departmental proceedings, it was recorded about the
workman admitting the charges levelled against him, it is
clear that the reply of the workman to the charge sheet, in
which it was mentioned by the workman that for bonafide
reasons, he remained absent was not considered by the
Enquiry Officer and the findings of the Enquiry Officer are
without sufficient evidence on record of the enquiry and
therefore are perverse and even though punishment of
demotion of the workman from electrician category V to
category IV was imposed against the workman, basing on
earlier departmental enquiry held on the charge sheet dated
03/05.02.1992, no document has been filed by the party
No.1 to show that there was demotion of the workman
from electrician category V to category IV and as such it
can be inferred from the same that the workman was
exonerated from the charge of remaining unauthorized
absence from work up to the period of 24.02.1992 and such
exonerated period of absence was again included in the
charge sheet in question and due to the failure of the
Enquiry Officer to analyzed the records and to conclude
the charges to have been proved against the workman, it
can be held that the findings of the Enquiry Officer are
perverse.
It was further submitted by the Union representative
that though the Model Standing Orders, under which the
workman was charge sheeted, there is no provision
regarding supply of the copy of the findings of the enquiry
officer and issuance of second show cause notice to the
workman, in view of the direction of the Hon’ble Apex
Court in the decision 1994 LAB I.C.-762 (Managing Director
ECIL, Hyderabad Vs. B. Karunakar & Others) it was
incumbent upon the party no.1 to supply the copy of the
report submitted by the enquiry officer and to issue the
second show cause notice to the workman, but the same
was not done by party no.1, before imposition of the
punishment and the departmental enquiry was not served
on the workman and he was forced to accept the charges
levelled against him and was compelled to sign on the
proceedings of the departmental enquiry, which was held
and concluded in a single sitting and had the workman
been supplied with the report of the enquiry office
alongwith the second show cause notice, he would have
been in a position to bring such facts to the knowledge of
the disciplinary authority and thus, there was violation of
the principles of natural justice and denial of reasonable
opportunity to the workman and therefore, the order of
punishment is liable to be quashed and set aside.
It was further submitted by the union representative
that the workman had rendered 24 years of service and he
had been exonerated from the charge of remaining absent
from duty prior to 1992 and therefore, the punishment
imposed upon the workman was harsh and
disproportionate and the workman was charged under
clause 17(1) (d) for habitual absenteeism and under clause
17 (1)(n) for remaining absent without permission or
without satisfactory cause for more than 10 days and due
to non-mention of the dates on which the workman
remained absent from work from January, 1990 to May,
1993, the charges levelled against the workman was vague
and unspecific and in the charge sheet dated 30.06.1993/
01.07.1993, the workman was charged that he was
unauthorizedly absenting from work from 27.06.1993 i.e.
just for 4 days on the date of issue of the charge sheet and
therefore, the clause 17 (1) (n) does not apply and as such,
the findings of the enquiry officer are not in conformity to
clause 17 (1)(n) of the Model Standing Order and as such,
the action of the management dismissing the workman for
the said absence is unfair and unlawful and the workman
is entitled for full wages and other consequential benefits
w.e.f. 03.01.1994 to 31.12.2011, the date of the workman
attaining the age of 60 years.
In support of the contentions, reliance was placed
by the union representative on the decisions reported in
2013 LAB IC (NOC) 542 (Jhar) (Bharat Prasad Verma Vs.
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[PART II—SEC. 3(ii)]
State of Jharkhand), 2014 LAB IC-235 (Ranjit Harijan Vs.
Union of India) and 2013 LAB IC-4546 (Sanjay Kumar
Sharma Vs. State of Jharkhand).
6. Per contra, it was submitted by the representative
for the party no.1 that the union has not pleaded and
proved by cogent evidence that the report of the enquiry
officer is perverse and the report of the enquiry officer is
based on evidence on record and the same is also not
opposed to the evidence on record of the enquiry and the
findings are not as such, which no reasonable person could
have arrived at and therefore, the report of the enquiry
officer cannot be held to be perverse. It was further
submitted that the punishment imposed against the
workman cannot be held to be disproportionate much less
shockingly disproportionate to the charges proved against
him in a properly conducted departmental enquiry against
him and the punishment of dismissal is quite fair, proper
and in accordance with law and the workman is therefore
not entitled to any relief.
7. Before delving into the merit of the matters, I
think it proper to mention the settled principles regarding
the jurisdiction of the Tribunal to interfere with the
disciplinary matters, in a number of decisions, it has been
held by the Hon’ble Apex Court that, “the jurisdiction of
the Tribunal to interfere with the disciplinary matters for
punishment cannot be equated with an appellate
jurisdiction. The Tribunal cannot interfere with the
findings of the enquiry officer or competent authority,
where they are not arbitrary or utterly perverse.
It is also settled beyond doubt that a findings
recorded in a domestic enquiry cannot be characterized as
perverse by the labour court, unless it can be shown that
such a finding is not supported by any evidence or is
entirely opposed to the whole body of the evidence
adduced. In a domestic enquiry, once a conclusion is
deducted from the evidence, it is not permissible for some
other authority to assail that conclusions, even though it
is possible for some other authorities to arrive at a different
conclusion on the same evidence.
So, keeping in view the settled principles as
mentioned above, now, the present case in hand is to be
considered.
8. Admittedly, charges under clauses 17 (i)(d) and
17 (i) (n) of the Model Standing Orders clause 17(i)(d) and
17 (i)(n) read as follows:-
17(i)(d) : Habitual late attendance or habitual absence
without leave or sufficient cause.
17(i)(n) : Continuous absence without permission
and without satisfactory cause for more than ten
days.
On perusal of the charge sheet submitted against
the workman, it is found that the same is dated 30.06.1993/
01.07.1993. According to the allegations in the charge
sheet, the workman remained continuous absent without
permission and without satisfactory cause from 27.06.1993.
On the face of the allegations levelled against the workman,
it is found that the alleged absence of the workman was
not for more than 10 days. So, the charge under clause 17
(i)(n) of the Model Standing Order was not applicable to
the case of the workman.
It is pertinent to mention here that in his report the
enquiry officer has mentioned that the first charge against
the workman is, “charge no.1: that the accused workman
is absenting unauthorisedly w.e.f. 27.06.1993” and the
second charge is, “Charge no.2: that the attendance of the
Accused workman is very much less during 1990, 1991,
1992 and 1993 (till May, 1993).
From the facts as mentioned above, it is crystal clear
that the enquiry officer himself was not aware of the real
charges levelled against the workman.
It is also found from the enquiry report submitted
by the enquiry officer that except the reply submitted by
the workman to the charge sheet, which was marked as
MR Ext. No.2, no other evidence, either oral or documentary
was produced by the management to prove the charges
levelled against the workman. In his enquiry report, the
enquiry officer has mentioned that, “In MR Ext. No.2, the
Accused workman has stated that he could not attend his
duty due to tension in his home and he assured the
management that he will do his duty in future regularly.”
However, on perusal of the reply submitted by the workman
to the charge sheet, it is found that the workman in the
said reply had mentioned that due to fracture of his hand
there was delay in submitting the reply and on 27.06.1993
he had sent application for three days leave upto
29.06.1993, but his leave application was rejected and the
charge sheet was submitted against him and till 16.07.1993
he remained in sick leave and on 17.07.1993, he resumed
his duties and due to tension in his family he was not able
to perform his duties regularly. From the contents of MR
Ext. No.2, it cannot be said that the workman had admitted
the charges levelled against him in his said reply.
9. It is also necessary to mention here that from the
documents filed by the party No.1, it is found that a charge
sheet dated 27.01.1992/01.02.1992 had been submitted
against the workman for habitual absenteeism and after
holding of a departmental enquiry, order of demotion of
the workman from electrician category V to category IV
was imposed against him. However, the workman as again
charge sheeted for habitual absenteeism for the period
from 1990 to May, 1993. The Enquiry Officer did not
consider about the workman to have already been
punished in the earlier departmental enquiry for habitual
absenteeism till 01.02.1992. From the above facts, it can be
held that the findings of the Enquiry Officer are perverse.
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3325
10. Admittedly, in this case, the copy of the enquiry
report submitted by the Enquiry Officer and second show
cause notice were not given to the workman. In the
judgment reported in 1994 LAB I C -762(Supra), the Hon’ble
Apex Court have held that,
“Refusal to furnish copy of Inquiry Officer’s report
to delinquent-Amounts to denial of reasonable
opportunity.
XXXX XXXX XXXXX XXXX
Inquiry report-Inquiry held by person other than
Disciplinary Authority-Copy of inquiry report has to be
furnished to delinquent-This applies to employees in all
establishments whether Government or non- government,
public or private.”
Applying the principles enunciated by the Hon’ble
Apex Court as mentioned above and so also, by the
Hon’ble Courts in the decisions cited by the union
representative to the present case in hand, it is found that
the non supply of the copy of the report of the Enquiry
Officer and the second show cause notice to the workman
caused prejudice to him and he was denied the chance of
reasonable opportunity to prove his innocence.
As it is already held that the findings of the Enquiry
Officer are perverse and there was breach of the principles
of natural justice, due to non supply of the enquiry report
and second show cause notice to the workman, the
punishment of termination of services of the workman
cannot be sustained. Hence, the order of termination of
the services of the workman w.e.f. 03.01.1994 is quashed
and set aside.
11.Now, the question remains for consideration is
as to what relief or reliefs the workman is entitled. It is the
admitted case that in the normal course, the workman would
have been retired from service on 31.12.2011 on
superannuation, after attaining the age of 60 years. So,
there is no question of continuing of the workman in
service after his reinstatement. Keeping in view the facts
and circumstances of the case in mind, I think that payment
of 50% wages to the workman w.e.f. 03.01.1994 to the
supposed date of superannuation on attaining the age of
60 years will meet the ends of justice. Hence, it is ordered:-
ORDER
The action of the management namely Chief General
Manager, M/s. WCL, Chandrapur Area, PO & Distt.
Chandrapur, in terminating Shri Ramesh Shankarrao Yetwar,
Ex-Electrician w.e.f. 03.01.1994 is illegal & unjustified. The
workman is entitled to 50% of the wages w.e.f. 03.01.1994
to the date of his deemed superannuation on attaining the
age of 60 years. The party No.1 is directed to carry out the
award within one month of the date of publication of the
award in the official gazette failing which, the amount of
the aforesaid wages as calculated will bear simple interest
at the rate of 8% per annum from the date of payment due
till the date of actual payment of the same to the workman.
J. P. CHAND, Presiding Officer
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New Delhi, the 9th April, 2014
S.O. 1271.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 824/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Chandigarh as shown in the Annexure in the
Industrial Dispute between the management of Food
Corporation of India, and their workmen, received by the
Central Government on 09/04/2014.
[No. L-22012/53/2001-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH.
PRESENT :
SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No.824/2005
Registered on 8.9.2005
Sh. Mukund Singh, C/o General Secretary, Trade
Union Council, Patiala.
. . . Petitioner
Versus
1.
The Assistant Manager (D), Food Corporation
of India, Dharamkot.
2.
The Sr. General Manager, Food Corporation of
India, R.O Punjab, Sector 34, Chandigarh.
. . . Respondents
APPEARANCES :
For the Workman
: Ex parte
For the Management
: Sh. N. K. Zakhmi Adv.
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
AWARD
(Passed on- 28.3.2014)
Central Government vide Notification No. L-22012/
53/2001 [IR(CM-II)] Dated 23.1.2002, by exercising its
powers under Section 10 Sub section (1) Clause (d) and
Sub section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal:-
“Whether the action of the management of Food
Corporation of India in terminating the services of
Sh. Mukund Singh, S/o Sh. Darshan Singh on 28.1.99
is legal and justified? If not, to what relief he is
entitled to?”
In response to the notice the workman appeared
and submitted statement of claim pleading that he was
employed by the respondent management through a
contractor and he served for four years and three months
when his services were terminated against the provisions
of the Act. That the management indulged in unfair labour
practice. He was drawing a salary of Rs.1000/- per month.
That he be reinstated in service with back wages.
Respondent management filed written reply
controverting the averments and pleaded that they did
not employ the workman and there was no relationship of
master and servant. That the management entered into an
agreement with the third party for deployment of watch
and ward for protection of foodgrains. That the workman
was engaged by the contractor and deployed by the
respondent management. Otherwise, the applicant is not
an employee of the respondent management.
Parties led their evidence.
In support of its case the workman appeared in the
witness box and filed his affidavit supporting his case as
set out in the claim petition.
On the other hand the respondent management has
examined Deepak Sharma who filed his affidavit reiterating
the case of the respondent management.
None was appearing on behalf of the workman after
14.5.2013 and accordingly registered notice was ordered
to be sent to workman for 6.2.2014 vide order dated
9.12.2013 and the workman was proceeded against exparte
vide order dated 6.2.2014.
I have heard Sh. N.K. Zakhmi, counsel for the
management.
It may be added at the outset that it is the case of
the workman himself that he was employed by the FCI
through a contractor. Though in his affidavit the workman
deposed that he was employed by the respondent
management. Respondent management is a statutory body
having its rules and regulations and nothing has come on
the file that any procedure was followed before employing
the applicant by it. It cannot be said from the mere
assertions that he was employed by the respondent
management more particularly when the case of the
workman himself is that he was employed through the
contractor. Thus, he has failed to prove that he was
employed by the respondent management and rather as
per his own admission, he was engaged by the contractor.
There is nothing on the file to suggest that the engagement
of workman through contractor by respondent
management was not bonafide and was a mere camouflage.
Thus, it cannot be said that the workman was an employee
of the FCI. Being so, it cannot be said that his services
were terminated by it.
In result, the reference is answered against the
workman holding that he is not entitled to any relief. Let
hard and soft copy of the award be sent to the Central
Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1272 -—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bZ- lh- ,y- ds
izcaèkr=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 32@1999) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 09@04@2014 dks izkIr gqvk FkkA
¹la- ,y&22012@289@1998&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1272.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 32/1999) of
the Central Government Industrial Tribunal-cum-Labour
Court, Asansol as shown in the Annexure in the Industrial
Dispute between the management of ECL, and their
workmen, received by the Central Government on
09/04/2014.
[No. L-22012/289/1998-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, ASANSOL
PRESENT :
SRI. LAL CHAND DEY, Presiding Officer / Link Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3327
REFERENCE NO. 32 OF 1999
PARTIES:
The management of Sripur Colliery of M/s. ECL,
Burdwan.
Vs.
Sri Badri Tiwari
REPRESENTATIVES :
For the management
:
Shri P.K. Das, Ld.
Advocate
For the union (Workman) :
Sri. S.K. Pandey,
General Secretary of
Colliery Mazdoor
Congress (HMS)
INDUSTRY : COAL
STATE : WEST BENGAL
Dated – 18.02.2014
AWARD
In exercise of powers conferred by clause (d) of Sub-
section(1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947(14 of 1947), Govt. of India
through the Ministry of Labour vide its letter No. L-22012/
289/98/IR(CM-II) dated 25.05.1999 has been pleased to
refer the following dispute for adjudication by this
Tribunal.
SCHEDULE
“Whether the action of the management of Sripur
Colliery in not regularising the services of Sri. Badri
Tiwari, Armed Guard as Security Havildar w.e.f.
01.01.97 is justified? If not, to what relief is the
workman entitled?”
Having received the Order No. L-22012/289/98/
IR(CM-II) dated 25.05.1999 of the above said reference
from the Govt. of India, Ministry of Labour, New Delhi for
adjudication of the dispute, a reference case No. 32 of
1999 was registered on 07.06.1999 and accordingly an order
to that effect was passed to issue notices through the
registered post to the parties concerned directing them to
appear in the court on the date fixed and to file their written
statements along with the relevant documents and a list
of witnesses in support of their claims. In pursuance of
the said order notices by the registered post were sent to
the parties concerned.
On perusal of the record I find that the case is
remarked as “No Dispute Award” passed by my
predecessor as the workman has already superannuated
from service. Having heard both the parties and on their
prayer I came to the conclusion that the case may be closed
and a “No Dispute Award” may be passed as the workman
has already been superannuated and no dispute exists
between the parties. Hence the case is closed and
accordingly it is hereby ordered :
ORDER
Let an “Award” be and same is passed as no dispute
existing. Send the copies of the order to the Govt. of India,
Ministry of Labour, New Delhi, for information and needful.
The reference is accordingly disposed of.
LAL CHAND DEY, Presiding Officer/Link Officer
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1273-—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,u- ,y- lh-
,y ds izcaèkr=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] psUUkbZ ds iapkV (lanHkZ la[;k 24@2011)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 09@04@2014 dks izkIr
gqvk FkkA
¹la- ,y&22012@34@2010&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1273.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 24/2011) of
the Central Government Industrial Tribunal-cum-Labour
Court, Chennai as shown in the Annexure in the Industrial
Dispute between the management of Neyveli Lignite
Corporation Ltd. and their workmen, received by the
Central Government on 09/04/2014.
[No. L-22012/34/2010-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIALTRIBUNAL-CUM - LABOUR COURT
CHENNAI
Tuesday, the 18th March, 2014
PRESENT :
K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 24/2011
(In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10
of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of Neyveli Lignite Corporation Ltd. and
their workman).
3328
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
BETWEEN
The Special President
Jeeva Oppantha Thozhilalar Sangam
D-13, Mahatma Gandhi Road
Block-24
Neyveli
1st Party/Petitioner Union
AND
The Director (Personnel)
Neyveli Lignite Corporation Ltd.
Neyveli
2nd Party/Respondent
APPEARANCE:
For the 1st Party/Petitioner Union
:
M/s V. Ajoy
Khose, G.
Janardhanam,
Advocates
For the 2nd Party/Management
:
M/s NAK Sarma,
N. Nithianandam,
Advocates
A WARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-22012/34/2010-IR (CM-
II) dated 08.03.2011 referred the following Industrial
Dispute to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the demand of Shri T. Ramachandran &
40 others (as per annexure) for employment in
Neyveli Lignite Corporation Ltd., Neyveli is legal
and justified? If so to what relief they are entitled?”
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 24/2011 and issued notices to both
sides. Both sides have entered appearance through their
counsel and have filed their claim and counter statement
respectively. The petitioner has filed a rejoinder in answer
to the Counter Statement.
3. The averments in the Claim Statement filed by
the Petitioner in brief are these:
The petitioner is a Trade Union registered under the
Trade Unions Act. The Respondent is a Public Sector
Undertaking involving mining of lignite and generation of
electricity through Thermal Power Stations. The
Respondent, instead of filling up vacancies in the post of
labour/workman category started to employ workman in
the name of contract labourers and put them in regular
vacancies that had arisen due to death or retirement of
workers. The work done by the contract labourers are
perennial, continuous and regular in nature. All the contract
labourers were directly involved in production. They were
doing all kinds of works viz. unskilled, semi-skilled, skilled
and highly skilled. Though they were doing similar work
as that of direct employees they were not paid wages,
allowances or benefits as given to the regular workers.
Since the contract labourers were not given proper wages
and statutory benefits and since they were exploited, an
industrial cooperative society was formed in the year 1990
to alleviate their grievances. All the contract labourers
who were working as on the date of the formation of the
Society were allowed to give application to enroll as
members of the Society. However, the Respondent and
the Society enrolled workers in accordance with their
whims and fancies rather than enrolling all the contract
workers. The workers enrolled with the Society are
ensured payment of minimum guaranteed wages, bonus,
provident fund, etc. However, the other contract workers
who were not members of Society were not given such
benefits. A settlement under Section-12(3) of the ID Act
was signed between the Unions and the Respondent to
regularize service of the contract workers who were
members of the Society and who were employed in the
production areas, within a period of 5 years in a phased
manner. Contract labourers were employed by the
Respondent in their B&C Plant and fertilizer plant also.
Almost all the 41 contract labourers concerned in this
dispute joined the Fertilizer Plant during the period from
1986 to 1996. Five of them joined later. All of them have put
in continuous service from 3 to 15 years. The B&C unit
was closed in the year 2001 and the Fertilizer Unit in 2002.
While closing the B&C unit, the Respondent re-deployed
all the permanent workmen who were employed in the said
unit in other areas. The contract labourers who were
employed through the Society were also given work in
other areas. However, the contract labourers who were
employed through individual contractors were not given
work in other areas. Those labourers who were employed
in B&C unit through individual contractors collectively
demanded employment in other areas and were given work
accordingly and are still continuing. However, this benefit
was not extended to the contract labourers who were
employed in the Fertilizer unit through individual
contractors. Though, they made representations through
various unions repeatedly, there was no response from
the Second Party. So most of them have left. Only the 41
workmen concerned in this dispute are demanding
employment with the Respondent. In the absence of any
response from the Respondent, they have raised industrial
dispute by their application before the Asstt. Labour
Commissioner, on 13.12.2008. On failure of the conciliation
the Government has referred the matter for adjudication
by this Tribunal. The so-called Contractors who employed
the workmen have no role in the allotment of work or
control and supervision of the workmen. The so-called
contract labour system was a sham and nominal
arrangement. The workmen concerned of the dispute are
direct employees of the Respondent for all purposes in
the eye of law. The Fertilizer Unit was closed without
permission under Section-25(O) of the Industrial Disputes
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3329
Act. So the workers shall be deemed to be continuing in
service and are entitled to wages and other benefits. Not
giving work to contract workers employed by individual
contractors while giving work to the workers who were
employed through the Society is mala fide, arbitrary and
discriminative. The Respondent is bound to provide work
to the workmen concerned in this dispute. Since the
contract labourers who were senior to the contract
labourers enrolled as members of the Society were not
given the benefit of regularization and absorption, they
filed Writ Petition and this was allowed by the Hon’ble
High Court. The order was confirmed by the Division
Bench. Though the Respondent had preferred a Special
Leave Petition before the Supreme Court against this order,
it had later entered into a minutes of understanding to
enroll the remaining contract labourers in the Society and
to extend bonus and other benefits. If the Respondent
had provided employment to the workmen concerned, they
also would have been entitled to similar treatment and
benefits. Even after the closure of B&C Unit and Fertilizer
Unit, the Respondent had employed several persons as
contract labourers. An award may be passed holding that
the demand of the petitioner that the 41 workers named in
the annexure to the Claim Statement for employment with
the Respondent is legal and justified and the Respondent
may be directed to provide employment to all the 41
workmen concerned from the date on which the others
employees of the closed fertilizer factory were given
employment in other areas, with continuity of service, back
wages and all other attendant benefits.
4. The Respondent has filed Counter Statement
contending as follows :
The dispute has been raised after a period of 10
years. As such it is barred by the principles of delay and
laches. No employer-employee relationship was existing
at any time between the concerned individuals and the
Respondent. No appointment letters have been issued by
the Respondent to any of the 41 workers. It is not admitted
that the 41 persons named in the annexure of the Claim
Statement were employed in the Respondent Corporation
through private contractors between 1986 and 2000. The
petitioner has no locus standi to raise the dispute. It is not
competent to espouse the cause of non-workmen in the
absence of representative character. The petitioner is not
a recognized union as far as respondent is concerned.
Only the concerned individuals can raise the dispute. The
Respondent engages private contractors for executing
various types of labour service contracts. The contractors
engage contract workers in accordance with the provisions
of Contract Labour (Regulation & Abolition) Act. The
respective private contractor is the employer of such
contract workers. These private contractors are licensed
under the CLRA Act. They are paid not less than the
minimum wages fixed and also other benefits. These
contracts are awarded by open tender or such systems in
a transparent manner. The NLC Industrial Co-operative
Service Society Ltd, Neyveli was formed with the objective
of preventing exploitation of contract labourers engaged
in contract work by private contractors. The Society is
registered under the Tamil Nadu Co-operative Societies
Act. The 41 persons involved in this dispute did not enroll
themselves in the Society. There is nothing on record to
show that they requested for membership in the Society.
The settlement under Section-12(3) of ID Act encompassed
only those workmen of the Society who were engaged in
the works of the Respondent. The other workers were
excluded from its purview. The directions in the Writ Petition
filed by the Society have prospective effect from
15.05.2002. The appeal filed against the order in the Writ
Petition was dismissed. In the appeal filed before the
Supreme Court, status-quo was ordered. The work carried
out by the regular workers and contract workers are entirely
different. It is denied that the contract system followed by
the Respondent is sham and is intended as smokescreen
to exploit the contract workers. Wages for the contract
workers are paid by the Contractors. In the absence of
employer workman relationship between the parties itself,
the dispute is not maintainable. None of the individuals
involved in the dispute have been directly employed by
the Respondent. The concerned persons are not entitled
to any relief.
5. The evidence in the case consists of oral evidence
of WW1 and WW2 and MW1 and the documents marked
as Exts.W1 to Ext.W31 and Exst.M1 and Ext.M2.
6. The points for consideration are:
(i)
Whether the demand of 41 persons involved in
the dispute for employment in the Respondent
Corporation is legal and justified?
(ii)
(iii)
What is the relief, if any, to which they are
entitled?
The points
7. The petitioner has raised the dispute on behalf
of 41 individuals who are said to have worked with the
Respondent as contract workers. According to the
petitioner, most of the 41 persons had joined the
Respondent undertaking between 1986 to 2000. All of them
are said to have put in continuous service ranging from 15
years to 3 years. All these persons are said to have been
working in the Fertilizer Unit of the Respondent. The unit
was closed in the year 2002. The regular workers who
were working in the Fertilizer Unit were redeployed in some
other units by the Respondent. Along with them those
workers who were members of NLC Industrial Co-operative
Society Ltd. (INDCOSERVE) also are said to have been
redeployed in other areas. According to the petitioner it
was discriminatory for the Respondent not to give work
3330
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
to the contract workers employed by individual contractors
while workers who are members of the Society were given
work in other areas or units. According to them,
subsequently, a settlement under Section-12(3) of the ID
Act was arrived at between the Respondent and Unions
to absorb the members of the Society in a phased manner.
However, such consideration was not given to the workers
who were employed through individual contractors. It is
alleged by the petitioner that enrolment of members in the
society was done at the whims and fancies of the
Respondent. It is claimed by the Union on behalf of the 41
workers involved that if they have been given membership
of the Society, they too would have been eligible for
absorption. It is claimed by the petitioner on behalf of the
workers concerned that they are entitled to continue in
the employment of the Respondent from the date on which
the other workers of the closed fertilizer factory were given
employment in other units and are also entitled to
continuity of service, back wages and other benefits.
8. In the Counter Statement the Respondent had
stated that it is for the concerned workers to prove that
they have been working as contract labourers in the
Respondent undertaking as claimed by them. It is further
stated by the Respondent that there is no employer-
workman relationship between the Respondent and the
concerned workmen since the very case of the petitioner
is that they were employed through individual contractors.
It is further contended by the Respondent that there is no
locus standi for the petitioner union to agitate the matter
since it is not registered with the Respondent and also
because it is only a fringe union. It is also contended by
the Respondent that the concerned persons are not
entitled to any relief for the very reason that they have
raised the dispute with a delay of almost 10 years.
9. Before going into the merits of the case, the
contentions raised by the Respondent against the
maintainability of the petition can be considered one by
one. The initial contention raised by the Respondent is
that the petitioner has no locus standi to raise the dispute.
It is clear from the claim statement itself that the petitioner
union was formed only in the year 2008 at a time when
none of the workers involved were working in the
Respondent undertaking. It is admitted by the petitioner
that after the closure of the fertilizer unit in the year 2002,
the workers involved in the dispute were not working with
the Respondent. The members of the union are only
contract workers and not the workers who are directly
working under the Respondent. However, in spite of this,
the contention of the Respondent that the petitioner is
not entitled to raise the dispute on behalf of the
concerned workers could not be accepted. The concerned
workers have joined the union since individual
representations said to have been made by them did not
receive any positive response. All the 41 members involved
are said to be members of the union and the union is within
its right to agitate the claim of the workers in question.
10.The Respondent has contended that in view of
the long delay in raising the dispute also the concerned
workers are not entitled to any relief. There is no doubt
that the dispute raised is a belated one. All the concerned
workers were turned out in the year 2002 on closure of the
fertilizer unit. They have not explained the delay of several
years. However, the dispute does not become not
maintainable only on account of this. The Apex Court has
stated (1999 6 SCC 82) that since Article-137 of the
Limitation Act are not applicable to the proceedings under
the Industrial Disputes Act, relief under the Act cannot be
denied to the workmen merely on the ground of delay. It is
not the function of the Court to prescribe limitation where
the Legislature in its wisdom had thought it fit not to
prescribe any period, it has been held. In case of delay the
relief can be appropriately moulded, it was observed. So
delay by itself is not fatal to the case of the petitioner.
11.The very basis of the contention of the petitioner
is that the concerned workers are in fact the workers of the
Respondent themselves and that their employment
through contractors is only for the purpose of exploiting
the workers. It is alleged that the contracts are sham in
nature. In fact, the very admission made by the General
Secretary of the Petitioner Union examined as WW1 would
reveal that this case of the petitioner has no basis. The
witness has admitted during his cross-examination that all
the members of the Petitioner Union are contract workers.
At the time of giving evidence, he was working under a
particular contractor and prior to that with another
contractor. His salary was paid by the Contractor. He
admitted that the Contractors would take work which is
floated through open public tender. He admitted that the
workmen involved in the dispute have also worked with
different Contractors. The salary for them were paid by
the respective Contractors. They were also working with
different Contractors. Thus it could be seen that the
workers were approaching the contractors for work and
they were employed by those Contractors. There is no
case for the concerned workmen that they were directly
employed by the Respondent. They were not given any
appointment order. They were not paid by the Respondent.
The Respondent has stated that all the contractors were
having license under the CLRA Act. The interesting aspect
is that the contractors under whom the concerned workers
had worked are not made parties to the dispute. Only if
they were also in the party array, it would have been
possible to find out the exact relationship between the
petitioner and the Respondent. In fact the case of the
petitioner itself is not that there is direct employer-employee
relationship but that though employment is through
contractor, the Contract is a sham and nominal one. This
case raised on behalf of the concerned workmen is not at
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3331
all proved. For this reason itself it could not be stated that
employer-workman relationship existed between the
concerned workmen and the Respondent.
12. To come to the merits of the case, it is the case of
the concerned workers that had they been allowed to
continue in the employment of the Respondent, they would
have been entitled to absorption and regularization. Their
case is that when the members of the Society INDCOSERVE
were allowed to continue in employment, it was
discriminatory not to give employment to the workers
concerned. It could be seen from the very claim Statement
that the members of the Society were entitled to absorption
in a phased manner on account of the settlement arrived
at on their behalf. It was only because of this they were re-
deployed in other units of the Respondent when the B&C
unit and the Fertilizer unit were closed. It is pointed out on
behalf of the Respondent that the workers concerned
though claimed to have been working with the Respondent
from the year 1986 has not chosen to be members of the
Society. There is nothing to show that the concerned
workers were continuously and regularly working with
the Respondent.
13. In view of the decision of the Apex Court also,
the concerned workers are not entitled to any relief. Some
of the contract workers who were senior to the contract
workers enrolled as members of the Society were aggrieved
that they were not absorbed by the Respondent. They
filed a Writ Petition before the High Court of Madras
claiming absorption based on their seniority without
reference to their membership in the Society. This Writ
Petition was allowed and was confirmed in appeal. The
Special Leave Petition filed before the Supreme Court was
pending when the matter was referred to this Tribunal.
The Supreme Court has given a direction to prepare a
seniority list without reference to the members of the
Society. The seniority list has been prepared as directed
by the Supreme Court. It is admitted by the petitioner that
it has impleaded itself before the Supreme Court in the
Special Leave Petition. The Supreme Court has been
informed that the list has been prepared and the list was
approved by the First Respondent Society also. The Court
has disposed the appeal stating that the seniority list of
the workman having been prepared and is assured to be
acted upon there is no reason to keep the appeal alive and
has disposed it. The petitioner being a party to this, the
order of the Apex Court is binding on it also. The seniority
list prepared by the Respondent is produced by the
petitioner. It is pointed out by the Respondent that the
concerned workers having not been working under the
Respondent, even under the contractors after 2002 as
admitted by them, the names of none of the concerned
workers will find a place in the seniority list. So on the
basis of seniority also they will not be entitled to any
absorption.
14. Apart from the fact that the workers are not
entitled to absorption, they are not entitled to any lesser
relief also in the absence of employer-workman relationship
between them and the Respondent. So they are not
entitled to any relief.
15. In view of my discussion above, the reference
is answered against the petitioner. An award is passed
accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 18th March, 2014)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner Union
: WW1, Sri K.
Venkatesan
WW2, Sri T.
Ramachandran
For the 2nd Party/Management
: MW1, Sri K.G.
Baburao
Documents Marked:
On the petitioner’s side
Ex. No.
Date
Description
Ex.W1
18.05.1995
12(3) Settlement regarding
abolition of contract labour in
production area and absorption
Ex.W2
15.05.2002
Order in W.P. No. 8/1996
Ex.W3
23.12.2002
Letter from NLC Labour Supply
Thozhilalar Nala Sangam to the
Chairman, NLC Ltd.
Ex.W4
01.01.2003
Letter from NLC Labour Supply
thozhilalar Nala Sangam to the
Director (Personnel) NLC Ltd.
Ex.W5
16.06.2003
Letter from contract laboures to
the Labour Officer, NLC, Neyveli
Ex.W6
23.09.2003
Letter fron contract laboures to the
Labour Officer, NLC, Neyveli
3332
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
Ex.W7
24.05.2004
Letter from contract labourers to
the Labour Officer, NLC, Neyveli
Ex.W8
14.06.2004
Reminder
letter
from
T.
Ramachandran to the Hon’ble
Prime Minister, Delhi and others
with acknowledgement card
Ex.W9
19.07.2007
News regarding conciliation talks
and the demands of NLC contract
labourers
Ex.W10
16.02.2008
Orders passed in WA No. 2045 and
2529/02
Ex.W11
11.11.2008
Letter from Spl. President of NLC
Jeeva Oppantha Thozhilalargal
Sangam
to
the
Director
(Personnel), NLC, Neyveli
Ex.W12
13.12.2008
Letter from Spl. President of NLC
Jeeva Oppantha Thozhilalargal
Sangam to the (Deputy) Asstt.
Labour Commissioner (Central),
Chennai
Ex.W13
06.07.2009
Letter from T. Ramachandran to the
MD, NLC Ltd. – HQ, Neyveli with
acknowledgement card
Ex.W14
08.09.2009
Letter from T. Ramachandran to the
Public Information Officer, PRO,
NLC, Neyveli with acknowledge-
ment card
Ex.W15
24.10.2009
Letter from Central Public
Information Officer, NLC to T.
Ramachandran with annexure A
and B
Ex.W16
14.12.2009
Counter Statement filed by the
Second Party before ALC (Central)
Ex.W17
26.12.2009
Letter from T. Ramachandran to the
Chairman, NLC Ltd., Neyveli and
11 others with acknowledgement
card
Ex.W18
22.02.2010
Rejoinder filed by the First Party
before ALC (Central)
Ex.W19
28.05.2010
Failure Report
Ex.W20
17.08.2010
News Paper Report regarding
regularization
of
contract
Labourers
Ex.W21
09.11.2010
General Notice / Circular issued to
the NLC contract labourers calling
objections for their enrolment in
NLC INDCOSERVE
Ex.W22
13.11.2010
Minutes of the General Body
Meeting of the 1st Party Union
Ex.W23
15.11.2010
Letter from T. Ramachandran to the
Director (Personnel) NLC Ltd.,
making objections regarding the
seniority list issued by NLC
Ex.W24
08.03.2011
Order issued by the Central
Government referring the above
dispute for adjudication by this
Hon’ble Industrial Tribunal
Ex.W25
-
Identity Cards issued by NLC to
the Contract Workers concerned
in this dispute (Fertilizer Plant and
B & C Plant)
Ex.W26
-
List of 15 contract workers who
originally worked in B&C Plant and
Fertilizer Plant but later given
alternative
employment in other
units after closure of B&C and
Fertilizer Plants with copy of the
application submitted by them
alongwith annexures and who
were later included in the seniority
list issued by NLC
Ex.W27
-
Seniority list issued by NLC
Ex.W28
03.06.2012
12(3) settlement
Ex.W29
-
Form-E with relevant portion of the
membership list for the year 2008
(Ext.W29)
Ex.W30
-
Form-E with relevant portion of the
membership list for the year 2011
(Ext.W30)
Ex.W31
-
Photocopies of membership
identity card issued by the union
for the year 2008 and 2011
(Ext.W31)
On the Management’s side
Ex.No.
Date
Description
Ex.M1
24.06.2008
Order passed in ID No. 58/2002
Ex.M2
16.09.2009
Order passed in ID Nos. 81 to 99 of
2005
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3333
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1274 -—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l- lh- lh-
,y- ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] xksnkojh[kUUkh ds iapkV (IT/ID/ 22@2007)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 09@04@2014 dks izkIr
gqvk FkkA
¹la- ,y&22013@1@2014&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1274.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Industrial
Tribunal-cum-Labour Court, Godavarikhani (IT/ID/22/
2007) as shown in the Annexure in the Industrial Dispute
between the employers in relation to the management of
SCCL and their workmen, which was received by the
Central Government on 09/04/2014.
[No. L-22013/1/2014-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CHAIRMAN, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-CUM-VI ADDL.
DISTRICT & SESSIONS COURT AT
GODAVARIKHANI
PRESENT :
Sri G. V. KRISHNAIAH, Chairman-cum-Presiding
Officer, Godavarikhani.
TUESDAY, THE 18TH DAY OF MARCH, 2014.
INDUSTRIAL DISPUTE NO. 22 OF 2007.
BETWEEN
Jameel Ahmed Khan, Ex-Security Guard, Employee
Code No.0968038, Service and Protection Corps,
SCCL, Ramagundam Division Area-I, C/o. Qr.No.D-
322, Gandhinagar, Godavarikhani, Mandal
Ramagundam of Karimnagar District.
— Petitioner
AND
The General Manager, S.C.Co.Ltd., Ramagundam
Division Area-I.
— Respondent
This Industrial Dispute petition coming on
before me for final hearing in the presence of Sri K.
Sudhakar Reddy, Advocate, for the petitioner and Sri D.
Krishnamurthy, Advocate, for the respondent, and the
matter having stood over before me for consideration till
this date, the Court passed the following:-
AWARD
1. This petition is filed under Sec.2-A (2) of I.D. Act
seeking reinstatement of the petitioner into service by
setting aside the order dated 05.01.1999 passed by the
respondent. Petitioner is also seeking the relief of
continuity of service and other consequential benefits.
2. The allegations in the petition are as follows:-
3. Petitioner was appointed by the respondent
company on 05.05.1975, as Security Guard in the year 1990.
He successfully completed 23 years of service to the
satisfaction of his superiors. He worked more than required
musters from January, 1998 to September, 1998. During
the year 1998 petitioner’s wife suffered from heart problem
and admitted in Government Hospital for taking treatment
now and then. Due to that petitioner was unable to inform
his absence to the respondent. Petitioner submitted
explanation to the management but it was not considered.
Charge sheet dated 25.04.1998 was issued for habitual late
attendance or habitual absence from duty without
sufficient cause. Petitioner submitted his explanation
stating that petitioner could not attend his duties because
of ill-health of his wife. On 26.11.1998 respondent
conducted a departmental enquiry. Even prior to that
petitioner gave representation dated 26.11.1998 which is
against the Circulars and Orders of the company.
Respondent did not consider the genuine explanation of
the petitioner and dismissed from service w.e.f. 07.01.1999
by office order dated 05.01.1999. Departmental enquiry
was not conducted properly and no opportunity was given
to the petitioner to defend himself. Entire proceedings
were recorded in English language which is not known to
the petitioner and the enquiry was invalid and vitiated.
4. Further extremely harsh punishment which is
shockingly disproportionate to the gravity alleged charge
levelled against the petitioner and it amounts to economic
death of the petitioner. Respondent failed to consider the
long services of 23 years put in by the petitioner.
5. Petitioner could not secure any other alternative
job and incurred huge debts for his medical and domestic
expenses of his family. Petitioner appeared before the
High Power Committee for his reinstatement as per the
letter dated 31.10.2000, but till today respondent did not
re-appoint the petitioner and he lost all his hopes.
Subsequent to 08.11.2000 petitioner approached the
respondent for reinstatement and therefore this delay in
filing this petition.
6. Respondent filed written statement contending
that it is a Government company and appropriate
Government is Central Government since the coal mining
industry is a central subject. The petitioner be ordered to
3334
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
approach the Industrial Tribunal-cum-Labour Court at
Hyderabad. Petitioner failed to exhaust the conciliation
procedure under the Industrial Dispute Act and
approached this Tribunal directly. Petitioner had put in
130 musters in 1994, 221 musters in 1995, 152 musters in
1996, 123 musters in 1997 and 51 musters from January,
1998 to September, 1998. Petitioner was issued charge
sheet dated 26.10.1998 for which he did not submit any
explanation. Therefore enquiry was conducted which was
attended by the petitioner. He pleaded guilty to the
charges levelled against him. Petitioner did not take
treatment in any of the company hospitals and did not
apply for special leave with half pay if he was sick. The
allegation that the petitioner’s wife took treatment in his
hospital of the respondent company is denied.
Departmental enquiry was conducted properly and
petitioner was given sufficient opportunity. Petitioner
preferred appeal and appeared before High Power
Committee headed by Director (PAW) which considered
all the relevant documents and past records of the
petitioner and confirmed the penalty of dismissal of the
petitioner and therefore petition may be dismissed.
7. On 10.07.2013 this Court passed an order regarding
the validity of the departmental enquiry and did not find
any irregularity in the enquiry conducted by the
respondent.
8. During the course of enquiry Ex.W-1 to W-6 are
marked on behalf of the petitioner and Ex. M-1 to M-7 are
marked on behalf of the respondent.
9. At the time of hearing respondent filed written
arguments stating that the petitioner was guilty of the
absenteeism, departmental enquiry was conducted
properly and petitioner was found to be unfit for
reinstatement, during the hearing of appeal by the High
Power Committee headed by the Director of the Company
and therefore petitioner’s plea have no merits. In para
No.8 of the written arguments it is contended that the date
of birth of the petitioner is 05.05.1953 and his date of
retirement is 31.05.2013. Petitioner already crossed
superannuation period and therefore no relief can be
granted.
10. Now the point for consideration is:
“Whether the petitioner is entitled to any relief
USec/11-A of I. D., Act?”.
11. The reply of the petitioner to the charge sheet
which is marked as Ex.W-2 shows that due to illness of his
wife who is admitted in hospitals in different places. He
did not apply for leave and therefore absence for duties
may be condoned. Ex.W-3 is the notice dated 31.10.2000
directing the petitioner to attend the interview at
Kothagudem on 08.11.2000 at 09.30 am for considering the
re-appointment. Petitioner appeared for this interview but
was not found fit for reinstatement. Petitioner was initially
issued charge sheet on 25.4.1998 with regard to his
absenteeism during February, 1998 and March, 1998.
Petitioner was absent for 14 days in February, 1998 and 26
days in March, 1998. This copy of the charge sheet is
marked as Ex.W-5. Then other charge sheet dated
23.10.1998 was issued (marked as Ex.W-6) that petitioner
was absent from duty for 19 days in April, 1998, 20 days in
May, 1998, 28 days in June, 1998, 21 days in July, 1998, 20
days in August, 1998 and 24 days in September, 1998. He
was put on notice about the standing order 25:25 for
habitual absence. According to the enquiry report which
is marked as Ex.M-3 petitioner did not submit any reply to
the charge sheet. After enquiry the copy of enquiry report
and enquiry proceedings were sent to the petitioner and
his representation if any was sought within 7 days. The
copy of notice is marked as Ex.M-5. Petitioner submitted
reply stating that his only daughter became a victim of
dowry harassment, that because of shock of daughter’s
plight his wife became sick and suffered heart disease. He
could not inform the same to the company and therefore
his absence may be condoned.
12. Either in enquiry or subsequently the petitioner
did not produce any evidence regarding the illness of his
wife. It is pertinent note in April, 1998 he was given a
notice regarding his absence, notice during February, 1998
and March, 1998. Petitioner ought to have apply for leave
or gave some explanation but he continued his absence.
In the absence of reliable evidence that the petitioner was
compelled by the illness of his wife and the marital disputes
of his daughter with her husband, the explanation of the
petitioner cannot be accepted. According to the petitioner,
his wife underwent treatment in the hospital of the
respondent company but the relevant record is not
produced.
13. Therefore what remains to the scene is whether
the dismissal of the petitioner from service is justified.
14. The mis-conduct alleged against the petitioner
does not involve moral turpitude. Petitioner served in the
respondent company since 1975 prior to the absence from
duties which occurred in the year 1998. There have been
no charges against the petitioner. Hence proportionality
of punishment can be considered regarding removal from
service. Regarding the proportionality of the punishment
the following Judgment of the Gujarat High Court has is
relevant.
DIVISION BENCH JUDGMENT OF GUJARATH
HIGH COURT
REPORTED IN 1982 LAB. IC.1031
BETWEEN: R.M., PARMAR VRS., GUJARATH
ELECTRICITY BOARD.
Guide lines laid down in the matter of inflicting
punishment of discharge and dismissal :—
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3335
1.
In a disciplinary proceeding for an alleged fault
of an employee, punishment is imposed not in
order to seek retribution or to give vent to feelings
of wrath.
2.
The main purpose of a punishment is to correct
the fault of the employee concerned by making
him more alert in the future and to hold out of
warning to the other employees to be careful in
the discharge of their duties so that they do not
expose themselves to similar punishment. And
the approach to be made is the approach parents
make towards an erring or misguided child.
3.
It is not expedient in the interest of the
administration to visit every employee against
whom a fault is established with the penalty of
dismissal and to get rid of him. It would be
counter-productive to do so for it would be futile
to expect to recruit employees who are so perfect
that they would never commit any fault.
4.
In order not to attract the charge of arbitrariness
it has to be ensured that the penalty imposed is
commensurate with the magnitude of the fault.
Surely one cannot rationally or justly impose the
same penalty for giving a slap as one would
impose for homicide.
5.
When different categories of penalties can be
imposed in respect of the alleged fault, one of
which is dismissal from service, the disciplinary
authority perforce is required to consult himself
for selecting the most appropriate penalty from
out of the range of penalty available that can be
imposed, having regard to the nature, content
and gravity of the default. Unless the disciplinary
authority reaches the conclusion that having
regard to the nature, content and magnitude of
the fault committed by the employee concerned,
it would be absolutely unsafe to retain him in
service, the maximum penalty of dismissal cannot
be imposed. If a lesser penalty can be imposed
without seriously jeopardizing the interest of the
employees the disciplinary authority cannot
impose the maximum penalty of dismissal from
service. He is bound to ask the inner voice and
rational faculty why a lesser penalty cannot be
imposed.
6.
It cannot be over looked that by and large it is
because the maximum penalty is imposed and
total ruination stares one in the eyes that the
employee concerned is obliged to approach the
court and avail the costly time-consuming
machinery to challenge in desperation the order
passed by the disciplinary authority. If a lesser
penalty was imposed, he might not have been
obliged to take recourse to costly legal
proceedings which result in loss of public time
and also result in considerable hardship and
misery to the employee concerned.
7.
When the disciplinary proceedings end in favour
of the employee, the employer has often to pay
back wages say for about 5 years without being
able to take work from the employee concerned.
On the other hand, the employee concerned
would have had to suffer economic misery and
mental torture for all these years. Even the misery
of being obliged to remain idle without work
would constitute an unbearable burden. And
when the curtain drops every one is left with a
bitter taste in the mouth. All because the extreme
penalty of dismissal or removal is imposed instead
of a lighter one.
8.
Every harsh order of removal from service creates
bitterness and arouses feeling of antagonism in
the collective mind of the workers and gives raise
to a feeling of class conflict. It does more harm
than good to the employer as also to the society.
9.
Taking of a petty article by a worker in a moment
of weakness when he yields to a temptation does
not call for an extreme penalty of dismissal from
service. More particularly, when he does not
hold a sensitive post of trust (pilferage by a cashier
or by a store keeper from the stores in his charge,
for instances, may be viewed with seriousness).
A worker brought up and living in an atmosphere
of poverty and want when faced with temptation,
ought not to, but may yield to it in a moment of
weakness. It cannot be approved, but it can
certainly be understood particularly in an age
when even the rich commit economic offences to
get richer and do so by and large with impunity
(and even tax evasion or possession of black
money is not considered to be dishonorable by
and large). A penalty of removal from service is
therefore not called for when a poor worker yields
to a momentary temptation and commits an
offence which often passed under the name of
kleptomania when committed by the rich.
15. Keeping in view the above observations which
have taken into consideration all aspects of the punishment
particularly the extreme penalty of the dismissal, I hold
that the punishment of the dismissal from service was
uncalled for and unjustifiable. Since the petitioner’s date
of superannuation is 31.05.2013, the order of dismissal
from service is converted into voluntary retirement with
no benefits subsequent to the date of dismissal.
16. In the result, the dismissal order dated 05.01.1999
marked as Ex.M-7 is set aside and the petitioner shall be
3336
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
deemed to have been retired from service under VRS
(Golden Shake Hand Scheme) with effect from 05.01.1999.
The petitioner shall be paid all the consequential benefits
thereof. However, he is not entitled to any benefits
subsequent to the date of his dismissal from service.
Typed to my dictation, corrected and pronounced
by me in the open Court on this the 18th day of March,
2014.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman:-
For Management:—
-Nil-
-Nil-
EXHIBITS
For workman :—
Ex.W-1
Dt. 05-01-1999
Dismissal order.
Ex.W-2
Dt. 28-10-1998
Reply to show cause notice.
Ex.W-3
Dt. 31-10-2000
Letter issued to the
petitioner to attend the
interview at the Head Office,
Kothagudem on 8-11-2000.
Ex.W-4
Dt. 25-05-2007
Demand notice
Ex.W-5
Dt. 25-04-1998
Charge sheet
Ex.W-6
Dt. 23/26-10-1998 Charge sheet.
For Management :—
Ex.M-1
Dt. 23/26-10-1998 Charge sheet, o/copy
Ex.M-2
Dt. 23-11-1998
Enquiry notice
Ex.M-3
Dt. 25-11-1998
Enquiry proceedings
Ex.M-4
Dt. 26-11-1998
Enquiry report
Ex.M-5
Dt. 25-12-1998
Show cause notice.
Ex.M-6
Dt. 30-12-1998
Reply to show cause notice.
Ex.M-7
Dt. 05-01-1999
Dismissal order.
ubZ fnYyh] 9 vizSy] 2014
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch- ch- ,e- ch-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k
601@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 09@04@2014
dks izkIr gqvk FkkA
¹la- ,y&23012@12@1996&vkbZvkj (lh&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1275.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 601/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Chandigarh as shown in the Annexure in the
Industrial Dispute between the management of BBMB
and their workmen, received by the Central Government
on 09/04/2014.
[No. L-23012/12/1996-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH.
PRESENT :
Sri Kewal Krishan, Presiding Officer.
Case No. I.D. No.601/2005
Registered on 23.8.2005
The General Secretary, BSL Project, Mazdoor Ekta
Union, Sunder Nagar, H.P.
.....Petitioner
Versus
1.
The Chief Engineer, BBMB (Irrigation Nangal
Township) Punjab.
2.
The Chief Engineer, BBMB, BSL Sunder Nagar,
District Mandi (HP).
. . . Respondents
APPEARANCES :
For the Workman
:
Sh. R.K. Singh Parmar,
A.R.
For the Management :
Sh. S.K. Goyal and
Bhagat Singh Law
Officer.
AWARD
(Passed on. 20.3.2014)
Central Government vide Notification No. L-23012/
12/96- IR(C-II) Dated 24.6.2005, by exercising its powers
under Section 10 Sub-section (1) Clause (d) and Sub-
section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial Dispute for adjudication to this Tribunal :—
“Whether the action of the management of BBMB
represented through the Chief Engineer, BBMB
(Irrigation) Nangal Township and Chief Engineer,
BBMB, BSL, Sunder Nagar in denying the pay scales
of Rs. 830—1560 to Sh. Lashkari Ram skilled labour
w.e.f. 1.1.86 as per PSEB pay scales adopted by
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3337
BBMB is just and legal? If not, to what relief the
workman is entitled to and from which date?”
In response to the notice, the workman submitted
statement of claim pleading that he was appointed as
skilled labour on 3.3.1983 but was given pay scale of Rs.300-
430/- instead of Rs.325-495/-. That the respondent
management has adopted the pay scale of Punjab Irrigation
and the workman was not given the pay scale of Rs.830-
1560/- w.e.f. 1.1.1996 and of Rs.810-1440 from 1.1.1986
onwards. That he is entitled to the pay scales and the
arrears arising therefrom.
The respondent management filed written reply
pleading that pay scales has been allowed by the
respondents on the pattern of PSEB with requisite
modifications and accordingly the workman was given
the pay scales. That the pay scale of Rs.810-1440/- is not
admissible to him.
Today the case was fixed for arguments. The A.R of
the workman made statement for not pressing the reference
at present.
Since, the authorized representative of the workman
did not press the reference and therefore it is held that the
workman is not entitled to any relief and the reference is
accordingly answered against him. Let hard and soft copy
of the award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 9 vizSy] 2014
dk-vk- 1276 -—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch- ch- ,e- ch-
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV (lanHkZ la[;k
225@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 09@04@2014
dks izkIr gqvk FkkA
¹la- ,y&23012@72@2004&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 9th April, 2014
S.O. 1276.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 225/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Chandigarh as shown in the Annexure in the
Industrial Dispute between the management of BBMB and
their workmen, received by the Central Government on
09/04/2014.
[No. L-23012/72/2004-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH.
PRESENT :
Sri Kewal Krishan, Presiding Officer.
Case No. I.D. No.225/2005
Registered on 3.8.2005
Sh. Gawanoo Ram, S/o Sh. Phithu Ram, C/o Sh.
Bhagat Ram, Village Samkal, P.O Uppal Bhali, Tehsil
Sunder Nagar, Mandi (HP).
. . . Petitioner
Versus
The Chief Engineer, BSL Project, Sunder Nagar
Township, District Mandi (HP), Mandi.
. . .Respondents
APPEARANCES :
For the workman
:
Sh. R.K. Singh Parmar,
A.R.
For the Management
:
Sh. Ravinder Rana, Law
Officer.
AWARD
Passed on- 20.3.2014
Central Government vide Notification No. L-23012/
72/2004-IR(CM-II)) Dated 7.7.2005, by exercising its powers
under Section 10 Sub Section (1) Clause (d) and Sub
Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal :—
“Whether the demand of Sh. Gawanoo Ram for
reinstatement in the services of BBMB, Sunder
Nagar is legal and justified? If so, to what relief the
concerned workman is entitled and from which
date?”
In response to the notice, the workman submitted
statement of claim pleading that he worked from 1964 to
1984 on work charge basis with BBMB, Sunder Nagar. He
was given an assurance that he would be taken back and
was ultimately engaged in the year 1991 on daily wage
basis where he continued up to July 1995 when his services
were again terminated. That he had completed 240 days
of service in a year and the provisions of the Act were not
complied with. That a writ petition was filed before the
Hon’ble High Court of Himachal Pradesh and Others in
1995 and due to the stay granted by the Hon’ble High
Court, he again worked for 14 months. The Hon’ble High
Court ordered that the workers who had completed 240
days of continuous service be reinstated. But the
management counted the days of the workman as 230 days
3338
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
and was not re-employed. That the action of the
management is illegal.
Respondent management filed written reply
controverting the averments and pleaded that Beas
Construction Board and BBMB are different
establishments and the workman may have worked with
Beas Construction Board. That the workman also raised a
dispute which was decided against him. That on the
directions of the Hon’ble High Court, the representation
made by the workman was considered and rejected.
Today the case was fixed for evidence of the workman
who did not lead any evidence despite availing several
opportunities. Today the authorized representative of the
workman made statement to withdraw the reference at the
present. Thus, no evidence has been led by the workman
in support of his assertions. Being so, it cannot be said
that the demand of the workman made under the reference
is legal and justified and he is not entitled to any relief.
Accordingly the reference is answered against the
workman. Let hard and soft copy of the award be sent to
the Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
CORRIGENDUM
New Delhi, the 16th April, 2014
S.O. 1277.—The Reference No. mentioned in the
second line of the notification of even number dated
07-02-2014 may be read as Misc. Application No. 01 of
2005 instead of Ref. 01/2005.
[No. L-39025/01/2010-IR (B-II)]
RAVI KUMAR, Section Officer
ubZ fnYyh] 17 vizSy] 2014
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj osLVuZ
dksyiQhYMl fyfeVsM ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds
deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ
la[;k 11@2011) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
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¹la- ,y&22012@18@2011&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 17th April, 2014
S.O. 1278.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 11/2011) of
the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure in the Industrial
Dispute between the management of Gondegaon open
cast Mines Godegaon Project, Tq. Western Coalfileds Ltd.
Nagpur Area, Kasturba and their workmen, which was
received by the Central Government on 17/04/2014.
[No. L-22012/18/2011-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/11/2011
Date: 04.04.2014.
Party No.1(a) :
The
Supdt.
Of
Mines/
Manager,WCL, Gondegaon O/C
Mines, Gondegaon Project, Tq-
Parseon, Distt.-Nagpur. (MS )
Party No. 1(b) :
The chief General Manager.,
WCL, Nagpur Area,
Kasurba
Nagar, Jaripatka, Nagpur (MS)
Versus
Party No.2
: Shri Nareshsingh S/o Hawaldar
Singh, R/0 20/184, Kamptee
Colony, Naya Bazar, P.O. :
Kamptee Colony, Distt.- Nagpur
(MS)
AWARD
(Dated: 04th April, 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 Gondegaon Open Cast Mines
Godegaon Project and their workman, Shri Nareshsingh
for adjudication, as per letter No.L-22012/18/2011-IR
(CM-II) dated 11.05.2011, with the following schedule :—
“Whether the action of the management of
Gondegaon Open Cast Mine of WCL in terminating
the services of Shri Nareshsingh S/O Hawaldar
Singh Foreman (Mech) w.e.f. 25.10.2009 is justified,
legal and proper? To what relief the concerned
workman is entitled?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the workman, Shri
Nareshsingh,(‘the workman” in short), filed the statement
of claim and the management of WCL (“Party No. 1” in
short) filed their written statement.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3339
The case of the workman as presented in the
statement of claim is that he was in the employment of
party No.1 as a Foreman (Mechanic) at Gondegaon Open
Cast Mine having been appointed as such, on and from
02.02.1973 and his service record was absolutely clean
and unblemished and he was served with the charge sheet
by the party No.1(a), the Superintendent of Mines/
Manager, Gondegaon Open Cast Mine dated 04.08.2008
on the allegations of giving false information in respect
of the name of his father, while securing the employment
in WCL and he submitted his reply to the charge sheet on
09.08.2008 denying the allegations and in all tha documents
issued by party No.1, starting from June,,1973, which was
before submission of the charge sheet, his father’s name
was mentioned correctly as Hariprashad Singh and there
was no suppression of any material facts, while securing
employment by him and on or about 23.11.2006, he had
also submitted an affidavit before the party No.1 for
correction of his name in the service book and such facts
clearly show that there was never any suppression of any
information by him and inspite of the same, the farce of a
departmental enquiry was initiated by the party No.1 by
appointing the Enquiry Officer on 06.07.2009 and after
conducting the departmental enquiry, the termination order
dated 25.10.2009 was passed and the order of termination
is wholly illegal, bad in law and amounts to unfair labour
practice and victimization and such order was issued in
colourable exercise of employer’ right and while issuing
the order of termination, his past service record was not
considered and there was no application of mind and the
punishment is shockingly disproportionate and party No.1
issued the order of punishment at the verge of his retirement
and the charges levelled against him were not at all proved
and the appeal preferred by him were not at all proved and
the appeal preferred by him against the order of
punishment was not considered and disposed of by the
appellate authority, in spite of his approach, so he raised
the dispute and from the date of his termination, he is not
gainfully employed.
The workman has prayed to quash and set aside the
impugned order of termination dated 25.10.2009 and to
direct the party No.1 to give all monetary benefits including
the wages and retirement benefits to him, as his date of
retirement was 30.06.2011.
3. The party No.1 in the written statement has pleaded
inter-alia that the service record of the workman was not
clean and unblemished and the workman at the time of
entering into the service itself had played fraud with it by
submitting his false name, which itself is a major misconduct
and the workman was served with the charge sheet to
which, he submitted his reply and as the reply was not
found satisfactory, departmental enquiry was conducted
against the workman in a fair and proper manner, by
observing the principles of natural justice and after
completion of the enquiry, the workman was issued with
the second show cause notice and the same was duly
replied by the workman and on the basis of the enquiry
report and admission of the workman, the disciplinary
authority terminated the services of the workman by order
dated 25.10.2009 and on bare perusal of the statement of
claim, it can be found that the workman has not at all
challenged the legality and fairness of the departmental
enquiry conducted against him and in absence of the
challenge to the fairness of the enquiry, the preliminary
issue is required to be answered in its favour. The party
No.1 has further pleaded that the workman has specifically
admitted that at the time of his appointment, his name was
recorded as “Naresh Singh Hawaldar Singh” and the
workman has tried to place reliance on a document issued
by CMPF office and it has no control or role in the office
of CMPF and therefore, the document issued by CMPF is
immaterial and the identity card issued to the employees
are required to be fill in by the employees themselves and
to become member of the Provident Fund, an employee
has to submit an application himself and it has no control
over the office of the Provident Fund and though the
workman tried to make out a case that in the year 1973
itself, he came to know about the wrong recording of his
name in the service record as Naresh Singh Hawaldar Singh
in place of “Naresh Singh Hariprasad Singh” and he asked
the officers to correct the same, he has no proof of the
same and if the workman knew about the wrong recording
of his name since 1973, then, what prevented him till 2006,
to file application for correction of his name and though
the workman was time and again promoted and transferred
by way of written orders, at no point of time, he had taken
any objection about wrong recording of his name and one
Joginder Singh lodged a complaint dated 18.01.2008 with
it regarding fraud played by the workman and in order to
verify the correctness of the complaint, it lodged a police
complaint and the police authorities after investigation
from that the workman fraudulently obtained employment
and the workman is not entitled to any relief.
4. In the rejoinder, the workman has pleaded that
the enquiry initiated against him is not fair and proper and
as such, the issue regarding fairness of the enquiry and
perversity has to be decided.
5. As this is a case of dismissal of the workman
from services, after holding a departmental enquiry, the
validity of the departmental enquiry was taken as a
preliminary issue for consideration and by order dated
06.03.2014, the departmental enquiry conducted against
the workman was held to be legal, proper and in accordance
with the principles of natural justice.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the real name of
the workman is Naresh Singh S/o. Hariprasad Singh and
he did not play any fraud or give any false information for
securing the employment and in one document of the
3340
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
month of June, 1973 of the party No.1, his correct name
was mentioned at serial No.11 and in the identity card
issued in the year 1975 also, his name was mentioned as
Naresh Singh S/o. of Hariprasad Singh and in the record
of Provident Fund pass book also, the name of the workman
was recorded as Naresh Singh S/o. Hariprasad Singh and
though the charge levelled against the workman was not
proved, the enquiry officer wrongly held the charges to
be proved against the workman and the enquiry officer
failed to consider the documents and evidence produced
in the enquiry and the findings of the enquiry officer are
against the entire evidence on record of the enquiry and
are perverse and as on such perverse findings, the order
of punishment has been passed against the workman, the
same is liable to be quashed and set aside. It was further
submitted by the learned advocate for the workman that
the punishment of termination of the services of the
workman is shockingly disproportionate considering the
gravity of the charge levelled against him and on that
ground also, the punishment is liable to be set aside and
the workman was entitled for reinstatement in service with
continuity and full back wages, but as the date of the
retirement of the workman on superannuation was
30.06.2011, he is entitled all monetary benefits including
wages and retirement benefits, from the date of his
termination till the date of his retirement i.e. 25.10.2009 to
30.06.2011.
In support of the submissions, the learned advocate
for the workman has placed reliance on the decision
reported in AIR 1999 SC-912 (Regional Manager, Bank of
Baroda Vs. Government Industrial Tribunal).
7. Per contra, it was submitted by the learned
advocate for the party No.1 in the written notes of argument
that at the time of appointment, the workman submitted
his name as Naresh Singh Hawaldar Singh and on the
basis of the same, his name was recorded as Naresh Singh
Hawaldar Singh by party No.1 in all service records
including statutory records, required to be maintained as
per the provisions of Mines Act and during the service
tenure of the workman, number of correspondence were
exchanged in between the workman and party No.1 and in
all such correspondence, the name of the workman was
mentioned as Naresh Singh Hawaldar Singh and at no
point of time, the workman raised any objection as to the
effect that this actual name is Naresh Singh Hariprasad
Singh and not Nareshsingh Hawaldar Singh and an enquiry
was conducted by the police in this regard and a report
was submitted and after submission of the police report,
the workman came up with a new story that his name is
Naresh Singh Hariprasad Singh alias Ramnaresh Singh
Hariprasad Singh and when the workman was not the son
of Hawaldar Singh, it is not understood as to on what
basis, he accepted the appointment order meant for Naresh
Singh Hawaldar Singh and subsequent promotions and it
is clear from all these facts that the workman played fraud
upon the party No. 1 for the purpose of securing
appointment. It was further submitted by the learned
advocate for the party No.1 that at the time of appointment
of the workman, an employee, Hawaldar Singh by name
had expired and his legal heirs were to be given
compassionate appointment and from the said facts, it
can be safely presumed that the workman might be aware
of the said facts and therefore, with an intention to play
fraud in securing employment, claimed himself as the son
of the said Hawaldar Singh and though this is not the case
of party No.1, the workman himself has created such doubt
in his cross-examination and for that the reference is liable
to be answered in the negative and against the workman.
8. As already mentioned earlier, the departmental
enquiry conducted against the workman has already been
held to be legal, proper and in accordance with the principles
of natural justice.
It is well settled that in a case where there is no
defect in the procedure in the course of domestic enquiry
into the charges for misconduct against an employee, the
Tribunal can interfere with an order of dismissal, where
the finding is perverse or where there is no prima facie
case. So, keeping in view, the principles as mentioned
above, now, the present case in hand is to be considered.
9. Perused the record including the pleading of the
parties and all relevant documents produced in connection
with the departmental enquiry and also considered the
submissions made by the learned advocates for the
parties.
The workman was charge sheeted under clause 26.09
of the certified standing order. Clause 26.09 read as
follows :—
“Giving of false information regarding one’s name,
age, father’s name, qualification, in connection with
his employment.”
It is clear from the wordings of clause 26.09 that the
act of giving of false information by an employee amounts
to misconduct under clause 26.09 only when, he gives
false information regarding his name, father’s name, age,
and qualification etc. to get an employment in WCL.
The allegations as mentioned in the charge sheet
submitted against the workman are that he gave false
information regarding his name and father’s name to get
the employment. The allegations made in the charge sheet
prima facie appear to be not true, as because it is clear
from the documents produced by the party No.1 that
initially the workman was appointed as a Badli category-I
on w.e.f. 02.02.1973 and he was regularized as a general
mazdoor in category-I with effect from 23.01.1974.
Admittedly, in most of the records and registers of the
party No.1 including the service book and Form ‘B’ register,
the name of the workman has been mentioned as Naresh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3341
Singh S/o. Hawaldar Singh, even though the real name of
the workman is Ram Naresh S/o. Hariprasad Singh.
However, from the document submitted by the party No.1
in June, 1973 to the Coal Mines Provident Fund authority,
it is found that the name of the workman has been
mentioned as Naresh S/o. Hariprasad. It is not the case of
the party no.1 that the workman was given employment as
he was the son of Hawaldar Singh. It is also not the case
of the party no.1 that the workman gave the false
information by producing any document. There is also no
evidence on record that the workman gave oral information
regarding his name and his father’s name for claiming
employment and on the basis of such false information,
employment was given to the workman and entries
regarding the name of the workman and his father’s name
were recorded in the concerned registers of party no.1. It
is the consistent plea of the workman in his show cause
and evidence in the enquiry that as he noticed his name
and his father’s name not to have been correctly noted in
the documents of WCL, he brought it to the notice of the
authority of party no.1, as a result of which, in the
document of CMPF, the correct name of his father was
mentioned and in 2006 also, he had submitted an affidavit
for correction of the wrong recording of his father’s name.
Such plea of the workman was not challenged in the
enquiry. On perusal of the materials on record of the
enquiry, it is found that the findings of the enquiry officer
are against the evidence on record of the enquiry and
therefore perverse. As the punishment of termination of
the services of the workman was based on such findings,
the same cannot be sustained. Accordingly, the order of
punishment of termination of the services of the workman
is quashed and set aside.
In view of the setting aside of the order of termination,
even though, the workman should have been entitled for
reinstatement in service. However, it is clear from his
pleadings that the due date of his retirement on
superannuation was 30.06.2011. So there is no question
of reinstatement of the workman in service again. However,
the workman is entitled for all monetary benefits including
wages and retirement benefits from 25.10.2009 till the
suppose date of his retirement on superannuation. Hence,
it is ordered :—
ORDER
The action of the management of Gondegaon
Open Cast Mine of WCL in terminating the services of
Shri Nareshsingh S/O Hawaldar Singh Foreman (Mech)
w.e.f. 25.10.2009 is unjustified, illegal and improper. The
workman is entitled for all monetary benefits including
wages and retirement benefits from 25.10.2009 till the
suppose date of his retirement on superannuation. The
party no.1 is directed to carry out the award within one
month of the date of publication of the award in the official
gazette.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 17 vizSy] 2014
dk-vk- 1279-—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj egkunh
dksyiQhYMl fyfeVsM ds izcaèkr=k ds lac¼ fu;kstdks vkSj muds
deZdkjksa ds chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vfèkdj.k@Je U;k;ky;] Hkqous'oj ds iapkV
(lanHkZ la[;k 20@2008) dks izdkf'kr djrh gS tks dsUnzh; ljdkj
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¹la- ,y&22012@251@2007&vkbZvkj (lh,e&II)º
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 17th April, 2014
S.O. 1279.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 20/2008) of
the Central Government Industrial Tribunal-cum-Labour
Court, Bhubaneswar as shown in the Annexure in the
Industrial Dispute between the management of Kalinga
Area of M/s. MCL, Kalinga OCP of M/s. MCL, and their
workmen, received by the Central Government on
17/04/2014.
[No. L-22012/251/2007-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT
BHUBANESWAR
PRESENT :
Shri J. Srivastava, Presiding Officer, C.G.I.T.-cum-
Labour Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 20/2008
Date of Passing Award - 12th February, 2014
BETWEEN
1.
The General Manager,
Kalinga Area of M/s. MCL,
At./Po. South Balanda, Talcher,
Dist. Angul, Orissa.
2.
The Project Officer,
Kalinga OCP of M/s. MCL,
At./Po. Danara, Dist. Angul, Orissa.
. . .1 st Party-Managements.
AND
Their workmen represented through the General
Secretary, Talcher Coal Mines Employees Union, Qr..
No. JIB/16, At./Po. South Balanda, Dist. Angul,
Orissa - 759 116
. . . 2nd Party-Union
3342
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
APPEARANCES :
Shri N.R. Nayak,
For the 1st Party-
Sr. Officer (Personnel).
Management
Shri S.P. Pandey,
For the 2nd Party-
Working President.
Union.
AWARD
A reference has been made by the Government of
India in an industrial dispute between the management of
Kalinga Area of M/s. MCL and their workmen under clause
(d) of sub-section (l) and sub-section (2A) of Section 10
of the Industrial Disputes Act, 1947 vide its letter No. L.-
22012/251/2007-IR (CM-II) dated 9.5.2008 in respect of the
following matter :-—
Whether the demand of the Union regarding
promotion of their member workmen namely S/Shri
Hira Singh, Krishna Ch. Swain, Satnam Singh & Ajay
Moharana who have joined as Dumper-Operator
Trainees to get promotion as per the cadre scheme
prevalent in the organization from the date from
which they are actually eligible and entitled for career
wages, is legal and justified? To what reliefs are the
workmen concerned entitled?
2. The 2nd Party-Union espousing the cause of the
workmen has filed its statement of claim in which it has
been alleged that S/Shri Hira Singh, Krishna Ch. Swain,
Satnam Singh and Ajay Moharana were initially appointed
as Category-1 Mazdoor except Shri Krishna Ch. Swain,
who was security guard in MCL. They were working in
Nandira Colliery and other places of MCL. In the year
2001, they all appeared in interview for the post of Dumper
Operator (Tr.). They all were selected for the same and
posted in Central work shop as such. Again they all were
transferred to Kalinga OCP, now renamed as Balaram OCP
in the same post and joined there on 17.9.200l. They all
were posted as Dumper Operator (Tr.) Category-III on
24.9.2001 in their previous scale of pay. They all were
promoted to the post of Dumper Operator (Tr.) Category-
V with effect from l.2.2001 as per Office Order No. 939
dated 31.1.2004 and remained in the, said post till 28.2.2006.
The 2nd scheme for Dumper Operators as adopted by
MCLvide letter No. 744, dated 9.12.1995 was implemented
as career growth scheme, extract of which has been quoted
under Para-4 of the Statement of claim. Prior to the second
scheme there was another scheme circulated vide Circular
No. 1 dated 2.l.1978 for Dumper Operator, extract of which
has been quoted under Para-6 of the statement of claim.
As per first scheme a Dumper Operator was getting
promotion in the post of Dumper Operator Grade-1 after
completion of three years from training date irrespective
of sanction of post. The reason was that these Dumper
Operators were working in 35/50 tonne capacity of dumpers
which was meant for Dumper Operator, Grade-l/Senior
Dumper Operators and they worked in such capacity for
more than 240 days of operating higher capacity of
machines. As per second scheme the workman goes to the
post of Dumper Operator Grade-1 after working for four
and half years from training date to the said post of
operating of Dumpers of 35/50 tonne capacity. The MCL
Management has unilaterally issued a letter dated
9.12.1995 (2nd scheme) in the name career growth scheme
for Dumper Operators violating section 9-A of the
Industrial Disputes Act, 1947. The earlier scheme of 2.1.1978
had also not any mention about the availability of
sanctioned post for promotion/placement, but it
implemented in letter and spirit and placed/promoted
training Dumper Operators to the post of Dumper Operator,
Grade- I after completion of three years works in the
dumpers from training date. But in the case of 2nd scheme
the MCL Management did not follow the above circular
dated 2.1.1978. They kept the training operator for years
together as trainee without trainer, then placed them in
Category- V and kept them for years together violating
the agreed decision. The Operating Dumpers belong to
excavation cadre, not Electrical and Mechanical cadre in
short known as E & M cadre. Since the Dumper Operators
were all along working from training date without trainer
with 35/50 tonne capacity of dumpers of Grade-l/Senior
Dumper Operator as a regular employee to give production
it was the scheme so prepared to fit those dumper operators
in the post of Dumper operator Grade-I as above. Hence
there is no need of sanctioned post to promote/place them
in the post of Dumper Operator, Grade-I. Since they all
were working in the higher posts for more than 240 days a
year, it needs only their promotion/regularization in the
post of Grade-1/Group-B of operating 35/50 tonne capacity
of dumpers continuously. But the Management was giving
promotion to the Dumper Operators up to the post of
Dumper Operator, Grade-I at its will. The lst Party-
Management is also not paying the real wages as applicable
to them for operating higher capacity of Dumpers. The
cadre scheme for Dumper Operators was adopted by
circular No. 191, dated 31.8.2007 which has been
reproduced in Para-ll of the statement of claim’: The Dumper
Operators have been promoted up to the post of Dumper
Operator, Grade-C i.e. Grade-II after serving seven years,
five months and six days. But they have not yet reached
to the post of Dumper Operator, Grade-I, Therefore they
should get their promotion/placement as Dumper Operator
(Trainee) Catetory-I from 24.9.2001 to 23.9.2002 as per
circular dated 2.1.1978. They should also be promoted/
placed as Dumper Operator Grade-C/Grade-II on 24.9.2003
and be given the difference of wages for the aforesaid
period. They should also be promoted/placed in the post
of Dumper Operator, Grade-I with effect from 24.9.2005).
3. The 1st Party-Management No. 1 and 2 have filed
a joint written statement in which they have alleged that
the disputant workmen after transfer from CWS (Exca.),
Talcher joined erstwhile Kalinga area now named as
¹Hkkx II—[k.M 3(ii)º
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3343
Hingula area on 17.9.201l. Thereafter they were posted in
erstwhile Kalinga OCP now named as Balram OCP on
2l.9.2001 to work as Dumper Operator (Trainee). They
completed one year training by 23.9.2002, but their
promotion could not be considered as there were no
vacant posts in Dumper Operator, Category-V.
Subsequently on availability of posts in the Manpower
Budget of 2003-04 they were promoted with effect from
1.2.2004. The trainee operators who were to undergo
training at various places till completion of their training
are not entitled for heavy duty operational allowance
during their training period. On being promoted to the
post of Dumper Operator (TR) Category- V they were
allowed to draw heavy duty operation allowance @ 12.5%
of their existing basic pay for the days of operating higher
capacity machines with effect from 1.9.2004. The disputant
workmen were promoted to the post of Dumper, Operator
(Exca), Category/Grade-D with effect from 1.3.2006 and
subsequently promoted to the post of Dumper Operator
(Exca.) Category/Grade-C with effect from 9.5.2008. The
claim of the Union that the disputants should be promoted
as per Circular dated 2.1.1978 is devoid of merit and not
acceptable.
4. The 2nd Party-Union filed rejoinder to the written
statement of the 1st Party-Management and reiterated the
points made in the Claim Statement. It further stated that
there does not exist any clause in both the circulars of
2.1.1978 and 9.12.95 that vacant posts are required to allow
promotion to the Dumper Operator, Grade-I from trainee
Operating as a full fledged Dumper Operator with higher
capacity of Dumper then their designation are eligible to
get heavy duty allowance as per the existing circular of
the Company.
5. On the pleading of the parties following issues
were framed.
ISSUES
1.
Whether the demand of the Union regarding
promotion of their member workmen namely
S/Shri Hira Singh, Krishna Ch. Swains, Satnam
Singh and Ajay Moharana who have joined as
Dumper Operator Trainees to get promotion as
per the cadre scheme prevalent in the organization
from the date from which they are actually eligible
and entitled for career wages is legal and
justified?
2.
To what reliefs are the workmen concerned
entitled?
6. On behalf of the 2nd party-Union the disputant
Shri Satnam Singh has been examined as W.W.-l and
reliance is placed on two documents marked as Ext.-l and
2. On behalf of the lst Party-Management Shri Radha
Mohan Panda has been examined as M.W.-l and one
document marked as Ext.-A has been relied.
FINDINGS
ISSUE NO. 1
7. The 2nd Party-Union has claimed promotional
benefits as per circular dated 2.l.l978 which has been
marked as Ext.-2. According to it the disputant workmen
should get their promotion/placement as Dumper Operator
(Tr.) Category-I from 24.9.2001 to 23.9.2002 and after
successful training, though not imparted to them, they
should be promoted/placed as Dumper Operator Grade-C/
Grade-II on 24.9.2003 and be allowed differential wages of
Category-I and Grade- II for one year after completion of
one year service as Dumper Operator Grade- II and
thereafter be promoted/placed as Dumper Operator,
Category-I with effect from 24.9.2005.
8. The contention of the 1st Party-Management is
‘that the circular dated 2.1.1978 is not applicable to the
disputant workmen as they were not in service till the new
circular of 9.12.l995 came into force. All the disputants
except Shri Hira Singh joined their services after 1995 and
they were selected as Dumper Operator ( trainee) Category-
V with effect from 20.9.200l. Shri Hira Singh earlier to his
joining as Dumper Operator (trainee) was mechanical helper,
Cat.-II. Hence after coming into operation of circular dated
9.12.1995, circular dated 2.l.l978 became non-operative.
Therefore the claim of the Union to get promotion on the
basis of circular dated 2.1.1978 is not sustainable. As such
relief claimed in this regard cannot be allowed to the
disputant workmen. W.W.-2 the disputant Shri Satnam
Singh has also accepted in his evidence before this
Tribunal that “Ext. -1 is the career growth and training
scheme for Dumper Operator in excavation Category pay
scales”. Then he again admitted in his cross examination
that his selection was made on the basis of circular of the
year 1995. This admission rests this part of the dispute
raised in this case.
9. The disputant workmen got their first promotion
on the basis of circular dated 9.12.1995 on 3l.l.2004 as
Dumper Operator (trainee), Category-V. They got their
second promotion on l.3.2006 as Dumper Operator (excv.)
Category/Grade-D and then their third promotion on
9.5.2008 as Dumper Operator (excv.) Category/Grade-C.
10. Viewed in the light of above considerations and
circular dated 9.l2.1995 it is settled that the disputant
workmen are not entitled to get their promotion/placement
as Dumper Operator (trainee) Category-I from 24.09.2001
to 23.09.2002 and promotion/placement as Dumper
Operator, Grade-C from 24.9.2003 as they joined as Dumper
Operator, Category-V on 3l.3.2004. Likewise they are not
entitled to promotion/placement as Dumper Operator,
Category-I from 24.9.2005.
1l. In circular dated 9.12.1995 marked Ext.-1 the
process of appointment/placement of Dumper Operators
in excavation Category pay scales has been given. The
3344
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
applicant desirous of appointment as Dumper Operator
should have experience of more than three years in
operation Tippers/Trucks and have passed Class-VIII and
above and should possess valid heavy driving license.
Such candidates may be considered against the vacancies
of Tipper/Truck operator trainee and may be appointed as
Category-I/II mazdoor initially and put in training on a
truck/light vehicle to acquaint himself with maintenance
and running conditions. The departmental candidates will
continue in their existing category/grade. On successful
completion of one year training they shall be tested/
screened by Departmental Promotion Committee and on
its recommendation they should be promoted/placed as
Category-V drivers and shall continue to work as such for
one year. The witness Shri Satnam Singh examined on
behalf of the 2nd Party- Union has no-where stated in his
evidence that the disputant workmen had the required
experience and qualification. The above witness has stated
in his cross examination that prior to applying for the post
of Dumper Operator he was working as Mazdoor Category-
I Engine Helper at Central workshop, at Talcher. He
gathered experience in driving of trucks and tippers. He
has acquired license for driving heavy vehicles. But no
documentary evidence of all these facts has been filed on
record. M.W.-1 Shri Radha Mohan Panda in his statement
before the Court has stated that “these persons did not
have the requisite three years of experience in operation
of tipper/truck as required in the norms/criteria enunciated
by letter No. 744 dated 9.12.1995 which is evident from the
fact that shri Hira Singh was mechanical helper, Krishna
Chandra Swain was the Security Guard and other two
persons were general mazdoors”. He has further stated
that these persons were imparted additional training for
three years by the Management after they joined as
Dumper Operator trainee. M.W.-1 has denied the fact in
his cross examination that the workmen were not given
training as per circular dated 9.12.1995. As such it cannot
be said that the disputant workmen were unnecessarily
denied promotion/placement as category- V drivers nearly
for two and half years. They were placed/promoted as
Dumper Operator (trainee) Category-V on 31.1.2004 nearly
after two years and four months. Circular dated 9.12.1995
further requires that after placement/promotion as
Category-V drivers they should be sent to CETI/Belpahar
Institute for theoretical and practical training for three
months and thereafter they will operate Dumpers for 35/50
tonne capacity under the guidance of a trained regular
operator for three months. Thereafter they will be sent to
CETI institute for testing trial and after passing the said
test they will be regularized in the lowest category of
Dumper Operator, Category/Group-D. But the disputant
workmen were not given these types of training nor sent
for testing trial to CETI institute. However they were
promoted/placed as Dumper Operator (exca.) Category/
Group-D on 1.3.2006. The above circular requires that the
Dumper Operator Category/Grade-D shall be placed in
Category/Group-C/Grade-II on completion of one year in
Group-D/Grade-III, but the disputant workmen were
promoted/placed in Grade-C category on 9.5.2008 i.e. of
nearly after two years. In the written statement of the 1st
Party-Management it has been stated that since there were
no vacant posts in Dumper Operator Category-V on
23.9.2002 their promotion could not be considered in
Category-V, but on subsequent availability of posts in the
man power budget 2003-04 they were promoted on
1.2.2004. Therefore they are not entitled to any heavy duty
operational allowance during the period of training when
they have placed as trainee operators. On being promoted
to the post of Dumper Operator (Trainee), Category- V
they were allowed to draw heavy duty and operational
allowance of their existing basic pay for the days of
operating higher capacity machines-with effect from
l.9.2004. Nothing has been explained for delay in
subsequent promotions. It has been provided in Para-4.1
of circular dated 9.12.1995 that after completion of one
year as Dumper Operator Category-II in Group-C they will
be paid difference of wages of Grade-I and Grade-II for a
period of one year. But the same does not appear to have
been paid to the disputant workmen, which should have
been paid to them without any delay. The parties at dispute
cannot clarify or convincingly show to this Tribunal that
placement/promotion in Dumper Operator, Grade-V; Grade-
D and Grade-C cannot be made unless the vacancies in
the said posts existed. Hence no order regarding
placement/promotion in the above posts from the alleged
dates can be passed in consonance with the provisions
made in the circular dated 9.12.1995. The promotion of the
disputant workmen is also due after having put in one
year service in Category-C (Grade-II) for the post of Dumper
Operator, Grade-I in Group/Category-B in the regular pay
scale of excavation category for which the recommendation
of duly constituted D.P.C. is needed. The 1st Party-
Management is required to constitute the Departmental
Promotion Committee in accordance with the departmental
rules and consider the promotion in Group/Category-B of
the disputant workmen without any further delay.
12. In the above premises it is held that the demand
of the Union regarding promotion of the disputant
workmen namely Shri Hira Singh, Krishna Chandra Swain,
Satnam Singh and Ajay Moharana as per the cadre scheme
prevalent in the organization from the date of eligibility
and to get career wages is legal and justified. This issue is
decided in the affirmative.
ISSUE NO. 2
13. As per the conclusions derived under Issue No.
1 the concerned workmen are entitled to get the relief of
differential wages of Grade- I and Grade-II for one year
after putting in one year service in Group-C. They shall be
also entitled to be considered for promotion/placement
from the post of Dumper Operator, Grade-C to Dumper
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3345
Operator Group/Category-B by duly constituted D.P.C. and
on its recommendation for promotion/placement as such
as per circular dated 9.12.1995.
14.The reference is answered accordingly.
Dictated & corrected by me.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 23 vizSy] 2014
dk-vk- 1280-—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k]
y[kumQ ds iapkV (lanHkZ la[;k 39@2011) dks izdkf'kr djrh gS
tks dsUnzh; ljdkj dks 23@04@2014 dks izkIr gqvk FkkA
¹la- ,y&41011@108@2010&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 23rd April, 2014
S.O. 1280.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 39/2011)
of the Central Government Industrial Tribunal-cum-Labour
Court, Lucknow as shown in the Annexure in the Industrial
Dispute between the management of Northern Railway
and their workmen, received by the Central Government
on 23/04/2014.
[No. L-41011/108/2010-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL–CUM- LABOUR COURT, LUCKNOW
PRESENT :
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 39/2011
Ref. No. L-41011/108/2010-IR(B-I) dated: 14.03.2011
BETWEEN
Mandal Sangathan Mantri Uttar Railways Karmchari
Union 283/63, KH, Gadi Kannora (Premwati Nagar)
Manak Nagar, Lucknow – 16 (Espousing cause of
Shri Makbul Ahmed)
AND
Senior Divisional Railway Manager (Personnel)
Northern Railway Hazratganj Lucknow.
AWARD
1. By order No. L-41011/108/2010-IR(B-I) dated:
14.03.2011 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of
Section 10 of the Industrial Disputes Act, 1947 (14 of 1947)
referred this industrial dispute between Mandal Sangathan
Mantri, Uttar Railways Karmchari Union, 283/63, KH, Gadi
Kannora (Premwati Nagar), Manak Nagar, Lucknow and
the Senior Divisional Railway Manager (Personnel),
Northern Railway, Hazratganj, Lucknow for adjudication.
2. The reference under adjudication is:
“WHETHER THE DEMAND OF UNION
REGARDING PLACING SHRI MAKBUL ABMED
S/O SHRI ABDUL RAUF, ASSISTANT LOCO
PILOT, LOCO-SHED, LUCKNOW IN THE PANEL
OF THE YEAR 1983-84 ABOVE HIS JUNIORS, IS
LEGAL AND JUSTIFIED? TO WHAT RELIEF THE
WORKMAN IS ENTITLED?”
3. The union viz. Uttar Railways Karmchari Union
raised the present industrial dispute claiming inclusion in
the panel for the year 1983-84 above his junior fellows.
The management of the railways denied the claim by filing
a detailed written statement, stating therein that it is
provided under Rules that the employee cannot claim the
seniority from the dated of his actual engagement rather
the same shall be reckoned from the date of their regular
appointment. Therefore, it prayed that the claim of the
union is liable to be rejected without any benefit to the
workman concerned.
4. The workman’s union, in its rejoinder, reiterated
its contentions already made in the statement of claim.
The parties filed documentary evidence in support of their
respective claim and the date was fixed for evidence of the
workman’s union. When the workman’s union failed to
file any evidence in spite of several opportunities being
afforded, the management was called upon to file the
evidence in support of their case. The authorized
representative of the management made an endorsement
that since ‘the worker has not field evidence so the
management will not file evidence’. Accordingly, the case
was fixed for arguments.
5. Heard oral arguments of the authorized
representatives of the parties and scanned entire evidence
available on file.
6. Initial burden was on the workman’s union to
prove their pleading with corroborative oral evidence; but
it has utterly failed in doing so. In 2008 (118) FLR 1164
M/s. Uptron Powertronics Employees’ Union, Ghaziabad
through its Secretary vs. Presiding Officer, Labour Court
(II), Ghaziabad & others, Hon’ble High Court relied upon
the law settled by the Apex Court in 1979 (39) FLR 70 (SC)
Sanker Chakravarti vs. Britannia Biscuit Co. Ltd., 1979 (39)
FLR 70 (SC) V.K. Raj Industries v. Labour Court and others,
3346
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
1984 (49) FLR 38 Airtech Private Limited v. State of U.P.
and others and 1996 (74) FLR 2004 (Alld.) Meritech India
Ltd. v. State of U.P. and others; wherein it was observed
by the Apex Court :
“that in absence of any evidence led by or on behalf
of the workman the reference is bound to be
answered by the Court against the workman. In
such a situation it is not necessary for the employers
to lead any evidence at all. The obligation to lead
evidence to establish an allegation made by a party
is on the party making the allegation. The test would
be, who would fail if no evidence is led.”
7. In the present case the workman’s union has not
substantiated its case by way of filing any oral evidence.
Mere pleadings are no substitute for proof. It was
obligatory on the part of workman’s union to come forward
with the case that the workman was deprived of the panel
for year 1983-84, for which he was eligible; but the
workman’s union has failed to forward any evidence in
support of its claim either oral or documentary. As such,
there is no reliable material for recording findings that the
alleged action of the management of Northern Railway in
denying the workman in the panel of the year 1983-84 is
illegal and unjustified.
8. Accordingly, the reference is adjudicated against
the workman’s union; and as such, I come to the
conclusion that the workman, Makbul Ahmad is not entitled
to any of the relief claimed.
9. Award as above.
LUCKNOW.
31st March, 2014.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 23 vizSy] 2014
dk-vk- 1281-—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaèk esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k]
y[kumQ ds iapkV (lanHkZ la[;k 36@2003) dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 23@04@2014 dks izkIr gqvk FkkA
¹la- ,y&41012@167@2002&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 23rd April, 2014
S.O. 1281.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 36/2003)
of the Central Government Industrial Tribunal-cum-Labour
Court, Lucknow as shown in the Annexure in the Industrial
Dispute between the management of Northern Railway
and their workmen, received by the Central Government
on 23/04/2014.
[No. L-41012/167/2002-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT :
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 36/2003
Ref. No. L-41012/167/2002-IR(B-I) dated: 05.03.2003
BETWEEN
The Divisional Secretary Rail Mazdoor Union, II-50
J. C.P.H. Colony N. Rly., Charbagh Lucknow
(U.P.) – 1 (Esposusing cause of Shri R.K. Pandey)
AND
The Dy. Chief Engineer (Bridge Workshop) Northern
Railway Charbagh, Lucknow.
AWARD
1. By order No. L-41012/167/2002-IR(B-I) dated:
05.03.2003 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of
Section 10 of the Industrial Disputes Act, 1947 (14 of 1947)
referred this industrial dispute between the Divisional
Secretary, Rail Mazdoor Union, II-50 J. C.P.H. Colony, N.
Rly., Charbagh, Lucknow and the Dy. Chief Engineer
(Bridge Workshop), Northern Railway, Charbagh, Lucknow
for adjudication.
2. The reference under adjudication is:
“KYA UTTAR RAILWAY, BRIDGE WORKSHOP,
LUCKNOW DWARA SHRI R.K. PANDEY, M.C.C.
KO UNION GATIVIDHIYON MAIN LIPT
HONE KE KARAN LUCKNOW SE JALANDR
STHANANTARAN KIYA JANA EVAM
KARMKAAR KO APNA PAKSH PRASTUT
KARNE KA AWSAR DIYE BINA DINANK
04.08.1994 SE 24.8.1999 AVADHI KA VETAN KAAT
LIYA JANA NAYAYOCHIT EVAM NAYAYSANGAT
EVAM NAYAYSANGAT HAI? YADI NAHI TO
KARMAAR KIS ANUTOSH KO PANE KA
ADHIKAARI HAI?”
3. The case of the workman’s union, in brief, is that
the workman, R.K. Pandey who was branch secretary of
the union was served upon a major penalty charge sheet
dated 3/4-8-94 in English. The workman requested to
furnish the Hindi version of the same. The workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3347
proceeded on sanctioned sick leave w.e.f. 04.08.94 (A/N).
The workman was supplied with the Hindi version of the
charge sheet on 08.08.94. It is submitted by the union that
during sick leave the workman came to know that he had
been transferred from Lucknow to Jalandhar vide order
dated 02/08-08-94; but was neither served upon any
transfer letter nor transfer pass nor any spare memo. It
has been submitted that when he recovered from illness
he was not allowed to join then the workman represented
for cancellation of his transfer, which was cancelled and
was allowed to join his duty on the same post at Lucknow.
It has been alleged by the union that the workman was
neither allowed to join the duties nor was given any
transfer letter nor transfer pass nor any spare memo and
deliberately deprived the workman of the wages for the
period 04.08.94 to 24.08.99. Accordingly, the workman’s
union has prayed that the action of the management be
declared illegal in not allowing him pay for the period
04.08.94 to 24.08.99; and the workman be held entitled for
salary for the period 04.08.94 to 24.08.99 with interest.
4. The management of the railway has denied the
claim of the workman by filing its written statement wherein
it has been submitted that the workman was transferred
from Lucknow to Jalandhar vide order dated 02.08.94 and
consequently was spared/relieved vide order dated
04.08.94; and he was also provided journey pass No.
977073 dated 04.08.94 to join his duties at Jalandhar; but
he never joined the services on transferred station without
any reason, which resulted into issuance of charge sheet
dated 24.07.95 for unauthorized absence from duty w.e.f.
04.08.94. It has been submitted that the Inquiry Officer
was nominated by the management and the workman did
not respond to the several letters of the Inquiry Officer;
however, he replied vide dated 27.11.97 and 09.12.97. The
management has submitted that the inquiry was conducted
by the Inquiry Officer; wherein the workman was afforded
all reasonable opportunity to defend himself; but he could
not satisfy the Inquiry Officer, who reported the charges
to be proved and the competent authority imposed the
penalty to treat the period between 04.08.94 to 24.08.99 as
leave without pay. The appeal against the punishment
order was also rejected by the competent authority.
Accordingly, the management has prayed that the claim
of the workman’s union be rejected being devoid of any
merit.
5. The workman’s union has filed its rejoinder;
wherein it has not brought any new fact apart from
reiterating the averments already made by it in its statement
of claim earlier.
6. The parties have filed documentary proof in
support of their respective cases. The workman has
examined himself whereas the management examined
Shri D.C. Goyal, Executive Engineer, Northern Railway in
support of their case. The parties cross-examined the
witnesses of each other apart from forwarding oral
arguments.
7. Heard representatives of the parties and perused
entire evidence available on record.
6. The authorized representative of the workman
has argued that the workman had been transferred by the
management but he was neither provided with the transfer
order nor any spare memo nor any journey pass; due to
which he could not proceed to his transferred destination
and the management did not allow him to join till 24.08.99
at Lucknow. Consequently the management arbitrarily
deducted his salary for the period 04.08.94 to 24.08.99,
treating him unauthorized absentee.
7. In rebuttal, the management has come up with
the case that the workman deliberately did not join the
duties at his transfer station in spite of the fact that he was
served with the transfer order dated 02.08.94, relieving
order dated 04.08.94; and journey pass No. 977073 dated
04.08.94 to join his duties at Jalandhar. But since the
workman failed to join the duties. A charge sheet was
served to the workman for unauthorized absence and
accordingly, on the charges being proved, he was punished
with lowering his grade and the period of absence from
04.08.94 to 24.08.99 was treated as leave without pay.
8. I have given my thoughtful consideration to the
rival contentions of the parties and scanned the entire
evidence available on record in the light thereto.
9. The workman in his evidence has stated that he
proceeded on casual leave for 3 ½ days’ duly sanctioned
by the authorities w.e.f. 04.08.94 (A/N) and during his sick
leave he always sent his leave applications along with
sick certificate to his from time to time. It was stated that
during sick leave the workman came to know that he has
been transferred from Lucknow to Jalandar and thereafter
he represented before higher authorities i.e. before Railway
Board and Headquarters to cancel the said transfer. The
management did not allow him to join. It was also stated
that later on, the said transfer order was kept pending vide
DO No. E(REP) III/94/6-306(OR) dated 23.12.94. However,
he was allowed to join only after cancellation of the transfer
order i.e. on 25.08.99.
In rebuttal, the management witness has stated that
the workman was transferred on 02.08.94 to Jalandhar; but
he did not join there. In the departmental inquiry the
workman was found guilty of unauthorized absence from
04.08.94 to 24.08.99 and accordingly, his basic pay was
decreased; which was cancelled in the appeal and said
period was treated as leave without pay.
10. From the record it transpired that the workman,
R.K. Pandey was transferred from Lucknow to Jalandhar.
As per version of the management the workman had full
3348
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
knowledge about it; but according to the workman he
received the information of his transfer at a later stage.
The management has right to transfer any of its official in
view of suitability of the official for smooth function of
the administration and the official has no scope to
challenge the same unless some malafies is there. The
workman’s union has come up with the case that the
workman’s transfer was malafied. It has also come up with
the case that the workman has not been served with the
transfer order, relieving order or the journey pass to join
the duty. Also, it has been pleaded by the workman’s
union that the workman proceeded on casual leave for 3 ½
days’ sanctioned by the authorities w.e.f. 04.08.94 (A/N)
followed by the sick leave. Though the management has
contended that it had issued the relieving order to the
workman on 04.08.94; but there is no document on the
record to show that same were served upon the workman.
In rebuttal, the management has come up with the
case that the workman was served with the transfer order,
relieving orders as well as journey pass; but he did not
proceed to join the post at Jalandhar without any rhyme
or reason. When he did not join the transfer post, he was
served with a charge sheet for unauthorized absence and
after affording all opportunities to defend himself was
punished for the charges being proved.
11. The schedule of reference, referred to this
Tribunal is regarding imposing the penalty of deduction
of pay from 04.08.1994 to 24.08.99 without affording any
opportunity to put up his defence; and this Tribunal has
to confined within the purview of the schedule of reference.
In Municipal Employees’ Union & another vs. Secretary
(Labour), Government of N.C.T. of Delhi & another 2001
(89) FLR 360 wherein the Hon’ble Delhi High Court taking
terms of reference into consideration has observed that
the Industrial Tribunal cannot travel beyond the terms of
reference. Terms of reference should invariably encompass
the entire dispute between the workman and the
management. Accordingly, the issue for adjudication
before this Tribunal is as to whether the workman was
afforded reasonable opportunity to defend himself before
deducting his pay.
12. When the reference is regarding validity of some
punitive action of the management, then the onus was on
the management to come up with the evidence that the
workman was issued the charge sheet for unauthorized
absence from 04.08.1994 to 24.08.99 and was afforded all
reasonable opportunity to defend himself. In this regard
the workman has filed photocopies of the leave
applications and medical certificates which go to show
that he proceeded on sanctioned CL w.e.f. 04.08.94,
followed by a sick leave. On getting well when approached
the employers for joining he was not allowed to join. Also,
the workman represented the Railway Board and
Headquarter Office for cancellation of his transfer, which
resulted into issuance of DO No. E(REP) III/94/6-306(OR)
dated 23.12.94; whereby the transfer of the workman was
“kept pending till further directions”. This goes to show
that the operation of the transfer order was stayed or the
same was kept in abeyance. The management was under
obligation to allow the workman to join him at Lucknow
w.e.f. 24.12.94 but the management failed to do so instead
and instead allowed the workman to join only on 25.08.99.
No explanation or reason has been given at the end of the
management as to why the order i.e. DO dated 23.12.94
has not been complied with and why the joining of the
workman was delayed for such a long period i.e. up to
25.08.99, even though the transfer order 02.08.94 was
stayed vide DO No. E(REP) III/94/6-306(OR) dated 23.12.94.
If the management was inclined to take action against the
workman then it could have treated him absentee at the
most from 04.08.94 to 24.12.94.
Besides when the workman was proceeded on casual
leave w.e.f. 04.08.94, there was no occasion for the
management to issue the relieving order unless he joins
the duties. If the relieving order has been passed or any
journey pass has been issued, the management failed to
prove that same has been served upon the workman nor
the copies of the same has been field before this Tribunal
to corroborate its pleadings.
The management has not filed any letter or
correspondence, showing institution of Inquiry against
him on alleged charges of unauthorized absence or any
communication for hearing the workman before any Inquiry
or show cause notice before imposing the penalty of
deducting the salary of the workman. As per law when the
period was absence was proposed to be treated as period
of leave without pay; and the workman was going to suffer
monetary loss, then the action of the management,
imposing penalty without affording him any opportunity
for hearing, was illegal.
13. In view of the facts and circumstances, narrated
hereinabove, it is crystal clear that though the workman
was transferred by the management of railways from
Lucknow to Jalandahar but was never served with any
relieving order or journey pass to join the duties at transfer
station. Also, when the order of transfer dated 02.08.94
had been ‘kept pending” vide DO dated 23.12.94 of the
Director, Establishment, Railway Board, N. Delhi then the
management was supposed to allow the workman to join
the services thereafter. Further, the management failed to
produce any evidence regarding providing reasonable
opportunity to the workman to defend himself and also
that alleged order of transfer order dated 02.08.94 and
relieving order dated 04.08.94 and journey pass have been
served upon the workman in the wake of the fact that the
workman proceeded on casual leave sanctioned by the
authority, followed by medical leave. Hence, keeping in
view the above facts and circumstances, deduction of
¹Hkkx II—[k.M 3(ii)º
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3349
salary for the period from 04.08.94 to 24.08.99 without
hearing the workman is illegal and injustified.
14. Accordingly, the reference under adjudication
is answered in negative and in favour of the workman’s
union; and the workman is entitled for salary for the period
he was treated as leave without pay i.e. period from 04.08.94
to 24.08.99.
15. The Award as above.
Lucknow
14th March, 2014
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1282-—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkr=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k] ukxiqj ds iapkV (lanHkZ la[;k 15@2002) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 04@04@2014 dks izkIr gqvk FkkA
¹la- ,y&12012@317@2001&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1282.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 15/2002) of
the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure, in the Industrial
Dispute between the management of State Bank of India
and their workmen, which was received by the Central
Government on 04/04/2014.
[No. L-12012/317/2001-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/15/2002
Date: 28.03.2014.
Party No. 1 :
The Asstt. General Manager,
State Bank of India, Region-I,
Zonal Office, S.V. Patel Marg,
Kingsway, Nagpur-440001
(MS).
Versus
Party No.2
:
The Asstt. General Secretary
State Bank of India Staff
Union, C/o. SBI zonal Office,
Kingsway, Nagpur-440001
AWARD
(Dated: 28th 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 State Bank of India and their workman,
Shri Hiralal Fulsunge, for adjudication, as per letter No.L-
12012/317/2001-IR (B-I) dated 18.12.2001, with the following
schedule: —
“Whether the action of the management of the
Assistant General Manager, State Bank of India,
Region-I, Zonal Office, Nagpur in awarding the
punishment of dismissal without notice to Shri Hiralal
Fulsunge, Ex-Asstt. (Cash & Accts.) w.e.f. 09.10.1999
is justified? If not, to what relief the said workman is
entitled?”
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman Shri Hiralal
Fulsunge, (“the workman” in short) filed the statement of
claim and the management of State Bank of India, (“party
no.1” in short) filed the written statement.
The case of the workman as presented in the
statement of claim is that he was served with the charge
sheet dated 24.10.1998 and subsequently, enquiry was
conducted by Shri S.W. Bokare, the enquiry officer and
after conclusion of the enquiry, he was served with the
show cause notice dated 09.07.1999 and he submitted the
explanation on 06.08.1999 through the defence
representative with a request to take lenient view in
deciding the punishment to be imposed. It is further
pleased by the workman that the enquiry was conducted
by the enquiry officer with prejudiced mind and biased
views and the enquiry officer was non-cooperative with
the defence representative and denied fair chance and
natural justice to the defence side at various levels and
the disciplinary authority also imposed the punishment of
“dismissal without notice” of cruel nature to put him in
hardship and inconvenience and immediately after his
denial of the charges, the presenting officer put questions
to him relating to the charges and the same amounted to
his cross-examination by the presenting officer and a
workman can only be cross-examined by the presenting
officer, when the workman examines himself as a witness
in his defence and due to such cross-examination, his
defence was exposed before presentation of his case and
the same amounted to denial of reasonable opportunity
and violation of the principles of natural justice and the
list of witnesses was given to the defence representative
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
only at the time of examination of the witnesses and no
time was granted to the defence side for studying the
witnesses, which was against the principles of natural
justice and fair trial and the enquiry was not fair as the
enquiry officer, presenting officer and witnesses met in
isolation during the lunch time and the said fact shows
that the enquiry officer conducted the enquiry in a bias
state of mind and the witness no.1 for the management
changed his statement twice, while recognizing his initials,
therefore the defence representative required to confirm
his initials from the day books, but the defence
representative was not allowed to verify the records, which
was against the principles of natural justice and the
defence representative also requested for experts opinion
in regard to the initials of the witness no.1 of the
management appearing on the exhibits, but such request
was declined by the enquiry officer and the defence
representative wanted to cross-examine the Branch
Manager and P.B.D. initially and when the enquiry officer
refused to present the then Branch Manager and PBD in
the enquiry, the defence representative had no other
alternative but to call them as his witnesses, but they
refused to depose as defence witnesses and in an attempt
to bring them as defence witnesses, the defence
representative tried to submit a letter to the disciplinary
authority i.e. the Assistant General Manager, Region-I
through the enquiry officer during the enquiry, but the
enquiry officer against the principles of natural justice
refused to accept the letter and wrongly quoted that the
Branch Manager and PBD refused to be witnesses from
the defence side and on many occasions, the defence
representative was prevented by the enquiry officer and
presenting officer to cross-examined the witnesses for the
management and from examining the defence witnesses
and the defence witness in his cross-examination by the
presenting officer clearly stated that the matter was being
dealt with by the then Branch Manager, which revealed
the fact that there was preliminary report prepared by the
then Branch Manager and though the defence
representative demanded the said report twice during the
course of enquiry, the report of preliminary enquiry was
not given to the defence representative, which was against
the principles of natural justice.
It is also pleaded by the workman that at the time of
personal hearing before the disciplinary authority, he was
not allowed to bring his defence representative for
defending his case, which was also against the principles
of natural justice and the punishment of “Dismissal without
notice” imposed on him is shockingly disproportionate
and the same is not on a very higher side and is very
harsh.
The workman has prayed to quash and set aside the
punishment imposed on him and to reinstate him in service
with all benefits.
3. The party no.1 in the written statement denying
all the adverse contentions raised in the statement of claim
has pleaded inter-alia that the workman was working at its
Gondia Branch as an Assistant (Accounts) since
11.02.1985 and he was working on savings bank counter
from July, 1996 and was doing clerical work on the savings
bank counter and the clerical work inter-alia included to
receive withdrawals or cheques from the customers coming
at his counter for withdrawing the money from their
accounts, debiting their account with the amount sought
to be withdrawn, sending the withdrawals to the officer
concerned officer for authentication of the entries made
therein and the cashier was to receive the money deposited
by the customers in their respective accounts and since
the workman was manning the savings bank counter, he
was not supposed to accept any cash from the customer
and acknowledged the same on the counter foil of the
pay-in-slip and similarly, he was not supposed to
authenticate or make his signatures/initials against the
entries in the pass-book, since it was to be done by the
officers and the workman was not authorized to accept
cash receipts from the depositors, between August, 1997
to July, 1998, he unauthorizedly accepted cash from
depositors for credit to their savings bank account and
unauthorisedly issued counter foils by affixing “cash
receipts” stamp of the branch and he did not deposit the
cash received from different customers in the bank and
misappropriated the same and made unauthorized
authenticated credit entries in the pass books of the
depositors and also unauthorisedly authenticated the
balances by his initials and whenever, a particular depositor
was coming to the branch for withdrawing the amount
from his account, the workman used to transfer the amount
from his overdraft account no. 22/4469 to the depositor’s
account by transfer voucher, so that the withdrawal
presented by the depositor for payment could be passed
with the intention that the depositors should not be able
to know about the misappropriation of the amount by him
and the workman purposefully and with ill intention was
not making the entries of the transfer of amount from his
account to the depositor’s account in the passbook , with
the ulterior motive that the depositors should not come to
know about his fraudulent acts and when various
depositors made written complaints to the Bank against
the workman, it came to know about his fraudulent
activities and the workman made a large number of
fraudulent entries in at least 16 depositor’s pass books
amounting to Rs. 2,06,000/- approximately and out of such
fraudulent entries, the workman transferred various
amount from his overdraft account to the depositor’s
account on different dated amounting to Rs. 1,39,100/-
and the balance of Rs. 66,900/- is still to be recovered from
the workman and therefore, the workman was suspended
w.e.f. 04.08.1998 and he was issued with the charge sheet
¹Hkkx II—[k.M 3(ii)º
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3351
dated 24.10.1998 alongwith a detailed statement showing
the fraudulent entries made by him in 16 depositor’s
passbook and the charge sheet was received by the
workman on 18.11.1998 and he gave his reply to the charge
sheet on 26.11.1998 and the enquiry officer then conducted
the enquiry from 17.03.1999 to 06.05.1999 in 10 sittings
giving ample opportunity to the workman to defend his
case and the enquiry officer submitted his report dated
19.06.1990 to the disciplinary authority and the disciplinary
authority then issued a show cause notice dated 09.07.1999
alongwith the enquiry officer’s report, proposing the
punishment of “Dismissal without notice” for each charge
and the workman submitted his reply dated 06.08.1999 to
the show cause notice and personal hearing was given to
the workman on 09.08.1999 by the disciplinary authority
and after considering the relevant materials, the facts of
the case and the report of the enquiry officer, the
disciplinary authority passed the final order of “Dismissal
without notice” for each charge dated 09.10.1999 and the
workman preferred on appeal against the final order, but
the appeal was dismissed by the appellate authority by
order dated 20.05.2000.
The further case of party No.1 is that the workman
engaged Shri R.N. Iyer as his defence representative and
the first date of the enquiry on 17.03.1999, the charges
were read over and explained to the workman and after
denial of the charges by the workman, all the documents
relied on by the management were provided to the
workman and the list of witnesses was also given to the
workman on the same day and thereafter, the enquiry was
adjourned to the next date and in the enquiry, four
depositors, who had made complaint to the bank and the
passing officer, Shri D.S. Joshi were examined by the
management and they were vigorously cross-examined
by the workman and the workman also examined Shri Vinod
Rai as a witness in his defence and the workman was given
every opportunity to defend himself in the enquiry and all
the principles of natural justice were complied with in the
enquiry and the enquiry officer has also given justifiable
reasons for holding the charges to have been proved
against the workman and having regard to the gross
misconduct of the workman, it had rightly passed the final
order.
It is further pleaded by party No.1 that the witnesses
No.1, the passing officer rightly recognize the initials
appearing on the various exhibits during the enquiry and
there was no necesity to call for the expert’s opinion and
the enquiry officer rightly rejected the demand of the
defence representative in this regard and the workman
cannot compel the Bank to produce a particular person as
his witness and it was free to examine its witnesses and
relevancy of any witness is to be shown, before requesting
the enquiry officer to issue notice to any person to be
examined as a defence witness and in fact, it was upon the
workman to bring any witness in support of his case and
shri M.N. Kriplani, PBD Manager attended the enquiry at
the instance of the workman, but he refused to give
evidence and as such, the enquiry officer rightly quoted
that the then branch manager and PBD manager refused
to be the defence witness and the enquiry officer,
presenting office and the witnesses did not meet in
isolation and the defence representative was never
prevented by the enquiry officer to cross-examine the
witnesses of the management or to examine the defence
witnesses and the workman did not bring the defence
representative during the personal hearing and there is
also no provision in the Sastry Award to allow the workman
to bring his defence representative during the personal
hearing and the workman is not entitled to any relief.
4. As this is a case of dismissal of the workman from
services, after holding of a departmental enquiry, the
fairness or otherwise of the departmental enquiry was taken
up as a preliminary issue for consideration and by order
dated 08.10.2013, the same was held to be legal, proper
and in accordance with the principles of natural justice.
5. At the time of argument, it was submitted by the
learned advocate for the workman that the Enquiry Officer
conducted the enquiry with prejudiced mind and biased
view and the findings of the Enquiry Officer are perverse
and the punishment of “Dismissal without notice” imposed
against the workman is shockingly disproportionate and
the same is on a very higher side and as such, it is
necessary to quash and set aside the punishment and the
workman is entitled for reinstatement in service with all
the benefits.
6. Per contra, it was submitted by the learned
advocate for the party No.1 that by order dated 08.10.2013,
it has already been held that the departmental enquiry
held against the workman is legal, proper and in accordance
with the principles of natural justice and the Enquiry Officer
has given justifiable reasons for holding the charges to
have been proved against the workman and thus, it cannot
be held that the findings of the Enquiry Officer are perverse
and though the workman was acquitted in the criminal
case as per judgment dated 05.09.2008, the same is of no
consequence, as the charges in the criminal case and the
disciplinary enquiry were not the same and similar and the
findings of the Enquiry Officer are based on the materials
on record of the enquiry and the same are not perverse
and the workman was holding a position of trust, where
honesty and integrity were the in-build requirements of
functioning and the misconducts committed by the
workman are very serious in nature and commission of
such grave nature of misconducts has been proved against
the workman in a properly conducted departmental
enquiry and as such, the punishment imposed against the
workman cannot be said to be shockingly disproportionate
or harsh and there is no scope for the Tribunal to interfere
3352
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
with the punishment 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 AIR 1999 S. C.-1416 (Capt. M Paul Anthony vs. Bharat
Gold Mines Ltd. ), (2011) 4 SCC 584 ( State Bank of Bikaner
& Jaipur vs. Nemichand Nalwaya), (2006) 2 Scc-255 (TNCS
Corp. Ltd. vs. K. Murabai), AIR 2003 SC-1571 (Chairman &
M D, United Commercial Bank vs. P P Kakkar), AIR 2003
S C 1462 (Regional Manager, UPRTC vs. Hoti Lal), (2006) 7
SCC-212 (State Bank of India vs. Ramesh Dinkar Pande),
AIR 1996 SC_1556 (Bharst Forge Company Ltd. vs. A.B.
Zodgi) and 2010(6) Mh. L. J._309 (General Secretary, G.K>
Union vs. Noble Paint & varnish Co. Pvt. Ltd.)
Keeping in view the principles as enunciated by the
Hon’ble Apex court in the decisions as mentioned above,
now, the present case in hand is to be considered.
7. So far the initiation of the criminal case no.83/
2000 against the workman and his acquittal in the same is
concerned, it is to be mentioned here that nothing has
been pleaded by the parties about the same either in the
statement of claim or in the written statement. In this case,
the punishment of “dismissal from services without notice”
was passed against the workman on 09.10.1999, whereas,
the order of the acquittal of the workman in the criminal
case was passed on 05.09.2008. It is also clear from the
copy of the judgment passed in criminal case no. 83/2000
that the same was instituted on 06.03.2000, which was
after passing of the final order of punishment in the
disciplinary proceeding.
Moreover, it is well settled by the Hon’ble Apex
Court in a number of decisions including the decisions
cited by the learned advocate for the party No.1 that,
“Question of considering reinstatement after decision of
acquittal or discharge by a competent criminal court arises
only and only if dismissal from services was based on
conviction by criminal court, in view of the provisions of
Article 311(2) second proviso (a) of constitution or
analogous provisions in statutory rules applicable in a
case. In case, where enquiry is independent of criminal
proceedings, acquittal in a court is of no help. Even if a
person stands acquitted by a criminal court, domestic
enquiry can be held, since standard of proof required in a
domestic enquiry and that in a criminal case are different.
Facts, charges and nature of evidence etc involved in a
individual case would determine as to whether decision of
acquittal would have any bearing on the findings recorded
in the domestic enquiry.
The Hon’ble Apex Court in the decision reported in
A.I.R. 1999 SC – 1416 (Capt. M.Paul Anthony Vs Bharat
Gold Mines) have held that, “proceedings in a criminal
case and departmental proceedings can go simultaneously,
except where departmental proceeding and the criminal
case are based on the same set of facts and the evidence
in both the proceedings is common and basis for this
proposition is that proceedings in a criminal case and
departmental proceedings operate in distinct and different
jurisdictional areas. In departmental proceedings, factors
operating in the mind of disciplinary authority may be
many, such as enforcement of discipline, or to investigate
level of integrity of delinquent or other staff. The standard
of proof required in those proceedings is also different
from that required in a criminal case. While in departmental
proceedings, the standard of proof is one of preponderance
of probabilities, in a criminal case, the charge has to be
proved by the prosecution beyond reasonable doubt. The
departmental proceedings and proceedings in criminal case
can proceed simultaneously as there is no bar in there
being conducted simultaneously, though separately”.
In this case, the enquiry held against the workman
was independent of the criminal proceeding. It is also
found that charges in the criminal case and that in the
departmental proceeding were not the same or similar.
Hence, the acquittal of the workman in the criminal case is
of no help to him.
8. On perusal of the materials on record, it is found
that the findings of the Enquiry Officer are based on the
evidence on record of the enquiry and he has assigned
reasons in support of his findings. It is not a case of no
evidence or that the findings of the Enquiry Officer are
against the evidence on record. Hence, it cannot be said
that the findings of the Enquiry Officer are perverse.
9. So far the proportionality of the punishment
imposed against the workman is concerned, I think it proper
to mention about the principles enunciated in the Hon’ble
Apex Court as reported in (2011) 4 SCC-584 (Supra), (2006)
2 SCC-255 (Supra) and AIR 2003 SC-1571 (Supra).
In the decision reported in (2011) 4 SCC-584(Supra),
it is held by the Hon’ble Apex Court that:
“Held, when considering whether punishment of
termination form service imposed upon a bank
employee is shockingly disproportionate to gravity
of proved misconduct, loss of confidence in
employee is an important and relevant factor.”
In the decision reported in (2006) 2 SCC-255(Supra),
the Hon’ble Apex Court have held that:
“Labour law-Departmental/Domestic enquiry-
Penalty/punishment –Scope of judicial review of –
Sympathy or generosity, if a ground. Where the
employee was found guilty of mis-appropriation the
employer corporation’s fund, held, the primary factor
to be taken into consideration was the loss of
confidence and not the amount of money
misappropriated. Hence, notwithstanding that there
was no such allegation against that employee in the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3353
past, held, the punishment of dismissal from service
imposed by the employer could not be interfered
with by the court or ground of sympathy or
generosity. In view of the position of trust occupied
by the delinquent, further held, the matter required
to be dealt with rather firmly and not leniently.”
In the decision reported in AIR 2003 SC-1571 (Supra),
the Hon’ble Apex Court have held that;
“Judicial review of punishment imposed in
disciplinary proceeding-Delinquent Asstt. Manager
of Bank charged for fabricating, manipulating
records- charge not casual but serious in nature
punishment of dismissal imposed-Not shockingly
disproportionate- Bank officer is required to exercise
higher standard of honesty and integrity-Defence
that there was no loss or profit resulting – Not
available when delinquent employee acted without
authority.”
10. In this case, commission of serious misconduct
of misappropriation and fraud has been proved against
the workman in a properly conducted departmental
enquiry. Hence it is ordered:
ORDER
The action of the management of the Assistant
General Manager, State Bank of India, Region-I, Zonal
Office, Nagpur in awarding the punishment of dismissal
without notice to Shri Hiralal Fulsunge, Ex-Asstt. (Cash &
Accts.) w.e.f. 09.10.1999 is justified. The workman is not
entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1283-—vkS|ksfxd fookn vf/fu;e] 1947(1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdks vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k] ukxiqj ds iapkV (lanHkZ la[;k 28@2011) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 04@04@2014 dks izkIr gqvk FkkA
¹la- ,y&12012@59@2011&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1283.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 28/2011)
of the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure in the Industrial
Dispute between the management of State Bank of India
and their workmen, which was received by the Central
Government on 04/04/2014.
[No. L-12012/59/2011-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING
OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/28/2011
Date: 24.03.2014.
Party No. 1(a) : The Asstt. General Manager
State Bank of India, Region-II,
Kingsway, Nagpur-1 (MS)
(b) : The Branch Manager,
State Bank of India, Moudha
Branch, At/Po/Tq. Moudha,
Distt. Nagpur.
Versus
Party No. 2 : Shri Ashok Motiram Kawle,
R/o. Plot No. 136, Mudliar
Layout, Nr. Badshah Medical
Store, Shanti Nagar, Nagpur-8
AWARD
(Dated: 24th 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 SBI and their workman, Shri Ashok Motiram
Kawle, for adjudication, as per letter No. L-12012/59/2011-
IR (B-I) dated 17.10.2011, with the following schedule:-
“Whether the action of the management of State
Bank of India, Region-II, Nagpur in terminating Shri
Ashok Motiram Kawle from service w.e.f. 22.09.2007
is legal and justified? If not, to what relief is the
workman is entitled?”
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman, Shri Ashok
Motiram Kawle, (“the workman” in short) filed the
statement of claim and the management of S.B.I., (“party
no.1” in short) filed the written statement.
The case of the workman as presented in the
statement of claim is that he was appointed as a Sweeper-
Cum-Messenger by order dated 24.10.1987 at Gandhi
Market Branch and in the year 1988, he was transferred to
Kamptee Branch of party no.1 and he was served with a
memo dated 11.06.2005 on the false charge of taking illegal
gratification of Rs. 15000/- (wrongly mentioned as Rs. 1500
in the statement of claim) from four customers of the
branch and by his letter dated 25.07.2005, he denied the
charge, but he was served with a show cause notice dated
01.10.2005 repeating the same charge, but stating that it
3354
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
was based on a report dated 11.05.2005 published in the
newspaper, “Public Parliament” and he was also served
with the charge sheet dated 18.02.2006, containing the
charge of accepting illegal gratification from four
borrowers, namely, Sushil Laxmanrao Ingole, Sachin Papu
Hatel, Santosh Narayan Telange and Ajay Khare and party
no.1 appointed one shri J.S. Bodas on 03.10.2006 as the
enquiry officer to enquire into the charges against him
and in the enquiry, only Ajay Khare and Sachin Hatel
appeared before the enquiry officer and the enquiry officer
in his report stated that charge of accepting bribe from
Sachin Hatel and Ajay Khare has been proved and the
enquiry was conducted in an arbitrary and illegal manner
with a prejudicial mind of establishing the charge against
him, which is clear from the facts that even though, the
charge sheet was given for accepting money from four
persons, only two out of the four complainants were
examined in the enquiry and the rest two complainants
were not examined and the authenticity of the complaints
of Shri Ajay Khare and Shri Sachin Hatel had not been
properly verified and their statements were taken as the
basis for holding the charges to have been proved against
him and in his inquiry report, the Enquiry Officer did not
mention anything about the date, place, mode of payment
and the details of the payments, if any, made by the two
complainants, who had been examined and the Enquiry
Officer had not taken into consideration the fact that the
peon/sweeper of the Bank has no role in sanctioning of
the loan to any customer and therefore cannot accept bribe
of Rs. 15000/- and the party No.1 took two months time to
issue the memo, after the publication of the news in the
news paper and thereafter, three months to issue the show
cause notice and thereafter, four months to issue the
charge sheet and the said facts show that he was made
the scapegoat to protect the field officer, Shri Gawate and
a senior officer, whose name had appeared in the said
newspaper and the charge sheet was illegal as the same
was not issued under the Standing order and he was not
allowed the assistant of an advocate and the findings of
the Enquiry Officer are perverse as the findings are without
any basis and on the basis of such an enquiry report, he
was removed from services by order dated 22.09.2007. It
was also pleaded by the workman that three complainants
out of four, on 22.07.2005 gave in writing about their
lodging the complaints against him on the instigation of
some persons and that they did not pay any money to him
and party NO.1 did not lodge any complaint against him
to the police or to the Anti-corruption Department in this
connection and the punishment is shockingly
disproportionate and he is entitled for reinstatement in
service with continuity, full backwages and other
consequential benefits and he is out of employment since
the date of his illegal termination.
3. The party No.1 in the written statement has
pleaded inter-alia that the workman has made an attempt
to prove that enquiry was like a criminal trail and while the
workman was working at Kamptee Branch, Nagpur as a
sweeper-cum-messenger, four complaints were received
from four borrowers against him, for demanding and
accepting illegal gratification in the name of the officers of
the Bank in dealing with loan applications under
government sponsored scheme and the act of the workman
was also published in local newspaper, which tarnished
the image of the bank in the eyes of the public in general
and customers in particular and the Bank investigated into
the matter and came to the conclusion that there is truth in
the complaints so, it issued memo dated 11.07.2005 against
the workman, calling for his explanation to various
omissions and commissions committed by him and the
workman submitted his explanation dated 25.07.2005,
denying the allegations made in the memo and as the
explanation of the workman was found not to be
satisfactory, it was decided to hold enquiry against him
and accordingly, he was informed by communication
dated 01.10.2005 and charge sheet dated 18.02.2006 was
issued against him, which was received by him on
23.02.2006 and the workman submitted his reply on
25.02.2006 denying the charges levelled against him and it
appointed the enquiry officer to enquire into the
misconduct as mentioned in the charge sheet and the
enquiry commenced on 26.07.2006 and concluded on
01.09.2006 and two witnesses were examined and number
of documents were produced by the management in the
enquiry in support of its case and the workman cross-
examined the witnesses through his experienced and
competent defence representative Mr. S.T. Gulgulwar and
the enquiry officer submitted his report dated 03.10.2006
holding two charges out of four to have been proved and
the enquiry authority agreed with the findings of the
enquiry officer and supplied copy of the enquiry report to
the workman by letter dated 03.10.2006 and the second
show cause notice dated 12.05.2007 was served on the
workman and the workman was given the scope of
personal hearing by the disciplinary authority and the
workman and his defence representative appeared before
the disciplinary authority on 10.08.2007 for personal
hearing and the disciplinary authority duly considered
the enquiry report and after examining the entire materials
independently, imposed the punishment of removal of the
workman from services on 20.09.2007 and the final order
was received by the workman on 22.09.2007 and the
workman preferred an appeal on 30.10.2007, against the
order of punishment and the appeal filed by the workman
was dismissed by the Appellate Authority after due
consideration and the enquiry was conducted in a fair
manner, affording the workman full opportunity to defend
his case and the representation of the workman by an
advocate is not available as a matter of right in departmental
enquiry and the findings of the enquiry officer are based
on evidence and materials on record and the punishment
of removal from service imposed on the workman is just
¹Hkkx II—[k.M 3(ii)º
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3355
and proper and commensurate with the gravity of the
misconduct proved in the enquiry and the workman is not
entitled to any relief.
4. It is to be mentioned here that as this is a case of
removal of the workman from services, after conducting
of a departmental enquiry against him, the fairness or
otherwise of the departmental enquiry was taken up as a
preliminary issue for consideration and as per order dated
24.12.2013, the departmental enquiry conducted against
the workman was held to be proper, legal and in accordance
with the principles of justice.
5. At the time of argument, it was submitted by the
learned advocate for the workman that findings of the
Enquiry Officer are perverse and there is no sufficient
evidence on record to prove the charges levelled against
the workman and out of the four complainants, only two
complainants were examined and the enquiry was
concluded without examination of the remaining two
complainants and the authenticity of the evidence of the
two complainants examined in the enquiry were not
properly verified and the Enquiry Officer in his report has
not thrown any light on the date, place, mode of payment
and the details of the payments and the Enquiry Officer
did not take into consideration the fact that the peon/
sweeper of the Bank has no role in sanctioning of loan to
any customer and therefore, cannot accept bribe of Rs.
15000/- and it is clear from the materials on record that the
workman has been made the scapegoat to protect the Field
Officer and a senior Officer. It was also submitted by the
learned advocate for the workman that the workman was
not allowed the assistance of an advocate and as such, it
can be said that the workman was not given reasonable
opportunity to defend himself properly and the
punishment imposed against the workman is shockingly
disproportionate and as such, it is necessary to set aside
the order of punishment dated 22.09.2007 and the workman
is to be reinstated in service with continuity and full back
wages.
6. Per contra, it was submitted by the learned
advocate for the party No.1 that the preliminary issue of
fairness of the departmental enquiry has already been
answered in favour of the management by order dated
24.12.2013 and the workman has made an attempt to show
that the departmental enquiry is like a criminal trial and
principles of criminal jurisprudence are applicable to
enquiry and the power of the Tribunal is of review only
and only when, it is found by that the enquiry is held
against the principles of justice or the punishment is
shockingly disproportionate to the misconduct, then only
the Tribunal can interfere with the punishment. It was
further submitted by the learned advocate for the party
No.1 that the findings of the Enquiry Officer are based on
the evidence adduced in the enquiry and the documents
placed on record and the findings of the Enquiry Officer
are not perverse and the Bank has lost confidence in the
workman and the punishment imposed on the workman
cannot be said to be disproportionate to the grave
misconduct proved against him in a properly conducted
departmental enquiry and as such, there is no scope to
interfere with the punishment and the workman is not
entitled to any relief.
In support of the submissions, the learned advocate
for the party No.1 placed reliance on the decisions reported
in 2005 SCC(L&S)-567 (Damoh Panna Sagar Rural Regional
Bank vs. Munnalal Jain), 2005 SCC(L&S)-200
(D.M.Plantation Division, Andaman Nicobar Islands vs.
Munnu Barik), (2000) I SCC-416 (High Court of Judicature
of Bombay vs. S.S.Patil), A.I.R. 1989 SC-1185 (Union of
India vs. Paramanand), (2005) SCC (L&S)-407 (Div.
Controller vs. A.T.Mana), (2010) 2 SCC(L&S)-239 ( U.P.
STRTC vs. Suresh Chand), 2003 SCC(L&S)-468 (C.M.D.U.
Cooperative Bank vs. P C Kakkar) and 2005 SCC(L&S)-282
(Bharat Heavy Electrical Ltd. vs. M. Chandra Shekhar
Reddy)
Keeping in view, the principles enunciated by the
Hon’ble Apex Court in the decision mentioned above, now,
the present case in hand is to be considered.
7. So far the contention raised by the learned
advocate for the workman regarding the Enquiry Officer
not allowing the workman the assistant of an advocate in
the departmental enquiry is concerned, it is to be mentioned
here that the said submission was already considered and
answered against the workman, while deciding the
preliminary issue of fairness of the departmental enquiry
held against the workman. So, the question of considering
the same again does not arise. Hence, I find no force in the
contention raised by the learned advocate for the workman
on that score.
8. Before delving into the merit of the matter, I think
it proper to mention the settled principles regarding the
power of a Tribunal in interfering with punishment awarded
by the competent authority in departmental proceedings
and regarding.
In a number of decisions, including in the decision
cited by the learned advocate for the party No.1, the
Hon’ble Apex Court have held that:-
“The jurisdiction of the Tribunal to interfere with
the disciplinary matters or punishment cannot be
equated with an appellate jurisdiction. The Tribunal
cannot interfere with the findings of the Inquiry
officer or competent authority where they are not
arbitrary or utterly perverse. The power to impose
penalty on a delinquent officer is conferred on the
competent authority either by an Act of legislature
or rules made under the proviso to Art. 309 of the
Constitution. If there has been an enquiry consistent
with the rules and in accordance with principles of
3356
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[PART II—SEC. 3(ii)]
natural justice what punishment would meet the ends
of justice is a matter exclusively within the
jurisdiction of the competent authority. If the penalty
can lawfully be imposed and is imposed on the
proved misconduct, the Tribunal has no power to
substitute its own discretion for that of the authority.
The adequacy of penalty unless it is malafide is
certainly not a matter of the Tribunal to concern
itself with. The Tribunal also cannot interfere with
the penalty if the conclusion of the Inquiry officer
or the competent authority is based on evidence
even if some of it is found to be irrelevant or
extraneous to the matter.”
It is also well settled that in a disciplinary proceeding,
the standard of proof required is that of preponderance of
probability and not proof beyond reasonable doubt like in
a criminal trial and where there are some relevant materials
which the authority has accepted and which materials may
reasonably support the conclusion that the officer is guilty,
it is not the function of the Tribunal to review the materials
and it the enquiry has been properly held, the question of
adequacy or reliability of evidence cannot be canvassed
before the Tribunal.
It is also well settled that the jurisdiction of the
Tribunal to interfere with the disciplinary matters for
punishment cannot be equated with an appellate
jurisdiction and the Tribunal cannot interfere with the
findings of the enquiry officer or competent authority,
where they are not arbitrary or utterly perverse and the
power to impose penalty on a delinquent officer is
conferred on the competent authority either by an act of
legislature or rules made under the provision of Article
309 of the Constitution and if there has been an enquiry
consistent with the Rules and in accordance with the
principles of natural justice, what punishment would meet
the ends of justice in a matter exclusively within the
jurisdiction of competent authority and if the penalty can
be lawfully imposed and is imposed on the proved
misconduct, the Tribunal has no power to substitute its
own decision for that of the authority.
Where there are some relevant materials which the
authority has accepted and which materials may
reasonably support the conclusion that the officer is guilty,
it is not the function of the High Court exercising its
jurisdiction under Article 226 to review the materials. If
the enquiry has been properly held, the question of
adequacy or reliability of evidence cannot be canvassed
before the High Court.”
Now, the present case at hand is to be considered
with the touch stone of the principles enunciated by the
Hon’ble Apex Court as mentioned above. On perusal of
the materials on record, it is found that the enquiry officer
has based his findings on the materials on record of the
departmental proceeding. He has assigned cogent reasons
in support of such findings. This is not a case of no
evidence. It is also not a case that the findings of the
enquiry officer are totally against the evidence on record
or that the findings of the enquiry officer are as such,
which cannot be arrived at by a prudent man on the
evidence on record. Hence, it cannot be said that the
findings of the enquiry officer are perverse.
9. So far the question of punishment is concerned;
it is found that serious misconducts have been proved
against the workman in a properly held departmental
enquiry. In this instant case, the workman has been found
guilty of taking illegal gratification from customers. There
is nothing wrong on the part of the party no.1 losing
confidence in such an employee and awarding punishment
of termination of his services. The workman was holding
a position of trust, where honesty and integrity were inbuilt
requirements of functioning and therefore, the matter
required to be dealt with firmly and not leniently. Hence,
the punishment of termination from services of the
workman cannot be said to be shockingly disproportionate
to the proved misconducts. Hence, it is ordered.
ORDER
The action of the management of State Bank of India,
Region-II, Nagpur in terminating Shri Ashok Motiram Kawle
from service w.e.f. 22.09.2007 is legal and justified. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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¹la- ,y&12012@83@2009&vkbZvkj (ch&I)º
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New Delhi, the 24th April, 2014
S.O. 1284.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 11/2010)
of the Central Government Industrial Tribunal-cum-Labour
Court, No. 1 Chandigarh as shown in the Annexure in the
Industrial Dispute between the management of State Bank
of Patiala and their workmen, which was received by the
Central Government on 31/03/2014.
[No. L-12012/83/2009-IR (B-I)]
SUMATI SAKLANI, Section Officer
¹Hkkx II—[k.M 3(ii)º
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3357
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-I, CHANDIGARH
Case No. ID 11 of 2010. Reference No. L-12012/83/
2009-IR(B-I) dated 21.06.2010
Sh. Jaswinder Singh, H.No.C-454, Behind Guru Teg
Bahadur Sahib, Ranjit Nagar, Seona Road, Patiala
(Punjab)-147001 through Legal heirs Swaranjit Kaur
W/o Late Sh. Jaswinder Singh, Rajandeep Kaur
daughter, Pritpal Singh son, Ramanjot Singh son. .
. . Workman /Applicants
Versus
1.
The Asstt. General Manager, AGM-IV(P), State
Bank of Patiala, Regional Office, Leela Bhawan,
Patiala (Punjab)
. . . Respondent
APPEARANCES :
For the Workman
:
Sh. P.K.Logia
For the Management
:
Sh. N.K. Zakhmi
AWARD
Dated : 25.03.2014
Government of India Ministry of Labour vide
notification No. L-12012/83/2009-IR(B-I) dated 21.06.2010
has referred the following dispute to this Tribunal for
adjudication :
Term of Reference
“Whether the action of the management of State
Bank of Patiala, in imposing a penalty of removal
from service on their workman Shri Jaswinder Singh
vide order dated 10.04.2009 is legal and justified? If
not, what relief the workman concerned is entitled?”
1. The workman filed claim statement claiming
therein that he was working as cashier at Benra Branch of
the respondent bank and he was placed under suspension
on 29.10.2008 on the allegation that he has committed
certain acts of serious nature for which the disciplinary
proceedings were contemplated against him. He was asked
to explain vide letter dated 03.11.2008, which was followed
by charge sheet dated 03.11.2008. The workman further
stated that he was working as record keeper-cum-godown
keeper but was assigned the duty of head cashier against
the rules. In fact it was the duty of Sarup Singh head
cashier who was deputed to handle the workman of loan
and advances. It is alleged by the workman that the
arrangement has been made to make money in an illegal
manner by bungling in advances. He tried to point the
same out to the branch manager, but the branch manager
threatened him which ultimately resulted into initiation of
investigation by K. K.Bhatti, Chief Manager, during the
period of his medical leave from 30.04.2008 to 07.10.2008.
The workman was directed during his medical leave to
rush to the branch manager on 07.10.2008 to appear before
Sh.Bhatti. Nothing was disclosed to the workman that there
were any complaint against him and Mr. Bhatti was
investigating those complaints. He was issued letter for
explanation. The workman replied vide letter dated
20.11.2008 denying all the charges. The branch manager
procured a letter from the workman on the pretext that it
was only to get him to reinstate in service and revocation
of his suspension. The workman being low salary and
less educated person wrote the confession without noting,
that the same may be used against him at a later stage
which was pre planned by the management. A charge sheet
was issued. He assured by the AGM that it was merely a
procedure formality and he will be reinstated in service.
The AGM also suggest to the workman to stick his
confessional statement during inquiry, so the inquiry may
be completed early and he may be reinstated in service.
Sh.P.P.Kalsi was made the inquiry authority. On the first
date of preliminary inquiry he was asked to sign a statement
of admission which he signed being under coercion and
under influence/undue as the management assured him of
reinstatement. Inquiry Officer without recording the
evidence of the management, submit the inquiry report
holding the workman guilty of charges. Show cause notice
was issued to the workman to whom he replied. The
disciplinary authority ordered removal from service with
superannuation benefits. The workman filed appeal which
was also rejected. It is submitted by the workman that as
the workman had not done any act prejudiced to the bank’s
interest and no evidence was recorded by the management
to prove the charges and his confession was procured
under coercion and he was not given any effective
opportunity to defend himself. Therefore, he prayed that
he may be reinstated in service with full back wages and
other consequential benefits.
2. During the course of hearing in this court the
workman expired and his legal heirs were brought on
record.
3. The management filed written statement.
Preliminary objection has been taken that the workman
indulge in misappropriation of fund and he was charge
sheeted on the following misconduct :
“1.
That Sh. Gurcharan Singh, one of customer of
your branch maintaining two accounts viz ACC
A/c No.65029461354 and KGC A/c
No.65029458502, had withdrawn Rs.50,000 out of
his ACC A/c on 30.05.2008 and handed over
Rs.25,000 to you for Deposit in his KGHC A/c
No.65029458502 on the same date. But you have
not deposited the same in his KGC A/c and utilized
the amount for your personal use. Later on, on
03.10.2008, you deposited Rs.26,100/-(including
3358
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[PART II—SEC. 3(ii)]
interest of Rs.1100) in KGC A/c No.65029458502.
Moreover, you had offered Rs.50,000 to
Sh.Gurcharan Singh for compromising and not
to disclose this secret to the Bank’s officials.
2.
On 18.10.2008, you had withdrawn a sum of
Rs.35,000 from SB A/c No.55022089861 of Smt.
Harbhajan Kaur by affixing fictitious thumb
impression. No detail of currency notes was given
on the reverse of withdrawal form nor name of
the receipient was given.
3.
One of the SB Account holders Sh.Malkiat Singh
left his SB Pass Book of his Account
No.55022076512 with you. At the time of collection
of his Pass Book from you, he had enquired from
you the balance in his account and had come to
know about withdrawal of Rs.35,000 from his
account on 30.08.2008. The amount of Rs.35,000
was withdrawn by you by affixing fictitious
thumb impression of Sh. Malkiat Singh.
4.
One of the SB Account holders Sh. Inderpal Singh
maintaining SB A/c No.65032532479 at the said
branch, had given you a sum of Rs.20,000 on
30.06.2008 for depositing the same in his SB
Account. You failed to deposit the amount in his
Account but you had made a fictitious entry dated
30.06.2008 in his Pass Book with your own
handwriting raising his balance from Rs.31,356
to Rs.51,356. When the customer came to know
about the factual position, you deposited
Rs.10,000 in his SB Account on 26.09.2008 and
promised to repay back the balance by 30.10.2008.
5.
One of the SB Account holders Sh. Balbir Singh
maintaining SB Account No.65007104851 at the
said Branch, had given you a sum of Rs.5,000 for
depositing into his account. You handed over
Rs.1,000/- to him and utilized Rs.4,000 for your
own purpose. The fact came to light when
depositor wanted to withdraw Rs.2,000 out of his
account but there was only Rs.1,000 in his
account.
6.
One of the SB Account holder Sh. Leela
Singh(illiterate) Account No.55022083916
requested you to withdraw a sum of Rs.500 from
his aforesaid account. You had withdrawn a sum
of Rs.1200 and handed over Rs.1200 to Sh. Leela
Singh. Shri Leela Singh handed over again Rs.700
to you for re-depositing in his account. You had
not deposited the amount in the account of
Sh. Leela Singh and you retained the amount
with you.
7.
You have thus committed “Gross Misconduct”
vide Section 19.5(d), 19.5(j) and 19.5(k) falls in
the provisions of Sastry Award as modified by
Desai Award with subsequent improvements
made in the 8th Bipratite settlement dated
10.04.2002 and rendered yourself liable for
disciplinary action.
4. It is submitted by the management in written
statement that the workman filed reply in which he has
admitted the charges and he requested that he may be
pardoned, on the ground that he has two sons and one
daughter who are studying and if he lose the job he would
be under starvation. It is further pleaded by the
management that Sh.K.K.Bhatti was directed to investigate
the matter and it reveals from the investigation report that
workman Jaswinder Singh admitted his guilt and returned
the amount to Sh. Gurcharan Singh. Similarly the workman
admitted other charges specifically and categorically and
the statements of the witnesses were recorded in the
presence of the workman and workman signed the
statement. He was placed under suspension and he was
asked to explain vide letter 03.11.2008 which was replied
by the workman vide letter dated 20.11.2008 in which he
admitted his guilt. The inquiry officer was appointed who
issued notices to the parties and inquiry was held on
31.01.2009 in which the inquiry officer specifically and
categorically asked whether the workman admit or deny
the charges which were read out to the petitioner. In the
inquiry proceedings the workman admitted the charges
voluntarily, categorically and without any pressure, on
which the inquiry was concluded. The inquiry officer
submitted his report on 10.09.2009 proving all the charges
leveled against the workman on the admission of the
workman. Copy of inquiry report was also sent to the
workman for his comments. The disciplinary authority after
considering the inquiry report and confessional statement
agreed with the finding of the inquiry officer and decided
to impose the penalty of removal from service with
superannuation benefits. He was also given personal
hearing. The workman replied to the show cause notice.
Workman replied that the punishment is unjust and he
admitted the mistake on his part. During the personal
hearing also the workman admitted his guilt. The
disciplinary authority awarded the punishment of
compulsory retirement from bank service with
superannuation benefits like pension, provident fund and
gratuity.
5. The appeal of the workman was also rejected after
giving personal hearing also. The workman admitted his
guilt before the appellate authority. It is pleaded by the
management that the punishment imposed upon workman
was proportionate and on categorical admission and after
holding proper and just inquiry in accordance with the
¹Hkkx II—[k.M 3(ii)º
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3359
principal of natural justice. Therefore, the workman is not
entitled to be reinstated in service and his claim may be
dismissed.
6. Both the parties lead evidence on fairness of
inquiries & on all other issues. The workman Jaswinder
Singh filed documents. He also examined himself as WW1
and two other witnesses WW2 Malkiat Singh and WW3
Balbir Singh. The management filed affidavit of two
witnesses MW1 K.K. Bhatti who convicted the inquiry
and MW2 AGM Bank Patiala. Both the witnesses of the
parties were cross examined by the learned counsel for
the rival parties.
7. I have heard the arguments and gone through
the inquiry report and evidence recorded in this tribunal
and all other relevant record. The learned counsel for the
workman submitted during arguments that it is a case of
no evidence as the management has not proved the
charges before the inquiry officer and simply on the
admission of the workman which was obtained under
coercion from the stage of preliminary inquiry to the stage
of appeal which is against the principal of natural justice.
In this particular case, no inquiry was conducted and the
inquiry officer submitted his report on the basis of the
admission of the workman which is not fair and proper.
The management was under obligation to prove the
charges before the inquiry officer by leading some cogent
evidence. The workman was held guilty by the inquiry
officer and maximum punishment of removal from services
was imposed on the workman which is disproportionate
to the alleged act of misconduct. Therefore the workman
is entitled to be reinstated in service with full back wages.
8. On the other hand, the learned counsel for the
management during argument submitted that right from
the stage of preliminary investigation to the stage before
the disciplinary proceedings during personal hearing and
before the appellate authority during personal hearing,
the workman admitted the guilt of committing
misappropriation of the amount of the customers as
mentioned in the charge sheet without any pressure and
coercion from any side. He never reported any coercion to
the bank authorities or to the appellate authorities that he
was forced by any of the bank officer to write his
confession. When preliminary investigation was going
on, he appeared before Mr. Bhatti who was deputed to
investigate the complaints received from the customers,
the workman appeared before the investigating officer and
admitted his guilt. He was issued explanation memo and in
reply to the explanation he again admitted the charges. He
was issued charge sheet and in reply to the charge sheet
also the workman admitted his guilt. Still the management
preferred to hold departmental inquiry. Shri P. P. Kalsi was
appointed as inquiry officer. The workman was given
opportunity to appear in the departmental inquiry. During
the course of inquiry proceedings, the inquiry officer,
specifically and categorically asked the workman as to
whether he admits or deny the charges and the charges
were also read out to him. During the departmental inquiry,
the workman admitted the charges voluntarily categorically
and without any pressure. The workman was also supplied
the copies of inquiry reports and comments of the workman
were asked. In reply to the inquiry report the workman
admitted that he had done mistake in all cases and request
for pardon. He was issued show cause notices and also
given personal hearing by the disciplinary authority.
During personal hearing the workman also admitted his
guilt and after considering all facts and record of the case,
the disciplinary authority passed the order of removal from
service with superannuation benefits. The workman also
filed appeal the appellate authority who also provided him
personal hearing and there also, he admitted his guilt and
his appeal was rejected. The workman was given full
opportunity to put his defence and inquiry was conducted
in fair and proper manner adhering to the principles of
natural justice. As regards the punishment of removal from
services with superannuation benefits awarded to the
workman is concerned, the learned counsel for the
management submitted that taking into consideration the
pleas of the workman, he was given punishment of removal
from service with superannuation benefits and the
punishment was awarded to the workman was in
accordance with the gravity of misconduct. Therefore, the
workman is not entitled to any relief and the reference is
deserved to be answered against the workman.
9. So far as the question of fairness of enquiry is
concerned, it is pertinent to mention the order dated
29.11.2010 of my learned predecessor Presiding Officer
which is as follow:
“Considering the nature of reference, it will be proper
and in the interest of justice to give opportunity for
evidence to the parties on the nature of admission
which has been challenged by the workman.”
10. In the departmental enquiry the workman was
given opportunity to participate in the enquiry and the
workman while participating in the departmental enquiry
admitted his guilt. In written statement filed by the
management, it is pleaded that workman in his letter dated
20.11.2008 admitted his guilt. Thereafter workman admitted
his guilt vide letter dated 29.12.2008. During the
departmental enquiry, the charges were read out and
explained to the workman and workman admitted the
charges voluntarily, categorically without any pressure
from any side. The enquiry officer after conducting the
enquiry in fair and proper manner submitted his report on
10.2.2009 wherein the charges leveled against the workman
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[PART II—SEC. 3(ii)]
were fully proved being admitted by the workman. Copy
of the enquiry report was also sent to the workman vide
letter dated 16.2.2009 asking for the comments of the
workman. Workman submitted his submission vide letter
dated 25.2.2009 wherein he has stated that he has done
mistake in all the cases and requested for pardon.
11. In these circumstances, it is clear that the
departmental enquiry was conducted in a fair and proper
manner after following the principles of natural justice.
Thus it is held that there is no infirmity in the enquiry
proceedings and the same has been conducted in fair and
proper manner after adhering the principles of natural
justice.
12. The learned counsel for the workman submitted
that workman’s witness Shri Malkiat Singh and Balbir Singh
have not supported the allegations against the
workman.WW1 Jaswinder Singh during cross-examination
stated as under:-
“It is correct that Shri Gurcharan Singh, Malkiat
Singh, Smt.Harbhajan Kaur, Shri Inder Pal Singh,
Shri Leela Singh, Balbir Singh lodged the complaint
against me for withdrawing the money from their
account and misappropriating the same and also
not depositing the same.
In his cross-examination, workman further stated
that :—
“Letter dated 7.12.2008 bears my signatures. It was
written under threat. Shri Bhatti has threatened me
to kill me by fire. I have not lodged any complaint
regarding the threat to any police officer or any
officer to the bank. In any of my representation made
to the disciplinary authority and appellate authority
the said threat to kill was not made to the
disciplinary authority and appellate authority. It is
incorrect to suggest that I deposited Rs. 25000 plus
interest which was misappropriated from Gurbachan
Singh. The letter dated 7.10.2009 was dictated by
Mr. Bhatti and was just signed by me.
…………It is further stated in cross-examination by
the workman:-
“statement dated 7.10.2008 relating to Harbhajan
Kaur bears my signatures. Likewise statement dated
7.10.2008 relating to Malkiat Singh, Inderpal Singh,
Leela Singh and Balbir Singh bears my signatures. I
made the signatures on the assurance of the Branch
Manager Shri J.S.Kumar for having the lenient view
and to reinstate me in the service. I was assured by
the AGM on phone. I have not promised to Malkiat
Singh to return the amount by 17.10.2008, this
document also contain the signatures of my wife..
The endorsement on letter dated 7.10.2008 relating
to Malkiat Singh contain my signatures but not the
endorsement in my handwriting.
………. I again admitted the charges before the
disciplinary authority on assurance of lesser
punishment.”
13. Thus it is clear from the statement of the workman
that the workman admitted the charges during the
departmental enquiry before Enquiry Officer voluntarily.
So far the statement of workman’s witnesses Malkiat Singh
and Balbir Singh are concerned, it is well established that
the degree of proof in departmental enquiry and other
proceedings are quite different. In criminal trial prosecution
is required to prove the charge beyond all reasonable
doubts whereas in departmental enquiry probability of
preponderances is to be considered. Even a doubtful
character or suspicious conduct is sufficient to found
him guilty in departmental enquiry.
14. As regards the submission of the learned counsel
for the workman that punishment imposed upon the
workman is disproportionate to the misconduct, it is clear
that the workman committed misconduct by
misappropriating the amount from the accounts of the
customers of the bank, shaking the faith of the customer
in the banking institution. Banking business runs on the
faith of its customer. The workman not once but on several
occasions admitted his guilt and requested for pardon. In
that situation, no interference is warranted in the
punishment awarded to the workman.
15. In view of the above discussion made in the
earlier paras, the action of the management of State Bank
of Patiala in imposing the penalty of removal from service
on the workman Shri Jaswinder Singh vide order dated
10.4.2009 is legal and justified and the workman was not
entitled to any relief. The reference is answered
accordingly.
16. Central Govt. be informed. Soft copy as well as
hard copy be sent to the Central Govt. for publication.
Chandigarh.
25.3.2014
S. P. SINGH, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3361
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1285-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsUMMZ pkVZM
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] eqEcbZ ds iapkV (lanHkZ la[;k 27@2007)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 3@04@2014 dks izkIr
gqvk FkkA
¹la- ,y&12011@2@2007&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1285.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 27/2007)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Mumbai as shown in the Annexure in the
Industrial Dispute between the management of Standard
Chartered Bank and their workmen, received by the Central
Government on 3/4/2014.
[No. L-12011/2/2007-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT : K. B. KATAKE, B.A.LL.M, Presiding Officer
Reference No. CGIT-2/27 of 2007
Employers in Relation to the Management of Standard
Chartered Bank
The Regional Head
ER M/s. Standard Chartered Bank
23-25, M.G. Road, Fort
Mumbai-400 001
AND
THEIR WORKMEN
The Secretary
Grindlays Bank Employees Union
90, M.G.Road
Mumbai-400 001.
APPEARANCES :
For the Employer
:
Mr. Ashok D. Shetty,
Ms. P.S. Shetty, Advocates
For the Workman
:
Mr. M.B. Anchan, Advocate
Mumbai, dated the 10th January, 2014
AWARD
1. The Government of India, Ministry of Labour &
Employment by its Order No. L-12011/2/2007 -IR (B-I) dated
28/06/2007 in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section 2(A) of Section 10
of the Industrial Disputes Act, 1947 have referred the
following industrial dispute to this Tribunal for
adjudication:
“Whether the Standard Chartered Bank, Mumbai
has committed Unfair Labour Practice by extending
the benefits of ‘Memorandum of Settlement’ dated
10.03.1999 to ten workmen of Grindlays Bank
Employees’ Union beyond the prescribed time limit
mentioned in the said Memorandum of Settlement
dated 10.03.1999 itself? If yes, whether the
management is liable to be prosecuted u/s 25 U of
I.D. Act, 1947 for practicing Unfair Labour Practice ?”
2. After receipt of the reference, notices were issued
to both the parties. In response to the notice, the second
party union filed their statement of claim at Ex-3.
According to them there was settlement agreement signed
under Section 2P read with Section 18 (1) of I.D. Act read
with rule 58 of Central Rules by the first party with the
second party union dated 10/03/1999. The said settlement
was valid from 01/04/1999 upto 31/03/2002. According to
the first party in order to lure the loyal members of their
union and to force them to leave the membership of the
union, the management had introduced a new clause by
which any workman who is not member of any unit affiliated
to AIGBEA shall be bound by the terms and conditions of
the settlement if he/she accepts the settlement by making
a declaration to that effect as per annexure enclosed under
this settlement which will be made available to such
employees who will have to fulfill the obligations under
this settlement. This option of acceptance of the settlement
by submitting the receipts shall be available for 90 days
from the date of signing the settlement. By this method
the management tried to win over the loyal members of the
union by enticing them with monetary benefit and make
them to submit their resignation from the membership of
each union. According to the union there is nothing in
the section to justify an extended meaning being given to
it contrary to the ordinary law that a contract will bind
only those who are parties to it. Section 18 (1) of the I.D.
Act bind only those workers who are the members of the
union at the time of settlement and not the others. The
settlement dt. 10/3/1999 was binding only on the members
of the association who has signed the settlement under
Section 18 (1) of the I.D. Act.
3. According to the union after signing the said
settlement in March, 1999 the management continued to
pressurize and coerce the members of Employees Union
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
to resign them from the membership of the union and to
avail benefits by signing the annexure to the said
settlement. In order to pressurize the members,
management also stopped sanctioning loans to them under
some or the other pretext. As a result of this intensive
coercion, ten members of Employees Union resigned from
the membership of the union and signed the receipt after
due date for accepting the benefit of the said settlement of
March 1999. The union has given their names and date of
resignation and the date of accepting settlement
respectively. According to the union as these ten
employees have accepted the settlement much after the
due date prescribed for, therefore these ten employees are
not entitled to the benefit given as per the settlement.
According to the union it is illegal and violative of principle
of equality and natural justice and it amounts to unfair
labour practice. Therefore they pray that action of the
management in extending benefit to the one set of workers
so as to break existing union be declared illegal, invalid,
improper and against equity and good conscious and it
amounts to unfair labour practice. Therefore they pray for
declaration to that effect. They also pray for direction to
prosecute the management under Section 25 U of the I.D.
Act 1947.
4. The first party management resisted the statement
of claim vide their written statement at Ex-7. According to
them the reference is bad in law and not maintainable. It is
pertaining to extending the benefit of the Memorandum of
Settlement dated 10/03/1999 to the 10 workmen. Thus it
does not fall in the ambit of industrial dispute. There is no
cause of action against the first party. The terms of the
said settlement are binding only to the parties of the said
settlement. The ten workmen referred in the statement of
claim had approached and requested the Bank through
majority union of which they became member after
resigning from the membership of second party union for
the benefit of the settlement. The period of 90 days is not
applicable to the ten workmen referred to, as on the date
the benefit have been extended to them, they were bonafied
members of All India Grindlays Bank Employees’
Association and had accepted the terms of the said
settlement. These workmen were given the benefit of the
settlement. It is quite lawful. They denied that they had
enticed or coerced the workmen to resign from second
party union. The contents in the statement of claim are
false. The second party is not entitled to the relief claimed
for. The first party has not indulged in any unfair labour
practice. Therefore they pray that the reference be
dismissed with cost.
5. Following are the issues for my determination. I
record my findings thereon for the reasons to follow.
Sr.
Issues
Findings
no.
1.
Whether the reference is tenable
No
in the present form?
2.
Whether the first party is guilty of
No
unfair labour practice?
3.
Whether the action of the first
No
party violates the principle of
equity & natural justice?
4.
What relief the second party union
No relief.
is entitled to?
REASONS
Issue No. 1 :-
6. In this respect it was submitted on behalf of the
second party that settlement entered into during
conciliation proceeding is binding on all the workmen
working in the establishment irrespective of the
membership of the union which entered into the agreement.
According to the second party the settlement dated
10/03/1999 is not settlement during the course of
conciliation. It was private settlement between first party
and the second party union. Therefore the said settlement
was binding and the members of the second party union
only are entitled to the benefit under the said settlement.
According to them the management has inserted the
clause to extend benefits of the settlement to all the
employees who consented and signed for the same within
90 days from the date of the settlement. According to the
union the management has inserted the said clause to
give benefit of the settlement to the non-members of the
union and enticed the members of the union to resign
from the union and join the union under control of the
management.
7. In this respect the Ld. Adv. for the first party
submitted that the dispute raised herein is neither related
to the demands of the workmen nor it has any concern
with the subject matter of industrial dispute. Therefore
the Ld. Adv. for the first party submitted that the point
raised herein by the union is infact not an industrial
dispute. Therefore the reference is not tenable. In support
of his argument the Ld. Adv. for the first party resorted to
Apex Court ruling in ANZ Grindlays Bank Ltd. V/.s Union
of India & Ors. AIR 2006 SC 296 wherein the Bank had
extended benefit under Settlement to employees who were
not members of the Association on their giving acceptance
in writing. The Federation representing minority of
employees disputed clause in the settlement giving benefit
therein only to members and action of Bank extending
benefit to other employees on giving individual
acceptance of settlement. In the circumstances the Hon’ble
Court observed that;
¹Hkkx II—[k.M 3(ii)º
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3363
“The action of the Bank in asking for receipts from
those employees, who are not members of the
Association but wanted to avail of the benefit of the
settlement, again does not give rise to any kind of
dispute between the Bank and the Federation. Thus
reference made by the Central Government for
adjudication by Industrial Tribunal is wholly
redundant and uncalled for.”
8. In the case at hand the second party union has
also not referred to any demand or claim made by them
neither alleged refusal thereof by the management. Their
prayer is altogether different. They claimed that the ten
workmen who had not given undertaking within the period
should not be given benefit of the settlement/agreement.
The second party claimed that the said action of the first
party amount to unfair labour practice. Giving benefit of
the settlement to some other workers even after the due
date cannot be said unfair labour practice, neither it can
be called industrial dispute. Therefore in the light of above
ruling I hold that the reference is not maintainable as there
is no industrial dispute as such. Accordingly I decide this
issue no.1 in the negative.
Issue no. 2 to 4 :
9. In the case at hand question of discrimination or
violation of principle of equity and natural justice does
not arise as no workman is deprived of any of his right.
Extending the benefit to the ten other workers who are not
members of the second party union cannot be said
violation of any principle. So also it cannot be termed as
unfair labour practice as has been alleged. On the other
hand these workers are given benefits of the settlement
though they have signed the under taking after the due
date. Extending equal benefits to the members of the union
and even to non-members and making provision therefor
would not amount to either discrimination or violation of
principle of equity and natural justice. Making any such
discrimination would no doubt amount to violation of
principle of equity and natural justice. In the
circumstances, I hold that extending benefits to some other
workmen equal to the members to the union cannot be
termed as unfair labour practice or violation of principle of
natural justice as has been alleged. Accordingly I decide
these issues nos.2 & 3 in the negative. Consequently I
hold that the second party is not entitled to any relief and
decide this issue no.4 also in the negative and proceed to
pass the following order:
ORDER
The Reference stands dismissed with no order as to
cost.
Date: 10/01/2014
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1286-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 27@2007)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 4@4@2014 dks izkIr
gqvk FkkA
¹la- ,y&12012@42@2005&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1286.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 27/2007)
of the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure in the Industrial
Dispute between the management of State Bank of India
and their workmen, received by the Central Government
on 4/4/2014.
[No. L-12012/42/2005-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING
OFFICER, CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/27/2007
Date : 19.03.2014
Party No. 1 : The Assistant General Manager,
State Bank of India,
Region-V, Head Office, Kingsway,
Nagpur.
Versus
Party No. 2 : Shri Namdeo Mahadeo Bokde (Dead)
Substituted by legal heirs
(a) Smt. Shobha (widow)
(b) Kumari Manisha (daughter)
(c) Kumari Rupali (daughter)
(d) Mohan (son)
All residents of Dhamak Taluka
Nandgaon, Khandeswar, Amravati.
AWARD
(Dated: 19th 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
3364
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
management of State Bank of India and their workman,
Shri Namdeo Mahadeo Bokde, for adjudication, as per
letter No. L-12012/42/2005-IR (B-I) dated 04.06.2007, with
the following schedule:-
“Whether the action of the management of the State
Bank of India, Nagpur in terminating the services of
Shri Namdeo S/o Mahadeo Bokde with effect from
02.08.2004 is justified? If not, to what relief he is
entitled?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the workman,
Shri Namdeo Mahadeo Bokde, (‘the workman” in short),
filed the statement of claim and the management of State
Bank of India, Nagpur (“Party No. 1” in short) filed their
written statement.
The case of the workman as presented in the
statement of claim is that he belongs to special backward
class and he passed SSC examination in the year 1984 and
he joined the services of the party No. 1 in the year 1985 as
water man-cum-sweeper-cum-messenger and he worked
continuously till 1988 and he was a workman, within the
meaning of Section 2(s) of the Act and party No. 1 is a
nationalized bank and an industry and the provisions of
the Act and so also, the provisions of the Shops and
Establishment Act are applicable to it and again he worked
continuously from 1991 to July, 2004 with the party No.1
and he discharged his duty honestly and sincerely and he
was never issued with any charge sheet or memo, during
his service tenure and on 02.08.2004, party no. 1 asked him
to change his salary vouchers, but as he denied for the
same, his services were orally terminated on 02.08.2004 by
party no.1 and the action of party no.1 was arbitrary, illegal
and colorable exercise of power and the post against which,
he was working was still available and he had completed
more than 240 days of continuous service and acquired
the status of permanent employee and it was incumbent
upon party no.1 to regularize his services, but instead of
regularizing his services, party no.1terminated his services,
without complying the mandatory provisions of sections
25-F and 25-G of the Act and before termination of his
services, neither any notice nor notice pay, nor
retrenchment compensation was offered to him and
therefore, the termination was illegal and the illegal
termination was effected with the intention to deny him
the benefit of permanency and he is therefore, entitled for
reinstatement in service with continuity and full back
wages.
The workman also pleaded that he made a
representation to party no.1 for his reinstatement, but party
no.1 did not reply to the same, so he sent a legal notice
through his advocate to party no.1 and party no.1 replied
the same, by offering him the job of canteen boy having
no concerned with his employment and then, he raised
the industrial dispute before the ALC and due to the failure
of the conciliation, the ALC submitted a failure report to
the Central Government and as the Central Government,
vide order dated 13.09.2005, declined to refer the dispute
to the Tribunal for adjudication, he filed writ petition
No. 4155/2006 before the Hon’ble High Court, Nagpur
Bench for redress and as per the direction of the Hon’ble
High Court in the said writ petition, the Central Government
referred the dispute to this Tribunal for adjudication.
The workman had prayed for his reinstatement in
service with continuity and full back wages.
3. It is to be mentioned here that as the workman
died during the pendency of the reference, his legal heirs,
his wife, daughters and son, namely, Smt. Sobha, Kumari
Manisha, Kumari Rupali and Mohan were substituted in
his place as per order dated 26.03.2012.
4. The party no.1 in the written statement has
pleaded inter-alia that the workman has misquoted the
facts and law in the statement of claim and he worked
mainly and substantially as a canteen boy with the local
implementation committee (“LIC” in short) and persons
engaged by the LIC are not the employees of the Bank
and sometimes, the workman was engaged purely in
casual/daily wage capacity intermittently, but without
continuity in service, due to administrative exigencies and
sometimes, he worked for the full day, but mostly, on part
time basis, for doing the job of bringing water from the
well and cleaning the area of the branch premises and
during the month of July, 2003, the water pipeline was
chocked and due to irregular electric supply, water was
not available from the Gram Panchayat and the Branch
was therefore, unable to provide drinking water to the
staff and customers and hence, the workman was asked to
fetch drinking water from the well and to clean the branch
premises for two days per week on oral contract at the rate
of Rs. 500 per month, which was purely on temporary
basis for the period from July, 2003 to July, 2004 and as
from August, 2004, the water supply was regular, there
was no need to engage the workman to bring water from
the well and the workman did not complete 240 days in the
preceding 12 calendar months of the alleged date of
retrenchment and the engagement of the workman was
purely contractual and such contract came to an end upon
non-renewal of the contract, due to non-availability of
work of bringing water from the well.
It is further pleaded by the party no.1 that the
workman informed the ex-official chairman of LIC i.e. the
branch manager that he was not interested to continue as
the canteen boy and he left the job and on receipt of the
notice dated 24.08.2004 given by the workman, he was
given the reply dated 27.08.2004 in which, he was informed
that he had left the job on his own volition and if he wished
to repeat, he may join immediately, but the workman did
not join the duties and there was no termination of the
¹Hkkx II—[k.M 3(ii)º
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3365
employment or any retrenchment as alleged by the workman
and the workman is not entitled to any relief.
5. Both the parties have placed reliance on
documentary evidence in support of their respective claim.
Besides the documentary evidence, the legal heirs of the
deceased workman has adduced oral evidence to prove
the case Smt. Shobha, the widow of the deceased workman
has examined herself as a witness.
The examination-in-chief of Smt. Shobha on affidavit
is in the line of the stands taken by the deceased workman
in the statement of claim. However, in her cross-
examination, this witness has admitted that her husband
was making tea in the bank and also cleaning the utensil
and in 2003, her husband was supplying drinking water to
the bank, by fetching the same from the well and cleaning
the bank premises and her husband was working as a
canteen boy and she is not aware as to how her husband
was engaged by the bank.
6. No oral evidence has been adduced by the party
no.1.
7. At the time of argument, it was submitted by the
learned advocate for the petitioner that the workman joined
the services of the party no.1 in the year 1985 as a waterman-
cum-sweeper-cum-messenger in class-IV category and
worked till 1988 and he had completed more than 240 days
of continuous service and the work, which he was
performing was of regular in nature and was available round
the year and the workman had acquired the status of
permanent employee and as per the provisions of standing
orders, which are applicable to party no.1, workman having
completed 240 days of continuous service in a calendar
year is deemed to be a permanent employee and the
workman was being paid his salary on vouchers and on
02.08.2004, the workman was asked to change his salary
vouchers, but the workman did not agree for the same, so
his services came to be terminated orally without
compliance of the mandatory provisions of sections 25-F
and 25-G of the Act and before termination of his services,
neither one months’ notice nor one month’s wages in lieu
of notice nor retrenchment compensation was offered to
him and as such, the termination was illegal and though
the workman made representations and sent a legal notice
to party no.1, no action was taken by the party no.1 to
reinstate the workman and as the termination of the
workman was illegal, the legal heirs of the deceased
workman are entitled for the monetary benefits from the
date of the illegal termination till the death of the workman.
8. Per contra, it was submitted by the learned
advocate for the party No. 1 that the workman was working
as a canteen boy with the LIC and he was not an employee
of the Bank and in any case, the workman had not
completed 240 days in the preceding 12 calendar months
from the date of non-renewal of the contract engagement
and for supply of drinking water and to clean the branch
premises, in the month of July, 2003, the workman was
engaged for two days per week on oral contract at the rate
of Rs. 500 per month and such engagement was made till
July, 2004 and the engagement was purely on temporary
basis and since August, 2004, water supply to the branch
was restored, his oral contract was not renewed and there
was no termination of the workman from services and so
far the work of canteen boy is concerned, the workman
left the same on his own volition and after the legal notice
issued by him, though he was asked to rejoin as the canteen
boy, he did not join and as the workman was not entitled
to any relief, his legal heirs are also not entitled to any
monetary benefits.
In support of the contentions, the learned advocate
for the party no.1 placed reliance on the decisions reported
in (2005) 5 SCC-535 (State Bank of India Vs. State Bank of
India Canteen employees union).
9. It is to be mentioned here that the party no.1 has
claimed that the workman was working as a canteen boy
and the witness examined by the legal heirs of the deceased
workman has admitted the same in her cross-examination.
However, in view of the specific pleading by party no.1
that the deceased workman was engaged from July 2003
to July 2004 to supply drinking water and to clean the
branch premises and in view of the claim of the workman
that his services were orally terminated on 02.08.2004
without compliance of the mandatory provisions of section
25-F and 25-G of the Act, even though he had completed
240 days of work, the only question remains for
consideration is as to whether the deceased workman was
entitled for the benefits of section 25-F of the Act
9. It is well settled by the Hon’ble Apex Court in
catena of decisions that, “Onus lies upon claimant to show
that he had in fact worked for 240 days in a year preceding
his termination and in absence of proof of receipt of salary
or wages or record of appointment, filing of an affidavit by
the workman is not sufficient evidence to prove that he
had worked for 240 days in a year preceding his
termination.”
So, keeping in view the settle principles as mentioned
above, now, the present case in hand is to be considered.
10. It is to be mentioned that in para 1 of the
statement of claim, it is claimed that the workman joined as
a waterman-cum- sweeper-cum- messenger with party No.1
in 1985 and worked continuously till 1988. In para 3 of the
statement of claim, it is claimed that the workman worked
continuously with party No.1 since 1991 to July, 2004 and
his services were terminated orally on 02.08.2004. However,
the documents filed by the workman, which were admitted
into evidence on admission by party No.1 show such
claims not to be true. The copy of the legal notice issued
by the workman to party No.1 dated 28.08,2004 has been
3366
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
marked as Ext. W-I. In Ext. W-I, it has been mentioned that
the workman was posted at Dhaman branch of S.B.I. in the
year 1985 and his appointment was on daily rated basis
and he worked continuously without any break from 1985
to 1991 and in 1991, his services were terminated orally
and after several representations, he was reinstated in the
year 1999 and worked till 31.07.2004 and on 31.07.2004, his
services were terminated orally. The copy of the order
passed by the Hon’ble High Court in Writ Petition No.4155/
2006 has been marked as Ext.W-V. From Ext. W-V, it is found
that in the said writ petition, the workman had pleaded
that he joined the service in the year 1986 as waterman/
sweeper-cum- messenger and served till1988 and thereafter
again served from 1991 to 2004. It is clear from the materials
on record that the stands taken by the workman regarding
the periods of his engagement were not consistent.
11. Apart from the oral evidence of Smt. Shobha,
some documents have been produced in support of the
claim made by the workman. The five documents admitted
in evidence and marked as Exts. W-I to W-V do not relate
to the working days of the workman. The said documents
do not show that the workman had actually worked for
240 days in any calendar year or in the preceding
12 calendar months of the alleged date of termination i.e.
02.08.2004.
On the other hand, the documents produced by party
no.1 have been admitted into evidence and marked as Exts.
M-I to M-XXIX on admission. Out of the said documents,
documents Exts. M-I to M-XXVI are debit vouchers under
which wages of Rs. 500 was paid to the workman, month
wise for the period from July, 2003 to July, 2004. On perusal
of the said documents, it is found that the workman was
engaged and paid for two days per week from July, 2003 to
July, 2004. On calculation, it is found that he worked for 56
days in total during the said period. From the evidence on
record, it is found that the legal heirs of the deceased
workman have failed to prove that in fact the workman
had worked for 240 days in the preceding 12 calendar
months of the alleged date of his termination i.e. 02.08.2004.
So, the provisions of section 25-F of the Act do not apply
to the case of the workman.
In this case, no evidence has been adduced to show
that except the workman any other person was also
engaged by the party no.1 or that any junior to the workman
was retained by the party no.1 in service, though the
services of the workman were terminated. Hence,
provisions of section 25-G of the Act are also not applicable
to the case of the workman. When the deceased workman
was not entitled to the benefits of sections 25-F and 25-G
of the Act, his legal heir are also not entitled to any relief.
Hence, it is ordered :
ORDER
The action of the management of the State Bank of
India, Nagpur in terminating the services of Shri Namdeo
S/O Mahadeo Bokde with effect from 02.08.2004 is justified.
The deceased workman as well as the legal heirs of the
workman are not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
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¹la- ,y&12011@33@2010&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1287.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 33/2011) of
the Central Government Industrial Tribunal-cum-Labour
Court, Chennai as shown in the Annexure in the Industrial
Dispute between the management of Pallvan Grama Bank
and their workmen, received by the Central Government
o
n
31/3/2014.
[No. L-12011/33/2010-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT,
CHENNAI
Tuesday, the 4th March, 2014
PRESENT :
K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 33/2011
[In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10
of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of Pallavan Grama Bank and their
workman]
BETWEEN :
The General Secretary
:
1st Party/Petitioner
Pallavan Grama Bank
Union
Employees Association
30-a, Mahaboob Ali Nagar,
Karimangalam-635111
Dharamapuri District,
Tamil Nadu
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3367
AND
The Chairman
:
2nd Party/Respondent
Pallavan Grama Bank,
Head Office, No. 6,
Yercaud Road, Hasthampatti
Salem-636007
Appearance :
For the 1st Party/
:
M/s. K.M. Ramesh,
Petitioner Union
Advocates
For the 2nd Party/
:
Sri L. Jayakumar &
Management
Associates, Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/33/2010-IR (B-I)
dated 29.03.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
“Whether the action of the management of Pallavan
Grama Bank, in not evolving/framing a negotiated
transfer policy, is legal and justified? To what relief
the Union is entitled?”
2. On receipt of the Industrial Dispute this Tribunal
has numbered it as ID 33/2011 and issued notice to both
sides. Both sides have entered appearance through their
counsel and have filed their claim and counter statement
respectively. Subsequent to the filing of the Counter
Statement by the Respondent, the petitioner has filed
rejoinder.
3. The averments in the Claim Statement filed by
the petitioner are these:
The petitioner is the General Secretary of Pallavan
Grama Bank Employees Association. It is a recognized
union and is a collective bargaining agent of the
employees working in Clerical and Sub-Staff cadre in the
Respondent Bank. The Respondent Bank came into being
by amalgamation of Adhiyama Grama Bank and Vallalar
Grama Bank in 2006. The total number of employees in
Clerical and Sub-Staff cadre working in the Respondent
Bank is 162. The petitioner association is having a
membership of 122. After the amalgamation, the new entity
has been given extended jurisdiction covering almost half
of the State of Tamil Nadu. So there is need for a fool proof
and transparent policy for transfer. The efforts of the
petitioner to negotiate with the Respondent and evolve a
transparent transfer policy did not materialize. The
petitioner has submitted a draft transfer policy for the
consideration of the Respondent. Even though the
petitioner waited for 2 years, there was no positive
response from the Respondent. In March 2011, the
Respondent has issued circular to the effect that the
members of the staff who wants transfer should apply
agreeing to forgo TA, DA and joining time. The action of
the Respondent amounts to abuse of managerial power
and is also unfair labour practice. In the circumstance the
petitioner has raised the dispute. On failure of the
conciliation proceedings the matter has been referred to
this Court. Re-deployment of Award Staff on a regular
periodicity for the parent bank itself is confined only to
the Clerical Staff. The Sub-Staff are exempted from its
purview. The action of the Respondent in not agreeing to
have a negotiated transfer policy is illegal and unjustified.
In the circumstances, an order may be passed framing a
transfer policy for the employees of the Respondent Bank.
4. The Respondent has filed Counter Statement
contending as follows:
The Respondent has its branches even in remote
rural areas. Thus the Respondent is fulfilling the primary
objective of serving the rural population. Almost all the
branches of the Respondent have one Manager and one
Clerk-cum-Cashier only. It has 178 offices, 139 Clerical Staff
and 17 Subordinate Staff as on 31.07.2011. The Clerical
and Subordinate Staff are collectively referred to as Award
Staff. The size of the Respondent is too small to provide
for shuffling its staff as per strict and rigid transfer
regulatory measures by means of a proclaimed transfer
policy. A comparison of the Respondent Bank with its
sponsor bank, the Indian Bank is not possible. Indian Bank
is one which is spread across the country and has presence
in all the major cities and also urban and semi-urban centers
and has thousands of employees. So it can formulate a
reasonably valid transfer policy unlike in the case of the
Respondent. The Respondent was constrained to reject
the Draft Transfer Policy presented by the petitioner. All
transfers are made only for administrative purposes and
for office exigency. As per the Pallavan Grama Bank
(Officers and Employees) Service Regulations no joining
time shall be admissible to an employee if the transfer
does not involve posting to a different place, the posting
is of temporary nature, if the transfer is on his own request
or if the transfer is within the same panchayat, municipality
or urban agglomeration or municipal corporation or town
or city. The postings in the bank are transferable and the
employees have no vested right to remain posted at a
particular place. It is the prerogative of the employer to
transfer an employee on administrative exigencies. The
petitioner is not entitled to any relief.
5. In the rejoinder filed, the petitioner reiterated the
case in the Claim Statement and also denied the averments
in the Counter Statement.
6. The evidence in the case consists of oral evidence
of WW1 and also the documents marked as Ext.W1 to
Ext.W11 and Ext. M1.
7. The points for consideration are :
3368
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
(i) Whether the Respondent Bank is justified in
not evolving a transfer policy for its
employees?
(ii) Whether a transfer policy is to be framed for
the employees of the Respondent?
The points
8. The petitioner, the Pallavan Grama Bank
Employees Association claims that it has a membership of
122 out of the total number of 162 Clerical and Sub-Staff
cadre of the Respondent Bank. The grievance of the
petitioner is that even though a request has been made by
it and a draft transfer policy has been submitted to the
Respondent, the Respondent has refused to consider it
and evolve a transfer policy. It is reasoned by the petitioner
that the parent bank, the Indian Bank is having transfer
policy and the Respondent Bank also should have framed
a policy in the same lines.
9. According to the Respondent it cannot be
compared with the Parent Bank which is a large institution
with several branches all over the country and thousands
of employees which makes it possible for that to have a
transfer policy of its own. It is stated on behalf of the
Respondents that such a policy in tune with the policy
framed by the Parent Bank will not be practical for the
Respondent Bank since it is quite small in size with only
few branches when compared with the Parent Bank. It is
stated in the Counter Statement that it is the prerogative
of the employer to transfer its employees and that such
transfers are made only on administrative contingencies.
10. The General Secretary of the Petitioner
Association has filed Proof Affidavit in lieu of Chief
Examination stating the necessity of framing a transfer
policy. He has been examined as WW1. Ext.W1 to Ext.W7
are all copies of letters written by the petitioner to the
Respondent listing its demands including a transfer policy
for Award Staff. Ex.W8 is the Minutes of the Meeting held
between the Respondent and the representatives of
different associations including that of the petitioner.
Ext.W9 shows that the petitioner is a registered association.
Ext.W10 gives a list of members of Petitioner’s Association.
This certainly shows that the petitioner is an association
having a majority of membership among the award staff of
the Respondent Bank.
11. Initially, before the Respondent Bank was
constituted by amalgamating two banks, the previous
entities were working within a limited area. During the
period, the employees will have to work in a limited area
only even if they will be transferred periodically. After
amalgamation of the two smaller banks and constitution
of the Respondent Bank, the area of business for the Bank
has become larger. Accordingly, the chance of the
employees being transferred to farther and remote areas
have occurred. It is in this circumstance the petitioner
seems to have requested for evolving a transfer policy in
respect of the Clerical Staff of the Bank. According to the
petitioner, the Sub-Staff should not be subjected to any
transfer at all, this having been the policy adopted by the
Parent Bank and is also a term agreed upon by the Bipartite
Settlement entered into between the different associations
and the Bank Managements. The stand of the Respondent
is that there is no necessity for framing a transfer policy.
But such a situation would not be in the interest of the
employees or even in the interest of the Management. If a
transfer policy is not there, it is always possible that the
Management would act in a high handed manner subjecting
its employees to transfer without resorting to any
restrictions. Even in the Counter Statement what is stated
by the Respondent is that it is the prerogative of the
Respondent to transfer its employees. No doubt it is the
prerogative of the employer to effect transfers. However,
this could not be done in accordance with the whims and
fancies of the employer. At the same time, the employee
could not be expected to remain at the same place, work in
the same place or claim that he should not be subjected to
any transfer. It will certainly become necessary for the
employer to transfer its employees for reasons of
administrative exigencies and also in the interest of
business. For an institution which is engaged in the
business of banking, it will not be in its interest to retain
an employee in the same branch or station also. So
definitely there should be certain guidelines for the transfer
of the employees. As directed by this Tribunal the petitioner
has placed before me a copy of the transfer policy of the
Indian Bank which according to it is to be accepted as a
model for the transfer policy of the Respondent also. A
copy of the draft transfer policy said to have been supplied
by the petitioner to the Respondent also is furnished.
Subsequently, the Respondent seems to have finalized a
transfer policy and furnished it to the petitioner. This does
not seem to be on the basis of any discussion. It is not
seen accepted by the employees also. Taking into
consideration the draft transfer policy of the petitioner,
the policy evolved by the Respondent and also the transfer
policy of the Indian Bank referred to by the petitioner, a
transfer policy is framed as below in respect of the Office
Assistants (Clerical Staffs). The Office Attendants are
exempted from the purview of transfer unless on request,
their number being only very few. The transfer policy is
named Transfer Policy in respect of Office Assistants.
I. PERIODICAL TRANSFER
1. All Office Assistants who have completed 5
years of effective service in a branch would
come under the purview of periodical transfer.
Note :
In reckoning effective service, leave availed
upto 72 days during each year would be allowed.
If leave is availed beyond 72 days, it would
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3369
require additional one year of service in order
to become eligible for transfer. Casual leave
would not be reckoned in the stipulated 72 days.
2. Periodical transfers are to be considered to a
distance below 75 kms.
3. The following categories of employees would
be exempted from periodical transfer.
(a)
Male employees above the age of 57 years
and female employees above the age of
55 years.
(b)
Widows for 10 years from the date of the
calamity.
(c)
Widowers for 5 years, if they are having
school going children upto to High
School.
(d)
Employees with cardiac ailment who had
undergone surgery for three years.
(e)
Employees suffering from Cancer, Kidney
Ailment involving dialysis and those
having paralysis.
4. The transfer of physically challenged
employees should be as per the government
guidelines.
5. The transfer of employees having school going
mentally retarded children also will be as per
government guidelines.
6. Periodical transfer orders shall be issued before
March 31st and shall be implemented before April
30th.
7. Joining time, TA & DA and mid academic
transfer allowances shall be given as per
Pallavan Grama Bank (Officers and Employees)
Service Regulations 2010 and 9th Bipartite
Settlement.
8. Any transfer will be subject to availability of
vacancy or exigencies.
II. REQUEST TRANSFER
1. An employee can submit his request for transfer
on completion of 6 months service in a particular
branch. The request will be considered only on
completion of two years of service in the branch.
An employee can avail three such transfers on
request in the entire career.
2. The request of a widow for transfer immediately
after the calamity shall be considered out-
stepping the priority.
3. An employee is eligible to request for transfer
to join his/her spouse subject to the condition
that the spouse is working in Government
Service/Government Undertakings/Quasi
Government Organizations Public limited
Companies and Govt. or Govt. Aided Schools.
The option is limited to twice in one’s career.
II. TRANSFER TO REMOTE AREA BRANCHES
The following branches are classified as remote area
branches:
(i) Kavanur
(iii) M. Kunnathur
(iv) Adhaiyur
(v) Neruppur
(vi) Anchetty
(vii) Gumulapuram and
(viii) Melkalpoondi
1. Employees below the age of 50 only will be
posted in the remote area branches. Female
employees will not be posted to the remote
branches except on request.
2. Employees who have completed full term of
service in the remote area branches will be given
their choices, three branches, which will be
considered depending upon the vacancy. This
will not amount to request transfer.
3. Those employees who served in remote area
branches shall not be posted in remote area
branches a second time unless his services are
required for any special assignment.
The award is passed accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 4th March, 2014).
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/
:
WW1, Sri A. Kaliyulla
Petitioner Union
For the 2nd Party/
:
None
Management
Documents Marked :
On the petitioner’s side
Ex.No.
Date
Description
Ex.W1
21.10.2006
Letter from First Party to the Second
Party
Ex.W2
26.10.2006
Letter from Saptagiri Grameena Bank
to the General Secretary, Saptagiri
Grameena Bank Employees Union
enclosing Draft Policy
Ex.W3
15.11.2006
Letter from First Party to the Second
Party Bank
3370
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
Ex.W4
30.11.2006
Letter from First Party to the Second
Party
Ex.W5
17.04.2007
Letter from First Party to the Second
Party
Ex.W6
27.11.2008
Letter from First Party to the Second
Party
Ex.W7
02.09.2011
Letter from First Party to the Second
Party
Ex.W8
02.01.2007
Minutes of the Meeting held
between First Party and Second
Party
Ex.W9
06.09.2007
Copy of Registration Certificate of
the First Party
Ex.W10 xxxxxxxxx
List of Members of the First Party
Union
Ex.W11 12.03.2013
Copy of Circular No. 195/2012-13
issued by the Second Party Bank
On the Management’s side
Ex. No.
Date
Description
Ex. M1
-
Pallavan Grama Bank (Officers and
Employees) Service Regulations,
2007.
ubZ fnYyh] 24 vizSy] 2014
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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vfèkdj.k 1] p.Mhx<+ ds iapkV (lanHkZ la[;k 97@2012) dks
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FkkA
¹la- ,y&12012@67@2012&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1288.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 97/2012)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 1, Chandigarh, now as shown in the Annexure
in the Industrial Dispute between the management of State
Bank of India and their workmen, which was received by
the Central Government on 4/4/2014.
[No. L-12012/67/2012-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I,
CHANDIGARH
Case No. ID 97 of 2012
Reference No. L-12012/67/2012-IR(B-I)
dated 21.02.2013
Smt. Maya Devi wife of
Late Shri Om Parkash,
resident of Village Babyal,
Ambala, Haryana
... Workwoman
Versus
1. The Branch Manager,
State Bank of India,
Branch-Babyal,
Ambala, Haryana
... Management
APPEARANCES :
For the Workman/Union
:
None.
For the Management
:
Shri S.K.Gupta Advocate
Award Passed On: 4.4.2014
Government of India Ministry of Labour vide
notification No. L-12012/67/2012-IR(B-I) dated 21.02.2013
has referred the following dispute to this Tribunal for
adjudication :
“Whether the demand of the workwoman Smt.Maya
Devi W/O Late Shri Om Parkash for reinstatement
and regularization in service with full back wages
with the management of State Bank of India, Babyal,
Ambala,Haryana w.e.f. 1971/1990 as sweeper is just,
fair and legal? If not, what relief the workwoman is
entitled to?”
2. Case repeatedly called. None has put up
appearance on behalf of the workman. Registered notice
sent to the address of the workman as mentioned in the
reference received back un-served with the remark of the
postal authorities that address is incomplete. There is no
other address of the workwoman is available with this
office.
3. In view of the above, the present reference is
returned to the Central Govt. for want of service of the
workwoman. The reference is disposed off accordingly.
Central Govt. Be informed. Soft as well hard copy be sent
to the Central Govt. for publication.
Chandigarh
4.4.2014
S. P. SINGH, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3371
ubZ fnYyh] 24 vizSy] 2014
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dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,u- ,iQ- jsyos
ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] xqgkVh ds iapkV (lanHkZ la[;k 39@2013)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 06@01@2014 dks izkIr
gqvk FkkA
¹la- ,y&41011@49@2013&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1289.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 39/2013) of
the Central Government Industrial Tribunal-cum-Labour
Court, Guwahati, as shown in the Annexure in the Industrial
Dispute between the management of N. F. Railway and
their workmen, which was received by the Central
Government on 06/01/2014.
[No. L-41011/49/2013-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, GUWAHATI, ASSAM
Present :
Shri L.C.Dey, M.A., LL.B., Presiding Officer
CGIT-cum-Labour Court, Guwahati.
Ref. Case No. 39 of 2013
In the matter of an Industrial Dispute between :-
The Workman Sri Gautam Ch. Das
versis
The Management of N. F. Railway, Maligaon, Guwahati
Date of Award : 27.12.2013
AWARD
1. This Reference has been initiated on an Industrial
Dispute between the Management of N.F.Railway,
Maligaon, Guwahati represented by General Manager (P),
N.F.Railway, Maligaon, Guwahati and their workman
Sri Gautam Chandra Das on account of not granting HRA
to the workman by the Management, which was referred
by the Ministry of Labour, Government of India, New Delhi
vide their order No. L-41011/49/2013-IR(B-I) dated
12.07.2013. The Schedule of this Reference is as under.
SCHEDULE
“Whether the action of the management of
N.F.Railway, Maligaon, Guwahati for not granting
HRA to Sh. Gautam Chandra Das w.e.f. 15.2.2010 to
23.7.2010 is legal and justified? To what relief the
workman is entitled ?”
2. The workman Gautam Chandra Das represented
by the General Secretary, Rail Mazdoor Union, N.F. Railway,
Maligaon in his claim statement mentioned that on getting
information that some workers were going to be recruited
by the Officers Club, North East Frontier Railway (in short
NEFR, Maligaon), he approached the Club Management
for job and accordingly he was employed as worker.
Thereafter he came to know that there was probability of
filling up of some posts of substitute Emergency Peon
under Chief Commercial Manager, NEFR and he applied
for the Post. Ultimately he was appointed as Substitute
Emergency Peon attached to the Chief Commercial
Manger, NEFR with effect from 11.11.2009 in the pay scale
of Rs.5200-20200 + Grde Pay Rs.1800. The workman was
also employed in the Post of Substitute Emergency Peon
in the establishment of CCM, N.F.Railway, in the pay scale
of Rs. 2550, 3200 against some terms and conditions issued
by the General Manager (P), Maligaon. The then prevailing
mode of engagement of Substitute Emergency Peon was
that initial appointment was made for 3 months but extended
for further period depending on the satisfaction of the
officer for whom in his official capacity the service of the
said Substitute Emergency Peon are meant for till he attain
the temporary servant status after 120 days continuous
satisfactory service; and the officer in whose official
capacity the said Substitute Emergency Peon is attached
is to certify the satisfactory service of the Substitute
Emergency Peon serving under him at the end of 90 days
of his service and thereafter his service was extended
further. On completion of his continuous satisfactory
service for 120 days the workman was given status of
temporary Railway employee with effect from 11.3.2010.
Thereafter the Management without following the due
procedure established by law and the relevant Railway
Rules framed there under discharged the workman from
service by an order dated 23.7.2010. The workman was not
allotted to Railway Quarter inspite of his application dated
23.7.2010 and hence, the workman was entitled to house
Rent Allowance w.e.f. 15.2.2010 but he was not given any
house rent allowance from 15.2.2010 to 23.7.2010.
Thereafter the matter came before the Assistant Labour
Commissioner (C), Guwahati for conciliation but it failed.
The workman averred that as per the Rules framed from
time to time by the Railway Board he is entitled to the
house rent allowance but the Management illegally
deprived him from getting the same. Hence, the workman
prayed for granting him house rent allowance for the period
with effect from 15.2.2010 to 23.7.2010 with interest.
3. The Management did not submit any written
statement inspite of getting sufficient opportunity and
accordingly the case was fixed for filing W.S. by the
Management.
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
4. During pendency of the reference the matter has
been taken up before the Lok Adalat held on 27.12.2013.
Upon sincere efforts & endeavor of the learned Conciliators
the dispute has been settled up amicably. The terms of
settlement arrived at between the parties is that the
workman Gautam Chandra Das shall submit his requisite
application within a week claiming house rent allowance
for the period of his eligibility, and the Management shall
consider his application within a period of one month from
today as per law and the relevant rules of Railways and to
communicate the decision to the workman and to make
necessary payment.
5. In view of the above settlement this reference is
disposed off on compromise. A Memorandum of
Settlement is prepared and duly signed by both the parties
along with the learned Conciliators and the Presiding
Officer which is kept on record and it will form a part of the
record as well as the Award.
6. Send the Award along with a copy of
memorandum of settlement to the Ministry as per law.
Given under my hand and seal of this Court on this
27th day of December, 2013, at Guwahati.
L. C. DEY, Presiding Officer
BEFORE THE LOK ADALAT IN RELATION TO THE
CGIT-CUM-LABOUR COURT, KENDRIYA SHRAM
SADAN, BIRUBARI, GUWAHATI
Date : 27.12.2013
Ref. Case No. 39 of 2013
Management of
-Vrs-
Sri Gautam
N. F. Railway, Maligaon
Ch. Das
May it please your honour,
We the parties above named have arrived at a
compromise/conciliation/settlement in the above Referred
Reference Case/Misc Case/dispute as per terms and
conditions mentioned below. No coercion or force/
temptation/influence has been made to any parties to arrive
at the compromise/conciliation.
We therefore request to record the compromise/
conciliation/settlement made before the Lok Adalat and
pass order/award accordingly today itself.
Terms of compromise/conciliation
Settled on the terms and conditions that the workman
Sri Gautam Chandra Das shall submit his requisite
application with seek for his claim of HRA for the period of
his such eligibility and the Management shall consider
his application within a period of one month from today as
per law N. F. Railway and communicate the decision to the
workman and to make necessary payment.
—Sd—elligible
—Sd—elligible
Signature of Management/
Signature of Union/
Opposite Party/Respondent
Workman/Petitioner/
Applicant
Signature of Advocate for
Signature of Advocate
the Management/Opposite
for the Union/Workman/
Party/Respondent
Petitioner/Applicant
—Sd—elligible
Signature of conciliators
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1290-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cukjl LVsV
cSad fy- ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k] y[kuÅ ds iapkV (lanHkZ la[;k 138@2001) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 23@03@2014 dks izkIr gqvk FkkA
¹la- ,y&12012@298@2001&vkbZvkj (ch&I)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1290.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 138/2001)
of the Central Government Industrial Tribunal-cum-Labour
Court, Lucknow now as shown in the Annexure, in the
Industrial Dispute between the management of Benares
State Bank Ltd. and their workmen, which was received
by the Central Government on 23/3/2014.
[No. L-12012/298/2001-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
PRESENT : Dr. MANJU NIGAM, Presiding Officer
I.D. No. 138/2001
Ref. No. L-12012/298/2001-IR(B-I) dated: 30.08.2001
BETWEEN
Shri Munna Lal
Village, Lodhan P.O. Shivpur,
Distt. Varanasi (U.P.) – 221001.
AND
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3373
The Asstt. General Manager
The Benares State Bank Ltd.
Head Office, S-20/52, A.K. Varuna Bridge, Cantt.
Varanasi (U.P.) – 221 001.
after amalgamation, Bank of Baroda
Regional Office (Varansi Region)
Assi Road, Lanka
Varanasi - 2366150
AWARD
1. By order No. L-12012/298/2001-IR(B-I) dated:
30.08.2001 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of
Section 10 of the Industrial Disputes Act, 1947 (14 of 1947)
referred this industrial dispute between Shri Munna Lal,
Village, Lodhan P.O. Shivpur, Distt. Varanasi (U.P.) and the
Asstt. General Manager, the Benaras State Bank Ltd. ,
Head Office, S-20/52, A.K. Varuna Bridge, Cantt., Varanasi
(U.P.) after amalgamation, Bank of Baroda, Regional Office
(Varansi Region), Assi Road, Lanka, Varanasi for
adjudication.
2. The reference under adjudication is:
“WHETHER THE ACTION OF THE MANAGEMENT
OF BENARES STATE BANK LTD. IN SUSPENDING
AND DISMISSING SHRI MUNNA LAL IS
JUSTIFIED? IF NOT, WHAT RELIEF IS HE
ENTITLED?”
3. It is admitted case of the parties is that the
workman, Munna Lal, was working as subordinate staff
and was posted at Shivpur branch, Varanasi of the Benaras
State Bank Limited , after amalgamation, Bank of Baroda
when he was served upon a charge sheet 20.12.96 for
alleged misconduct of gross negligence by the Assistant
General Manager. Shri Mohd. Asad Jan was appointed as
Inquiry Officer to inquire into the charges; who after
conducting the inquiry found the charges to be proved
and submitted his inquiry report before disciplinary
Authority. On receipt of findings, the Disciplinary
Authority issued a show-cause notice dated 30.08.99,
proposing punishment of dismissal from the service of
the bank with an opportunity to personal hearing.
Thereafter, the order dated 30.09.99 was passed by the
Disciplinary Authority, inflicting punishment of ‘dismissal
from services of the bank with immediate effect’. Aggrieved
from impugned order dated 30.09.99, the workman preferred
an appeal before Appellate Authority, which was rejected
vide order dated 01.05.2000.
4. It is case of the workman is that the management
conducted the enquiry proceedings in violation to the
principles of natural justice. He has further alleged that
the management did not provide him the documents to
enable him to submit his explanation. It has also been
alleged that the findings of the Inquiry Officer are also
perverse as he did not consider the evidence of the Hand
Writing Expert, MW-1 in proper way. Accordingly the
workman has prayed to set aside the impugned order dated
30.09.99 with consequential benefits.
5. The management of the Benaras State Bank
Limited , after amalgamation, Bank of Baroda has denied
the allegation of the workman with submission that the
workman was afforded all reasonable opportunity to defend
himself and was supplied all relevant papers etc. and the
inquiry was conducted fully in accordance with the
principles of natural justice. It is also submitted by the
Bank that Inquiry Officer after taking into consideration
the entire material on the record submitted his report to
the Disciplinary Authority, holding charges as proved;
and the Disciplinary Authority after giving show-cause to
the workman rightly imposed the punishment vide order
dated 30.09.99 and there is no illegality with it. Accordingly,
the management of the Bank has prayed that the claim of
the workman be rejected without any relief being extended
to the workman.
6. The workman has filed rejoinder whereby apart
from reiterating its averments in the statement of claim has
introduced nothing new.
7. The management of the Bank submitted photo
copy of the entire enquiry proceedings in support of their
respective case. Following preliminary issue were framed
on 27.06.2003 by the Tribunal:
(i) Whether the appointment of Sri Mohd. Asad
Jan as Enquiry Officer vide letter dated 31.1.97 is
illegal on the ground that Asstt. GM has no
power to appoint the Enquiry Officer?
(ii) Whether enquiry report of the Enquiry Officer
was in violation of the principle of natural justice
as has been alleged by the workman.
(iii) Whether the findings of the Enquiry Officer is
perverse as alleged by the workman.
8. The workman examined himself whereas the
management examined Mohd. Asad Jan, Inquiry Officer,
in support of their stand on preliminary issue. After hearing
arguments of the parties, preliminary issues were decided
in favour of the workman vide order dated 20.12.2005,
which reads as under:
“Enquiry report of the Enquiry Officer is set aside.
The bank management is directed to file the list of
witnesses together with documents on 21.2.2006.
Also fixed 1.3.06 for taking of photograph by the
experts of parties if they feel so.”
9. Accordingly, the case was listed on 01.03.2006
with direction to the management to file documentary
evidence and list of witnesses in support of their charge
sheet before this Tribunal. The management filed the list
of witnesses dated 04.04.2006, paper No. C-41, disclosing
3374
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
name of Shri C.B. Singh, Manager & Hand Writing Expert.
The management filed the photocopy of following
documents vide list dated 16.05.2006, paper No. C-44 in
support of its case.
(i) Form No. 93 A/c opining form for current A/c of
Noori Chhapai Kendra.
(ii) Deposit receipt (pay in slip) of Noori Chhapai
Kendra dated 23.9.95.
(iii) Specimen signature card of the A/c bearing serial
No. 365.
(iv) Current A/c Cheques No. 1506894 dated 29.11.95
Rs. 1.60 lac.
(v) Cheque No. 1506879 dated 7.10.95 Rs 80 lac.
(vi) Cheque No. 1506880 dated 09.10.95.
(vii) Cheque No. 1506887 dated 21.10.95.
(viii) Saving Bank A/c cash pay in slips for Rs. 6500
dated 17.10.95.
(ix) Cash Pay in Slip Rs. 4000/- dated 25.10.95
deposited by Munna Lal.
(x) Withdrawal slip of Munna Lal dt. 22.12.97.
(xi) Withdrawal slip of Sri Munna Lal dt. 8.12.97.
(xii) Withdrawal slip of Sri Munna Lal dt. 10.11.97.
(xiii) Application of Sri Munna Lal dated 16.9.91.
(xiv) Application of Sri Munna Lal dated 1.1.88.
(xv) Application of Sri Munna Lal dated 12.4.88.
(xvi) Application of Sri Munna Lal dated 13.8.84.
(xvii) Application of Sri Munna Lal dated 17.5.85.
(xix) Credit Cash Scroll page No. 176 dated 23.9.95.
The management’s hand writing expert took
photographs of the disputed and admitted specimen and
was produced for cross-examination along with
examination report. The management also examined
another witness viz. Shri Abhijeet Das Gupta in support of
its charges against the workman.
10. In rebuttal, the workman got his handwriting
examined on the disputed and admitted documents by a
Hand Writing Expert viz. Shri Satish Dayal. The workman
also produced Shri Satish Dayal for cross-examination.
11. The parties cross-examined the witnesses of each
other and argued their case. Heard, the authorized
representatives of the parties and perused entire evidence
available on record.
12. The management of the erstwhile Benaras State
Bank Limited has come up with the case that the workman,
Munnal Lal a subordinate staff, working as officiating clerk
during period from 19.09.92 to 31.07.96, observed gross
negligence to his duties and was indulged in the act that
was prejudicial to the interest of the Bank. In the charge
sheet dated 20.12.1996. It is mentioned that the workman
did not observe the norms related to opening of a current
account, which resulted into encashment of forged drafts,
which resulted financial loss to the bank amounting to Rs.
12.66 Lakhs. As per pleadings of the Bank the above act
of the workman comes within the purview of gross-
misconduct as provided in clause 19.5 of sub para 19.5 of
First Bipartite Settlement dated 19.10.1966. The
management has filed photocopy of number of documents
through list paper No. 6 to 6/140 and C-44 in support of
the charge sheet and their case, which included account
opening form, copy of specimen signatures, cheques and
applications of the workman. It is also the case of the
management that apart from the workman three other
officials and two officers who were involved in said fraud
were dismissed from bank’s services after holding domestic
inquiry. The Bank also lodged an FIR in this matter against
the officials and the officers involved in the alleged fraud
case.
13. Per contra, the workman has come forward with
the case that he was appointed in the Bank as subordinate
staff (Peon) and worked as such and never officiated on
the post of Clerk or processed the account opening form.
It is also the case of the workman that he neither made any
entry on the disputed cheques nor made signature of the
drawer on the said cheques. Further, the workman has
also contended that the management lodged an FIR in the
alleged fraud case against all the officials and officers,
involved in the matter, sparing him and all were found
guilty by the Court. But, his case is different from other
persons involved in the case. The workman has
contended that since no FIR was lodged against him by
the management this goes to show that there was no
evidence of his involvement in the incident; even then the
management has penalized him illegally and arbitrarily. It
is also contend by the workman that even the police, after
investigating the case, did not file any charge sheet against
him before the competent criminal court for his involvement
in the alleged fraud.
14. I have given my thoughtful consideration to
the rival contentions of the parties and perused the
evidence available on record in light thereto.
15. The management has examined two witnesses
in support of their case to prove the charges leveled in the
charge sheet before this Tribunal. The management
witness, Shri Abhijeet Das Gupta, who was posted as Asstt.
Manager (IR) in the Head Office of the Benaras State Bank
in 1995-96 stated on oath that a fraud was committed in
Shivpur branch of the bank in 1995. A fraudulent current
account was opened in the name of Noori Chhapai Kendra
by one Raja Ram and five lost draft were got enchased
through said current account in connivance with the
officials of the Bank, including workman, Munna Lal. It
has been stated that the paper No. 84/1 is account opening
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3375
form and there is cutting in the ‘title of account’ and there
should have been photo of the account holder on it but
there is no photo on it. It was further stated that paper No.
84/2 is pay-in-slip, which bears ‘cutting’ in the name, but
there is no initial on it. Neither the name of depositor nor
his full signature was mention there. It has been stated
that the workman, working as officiating clerk and even
being aware of these short comings, made an entry on the
Cash Credit Scroll at serial no. 31, page no. 176. He has
very specifically stated that said entry was made by the
workman because such an entry is made by the concerned
clerk and the workman was working as officiating clerk on
the said date. The management witness also stated that
paper No. 84/3, which is specimen signature card bears
cutting in its ‘Title of Account’ and there is no initial on it
and there should be photograph of the account holder
but there is no photograph on it. He further stated that
paper No. 84/4 is cheque through which an amount of
Rs. 1,60,000 was withdrawn from the account of Noori
Chhapai Kendera on 29.11.95 and date of the cheque and
amount in words and figures was being filled by the
workman and as per Bank rules the same ought not to
have been prepared by an employee of the bank. It was
specifically stated that entries on ‘pay in cheques’, paper
No. 84/5, 84/6 and 84/7 were made by the workman. It has
also been stated by the management that workman
deposited Rs. 4000 in to his account vide paper no. 84/9,
which was received by him as financial benefit for opening
the fraudulent account and encashing the cheques. It has
also been stated by the management witness, Shri Abhijeet
Das Gupta that three other officials viz. Shyam Ji Mishra,
Mohan Lal Pandey and Jai Shankar Mishra and two
officers viz. Sushil Chandra Pandey and Raja Ram were
charge sheeted and were dismissed from the services. He
has also stated that the bank lodged an FIR in this case.
In cross-examination he has stated that from perusal of
charge sheet it is evident that the designation of the
workman is Peon i.e. a class IV employee. He also stated
that the peon is not authorized to open the bank account.
It was stated by the witness that he is not aware of the fact
that the FIR which was lodged for alleged fraud included
the name of workman, Munna Lal or not. He further stated
that he did not conducted any inquiry in the matter nor
was he the Inquiry Officer in the matter. The management
witness admitted that the signatures of Raja Ram on
cheques, paper No. 84/4 to 84/7 are not in the hand writing
of Munna Lal. The witness also admitted that the bank
made payment to the person whose signatures were
inscribed on the cheque.
The other management witness viz. Shri S.P. Gupta,
Hand Writing Expert corroborating his handwriting report,
stated that the disputed writing on the documents are that
of workman, Munna Lal. In cross-examination it was stated
that he has examined the hand writing on the alleged four
cheques i.e. of the date and amount of the cheque, in
figure and word only; and he neither examined the
signatures of the account bearer nor the signature of the
recipient on the back of the cheque.
16. In rebuttal, the workman has come forward with
the evidence of its hand writing expert who has submitted
report in favour of the workman. In the cross-examination
he has stated that he examined disputed ‘body writing’ on
cheques, paper No. 72/11 to 72/14 with admitted writing
on paper No. 72/15 to 72/19 and found that the disputed
writing on the cheques was not that of Munna Lal.
17. The case of the management rest on the pleading
that the workman, Munna Lal while officiating as clerk,
exhibited gross negligence to his duties on 23.09.95 when
he over looked many short comings in the current account
opening form/procedure in respect of M/s Noori Chhapai
Kendra. The management’s case is that the workman in
this way assisted one Raja Ram in fraudulent withdrawal
of Rs. 12.66 Lakhs. The workman has denied the
allegations and this Tribunal after vitiating the domestic
inquiry, conducted by the bank earlier, vide order dated
20.12.2005, took fresh evidence on the charges. During
inquiry into the charges before this Tribunal both the
parties examined their handwriting experts who have given
report favourable to them.
18. The management has held the workman
accountable and responsible towards his services,
discharged as officiating Clerk during period 19.09.92 to
31.07.96 and particularly on 23.09.95 when the alleged
fraudulent current account was opened by the workman.
The workman has vehemently denied this fact that he ever
helped or assisted in any way in opening the current
account No. 365 The workman has also stressed on the
fact that there was no FIR against him while the Bank
lodged FIR against all the officials and officers, who were
found involved in any way while opening the fraudulent
account. This itself is sufficient to establish that he was
not involved in the case.
In this regard the management witness, Shri Abhijeet
Das Gupta stated that the workman’s designation in the
charge sheet is mentioned as ‘Peon (subordinate)
employee a class fourth employee’. Generally a peon is
not assigned the duty for opening the bank account. Also,
the management could not produce any order, directing
the workman to officiate on the post of Clerk w.e.f. 19.09.92
to establish its contention that the workman was officiating
on the post of Clerk. Likewise, there is no evidence on the
record to show that while officiating on the post of Clerk
the workman was entrusted with the duties of account
opening etc.. Moreover, there is no evidence to show that
the workman ever received any remuneration or
honorarium or any other allowance towards officiating on
the post of Clerk. Bank’s being financial institutions where
public money is kept has to observe a transparency and
accuracy in its working so that accountability may be fixed.
3376
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
Here in the present case in the absence of any order to
officiate on the post of Clerk or any order regarding work
allotment to the workman as officiating clerk; it cannot be
well said that the workman was officiating on the post of
Clerk and he was also entrusted with the account opening
duties.
19. Further, the management has taken the plea that
the workman has worked in connivance with the Raja Ram
as the cheques through which money was withdrawn was
in the hand writing of the workman. In this regard witness,
Abhijieet Das Gupta has stated that as per bank Rules the
employees of the bank should not fill the cheques and
withdrawal forms of the customers. Also, during cross-
examination it was admitted by him that the signatures of
the account holder was not made by the workman and the
payment was being made to the person who drew the
money again goes to show that the workman was not
involved in the matter at all.
20. The workman in his defence has pleaded that
the management had filed an FIR against the officials and
the officers, involved in the case; but the name of the
workman was not included it nor did any criminal case was
instituted against him by the police on investigation. The
workman has contended that this move of the management
of non-lodging an FIR, was due his non-involvement in
the alleged fraud. In this regard the management has
contended that the workman has been charged for
misconduct and this has nothing to do with the non-
lodging of FIR or non-existence of criminal case against
him.
As per version of the management in the present
case, the workman has been charged and punished for
misconduct committed by him. Here in the present case,
the fraud was committed with the connivance of the bank
officials and officers wherein a fake current account was
opened and few forged drafts were deposited in it. When
the money born by the drafts was transferred to the
account, the same was withdrawn. Therefore, the whole
story of fraud initiates with the opening of the current
account and the workman has been charged with charge
of observing negligence the in account opening and
thereby assisting in the fraud; then FIR against all including
workman was obvious. The workman was spared by the
management may be because the workman was not
involved in the alleged opening of the account as there
was no order to the workman for officiating as Clerk or any
order entrusting the workman with the account opening
work. When the workman was not given any order to
officiate on the post of clerk nor was assigned the duty of
opening the account, then he cannot be held responsible
for negligence in opening the account.
Besides, the workman even as officiating clerk
cannot be solely held responsible for irregularities and
omissions in following the procedure while opening the
alleged account. Because it is not the clerk who orders for
opening of the account. As per procedure of the bank, the
clerk only process the case and presents the same before
higher authorities/manager who after examining the case
and satisfying themselves that all the formalities have been
complied with and there is no infirmity with the form and
procedure etc., put their signatures and allow the account
opening. If there was any irregularity or omission with
respect to the procedure for opening the account, the
higher bank authorities either could have returned the same
for correction/rectification or would have rejected the same.
But no action was taken by the bank authority and it is not
in the power of the clerk to reject any account opening
application/form at his own. Hence, bank cannot hold the
workman solely responsible for negligence in opening the
alleged current account.
21. It is also the case of the management that the
body of the four cheques, through which money was
withdrawn from alleged current account No. 365, was in
the hand writing of the workman, and the same was not
permissible under Rules. If it is taken to be true that the
alleged hand writing regarding mentioning the amount in
word and figure was that of the workman, even then the
workman could not be blame in view of the admission of
the management witness that the signatures of the account
holder was not made by the workman. It is also admitted
that the signatures of the account holder viz. Raja Ram, on
the front and back of the cheque, was not made by the
workman and payment was made to the person who
inscribed the signatures on the back. Hence, it could not
be said that the workman was involved in the fraudulent
withdrawal just because be assisted in filling few entries
in the cheque, therefore, the punishment imposed appears
to be disproportionate.
22. Also, the management has charged the workman
of receiving proceeds of Rs. 6500 and Rs. 4000 for illegal
works and depositing the same in his saving account in
cash. In this regard the management witness has stated
that said amounts were considered to be remuneration for
assistance of the workman. He also stated that in 1995 the
salary of the workman would have been 1000—1500 per
month. But could not produce any salary slip or other
documentary evidence to corroborate his statement that
the said amount was the proceeds of the fraud.
23. Thus, in view of the facts and circumstances of
the case and discussions made hereinabove, I am of the
considered opinion that the management of the Bank of
Benaras State Bank Limited , after amalgamation, Bank of
Baroda failed to prove the charges before this Tribunal
regarding alleged involvement of the workman showing
gross-negligence in opening current account in the name
of Noori Chhapai Kendera while officiating as Clerk on
23.9.95 as there was no order to the workman to officiate
as Clerk nor he was entrusted with responsibility of
¹Hkkx II—[k.M 3(ii)º
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3377
account opening. The bank also could not prove through
some documentary evidence that the workman assisted
the persons committing fraud in any way and got
remuneration for same, mere assumptions are no substitute
for proof. As when the charges are of criminal in nature
the evidence produced should be beyond doubt. Hence,
I come to the conclusion that the action of the management
of the Bank of Benaras State Bank Limited, after
amalgamation, Bank of Baroda in suspending and
dismissing the workman, Munna Lal is neither legal nor
justified; and accordingly, the workman, Munna Lal is
entitled for reinstatement with consequential benefits
including continuity in service and full back wages within
six weeks from the date of publication of this award in the
gazette, falling which same shall accrue simple interest @
6% per annum. The reference is answered accordingly.
24. Award as above.
LUCKNOW
06th March, 2014.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1291-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc uS'kuy
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] dksydkrk ds iapkV (lanHkZ la[;k 32@2007)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 24@4@2014 dks izkIr
gqvk FkkA
¹la- ,y&12011@57@2007&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1291.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 32/2007) of
the Central Government Industrial Tribunal-cum-Labour
Court, Kolkata as shown in the Annexure in the Industrial
Dispute between the management of Punjab National Bank
and their workmen, received by the Central Government
on 24/4/2014.
[No. L-12011/57/2007-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
AT KOLKATA
Reference No. 32 of 2007
Parties : Employers in relation to the management of
Punjab National Bank
AND
Their workmen
Present : Justice Dipak Saha Ray, Presiding Officer
Appearance :
On behalf of the
: None
Management
On behalf of the
: None
Workmen
State: West Bengal
Industry: Banking
Dated: 18th March, 2014.
AWARD
By Order No. L-12011/57/2007-IR(B-II) dated
26.10.2007 the Government of India, Ministry of Labour in
exercise of its powers under Section 10(1)(d) and (2A) of
the Industrial Disputes Act, 1947 referred the following
dispute to this Tribunal for adjudication:
“Whether the claim of the union for regularization
of service of Shri Ashok Kumar Bera, Part time
Sweeper, on the post of peon of the Punjab National
Bank w.e.f. 1st June, 2004 and to pay him usual pay
and allowances and to release all other benefits
attached to the said post w.e.f. that date, is justified
and legal? If so, what are the relief the workman is
entitle for?”
2. When this case was taken up today, none appears
on behalf of either of the parties. None also appeared on
previous two dates. On careful perusal of the record it is
evident that inspite of being given opportunities, the union
has not turned up to give evidence. From the above
conduct of the union it may reasonably be presumed that
the union is no longer interested to proceed with this
reference further. Perhaps the dispute between the parties
does not exist at present.
3. Considering the above facts and circumstances,
the present reference is disposed of by passing a “No
Dispute Award”.
Dated, Kolkata
the 18th March, 2014
JUSTICE DIPAK SAHA RAY, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1292-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ
cMksnk ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
3378
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 30@2012)
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 25@4@2014 dks izkIr
gqvk FkkA
¹la- ,y&12012@5@2012&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1292.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 30/2012) of
the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure in the Industrial
Dispute between the management of Bank of Baroda and
their workmen, received by the Central Government on
25/4/2014.
[No. L-12012/5/2012-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/30/2012
Date: 07.04.2014
Party No. 1
:
The Branch Manager,
Bank of Baroda, Manewada
Branch, Ashirwad Square,
Near Rode Hospital,
Hudkeshwar Road,
Nagpur. (MS).
Versus
Party No. 2
:
Sh. Avinash S/o. Bajirao Nimje,
R/o. Pachpaoli, Thakkargram,
Near Hindi Primary School,
Nagpur. (MS).
AWARD
(Dated: 07th April, 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 Bank of Baroda and their workman, Shri
Avinash Nimje, for adjudication, as per letter No.L-12012/
5/2012-IR (B-II) dated 03.12.2012, with the following
schedule:-
“Whether the action of the management of Bank of
Baroda through its Branch Manager, Manewada
Nagpur (MS) in terminating the services of
Shri Avinash S/o. Bajiraoji Nimje a daily wage
temporary workman from his duty w.e.f. 18.12.2010
is legal and justified? What relief the workman is
entitled to?”
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the workman, Shri
Avinash Nimje, (‘the workman” in short), filed the
statement of claim and the management of Bank of Baroda,
(“Party No. 1” in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of the
party no.1 at Manewada branch since 25.08.2009 and he
used to discharge his duty from 8.30 A.M. to 8.30 P.M. and
he was initially paid Rs. 100/- per day and subsequently
the wages was enhanced to Rs. 115/- to Rs. 125/- and
wages was being paid to him weekly on vouchers and he
was in continuous service with party no.1 for 17 months,
but on 18.12.2010, all of a sudden, party no.1 brought his
services to an end without following the due process of
law and party no.1 did not comply with the mandatory
provisions of section 25-F and 25-G of the Act and the
work which he was discharging was that of perennial nature
and the same is still available with party no.1 and he had
already completed 240 days of continuous work before
his termination, but party no.1 neither paid any wages in
lieu of the notice nor any retrenchment compensation,
before termination of his services and he is out of
employment since the date of termination and he is not
gainfully employed and he tried his level best to get
employment, but in vain and he is entitled for reinstatement
in service with continuity and full back wages.
3. The party no.1 in the written statement after
denying the allegations made by the workman in the
statement of claim has pleaded inter-alia that the reference
is bad in law, in as much as the workman had never been
entered into its employment and the workman has
concealed material facts and has attempted to show that
he was in its regular service and as the workman was never
in its regular service, the reference itself is unwarranted
and uncalled for and is therefore vitiated.
The further case of party no.1 is that the workman
was engaged by Manewada branch only for the purpose
of sweeping and cleaning the premises, purely on
temporary/casual/adhoc/ need basis intermittently, during
the period from 28.08.2009 to 18.12.2010 and paid wages in
daily basis at the rate of Rs. 100/- to Rs. 120/- and the
services of the workman were not utilized by it for the
entire period between 28.08.2009 to 18.12.2010 and he was
called, whenever there was a need on daily basis and he
had not completed 240 days of work and as after 18.12.2010,
the services of the workman were not required at
Manewada Branch, the same came to an end automatically
and as a matter of fact, the workman himself abandoned
the services and the name of the workman was neither
¹Hkkx II—[k.M 3(ii)º
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3379
sponsored by employment exchange for recruitment in its
service nor he was issued with any appointment letter by
the competent authority after the selection process, as
required for the recruitment of its sub-staff cadre and his
engagement was without any sanction from the competent
authority and was purely on temporary basis and as such,
provisions of the Act do not apply to his case and the
question of having completed 240 days or application of
the provisions of sections 25-F and 25-G does not arise
and as the engagement of the workman was by the Branch
Manager, who was not competent and empowered to
engage him, the engagement was irregular and void ab-
initio and the disengagement of casual employee working
on daily wages cannot be construed to be a retrenchment
under the provisions of the Act and there is no sanctioned
post or clear vacancy now available with it and the
workman is not entitled to any relief.
4. In support of their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence. The workman has examined himself
as a witness to prove his case, whereas, one PPL Achari
Balage has been examined as a witness on behalf of the
party no.1.
5. In the evidence on affidavit, the workman has
reiterated the facts mentioned in the statement of claim. In
his cross-examination, the workman had admitted that his
engagement by the bank was on daily wages and he was
engaged by the bank as and when required and wages
was being paid to him for the days, he was being engaged
by the bank and Exts. W-I to W-LI are the vouchers showing
payment of wages to him for the total days he worked with
the bank and one Sudhir Dhamgaye, who was engaged in
his place by the bank was appointed as a regular peon.
6. The evidence of the witness, PPL Achari Balage
examined on behalf of the party no.1, on affidavit is in the
same line of the stands taken by party no.1 in the written
statement. In his cross-examination, the witness for the
party no.1 has admitted that the workman was engaged at
Manewada branch w.e.f. 25.08.2009 and he was engaged
till 18.12.2010 and the workman was being paid daily wages
of Rs. 100/- to Rs. 120/- for the days he worked with the
branch and the statement given in paragraph 4 of his
affidavit that since the services of the workman were not
required after 18.12.2010, the same came to an end
automatically is correct and neither one month’s notice
nor one month’s wages in lieu of notice nor retrenchment
compensation was given to the workman prior to
termination of his services.
7. At the time of argument, it was submitted by the
learned advocate for the workman that the workman was
in the employment of the party no.1 in Manewada Branch
since 25.08.2009 and he worked continuously without
break till 18.12.2010 and his services were terminated by
party no.1 on 18.12.2010 and the workman had worked for
more than 240 days in the preceding 12 calendar months
of the date of his termination, but party no.1 did not comply
the mandatory provision of section 25-F of the Act before
termination of the services of the workman and the workman
was neither given one month’s notice nor one month’s
wages in lieu of notice nor retrenchment compensation
before his termination and as such, the termination of the
services of the workman is illegal and therefore, the
workman is entitled for reinstatement in service with
continuity and full back wages.
In support of the submissions, the learned advocate
for the workman placed reliance on the decisions reported
in 2005-II CLR-279 (Bank of Baroda Vs. Ghemarbhai
Harjibhai Rabari) and the judgment of the Hon’ble Apex
Court in Civil Appeal no. 1059 of 2005 (Nihal Singh Vs.
State of Punjab and others).
8. Per contra, it was submitted by the learned
advocate for the party No.1 that the workman was engaged
purely on casual and ad-hoc need basis for the period
from 28.08.2009 to 18.12.2010, only for the purpose of
sweeping and cleaning the branch premises and he did
not work continuously and his engagement was not
against regular or permanent post and there is a procedure
for appointment in sub-staff cadre in the Bank and the
workman was engaged by the Branch Manager on casual
basis and the Branch Manager was not competent to
engage the workman and the initial engagement of the
workman itself was illegal and as such, there is no question
of regularization or reinstatement of the workman in service
and the workman left the job on his own accord and he
also did not complete 240 days of work in the preceding 12
calendar months of the date of the alleged termination of
services and as such, application of the provisions of
section 25-F of the Act does not arise and the workman is
not entitled to any relief.
In support of such contentions, the learned advocate
for the party no.1 has placed reliance on the decisions
reported in 1998 II LLJ-15 (Himanshu Kumar Vidyathi vs
State of Bihar), (2003) 3 SCC-485 (DR. Chanchal Goyal Vs.
State of Rajasthan), (2004) 7 SCC-112 (A.Umarani Vs.
Registrar Co-operative Societies),2006 (6) SCALE-107
(State Bank of Bikaner &Jaipur vs Om Prakash Sharma),
2006 (6) SCALE-101(National Fertilizer Vs Somvir Singh),
2006 (4) SCALE-197 (Secretary, State of Karnataka vs.
Umadevi), 1992 LAB I.C. 1813 (Chakra dhar Tripathy vs
State of Orissa) and some others.
Keeping in view the principles enunciated by the
Hon’ble Apex Court in the decisions, on which reliance
has been placed by the learned advocates for the parties,
the present cast at hand is to be considered.
9. The workman has claimed that he was in
employment of party No.1 from 25.08.2009 to 18.12.2010
and his services were terminated by the party no.1 orally
on 18.12.2010 and though he had completed more than
3380
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
240 days of work in the preceding 12 calendar months of
the date of termination, the party no.1 terminated his
services without compliance of the mandatory provisions
of section 25-F of the Act and as such, his termination
from services is illegal. On the other hand, it is the case of
the party no.1 that the workman was engaged by the
Branch Manager casually for the purpose of cleaning the
premises of the Bank and the manager was not competent
to engage the workman and the workman did not complete
240 days of work in the calendar year preceding the alleged
date of termination and the workman left the work on his
own accord and as the initial engagement of the workman
was illegal the workman is not entitled for any relief.
In view of the stands taken by the parties, I think it
proper to mention the principles governing the application
of section 25-F of the Act, as enunciated by the Hon’ble
Apex Court in judgments reported in AIR 1966 SC-75
(Employees in relation to Digwadih colliery Vs. Their
workmen), AIR 2002 SC-1147 (Range Forest Officer Vs.
State of Karnataka) and AIR 2005 SC-2179 (Manager,
Reserve Bank of India Vs. S. Mani) have enunciated the
principles governing the application of section 25-F of the
Act.
In the judgment reported in AIR 1966 SC-75 (Supra),
the Hon’ble Apex Court have held that:-
“Industrial Disputes Act (14 of 1947), S.25F, S25B,
S.2(eee) (as amended) by Industrial Disputes
(Amendment) Act (1964)- Expression “Continuous
service for not less than one year” in S.25- Meaning-
Effect of amendment in 1964.
Though S.25F speaks of continuous service for not
less than one year under the employer, if the workman
has actually worked for 240 days during a period of
twelve calendar months both the conditions are
fulfilled. The definition of “continuous service” need
not be read into section 25B. The fiction converts
service of 240 days in a period of twelve calendar
months into continuous service for one complete
year. The amendment S.25B only consolidates the
previous Ss.25B and 2(eee) in one place, adding
some other matters. The purport of the new
provisions, however, is not different. In fact the
amendment of S.25F of the Principal Act by
substituting in Cl.(b) the words “for every completed
year of continuous service in place of the words
“for every completed year of service” has removed
a discordance between the un-amended S.25B and
the un-amended cl.(b) of S.25F. No uninterrupted
service is necessary if the total service is 240 days
in a period of twelve calendar months either before
these several changes or after these. The only
change in the Act is that this service must be during
a period of twelve calendar months preceding the
date with reference to which calculation is to be
made. The last amendment has now removed a
vagueness which existed in the un-amended S.25B.”
In the judgment reported in AIR 2002 SC-1147
(Supra), the Hon’ble Apex Court have held that:-
“Industrial Disputes Act (14 of 1947), Ss.25-F, 10-
Retrenchment compensation –Termination of
services without payment of – Dispute referred to
Tribunal- case of workman/claimant that he had
worked for 240 days in a year preceding his
termination – Claim denied by Management- Onus
lies upon claimant to show that he had in fact worked
for 240 days in a year. In absence of proof of receipt
of salary or wages or record of appointment, filling
of an affidavit by workman is not sufficient evidence
to prove that he had worked for 240 days in a year
preceding his termination.
In the instant case, dispute was referred to the
Tribunal that the claimant/workman had worked for
240 days and his service had been terminated without
paying him any retrenchment compensation. It was
the case of the claimant/workman that he had so
worked but this claim was denied by the management.
It was then for the claimant to lead evidence to show
that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is
only his own statement in his favour and that cannot
be regarded as sufficient evidence for any court or
Tribunal to come to the conclusion that a workman
had, in fact, worked for 240 days in a year. No proof
of receipt of salary or wages for 240 days or order or
record of appointment or engagement for this period
was produced by the workman. Burden cannot be
placed on management to show that there was
justification in termination of service without first
determining on basic of cogent evidence that
workman/claimant had worked for more than 240
days in a year preceding his termination.”
In the judgment reported in AIR 2005 –SC-2179
(Supra) the Hon’ble Apex Court have held that :-
“Industrial Disputes Act, 1947 – Ss. 25-F, 25-N, 25-B
and 11 – 240 days’ continuous service- Onus and
burden of proof with respect to – Evidence sufficient
to discharge –Failure of employer to prove a defence
(of abandonment of service) if sufficient or amounted
to an admission, discharging the said burden- Held,
initial burden of proof in on workmen to show that
they had completed 240 days of service- Onus of
proof does not shift to employer nor is the burden
of proof on the workman discharged, merely because
employer fails to prove a defence or an alternative
plea of abandonment of service- Filing of affidavit
of workman to the effect that he had worked for 240
days continuously or that the workman had made
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3381
repeated representations or raised demands for
reinstatement, is not sufficient evidence that can
discharge the said burden- Other substantive
evidence needs to be adduced to prove 240 days’
continuous service. Instances of such evidence
given. The initial burden of proof was on the
workmen to show that they had completed 240 days
of service. The Tribunal did not consider the
question from the angle. It held that the burden of
proof was upon the appellant on the premise that
they have failed to prove their plea of abandonment
of service. Filling of an affidavit is only his own
statement in his favour and that cannot be regarded
as sufficient evidence for any court or tribunal to
come to the conclusion that a workman had, in fact,
worked for 240 days in a year. Such evidence might
include proof of receipt of salary or wages for 240
days or order or record of appointment or
engagement for this period or the terms and
conditions of his offer of appointment, or by
examination of any other witness in support of his
case.”
So, it is clear from the principles enunciated by the
Hon’ble Apex Court that for getting the protection of the
provisions of Section 25-F of the Act, the workman has to
prove that he worked for 240 days during a period of twelve
calendar months preceding the date with reference to
which calculation is to be made.
10.The party No.1 has failed to adduce any evidence
to show that the workman left the services on his own
accord.
11. In order to prove that he had worked for more
than 240 days in the preceding 12 calendar months of the
date of termination, the workman has produced the
documents, Exts. W-I to W-LI, which are Xerox copies of
the vouchers under which wages was paid to him by the
Party No.1 for the days of his engagement in the branch in
question. It is to be mentioned here that the said
documents have been admitted into evidence without
formal proof on admission by Party No.1. On perusal of
the said documents and on calculation made on the basis
of the said documents, it is found that the workman had in
fact worked for more than 240 days in the preceding 12
calendar months of the date of his termination, i.e.
18.12.2010.
It is the admitted case of Party No.1 that at the time
of termination of the services of the workman, neither one
month’s notice nor one month’s wages in lieu of notice
nor retrenchment compensation was given to the
workman. So, the termination of the workman from services
without compliance of the mandatory provisions of Section
25-F amounts to retrenchment and is illegal.
12. Now, the question remains for consideration is
as to what relief or reliefs the workman is entitled.
At this juncture, I think it proper to mention about
the recent decision of the Hon’ble Apex Court as reported
in (2013) 5 SCC-136 (Asstt. Engineer, Rajasthan
Development Corporation Vs. Gitam Singh). In the said
decision, the Hon’ble Apex Court 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 (Incharge 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 dialy wager, who had worked for
a short period, this court in long line of cases has held that
the award of reinstatement cannot be said to be proper
relief and rather award of compensation in such cases
would be in consonance with the demand of justice. Before
exercising its judicial discretion, the labour court has to
keep in view all relevant factors, including the mode and
manner of appointment, nature of appointment, length of
service, the ground on which the dispute before grant of
relief in an industrial dispute.
In the light of the principles enunciated by the
Hon’ble Apex Court as mentioned above, now, the present
case in hand is to be considered.
In this case, it is admitted that the workman was
engaged as a daily wager on 25.08.2009 and he worked till
18.12.2010. 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. 20,000 (Rupees twenty thousand
only) in lieu of reinstatement shall be appropriate, just and
equitable. Hence, it is ordered:-
ORDER
The action of the management of Bank of Baroda
through its Branch Manager, Manewada Nagpur (MS) in
terminating the services of Shri Avinash S/o. Bajiraoji Nimje
a daily wage temporary workman from his duty w.e.f.
18.12.2010 is illegal and unjustified. The workman is
entitled for monetary compensation of Rs.20,000 (Rupees
twenty thousand only) in lieu of reinstatement. He is not
entitled for any other relief.
The party no.1 is directed to carry out the award
within one month of the date of publication of the award
in the official gazette.
J. P. CHAND, Presiding Officer
3382
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1293-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc uS'kuy
cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; la- 1] ubZ fnYyh ds iapkV (lanHkZ la[;k
34@2010) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 25@4@2014
dks izkIr gqvk FkkA
¹la- ,y&12011@19@2010&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1293.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 34/2010) of
the Central Government Industrial Tribunal-cum-Labour
Court No. 1, New Delhi as shown in the Annexure in the
Industrial Dispute between the management of Punjab
National Bank and their workmen, received by the Central
Government on 25/4/2014.
[No. L-12011/19/2010-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 34/2010
Shri Kamal Pathak
C/o M. P. Mavi, 321,
Lawyers Chambers,
Delhi High Court
New Delhi-110003
...Workman
Versus
1. The Chairman and Managing Director,
P.N.B., Head Office,
Bhikaji Cama Place,
New Delhi.
2. The Chief Manager,
Punjab National Bank,
Maharani Bank, New Delhi
...Management
AWARD
A saving bank account in the name of Ms. Sangeeta,
under guardianship of her father, namely, Shri Prem Chand,
was being operated at Maharani Bagh branch of Punjab
National Bank (in short the bank). There was a stipulation
to the effect that maturity amount of the account shall be
released in favour of the account holder, on her attaining
age of maturity. The account, referred above, was not
operated for a few years, hence it became dormant.
2. In January 2006, Shri Prem Chand, on enquiry
about the status of the said account, came to know that
on the basis of a forged application, the account was closed
and maturity amount was misappropriated. He moved an
application to the bank, detailing therein that the said
account was handled by Shri Kamal Pathak, who was
working as Computer Terminal Operator in the bank. It led
the bank to come out of its slumber. At that time, a few
complaints from customers were also received by the bank,
wherein allegations were levelled that their accounts were
interfered with by unauthorized persons and money were
withdrawn from their accounts too. Shri R.C. Rohit, Senior
Concurrent Auditor was asked to investigate the matter.
He took up the job and submitted his report dated
04.02.2006, wherein he raised an accusing finger at Shri
Kamal Pathak, the claimant.
3. A case was lodged against the claimant with local
police. Since he was not put on trial within a period of one
year from the date of lodging of FIR, the bank thought it
expedient to proceed against him with departmental action.
Charge sheet dated 20.02.2008 was served on the claimant,
wherein it was alleged that he committed and/or facilitated
fraud in 51 accounts, which were either dormant or illiterate
accounts. Contents of the charge sheet, served on the
claimant, are extracted thus:
“ It is alleged against you as under:-
That while working as CTO at BO: Maharani
Bagh, New Delhi, you have committed following lapses:-
i. You committed fraud of Rs.101686 by forging
signatures of the depositors on withdrawal slips/cheques
and passing the same for payments:-
S.
Name
A/c No.
Date
Amount
No.
(Rs.)
1
2
3
4
5
1.
L.D. Chawla
6256
14.07.05
7000.00
2.
-do-
15.07.05
3000.00
3.
Manorama
5602
27.07.05
5850.00
Vashist
4.
Mohan Singh
5658
04.04.05
7000.00
5.
Jagmohan Singh 119278
28.09.05
7000.00
6.
-do-
01.10.05
2000.00
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7.
Yogesh Arora
120392
01.09.05
7000.00
8.
-do-
12.01.06
3050.00
9.
Asaid Siddiqui
119620
24.08.05
7000.00
10.
Anuraksha
12346
03.11.05
7000.00
11.
-do-
05.1.05
4400.00
12.
-do-
07.11.05
5000.00
13.
Sushil Bhalla
6069
28.03.05
6000.00
14.
D.R. Sharma
5534
23.08.04
2000.00
15.
-do
30.11.04
1200.00
16.
-do-
11.02.05
5500.00
17.
Vinod Bala
117404
15.10.05
5000.00
18.
-do-
17.10.05
5000.00
19.
Anis Ahmad
120985
16.01.06
6486.00
20.
Krishna Bhambi
5465
24.05.05
700.00
21.
Prabhat Miyogi
6050
28.03.05
5000.00
ii. You facilitated following payments by posting
withdrawal slips/cheques after forging signatures of the
account holders. You misused your official position by
facilitating passing of these instruments. Thus committed
the fraud of Rs.1896484.30.
S.
Name
A/c No.
Date
Amount
No.
(Rs.)
1
2
3
4
5
1.
Richa Srivastav &
119636
22.09.05
28000.00
Shakti Bala
2.
Sweta and
5985
04.04.05
20000.00
Harpal Singh
3.
Krishna Bhambi
5465
18.05.05
17000.00
4.
Som Sharma
7359
12.08.05 125000.00*
5.
-do-
13.08.05 70000.00*
6.
-do-
16.08.05
369.30
7.
-do-
17.08.05
2279.00
8.
Som Pal
1176889
14.09.05
100000.00
9.
-do-
14.09.05
100000.00
10. -do
14.09.05
65000.00
11. Som Pal
15.09.05
4490.00
12. Manisha Malhotra
1181748
16.09.05
55000.00
13. Rekha Chakraborty 80211
18.08.05
7000.00
14. Shakeel Ahmed
90978
18.08.05
7000.00
15. KS Kumar and
1172449
01.12.05
6000.00
T. Ravindran
16. -do-
05.12.05
10000.00
17. Akhilesh Kumar
1185948
23.09.05
5000.00
18. -do-
26.09.05
20000.00
19. -do-
27.09.05
10000.00
20. Veraharan u/g
119169
03.10.05
85000.00
Renuka Khanna
21. Roshni, U/g
119170
03.10.05
9000.00
Renuka Khanna
22. Govinda
11020
07.04.05
3000.00
(III Account)
23. -do-
21.04.05
1000.00
24. -do-
25.04.05
1000.00
25. -do-
26.04.05
6000.00
26. -do-
27.04.05
3000.00
27. -do-
18.10.05
346.00
28. D.R.Sharma
5534
18.08.04
60000.00
29. Rashid Minhaj
119311
16.11.05
85000.00
30. Hariniwas Rai
8956
22.11.05
69000.00
31. Draupadi
6269
06.05.05
40000.00
32. Kalawati
9866
08.10.04
3000.00
(III Account)
33. -do-
08.10.04
3700.00
34. Anis Ahmad
120985
14.01.06
200000.00
35. -do-
14.01.06
160000.00
36. Vikas Daya
1176710
10.09.05
7000.00
37. -do-
12.09.05
10000.00
38. -do-
12.09.05
5000.00
39. -do-
12.09.05
7000.00
1
2
3
4
5
1
2
3
4
5
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
40. Sanjay Gupta
1177675
13.09.05
7000.00
41. -do-
14.09.05
4500.00
42. Nishat Ashraf
1178869
15.09.05
20000.00
43. Deepti Gupta
1181252
15.09.05
25000.00
44. -do-
17.09.05
4000.00
45. Nathmal Bedi
1182978
14.10.05
23000.00
46. Shaifali Sharma
185896
20.9.05
7000.00
47. -do-
20.9.05
7000.00
48. -do-
20.9.05
7000.00
49. -do-
20.9.05 7000.00
50. Nidhi Arora &
131438
27.08.05 20000.00
Ramesh Arora
51. Deepa
137858
30.08.05
7000.00
52. -do-
30.08.05
7000.00
53. -do-
31.08.05
40000.00
54. Kawal Suri
139607
17.11.05
16000.00
55. Pranav Gulati, U/g
145556
19.11.05
20000.00
Archana
56. Ashu Gupta
5395
01.08.05
100000.00
57. -do-
01.08.05
38800.00
58. Mukesh
11406
10.03.05
22000.00
Rekha Gupta
59. Vinod Bala
117404
12.10.05
24000.00
60. Baldev Raj
12327
29.08.05
80000.00
* You verified forged signatures of the depositors,
however payments were posted and passed by other
officials.
iii. You closed following accounts without any
mandate/authorization from the depositors/account
holders by forging signatures of the depositors on
withdrawal slips/cheques and misused your official
position by facilitating passing of these instruments. Thus
committed fraud of Rs.214488.00.
S.
Name
A/c No.
Date
Amount
No.
(Rs.)
1
2
3
4
5
1.
Sangeeta U/G
8456
25.05.05
39979.70
Prem Chand
2.
Som Sharma
7359
17.08.05
2279.00
3.
Namrata Karir
1265
05.05.05
52579.49
4.
Janak Dua
4942
27.07.05
92621.65
5.
Rekha Jain
7485
28.03.05
25370.59
6.
Ashu Gupta
5395
08.08.05
1657.57
iv. A Saving Fund Account No.5231 was being
maintained by the branch in names of Smt. Sumitra Devi,
Pratap Singh and Ravinder Singh with the mandate of
former or survivor jointly.
You committed following irregularities in this
account.
(i) You forged signatures of Shri Pratap Singh
on withdrawal slips, passed the same for payment
amounting to Rs.18,500.00 whereas Shri Pratap
Singh was not authorized to operate the account
till the former was alive.
S.No.
Date
Amount (Rs.)
1.
12.07.2005
6500.00
2.
13.07.2005
7000.00
3.
13.07.2005
5000.00
(ii) You forged signatures of Shri Pratap Singh
on withdrawal slips, posted withdrawal slips
whereas he was not authorized to operate the
account till the former was alive, facilitated
passing of these instruments from other officials
of the branch. Thus committed the fraud of
Rs.57000 :—
S.No.
Date
Amount(Rs.)
1.
15.07.2005
35000.00
2.
16.07.2005
22000.00
(iii) On 16.07.2005 you posted a fraudulent
withdrawal of Rs.7000.00 in the SF account
No.5231 of Smt. Sumitra Devi, Pratap Singh and
Ravinder Singh and reversed the said entry on
the same day. You also made the necessary
correction in the day book, thus tampered bank
record.
v. On 12.01.2006 you unauthorizedly modified/
activated entry for Rs.2,54,547.29 which was in inactive
category and was lying in CA No.22874 and debited the
entry in Local Clearing Imprest Account on 13.01.2006.
1
2
3
4
5
1
2
3
4
5
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3385
vi. On 16.1.2006 you posted a debit transfer voucher
for Rs.3,84,395.29 in SF Account No.52892 of Shri Rajeev
Kumar without obtaining any debit authority from the
account holder and credited the amount to SF A/c
No.150947 of Shri Rajeev Kumar Bhaskar and on
subsequent dates posted following cheques in SF a/c
(No.150947 of Rajeev Kumar Bhaskar), whereas these
cheques were actually issued from SF A/c No.11233 of
Suresh Mittal. You misused your official position by
facilitating passing of these instruments from other
officials of the branch and thus committed a fraud of
Rs.320000.
Date of transaction
Cheque No.
Amount
17.01.06
134785
20000.00
17.01.06
134786
20000.00
17.01.06
134787
40000.00
17.01.06
134788
40000.00
18.01.06
134792
20000.00
18.01.06
134791
20000.00
18.01.06
134789
80000.00
18.01.06
134790
70000.00
18.01.06
134793
10000.00
The above acts on your part constitute gross
misconduct under the provisions of Clause 5(j) of the
Bipartite Settlement dated 10.4.2002 which reads as under:-
“Doing any act prejudicial to the interest of the bank
involving the bank in serious loss.”
3. Reply to the charge-sheet, submitted by Shri
Pathak, was found not to be satisfactory. Vide order dated
29.3.08, Shri Gopal Aggarwal, Senior Manager, Zonal
Office, Delhi, was appointed as Enquiry Officer. Enquiry
started on 28.04.08 and concluded on 30.12.08. The
Enquiry Officer submitted his report to the Disciplinary
Authority on 11.02.2009. The Disciplinary Authority
concurred with the findings of the Enquiry Officer and
awarded punishment of dismissal without notice, vide
order dated 12.05.09. Shri Pathak preferred an appeal dated
12.06.09, which came to be dismissed vide order dated
30.07.2009.
4. Feeling aggrieved by the findings recorded by
the Enquiry Officer, concurrence given to those findings
by the Disciplinary Authority, dismissal order dated
12.05.09 and order of the Appellate Authority, Shri Pathak
raised an industrial dispute before the Conciliation Officer.
The bank contested his claim and projected that his
dismissal order was passed, after awarding him reasonable
opportunities to defend in the domestic enquiry. Since
conciliation proceedings failed, the appropriate
Government referred the dispute to this Tribunal for
adjudication vide order No.L-12011/19/2010–IR(B-II), New
Delhi, dated 16.07.2010, with following terms:-
“Whether the action of the bank in dismissing
without notice Kamal Pathak, ex computer operator
w.e.f. 12.05.09 is just, legal and justified ? If not to
what relief the workman is entitled?”
5. Claim statement was filed by Shri Pathak, pleading
therein that he was posted as computer operator category
“B” at Maharani Bagh branch of the bank vide order dated
19.12.05 . On 01.02.06 he was transferred to Greater Kailash
Part-I branch of the bank. On 03.02.2006 he was placed
under suspension on grounds of fraud of Rs.39979 in S.F.
Account No.8457 of Ms. Sangeeta, under guardianship of
Shri Prem Chand, operated at Maharani Bagh branch of
the bank. He unfolds that charge sheet dated 20.2.2008
was served upon him, which shows that 51 accounts were
affected by fraud and 101 instruments were subject matter
of the enquiry. He asserts that dormant accounts can be
operated only by manager or an authorized officer. He
was neither the manager nor authorized in that behalf. For
operation of an account of illiterate person, incharge
himself is responsible for verifying thumb impression of
the account holder and after comparison of his
photographs, payment is made only when incharge is
satisfied as to the identity of the account holder. He had
no role to play in operation of an account of an illiterate
person. He agitates that these factors make it clear that no
liability could be fastened on him in respect of fraud at
Serial No.26 of charge No.2. It has been alleged that he
passed cheque of Rs.60000 by forging signatures of the
account holder. He explains that on the day when the
said cheque was passed, he was on training at Faridabad.
In the same manner, at Serial No.60 of charge No.2, it is
alleged that he made entry of the instrument in the system,
while the entry was made by Shri C.P. Chhabra. Likewise
Serial No.46 and 47 of charge No.2, withdrawal slips were
filled in by Nathu Ram at “May I Help You Counter”, while
it has been alleged that he filled in withdrawal slips, forged
signatures and withdrawn amount out of those accounts.
Charges at Serial No.22, 23, 24,25,26,27,31,32 and 33 of
charge No.2 relate to accounts of illiterate persons, which
were handled directly by the manager and not by him. He
projects that in respect of charge No.3 allegations were
levelled that he closed that account in an unauthorized
manner, while request of the account holder in that regard
is available on the record. Likewise Serial No. 1 and 3 of
charge No.4 has not been proved. Those facts highlight
that the bank acted against him with malafide intention,
which fact vitiates the enquiry.
6. He went to build his case that Enquiry Officer
had not allowed him to adduce/summon documents from
3386
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
the record of the bank, to prove his innocence. The
Presenting Officer examined only three witnesses, namely,
Ajay Sharma, Shri S.K. Sehgal and Shri Ashok Kashyap,
the hand writing expert. None of the account holders was
examined. He examined Shri Nathu Ram , Shri C.P. Chhabra
and himself in his defence.
7. Shri Pathak projects that conclusions arrived at
by the Enquiry Officer were beyond his brief. He comments
that as per the Enquiry Officer, charge No.5 was not proved
and charge No.1 and 2 were proved to the extent that
body writing of the instruments were in his hand and he
posted instruments in the system for payment. However,
Enquiry officer has concluded that it is not proved that he
has forged signatures on those instruments as alleged in
the charge sheet. In respect of charge No.37 , the Enquiry
Officer concludes that it is proved to the extent that body
writings of the instrument are in his hand. He closed/
debited the account without authority of the depositor.
However, the Enquiry Officer concludes in respect of Serial
No.2 ,4,5 and 6 that those were not proved. It has been
concluded by the Enquiry Officer that it has not been
proved that he has forged signatures on the instrument,
which was subject matter of charge No.3. Conclusion of
the Enquiry Officer in respect of charge No.4 is self-
contradictory. The Enquiry Office announces that charge
No.6 stood proved.
8. With a view to castigate report of the Enquiry
Officer, he asserts that only 5 complaints were supplied to
him but none of the complainant was examined. When
there were 101 instruments, which were subject matter of
fraud, various persons were involved in passing of those
instruments, carrying forged signatures. According to
him it was a collective failure of authorities, system and
supervision by the bank authorities. In such a situation
how he can be made a scapegoat by awarding punishment
of dismissal. Shri Nathu Ram testified before the Enquiry
Officer that body writing of documents, mentioned at Serial
No.46 and 47 of charge No.2, were in his hands. On the
other hand, handwriting expert opines that these
documents were in the hand writing of the claimant, which
fact speaks volumes about veracity and authenticity of
the report of Shri Kashyap. The Enquiry Officer went
beyond his brief when he recorded findings against him
to the effect that body writing of the documents were in
his hand, while no such charges were framed against him.
The Enquiry Officer failed to take into account that
instruments, mentioned at Serial No.4, 5, 28 and 60 of charge
No.2, were entered in the system by Shri C.P. Chhabra. He
projects that making entry of the instruments in computer
system was part of his duty, which he performed to best of
his ability and under supervision of his superiors. In
respect of charge No.2, only 23 instruments were within
his power, while 33 instruments were passed by the officer
incharge. He only entered those instruments in the system
and issued token to the customers and handed over
instruments to the incharge for onward action, in that
situation how he can be held accountable, agitates Shri
Pathak. He highlights that conclusions arrived at by the
Enquiry Officer in respect of serial No.2, 4, 5 and 6 of
charge No.3 as well as serial No.1 of charge No.3 are wrong.
According to him count 1st and 3rd of charge No.4 were not
proved, while the Enquiry Officer concluded that it were
proved on the basis of body writing of the instruments,
alleged to be in his hand. He was not at all charge sheeted
that body of writing of those instruments were in his hand.
It was not open to the Enquiry Officer to frame a new
charge against him, which fact justify that the enquiry
report is not proper. He asserts that as far as charge No.6
is concerned, he has been punished for the payments
made, which were not in his power to disburse. The
Disciplinary Authority was under an obligation to take
into account the irregularities in the report of the Enquiry
Officer, which are detailed above. In some cases
withdrawals were made on the basis of cheques, which
were issued by the bank to the account holder(s). There
was no intimation as to whether those cheques were
misplaced or lost. It has not been explained as to how
those instruments reached his hand and how he could
use those instruments for his benefit. In the last he claims
that witnesses produced were inimical qua him, who settled
their scores. He claimed that in view of the facts detailed
above enquiry report dated 12.2.2009, order passed by
the Disciplinary Authority on 12.5.09 and that of the
Appellate Authority which is dated 30.7.09, may be set
aside and he may be reinstated in service with continuity
and full back wages.
9. Claim was demurred by the bank pleading that
Shri Kamal Pathak, while working as computer terminal
operator at Maharani Bagh branch, committed fraud of
Rs.26.70 lacs in various dormant accounts. A criminal case
was lodged against him. Since he was not put to trial
within one year from the date of lodging the case, it was
thought expedient to initiate domestic action as per
provisions of Bipartite Settlement. He was served with a
charge sheet dated 20.02.08, wherein details of gross
misconduct committed by him were enlisted. Acts of
misconduct constituted gross misconduct under the
provisions of clause 5(j) of Bipartite Settlement dated
10.04.2002. Reply to the charge sheet submitted by Shri
Pathak, was not found satisfactory, hence domestic enquiry
was instituted vide order dated 29.03.2008. Shri Gopal
Aggarwal was appointed as Enquiry Officer. The Enquiry
started on 20.4.2008. The claimant participated in the
departmental enquiry, to whom due opportunities to cross
examine the witnesses and produce evidence in his defence
were accorded. Copies of day to day proceedings were
supplied to him. Enquiry proceedings were held in just
and fair manner, adhering to principles of natural justice.
The enquiry proceedings came to an end on 30.12.08. The
Enquiry Officer submitted his report dated 11.2.2009, copy
of which was forwarded to Shri Pathak for his submissions.
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3387
Shri Pathak made his submissions on 23.3.2009. On
consideration of enquiry report and submissions of the
claimant, the Disciplinary Authority concurred with the
findings, so recorded. Show cause notice dated 25.4.09
was served, proposing punishment of dismissal without
notice. Personal hearing was given to the claimant on
01.07.09, who appeared before the Disciplinary Authority
alongwith his defence representative. He made oral as
well as written submissions before the Disciplinary
Authority. Vide order dated 12.05.09 punishment of
dismissal without notice was awarded to Shri Pathak.
Appeal preferred by him was dismissed by the Appellate
Authority, vide order dated 30.07.09. It has been projected
that the enquiry conducted against Shri Pathak was in
consonance with principles of natural justice.
10.The bank does not dispute that Shri Pathak was
transferred to Greater Kailash Part I branch on 01.02.2006.
His suspension on 03.02.2006 is also not a matter of
dispute. It has been projected that designation as
“Computer Terminal Operator-Category B” is a simple
change in designation from a lower allowance carrying
post to a higher allowance carrying post. Factum relating
to 51 accounts being affected by fraud and 101 instruments
being subject matter of that fraud are not disputed. It has
been projected that Shri Marcus Tigga, Ajay Sharma, S.K.
Sehgal, R.S. Pangtey, S.K.Gupta, Nathu Ram and Ms.Rita
Verma were proceeded departmentally and awarded
punishment according to the misconduct committed by
them. Operation of a dormant account with the permission
of in charge of the branch or any authorised officer of the
branch is a procedural step. It has been pleaded that
since Maharani Bagh branch of the bank was in process
of switching over from manual banking to computerized
banking, entire records of the branch were being uploaded
on computers and not easily available in the branch.
Officers/employees had little knowledge in computer
working, while claimant was well conversant, hence all
employees used to consult him or take his help, pleads the
bank. Claimant took advantage of that situation, forged
signatures of customers, and passed cheques/withdrawal
slips for payment within his power and pocketed the money.
Certain instructions, which were beyond his powers, were
posted/debited by him in the system and he facilitated
passing of those instruments from other officials or himself
passed those instrument for payment by using I.D. of other
officials of the branch. Facts relating to making out of
different charge, by the Enquiry Officer than levelled
against him in the charge sheet, are disputed. It has been
projected that the Enquiry Officer reached findings on the
basis of material available with him. His assertion that
there was a collective failure of the system is uncalled for.
It has been projected that the report of the Enquiry Officer
was based on evidence, against which an opportunity
was given to the claimant to make submissions. The
Disciplinary Authority had served a notice on proposed
punishment and on hearing the claimant rightly awarded
punishment of dismissal to him. The Appellate Authority
was also within its power, when he dismissed his appeal.
There is no substance in the allegation raised by the
claimant. His claim may be dismissed, pleads the bank.
11. On pleadings of the parties, following issues
were settled:
1.
Whether enquiry conducted by the bank
against the claimant was just fair and
proper ?
2.
Whether punishment awarded to the
claimant commensurate to his misconduct?
3.
As in terms of reference.
4.
Relief.
12. Issue No.1 was treated as preliminary issue.
Shri V. K. Handu and Shri Ashok Kumar Sharma were
examined by the bank to discharge onus resting on it.
Claimant entered the witness box to rebut the evidence
adduced against him. On hearing the parties, consideration
of evidence adduced in the matter and appreciation of
submissions and evidence, preliminary issue was
answered in favour of the claimant and against the bank,
vide order dated 07.02.2011.
13. In order to prove misconduct, the bank examined
S/Shri Ajay Sharma, R.S. Pangtey, Marcus Tigga, S.C.
Sawalia, R.C.Rohit, Neeraj Mishra, Trilok Pal and Prem
Chand. Claimant entered the witness box again to rebut
facts adduced by the bank.
14. Arguments were heard at the bar. Shri Rajat
Arora, authorized representative, advanced arguments on
behalf of the bank to establish charges against the
claimant. Shri K.P. Mavi, authorized representative, raised
submissions on behalf of the claimant. Written
submissions were also filed by the parties. I have given
my careful considerations to the arguments advanced at
the bar and cautiously perused the record. My findings
on issues involved in the controversy are as follows:
Issue No. 2
15. At the outset facts deposed by Shri S.C.Sanwalia
are to be noted wherein he unfolds that customers made
complaints, alleging therein that money were withdrawn
from their accounts without any authorization. Complaints
made by the customers are Ex.MW2/131 to Ex.MW2/136.
On perusal of Ex.MW2/131, it came to light that Ms.Som
Sharma made a complaint to the bank that she had not
operated her account No.7359 from last five years. When
she approached the bank for getting entries recorded in
her passbook, she came to know that not even a single
penny was lying in her account. According to her, a sum
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
of Rs.2 lakh approximately was withdrawn from her
account. Out of facts unfolded in the complaint, it came to
light that fraud was committed in the account of Ms.Som
Sharma and in that regard, she made a complaint to the
bank.
16. Complaint Ex.MW2/132 pertains to account
No.11020 being maintained by one Shri Govinda. It has
been detailed therein by the complainant that on 01.02.2003,
he deposited a cheque for Rs.21735.00 in the said account.
Thereafter, he withdrew a sum of Rs.10000.00 as per his
requirement. A sum of Rs.11,000.73 remained balance in
his aforesaid account. When he came to withdraw money
out of his account after sometime, he came to know that
there was not even a single penny in his account. Out of
complaint made by Shri Govinda, it stood highlighted that
fraud took place in his account.
17. Ex.MW2/133 is a complaint made by Shri Nand
Kishore. It has been detailed in the complaint that his
father, Shri Baldev Raj was maintaining account No.12327
in the bank. His father expired on 02.03.1999. There was a
balance of Rs.63000.00 in the account at the time of death
of his father. On 07.11.2005, he was told by the bank official
that a sum of Rs.80000.00 was withdrawn by his father on
29.08.2005. The bank was aware of death of his father,
which occurred in March, 1999. The bank officials have
been extremely negligent when amount was withdrawn
out of the account in August, 2005. He requested the
bank that a sum of Rs.80000.00 be transferred in account
No.12327, otherwise he would be constrained to file a
complaint with the police in that regard. Out of complaint
Ex.MW2/133 it came to light that fraud took place in
account No.12327.
18. Shri Pratap Singh made a complaint that
fraudulent withdrawal took place from saving bank account
No.5231 being maintained jointly in the names of
Ms.Sumitra Devi, Shri Pratap Singh and Shri Ravinder
Singh. He detailed that sum of Rs.6500.00, Rs.7000.00,
Rs.5000.00, Rs.7500.00, Rs.7000.00, Rs.7000.00 and
Rs.22000.00 were withdrawn from the said account on
12.07.2005, 13.07.2005, 13.07.2005, 15.07.2005, 16.07.2005,
16.07.2005 and 16.07.2005 respectively on the strength of
fraudulent signatures. The said account could have been
operated only by Ms.Sumitra Devi by affixing her thumb
impression on withdrawal slips. He requested that an
enquiry be made and money be credited to their account
at the earliest. Out of complaint, referred above, it was
brought to light that fraud took place in the joint account
being maintained by Ms.Sumitra Devi, Shri Pratap Singh
and Shri Ravinder Singh.
19. Investigation was initiated on the aforesaid
complaints, unfolds Shri Sanwalria. During the course of
investigation, Shri Prem Chand, one of the complainants
informed the bank authorities that Shri Kamal Pathak paid
a sum of Rs.20,000.00 to him, with a request that he should
not pursue his complaint Ex.MW2/134. The bank made a
complaint to the police, copy of which is Ex.MW6/1. When
testimony of this witness was purified by an ordeal of
cross-examination, no efforts were made to dislodge facts
testified by him. On the other hand it was conceded that
fraud took place in 44 accounts, details of which were
mentioned in Ex.MW6/W1.
20. Shri R.C. Rohit conducted investigation of fraud
which took place in Maharani Bagh branch of the bank.
He completed his investigation and submitted his report
Ex.MW7/1 to the bank. He details that necessary correction
in the day book was made by Shri Pathak, which opinion
was expressed by him since those facts were entered in
the system through password of Shri Pathak. Facts
unfolded by Shri Rohit in his ocular testimony as well as
in report Ex.MW7/1 were not dispelled by the claimant.
Ex.MW7/1 highlights that fraud took place in a joint account
being maintained by Ms.Sumitra, Shri Pratap Singh &
Shri Ravinder Singh, in the account of Sangeeta, being
maintained under guardianship of her father Shri Prem
Chand, Ms.Richa Srivastava, Shakti Bala, Ms.Sweta &
Shri Harpal Singh and Shri Baldev Raj. Facts unfolded by
Shri Rohit in his report Ex.MW7/1 give support to the
complaints made by the customers.
21. To ascertain as to whether the bank has been
able to prove misconduct against the claimant, facts
unfolded by Shri Prem Chand and Shri Trilokpal are to be
scanned. Shri Prem Chand unfolds that his daughter,
namely Ms.Sangeeta was having an account at Maharani
Bagh branch of the bank, under his guardianship. Money
was withdrawn out of that account by someone. Fraud
amounting to Rs.39979.70 was committed in the account
of his daughter. He wrote a letter to the bank and made a
complaint in that regard, copy of which complaint is
Ex.MW2/135. These facts remained unassailed when
testimony of Shri Prem Chand was purified by an ordeal of
cross-examination on behalf of the claimant. No eyebrows
were raised on the facts that Ms.Sangeeta was having an
account with Maharani Bagh branch of the bank, under
guardianship of her father. No efforts were made to assail
facts to the effect that a sum of Rs.39979.70 was withdrawn
out of that account by someone by playing a fraud. Factum
of complaint being lodged by Shri Prem Chand remained
undisputed. No issue was raised on contents of the
complaint, copy of which has been proved as Ex.MW2/
135.
22. Facts, which emerged out of the complaint, are
detailed thus:
“I had come with my younger brother on 24.01.2006
to enquire status of our complaint dated 21.01.2006,
wherein it was mentioned that account No. 8456 in
the name of Ms. Sangeeta, under guardianship of
¹Hkkx II—[k.M 3(ii)º
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3389
Shri Prem Chand was closed by forging signatures
of Shri Prem Chand. It was informed that the case
has been sent to Head Office and it may take some
time.
However, an employee of your bank, sporting a
beard, whose name is Shri Pathak, approached us
and said that there is no necessity to make
complaints to the higher authorities. He said that
case of yours can be solved here itself. He also said
that interview of the officer, who had verified the
signatures, is scheduled for next week and it would
mar his chances of promotion. He further asked me
(Shri Trilokpal) to approach him on 30.01.2006 and
not to tag his brother along.
I, (Trilokpal) reached the bank on 30.01.2006 and
found Shri Pathak busy on his seat. On seeing me,
he immediately left his work and told me that my
problem would be cent percent solved there and
then. He took out 20 notes of Rs.1000 denomination
and handed it over to me asking me to hand it over
to Shri Prem Chand. He also said the amount may be
reimbursed to him when his case is solved by the
bank.”
23. As reproduced above, Shri Prem Chand made a
complaint to the bank authorities that a fraud was
committed in the account of his daughter. These facts get
reaffirmation out of his complaint Ex. MW2/135. Even
otherwise, Shri Trilokpal gives strength to facts unfolded
by Shri Prem Chand. Shri Trilokpal testified that an account
was being maintained in the name of Ms. Sangeeta, under
guardianship of Shri Prem Chand, her father. On 25.05.2005,
Rs.39979.70 were withdrawn out of the said account by
making fake signatures of the account holder. His brother
told him about that fraud. He went to the bank and made a
complaint, copy of which is Ex. MW2/134. For sake of
convenience, facts detailed in the said complaint are
reproduced hereunder:
“I opened a minor account in the name of my
daughter, Ms. Sangeeta under my guardianship. The
account number is 8546. Since my daughter’s
marriage was solemnized, I approached the bank for
updating of the pass book. I came to know that the
said the amount has been withdrawn and the account
closed through fake signatures. My daughter was
20 years old on 25.05.2005. Her date of birth was
mentioned on the account opening form.
It is therefore requested that the matter may be
investigated and I shall be highly obliged if my
money is returned.”
24. Facts unfolded by Shri Trilokpal, relating to
contents of complaint Ex. MW2/134, were not dispelled
when he was grilled by way of cross examination. Claimant
could not highlight that complaint Ex. MW2/134 was
motivated or made by Shri Trilokpal to settle his score. It
is not the case of the claimant that Shri Trilokpal and Shri
Prem Chand were bearing hostility hence motivated to
testify facts against him. No efforts were made to bring it
over the record that Shri Trilokpal and Shri Prem Chand
were not men of veracity. It is not the case of the claimant,
that they were given bribe or some corrupt inducement of
temporal gain to testify facts against him. On close scrutiny
of their depositions, I could not find any inherent infirmity
or defect to brand their deposition as unworthy of credit.
I am of the considered opinion that Shri Trilokpal and Shri
Prem Chand are reliable and worthy of credence. Relying
facts unfolded by them, it is concluded that the account
was opened in Maharani Bagh branch of the bank in the
name of Ms. Sangeeta under guardianship of her father.
Out of that account, a sum of Rs. 39979.70 was siphoned
by someone through a fake negotiable instrument. When
Shri Prem Chand came to know about that fraud, complaints
were made in that regard by Shri Prem Chand as well as his
brother Shri Trilokpal. In complaint Ex. MW2/134, it has
been made clear that the claimant approached Shri Trilokpal
and tried to persuade him not to proceed with the matter
any further. He paid a sum of Rs. 20,000.00 to Shri Trilokpal,
in order to induce him not to proceed further with the
matter.
25. During course of his testimony, claimant could
not rebut factum of making a complaint against him by
Shri Prem Chand and Shri Trilokpal. Compact disc
containing footage of CCTV camera film was produced
before the Tribunal. When said CD was played and claimant
was questioned as to whether on 31.01.2006 Shri Trilokpal
visited him in the branch of the bank from 11.00 a.m. to
11.15 a.m., to which proposition he answered in affirmative.
He conceded that Shri Trilokpal talked to him about the
account of Ms. Sangeeta. He offered an explanation that
since Shri Trilokpal wanted new currency notes, he paid a
sum of Rs. 20,000.00 (in denomination of Rs.1000).
According to him, old currency notes were handed over
by Shri Trilokpal to the cashier, while he accepted new
currency notes from him. When confronted, claimant
conceded that no such facts were projected by him during
the course of enquiry. Thus, it is emerging over the record
that for the first time, claimant offered an explanation that
a sum of Rs. 20,000.00 was paid by him to Shri Trilokpal on
31.01.2006, in lieu of old currency notes given by him to
the cashier. Explanation offered is farther from truth. How
can an employee of a bank would make payment in lieu of
money accepted by a different employee on a different
seat, is a proposition which has not been answered by the
claimant. He could not explain as to how he could account
for a sum of Rs. 20,000.00 paid by him through teller
machine, which amount was allegedly paid to the cashier
at a different counter. Obviously, explanation offered is
not in consonance with ordinary human behavior and
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
normal course of business, undertaken in a bank. His
silence for a period of 4 years over the matter speaks
volumes about veracity of those facts. He was served
with charge sheet on 20.02.2008 to which he made written
statement of defence. He entered into the witness box on
01.12.2008 to testify facts before the Enquiry Officer.
Neither in his statement of defence nor in his testimony,
he opted to explain that a sum of Rs. 20,000.00 was paid by
him to Shri Trilokpal in lieu of old currency notes handed
over by him to the Head Cashier. This, I am constrained to
conclude that the explanation offered is nothing but an
afterthought. His explanation is brushed aside. When his
explanation is discarded, it emerged over the record that
the claimant paid a sum of Rs. 20,000.00 to Shri Trilokpal in
order to dissuade him and Shri Prem Chand from proceeding
further with their complaint Ex.MW2/134 and Ex.MW2/
135. One may conclude that the claimant was beneficiary
of the fraud and in order to cover up his misdeeds, he tried
to pacify Shri Trilokpal and Shri Prem Chand by paying a
sum of Rs. 20,000.00 to them, as unfolded in complaint
Ex.MW2/134.
26. Shri Prem Chand asserts in his testimony that a
sum of Rs. 39979.70 was withdrawn from the account of
Ms. Sangeeta in a fraudulent manner. The bank transferred
Rs. 19979.70 in the account of Ms. Sangeeta, which was
withdrawn by her, after tendering an indemnity bond
Ex. MW9/1. By way of paying a sum of Rs. 19,979.70 to
Ms. Sangeeta, the bank adjusted sum of Rs. 20,000.00 paid
to Shri Trilokpal by the claimant. These facts were
confirmed by Shri Trilokpal also. Claimant had not disputed
these facts. Thus, it is emerging over the record that a sum
of Rs. 39979.70 was paid to Ms. Sangeeta, adjusting
Rs. 20,000.00 paid by the claimant to Shri Trilokpal, besides
transferring a sum of Rs. 19979.70 in her account. These
facts go to establish that the amount paid by the claimant
to Shri Trilokpal was treated as part of the amount, which
bank was supposed to reimburse to the account holder.
On this proposition too, the claimant opted to maintain a
posture of silence. Hence, I am constrained to conclude
that the claimant could not raise an accusing finger that a
sum of Rs. 20,000.00 paid by him to Shri Trilokpal was
treated by the bank as part payment received by the
account holder in lieu of money, which was siphoned out
of her account. Claimant never attempted to assert that
the said amount of Rs. 20,000.00 was ever reimbursed to
him by the bank.
27. Shri R.S. Pangtey unfolds that withdrawal form
Ex.MW2/41 was used in the account of Ms.Sangeeta. This
document makes it apparent that request for withdrawal
of Rs. 39979.70 was made to the bank and the document
was entered in the system by the claimant. Shri Pangtey
unfolds that he passed the withdrawal form for payment.
Thus, out of facts unfolded by Shri Pangtey, it crystallized
that withdrawal form Ex. MW2/41 was entered into the
system by the claimant and Shri Pangtey passed that
withdrawal form for payment. Can it be said that Shri
Pangtey was a party to that fraud. For an answer, facts
unfolded by Shri Trilokpal are to be scanned again. At the
cost of repletion, it is pointed out that the claimant
approached Shri Trilokpal and paid a sum of Rs. 20,000.00
to him in order to dissuade him and his brother from
proceeding with the matter. Had Shri Pangtey been a party
to the conspiracy, he would have also associated himself
with the claimant in the process of making the complainant
and his brother as their protege. These facts indicate that
it was the claimant alone who manipulated fraud and
withdrew a sum of Rs.39979.70 out of account of
Ms.Sangeeta on forged withdrawal slip. Amount referred
above, indicate that maturity value of the account as on
25.05.2005 was withdrawn out of the account of
Ms. Sangeeta. Since entire amount was withdrawn out of
that account, it is evident that the account was closed
without any authorization from the account holder. All
these facts would lead me to conclude that the claimant
committed fraud of Rs. 39979.70 out of the account of
Ms.Sangeeta, when he closed her account without any
mandate and removed the aforesaid amount on forged
withdrawal slip and paid a sum of Rs. 20,000.00 to
Shri Trilokpal in order to silence him in the matter.
28. Withdrawal forms Ex. MW2/34, Ex. MW4/5,
Ex. MW4/6 and Ex. MW4/7 were used to withdraw amount
in account being maintained by Shri Vikas Daga, deposes
Shri Pangtey. He announces that all these withdrawal forms
were entered in the system and passed for payment by
Shri Pathak. He explains that signatures of the account
holder on Ex. MW4/6 were verified by Shri Pathak while
on other withdrawal forms, he (witness) had verified
signatures of the account holder. Shri Pangtey explains
that since signatures of Shri Daga were not loaded in the
system, he verified his signatures on aforesaid withdrawal
forms at the instance of Shri Pathak. Shri Pathak had drawn
a line on Ex. MW4/6 in token of verification of signatures
of the account holder. Amount denoted on the said
withdrawal form was within his competence to pass. The
account of Shri Vikas Daga was not transferred to the
category of dormant account. During course of his cross-
examination Shri Pangtey admits that he passed the
withdrawal forms Ex. MW2/34, Ex.MW4/5, Ex. MW4/6
and Ex. MW4/7 for payment. However, he explains that
payment in respect of withdrawal form Ex. MW4/5 was
released by Shri Pathak to the customer. Claimant nowhere
disputes that fraud took place in the said account. As per
case projected by the claimant account of Shri Vikas Daga
was one of the accounts in which fraud took place. The
claimant had detailed those 44 accounts in Ex. MW6W1.
Thus, it is emerging over the record that out of the account
of Shri Vikas Daya, a sum of Rs.7000.00, Rs.10000.00,
Rs. 5000.00 and Rs. 7000.00 were withdrawn on the strength
of withdrawal form Ex. MW2/34, Ex. MW4/5, Ex. MW4/6
¹Hkkx II—[k.M 3(ii)º
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3391
and Ex.MW4/7 respectively by fictitious person. Claimant
has verified signatures of the account holder on Ex.MW4/
6 by drawing a vertical line, as per practice prevalent in the
banking industry. Signatures on the other three withdrawal
forms were verified by Shri Pangtey at the instance of the
claimant, when he claimed that the account holder was
known to him.
29. No evidence was brought over the record to the
effect that signatures of Shri Vikas Daga on the aforesaid
withdrawal forms were forged by the claimant. However,
it has been established that signatures on the aforesaid
withdrawal forms were not of the account holder. On
Ex.MW4/6, claimant verified signatures of the account
holder and thus facilitated passing of that instrument for
payment. Signatures of the account holder on Ex.MW2/
34, Ex.MW4/5 and Ex.MW4/6 were verified by Shri Pangtey
at the instance of the claimant. As deposed by the witness,
claimant persuaded him to verify signatures of Shri Vikas
Daga. Since signatures of the account holder were not
loaded in the system, he verified his signatures on the
withdrawal forms at the instance of the claimant.
Deposition of the witness on that count remained
unassailed. Even otherwise evidence in that regard was
found to be convincing and reliable. Facts unfolded by
Shri Pangtey are relied being worthy of credence. Thus is
it is evident that the claimant used his official position by
persuading Shri Pangtey to verify signatures of the account
holder on the aforesaid withdrawal forms and facilitated
payment of those withdrawal forms in favour of fictitious
person.
30. Saving Bank account No.17767 was being
maintained by Shri Sanjay Gupta in Maharani Bagh branch
of the bank. Account opening form Ex.MW2/35 relates to
his account, deposes Shri Pangtey. Withdrawal form
Ex.MW4/8 and Ex.MW4/9 relate to the account of
Shri Sanjay Gupta, which withdrawal forms were entered
and entries created in the system by Shri Pathak.
Withdrawal form Ex.MW4/9 was verified by Shri Pathak
while withdrawal form Ex.MW4/8 was verified by him,
declares Shri Pangtey. Payment of the amounts denoted
on those withdrawal forms were released thereafter.
Witness explains that Ex.MW4/9 was transmitted to him
by Shri Pathak. Since there was rush in the branch, he had
not asked Shri Pathak to send the instrument to the Branch
Manager, as he was not competent to handle dormant
account. As the system had accepted his password, he
passed aforesaid withdrawal forms for payment, testifies
Shri Pangtey.
31. Claimant does not dispute that fraud took place
in the account of Sanjay Gupta, since his account finds
place in the list of 44 accounts mentioned in Ex.MW6/W1,
which were subject-matter of fraud. Thus, one can say
that withdrawal forms Ex.MW4/8 and Ex.MW4/9 bear
forged signatures of the account holder. By verification of
signature of the account holder on Ex.MW4/9, the claimant
persuaded Shri Pangtey to pass that withdrawal form for
payment. At his instance, Shri Pangtey verified signatures
of the account holder on Ex.MW4/8, which was also a
forged document. However the bank could not establish
that signatures of the account holder on Ex.MW4/8 and
Ex.MW4/9 were forged by the claimant. But ample evidence
came over the record to the effect that the claimant has
misused his official position and facilitated passing of
those instruments, which act resulted into frauds.
32. Ms. Deepti Gupta and Shri Naval Gupta opened
joint saving fund account No.18125 with the bank on
30.08.1993. Their account opening form has been proved
as Ex.MW2/37, unfolds Shri Pangtey. Withdrawal forms
Ex.MW4/11 and Ex.MW4/12 relate to that account.
Claimant entered these withdrawal forms and created
entries in the system in that regard. Shri Pangtey passed
these two withdrawal forms for payment. Ex.MW4/12 was
verified by Shri Pathak and thereafter it was passed for
payment, deposes the witness. He verified signatures of
the account holder by drawing a line, underneath the
signatures. During cross-examination of the witness, the
claimant had not tried to dispel the fact that payment of
withdrawal form Ex.MW4/11 was released by him in favour
of the customer. As per admission made by the claimant,
fraud was committed in the aforesaid account. No evidence
came over the record to the effect that it was the claimant
who forged signatures of the account holder on aforesaid
two withdrawal forms. But the bank could establish that
the claimant verified signatures of the account holder on
Ex.MW4/12. and persuaded Shri Pangtey to pass the
withdrawal form for payment. Thus he facilitated
commission of fraud by using his official position, when
he verified forged signatures of the account holder on
Ex.MW4/12.
33. Saving bank account No.7359 was being
maintained by Ms. Som Sharma at the bank. Withdrawal
slips Ex.MW5/1, Ex.MW5/2 and Ex.MW5/3 and cheque
Ex.MW5/4 were drawn on the aforesaid account, unfolds
Shri Marcus Tigga. Ex.MW5/1 was verified by him at the
instance of the claimant. Shri Pathak verified signatures of
the claimant on Ex.MW5/3 and in token of that fact put his
initials on the instrument, deposes the witness. Claimant
issued token to the customer relating to Ex.MW5/1 and
Ex.MW5/2, hence it is evident that these instruments were
entered in the system by the claimant. These instruments
were used in the account of Ms.Som Sharma after a gap of
seven years, when last transaction was made. Claimant
could not dispel the proposition that he verified signatures
of Ms.Som Sharma on Ex.MW5/3, when testimony of
Shri Tigga was purified by way of cross-examination. It
was also not disputed that token No.78 and token No.72
respectively were issued by him to the customer in respect
of Ex.MW5/1 and Ex.MW5/2. Resultantly, the bank could
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THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
bring it to light that these instruments were handled by
the claimant. He persuaded Shri Tigga to pass Ex.MW5/3
for payment, by way of verification of signatures of the
account holder. It is not a disputed fact that fraud took
place in the said account, as name and account number of
Ms.Som Sharma appear in Ex.MW6/W1. However, there is
vacuum of evidence to this affect that signatures on these
instruments were forged by the claimant. But evidence
brought over the record is sufficient to conclude that the
claimant persuaded Shri Tigga to pass Ex.MW5/3 for
payment, when he verified signatures of the account
holder on that document. It is evident that this way, the
claimant facilitated fraud in account No.7359 being
maintained by Ms.Som Sharma.
34. Shri Shakeel Ahmed opened saving bank
account No.9007 with the bank. Ex.MW5/5 was drawn on
his account, deposes Shri Tigga. Signatures of the account
holder were verified by the claimant on Ex.MW5/5 and
thereafter it was passed for payment by the witness, as
unfolded by him. No efforts were made by the claimant to
dispute that signatures of the account holder on Ex.MW5/
5 were verified by him. By putting his signature on
Ex.MW5/5, the claimant persuaded Shri Tigga to pass that
instrument for payment. Admittedly, fraud was committed
in that account, as it finds place in Ex.MW6/W1. However,
it has not come over the record that it was the claimant
who forged signatures of the customer on that document.
Evidence, referred above, is sufficient to conclude that
the claimant persuaded Shri Tigga to pass that instrument
for payment and thus facilitated commission of fraud.
35. Whether claimant has been able to rebut facts,
testified by the witnesses referred above? For an answer,
facts unfolded by the claimant in his affidavit Ex.WW1/B
are to be scanned. In his affidavit Ex.WW1/B, tendered as
evidence, claimant presents that in count No.1 of the
charge sheet, 21 accounts and in count No.2, 60 accounts
are mentioned, which are all dormant accounts. According
to him, dormant accounts are either to be operated by the
In-charge or authorized officer. He asserts that neither he
was the In-charge nor authorised officer, hence not
competent to operate the accounts referred above. As
detailed by Shri Ajay Sharma, Shri R.S. Pangtey and
Shri Marcus Tigga, claimant persuaded them to pass
withdrawal slips/cheques for payment claiming that
account holders were well known to him. Accounts,
which were subject- matter of the fraud, were not shown
as dormant accounts in the system. It facilitated the
claimant to put his designs into action.
36. Accounts of Ms.Draupadi, Shri Govinda and
Ms.Kalawati were illiterate accounts. Claimant projects
that these accounts were to be operated by the Branch
Manager. The account holder is supposed to submit his/
her pass book to the bank and the Branch Manager is
under an obligation to compare photo of the account
holder with facial features of the person present before
him and on being satisfied as to his identity, he is to obtain
thumb impression of the account holder in his presence.
In such a situation, those illiterate accounts could not be
handled by him. This contention has been dealt with in
succeeding section. Facts detailed by the claimant in his
affidavit Ex.WW1/B nowhere absolve him of the
misconduct, referred above. Resultantly it is concluded
that the bank could succeed in establishing a few of the
charges, out of those mentioned in the charge sheet dated
20.02.2008.
37. For certain counts of charges, the bank has not
been able to establish misconduct against the claimant.
Those circumstances are detailed in succeeding sections.
Shri Ajay Sharma unfolds that cheque Ex.MW3/1 was
presented before him, when it was entered in the system
by the claimant. He noted an exception in the system to
the effect that the “cheque not entered”. He recorded a
noting on reverse of the cheque, which noting is Ex.MW3/
3 and sought instructions from his senior. Manager of the
branch gave directions on `reverse of the cheque, which
are Ex.MW3/4. After going through those directions and
application of his judicious mind, he cleared the cheque
for payment. Witness explains that Shri Pathak created an
entry into the system at 11.20 p.m. The cheque was entered
at 12.50 noon by the witness, as emerge out of Ex.MW2/
191. He released the payment of the said cheque at 2.53
p.m. as highlighted in Ex.MW2/191. From these facts, one
may note that cheque Ex.MW3/1 was initially handled by
the claimant who created an entry in the system in that
regard at 11.22 a.m. Shri Sharma further deposed that
cheque for a sum of Rs.160000.00 was cleared through
computer system on 14.01.2006, copy of which is Ex.MW3/2.
This cheque was sent by the claimant for clearing. System
made an exception ‘cheque not entered’. He obtained
instructions of the Branch Manager and cleared the cheque
for payment. According to him, Shri Pathak ought not to
have entered the cheque in the system for payment.
However, he concedes that it was part of the duty of the
claimant to create an entry in respect of an instrument
which was handed over to him for payment by a customer.
In order to show that fraud was committed by the claimant
in that regard, it was incumbent upon the bank to highlight
that the claimant forged signatures on the said cheques or
created entry in the system, being in league with the person
who forged signature of Shri Anis Ahmed on those two
cheques. The bank would have been in a advantageous
position in case it were brought over the record that the
claimant shared amount withdrawn through these cheque.
No evidence in that regard has been brought over the
record. Mere suspicion or surmises would not lead this
Tribunal to conclude that the claimant was a party to the
fraud in respect of amount withdrawn on the strength of
the aforesaid two cheques.
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38. Shri R.S. Pangtey unfolds that the claimant
entered the withdrawal form Ex.MW2/20 in the computer
system. He passed the said withdrawal form for payment
at his instance, since the claimant told him that the
customer was known to him. Shri Pangtey made an
oscillating statement when he testified that the said
withdrawal form was passed by the claimant since his
password was within his knowledge. He took a somersault
and testified that the said withdrawal form was passed by
him at the instance of the claimant. He explains that the
account of Ms.Krishna Bambi was dormant and it could
be operated by the Branch Manager/authorised officer.
He admits that he was neither the In-charge of the branch
nor authorized officer to operate dormant account. When
a customer declares his identity to the Incharge/authorised
officer, who on being satisfied makes the account
operative. Thus, out of facts unfolded by Shri Pangtey in
that regard, it emerges that this withdrawal form was passed
for payment by the witness. Claim that it was done by him
at the instance of the claimant, does not get substantiated
from any material evidence. It was obligatory on him to
obtain orders of the Incharge/authorized officer to make
the account operative. Such orders were neither obtained
nor he tried to ascertain, after going through the pass
book, that the account was inoperative since long. Out of
facts unfolded by him, one cannot reach a conclusion that
the signatures on the withdrawal form Ex.MW2/20 were
forged by the claimant and thereafter he facilitated payment
of an amount of Rs.17000.00 to an unauthorized person.
Uncorroborated facts, unfolded by Shri Pangtey, would
not lead this Tribunal to conclude that the bank had been
able to establish that withdrawal form Ex.MW2/20 was
forged by the claimant and thereafter payment was
obtained, persuading the witness to pass it. Consequently,
it is apparent that ocular facts testified by Shri Pangtey in
that regard would not lead the Tribunal to conclude that
the said withdrawal slip was passed for payment by
Shri Pangtey at the instance of the claimant.
39. Relating to fraud in account No.1176889, being
maintained by one Shri Sompal, Shri Pangtey details that
cheques Ex.MW2/54 and Ex.MW2/54A were passed by
him for payment. Cheques were entered in the system by
Shri Pathak, who verified signatures of the account holder
on these two cheques. Shri Pathak told him that
Shri Sompal was personally known to him. Payment of
these two cheques were made to Shri Amit and Shri Sunil
respectively. The account holder was doing some
construction work and he (witness) should make payment
since he (claimant) had verified signatures of the account
holder on those cheques, deposes Shri Pangtey.
Shri Pathak signed on these two cheques in token of factum
of verification of signatures of the account holder. Shri
Pathak had drawn vertical line on those cheques in token
of factum of verification of signatures of the account
holder, unfolds the witness. When cheques Ex.MW2/54
and Ex.MW2/54A are scrutinized, it came to light that
signatures on those cheques were verified by way of
drawing vertical line, as per prevalent practice in the
banking industry. Except these facts, no other evidence
has been brought over the record to project that payments
of the aforesaid two cheques were received by fraudulent
means. Not even an iota of fact has been brought to
suggest that those cheques were neither drawn by Shri
Sompal nor handed over to Shri Amit and Sunil to collect
payment. In this situation, I am constrained to say that
evidence brought over the record in respect of account
No.1176889 is deficient. On mere surmises or suspicion, it
cannot be concluded that fraud was committed in that
account and payment denoted on the aforesaid cheque
were obtained by Shri Amit and Shri Sunil by fraudulent
means. An accusing finger cannot be raised on the claimant
to the effect that he was a party to that fraud.
40. Relating to account No.118594 being maintained
by one Shri Akhilesh Kumar, Shri Pangtey deposed that
Ex.MW4/1 to Ex.MW4/3 were used on 22.09.2005,
25.09.2005 and 27.09.2005 to withdraw money out of the
said account. Ex.MW4/1 was entered into the system by
Shri Pathak and passed by him (witness). Payment was
made by Shri Pathak, since it was within his competence
to release the payment. However he concedes that the
said withdrawal form was passed by him without consulting
specimen signatures of the account holder from the record.
Since signature of the account holder were not feeded in
the system, there were so many accounts to be physically
matched and under this situation, he enquired from
Shri Pathak as to the identity of the account holder, who
told him that the account holder was personally known to
him. He presents that his signatures do not appear on
Ex.MW4/2 and Ex.MW4/3, hence he cannot say as to who
passed those withdrawal forms. However, he explains that
the amounts mentioned on Ex.MW4/2 and Ex.MW4/3 were
beyond competence of Shri Pathak to release for payment.
He explains that signatures of the account holder, namely,
Shri Akhilesh Kumar does not match on Ex.MW4/1,
Ex.MW4/2 and Ex.MW4/3 respectively, with his signatures
on account opening form Ex.MW2/25.
41. Though Shri Pangtey claims that signatures of
the account holder did not match on aforesaid withdrawal
forms, yet I undertook an exercise of comparing signatures
of the account holder on Ex.MW4/1 to Ex.MW4/3 with his
specimen signatures appearing on account opening form
Ex.MW2/25. On comparison, it emerged over the record
that pictorial effect of specimen signatures appearing on
Ex.MW2/25 is different than the signatures appearing on
Ex.MW4/1, Ex.MW4/2 and Ex.MW4/3. Movements on
specimen signatures are better finger movements than the
signatures appearing on the aforesaid withdrawal forms.
In letter “v” in specimen signatures, the account holder
forms a loop at the end while in signatures on withdrawal
forms, no such loop is formed. Word “[k’’ in the specimen
signatures starts with a cured line and then writer takes a
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descent from in-between, while no such formation appears
in the signatures on withdrawal forms. Word ‘y’ in
specimen signatures start with a small stroke and then
writer draws a big crescent while in withdrawal forms, no
such formation appears. Therefore, from comparison of
these signatures on the account opening form with the
aforesaid withdrawal forms, the Tribunal is of the opinion
that signatures on those withdrawal were not drawn by
the account holder. Resultantly, it is clear that the payment
was drawn on the strength of the aforesaid withdrawal
forms by a fictitious person and not by the account holder.
42. No evidence has been adduced by the bank to
project as to who had signed aforesaid withdrawal forms
or as to how the claimant was involved in that fraud.
Creating an entry in the system, in respect of the aforesaid
withdrawal forms, was part of duties of the claimant.
Withdrawal form Ex.MW4/1 was passed by Shri Pangtey,
as testified by him. He could not explain as to who passed
the other two withdrawal forms. Evidence is deficient to
conclude that the claimant was the mastermind, who got
aforesaid forged withdrawal forms presented for payment
and persuaded the authorities to release payment in favour
of fictitious person. Resultantly, it is said that the bank
has not been able to establish by cogent evidence that it
was the claimant who perpetrated fraud and received
payment of the amounts, mentioned in the aforesaid
withdrawal forms, out of the account of Shri Akhilesh.
43. Mst. Nishat Ashraf was opertaing saving fund
account No.17886 since 17.04.1993. Withdrawal form
Ex.MW4/10 pertaining to that account was entered into
the system and Shri Pathak created an entry on 15.09.2005.
The said withdrawal form was passed for payment by him.
Token number was issued on the withdrawal form and
thereafter payment was released to the customer by the
Head Cashier. Name and account number of Mst. Nishat
Ashraf finds place in Ex.MW6/W1 which fact highlights
that the claimant nowhere disputes that fraud took place
in that account too. However, evidence is deficient to the
effect that withdrawal form Ex.MW4/10 was forged by the
claimant or he persuaded Shri Pangtey to pass the said
withdrawal form for payment. Since payment was released
by the Head Cashier to the customer, in that situation, it
cannot be said that the claimant made payment of the said
withdrawal form in favour of fictitious person.
44. Account No.13960 was being maintained by
Ms. Kanwal Suri with the bank. Her specimen signature
card is Ex.MW2/40, declares Shri Pangtey. Withdrawal
form Ex.MW4/13 was entered and entry created in the
system by Shri Pathak. He passed that withdrawal for
payment. As per case projected by the claimant through
document Ex.MW6/W1, fraud had taken place in that
account too. However, it has not been highlighted that
the claimant forged signatures of the account holder on
withdrawal form Ex.MW4/13. Withdrawal form was passed
for payment by Shri Pangtey since it was beyond the
competence of the claimant to pass it. Therefore, it creeps
over the record that the evidence brought by the bank is
deficient to conclude that claimant forged signatures of
the account holder on withdrawal form Ex.MW4/13,
misused his official position and facilitated payment of
the said instrument.
45. Shri Govinda, an illiterate person, was
maintaining saving bank account No.11020 with the bank.
Withdrawal slips Ex.MW5/6, Ex.MW5/7, Ex.MW5/8 and
Ex.MW5/9 were drawn on his account, deposes Shri Tigga.
He deposes that these withdrawal slips were passed by
him for payment, after verification of thumb impression of
the account holder. He hastens to add that these withdrawal
slips were passed by him at the instance of Shri Pathak.
When he was away inside the bank premises for some
official job, Shri Pathak told him on return that he had
checked everything and he should pass those withdrawal
forms for payment. According to the witness, his identity
number was within the knowledge of Shri Pathak. Facts
unfolded by Shri Tigga to the effect that these withdrawal
forms were passed by him at the instance of the claimant,
do not inspire confidence. Account of an illiterate person
is to be operated when the account holder appears
alongwith his/her pass book. His/her identity could be
verified by comparing photograph affixed in the pass book
with facial features of the customer. The officer dealing
with such an account cannot claim to have acted at the
instance of some other officer/ official. Considering all
these facts, one cannot say that the claimant used his
official position and facilitated fraud in the account of
Shri Govinda.
46. Shri D.R. Sharma was maintaining saving bank
account No.5534 in the bank. Cheque Ex.MW5/10 was
drawn on his account, deposes Shri Tigga. He deposes
that he verified signatures of the account holder on
Ex.MW5/10 at the instance of Shri Pathak. According to
him, on 18.08.2004 Shri Pathak came in the branch despite
being deputed for training. He (witness) passed Ex.MW5/
10 at his instance. Shri Pathak entered that cheque in the
record himself. However, witness concedes that he had
not obtained signatures of Shri Pathak on the cheque
referred above. It has also not been disputed that on
18.08.2004, centralized computerization had not started in
the branch. Under these circumstances, it does not lie in
the mouth of the witness to say that the claimant entered
Ex.MW5/10 in the system and then handed it over to him
for payment. Admittedly, the account of Shri Sharma was
one of those accounts wherein fraud took place. However,
the bank had not been able to establish that Ex.MW5/10
was either forged by the claimant himself or he got it forged
from someone and thereafter persuaded Shri Tigga to
pass it for payment.
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47. Account No.6369 was being maintained by Ms.
Draupadi at the aforesaid branch of the bank. Since Ms.
Draupadi was an illiterate, she could operate the account
in person, by way of presentation of her pass book to the
bank authorities. Ex.MW5/11 was drawn on her account,
deposes Shri Tigga. He explains that he verified signatures
of the account holder at the instance of Shri Pathak and
passed Ex.MW5/11 for payment. However the witness
concedes that withdrawal slip Ex.MW5/11 pertains to the
period when computerization had not started in the branch.
Account of an illiterate person is to be operated by the
account holder, by way of presentation of his/her
passbook. In that situation, Shri Tigga would have verified
her identity and ought to have obtained her thumb
impression on the said withdrawal slip. These facts make
it apparent that deposition of Shri Tigga in that regard are
farther from the truth and, accordingly, brushed aside.
48. Saving bank account No.13143 was being
maintained by Ms.Nidhi Arora and Shri Ramesh Arora
jointly. Withdrawal slip Ex.MW5/12 was drawn on the said
account, testified Shri Tigga. He verified signatures of
the account holder on the said withdrawal form at the
instance of the claimant and passed it for payment.
However these facts appear to be afterthought, since the
witness concedes that while facing domestic action, he
took a stand that he had verified documents relating to
the account of Nidhi Arora personally and passed
Ex.MW5/12 for payment. Therefore, it emerged over the
record that in respect of Ex.MW5/12, witness had unfolded
discrepant facts, which do not stand together. After lapse
of time, he deposes that Ex.MW5/12 was passed by him at
the instance of the claimant. These facts are found to be
farther from the truth, hence discarded. Testimony of Shri
Tigga cannot lead this Tribunal to conclude that
withdrawal slip Ex.MW5/12 was passed by him at the
instance of the claimant.
49. Account No.13785 was being maintained by one
Ms.Deepa at Maharani Bagh branch of the bank. Ex.MW
5/13, Ex.MW5/14 and Ex.MW5/15 were drawn on that
account, declares Shri Tigga. Ex.MW5/15 was verified by
him and passed for payment. He passed Ex.MW5/13 and
Ex.MW5/14 without verification of signatures of the
account holder. He hastens to add that these documents
were passed by him at the instance of the claimant. He
makes a candid admission that in respect of these
withdrawal slips, he claimed before the Enquiry officer
that these withdrawal slips were passed by him after
verifying signatures of the account holder. It is emerging
over the record that initially Shri Tigga had not taken any
stand to the effect that these withdrawal forms were passed
by him for payment at the instance of the claimant. Now,
conveniently, he takes a stand to the effect that these
withdrawal forms were passed at the instance of the
claimant. It is evident that facts unfolded by this witness
are an afterthought. It would be highly unsafe to rely on
aforesaid facts and conclude that these withdrawal forms
were passed by Shri Tigga for payment at the instance of
the claimant.
50. Account No.1265 was being maintained at
Maharani Bagh branch of the bank in the name of Namrata
Karir under guardianship of her father, narrates Shri Tigga.
Withdrawal slip Ex.MW5/16 was passed for payment at
the instance of Shri Pathak. When Ex.MW5/16 is perused,
it came to light that a sum of Rs.52579.49 was drawn on
the strength of the instrument in the said account. Witness
concedes that the account was closed and thereafter
aforesaid amount was released in favour of the account
holder. Account No.7485 was being maintained at
Maharani Bagh branch of the bank in the name of
Ms.Rekha Jain deposes Shri Tigga. Withdrawal slip
Ex.MW5/17 was passed for payment at the instance of
Shri Pathak. When Ex.MW5/17 is perused, it came to light
that a sum of Rs.25370.59 was drawn on the strength of
the instrument in the said account. Account No.5395 in
the name of Ashu Gupta was being maintained at Maharani
Bagh branch of the bank, projects Shri Tigga. Withdrawal
slip Ex.MW5/18 was passed for payment at the instance
of Shri Pathak. When Ex.MW5/18 is perused, it came to
light that a sum of Rs.1657.57 was drawn on the strength
of the instrument in the said account. Witness accepts
that aforesaid the accounts were closed and thereafter
maturity amount were released in favour of the account
holder(s). It has also not been disputed that for closure of
the account, Branch Manager was authorized to issue
instructions. Resultantly, it is emerging over the record
that presence of the account holder was a must for closure
of the account. In that situation, there was no occasion
for Shri Tigga to pass above withdrawal slips at the
instance of the claimant. Facts unfolded by him in that
regard are nothing but sheer lie. These facts are discarded.
These facts nowhere absolve the claimant for the liability
of misconduct, proved against him.
51. What should be the appropriate punishment,
which can be awarded to the claimant, is a proposition
which would be addressed to by this Tribunal? For an
answer to this proposition it would be expedient to have a
glance on legal dictum. It is a matter of common knowledge
that right of an employer to award punishment of discharge
or dismissal is not unfettered. The punishment imposed
must commensurate with gravity of the misconduct, proved
against the delinquent workman. Prior to enactment of
section 11-A of the Act, it was not open to the industrial
adjudicator to vary the order of punishment on finding
that the order of dismissal was too severe and was not
commensurative with the act of misconduct. In other
words, the industrial adjudicator could not interfere with
the punishment as it was not required to consider propriety
or adequacy of punishment or whether it was excessive or
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too severe. The Apex Court, in this connection, had,
however, laid down in Bengal Bhatdee Coal Company
[1963 (I) LLJ 291] that where order of punishment was
shockingly disproportionate with the act of the misconduct
which no reasonable employer would impose in like
circumstances, that itself would lead to the inference of
victimization or unfair labour practice which would vitiate
order of dismissal or discharge. But by enacting the
provisions of section 11-A of the Act, the Legislature has
transferred the discretion of the employer, in imposing
punishment, to the industrial adjudicator. It is now the
satisfaction of the industrial adjudicator to finally decide
the quantum of punishment for proved acts of misconduct,
in cases of discharge or dismissal. If the Tribunal is
satisfied that the order of discharge or dismissal is not
justified in any circumstances on the facts of a given case,
it has the power not only to set aside order of punishment
and direct reinstatement with back wages, but it has also
the power to impose certain conditions as it may deem fit
and also to give relief to the workman, including award of
lesser punishment in lieu of discharge or dismissal.
52. It is established law that imposing punishment
for a proved act of misconduct is a matter for the punishing
authority to decide and normally it should not be interfered
with by the Industrial Tribunals. The Tribunal is not
required to consider the propriety or adequacy of
punishment. But where the punishment is shockingly
disproportionate, regard being had to the particular conduct
and past record, or is such as no reasonable employer
would ever impose in like circumstance, the Tribunal may
treat the imposition of such punishment as itself showing
victimization or unfair labour practice. Law to this effect
was laid by the Apex Court in Hind Construction and
Engineering Company Ltd. [1965 (I) LLJ 462]. Likewise in
Management of the Federation of Indian Chambers of
Commerce and Industry [1971 (II) LLJ 630] the Apex Court
ruled that the employer made a mountain out of a mole hill
and had blown a trivial matter into one involving loss of
prestige and reputation and as such punishment of
dismissal was held to be unwarranted. In Ram Kishan (1996
(I) LLJ 982) the delinquent employee was dismissed from
service for using abusive language against a superior
officer. On the facts and in the circumstances of the case,
the Apex Court held that the punishment of dismissal was
harsh and disproportionate to the gravity of the charge
imputed to the delinquent. It was ruled therein, “when
abusive language is used by anybody against a superior,
it must be understood in the environment in which that
person is situated and the circumstances surrounding the
event that led to the use of abusive language. No straight-
jacket formula could be evolved in adjudicating whether
the abusive language in the given circumstances would
warrant dismissal from service. Each case has to be
considered on its own facts”
53. In B.M.Patil [1996 (II) LLJ 536], Justice Mohan
Kumar of Karnataka High Court observed that in exercise
of discretion, the Disciplinary Authority should not act
like a robot and justice should be moulded with humanism
and understanding. It has to assess each case on its own
merit and each set of fact should be decided with reference
to the evidence recording the allegation, which should be
basis of the decision. The past conduct of the worker may
be a ground for assuming that he might have a propensity
to commit the misconduct and to assess the quantum of
punishment to be imposed. In that case a conductor of the
bus was dismissed from service for causing revenue loss
of 50p to the employer by irregular sale of tickets. It was
held that the punishment was too harsh and
disproportionate to the act of misconduct.
54. After insertion of section 11-A of the Act, the
jurisdiction to interfere with the punishment is there with
the Tribunal, who has to see whether punishment imposed
by the employer commensurate with the gravity of the act
of misconduct. If it comes to the conclusion that the
misconduct is proved, it may still hold that the punishment
is not justified because misconduct alleged and proved is
such as it does not warrant punishment of discharge or
dismissal and where necessary, set aside the order of
discharge or dismissal and direct reinstatement with or
without any terms or conditions as it thinks fit or give any
other relief, including the award of lesser punishment, in
lieu of discharge or dismissal, as the circumstance of the
case may warrant. Reference can be made to a precedent
in Sanatak Singh (1984 Lab.I.C.817). The discretion to
award punishment lesser than the punishment of
discharge or dismissal has to be judiciously exercised and
the Tribunal can interfere only when it is satisfied that the
punishment imposed by the management is highly
disproportionate to the decree of the guilt of the workman.
Reference can be made to the precedent in Kachraji Motiji
Parmar [1994 (II) LLJ 332]. Thus it is evident that the
Tribunal has now jurisdiction and power of substituting
its own measure of punishment in place of the managerial
wisdom, once it is satisfied that the order of discharge or
dismissal is not justified. On facts and in the circumstances
of a case, section 11A of the Act specifically gives two
folds powers to the Industrial Tribunal, first is virtually
the power of appeal against findings of fact made by the
Enquiry Officer in his report with regard to the adequacy
of the evidence and the conclusion on facts and secondly
of foremost importance, is the power of reappraisal of
quantum of punishment.
55. In Bharat Heavy Electricals Ltd. [2005 (2) S.C.C.
481] the Apex Court was confronted with the proposition
as to whether power available to the Industrial Tribunal
under section 11-A of the Act are unlimited. The Court
opined that “there is no such thing as unlimited jurisdiction
vested with any judicial or quasi judicial forum and
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3397
unfettered discretion is sworn enemy of the constitutional
guarantee against discrimination. An unlimited jurisdiction
leads to unreasonableness. No authority, be it
administrative or judicial, has any power to exercise
discretion vested in it unless the same is based on
justifiable grounds supported by acceptable materials and
reasons thereof”. The Apex Court relied its judgement in
C.M.C. Hospital Employees Union (1987 (4) S.C.C. 691)
wherein it was held that “section 11-A cannot be considered
as conferring an arbitrary power on the Industrial Tribunal
or the Labour Court. The power under section 11-A of the
Act has to be exercised judiciously and the Industrial
Tribunal or Labour Court is expected to interfere with the
decision of a management under section 11-A of the Act
only when it is satisfied that the punishment imposed by
the management is highly disproportionate to the degree
of guilt of the workmen concerned. The Industrial Tribunal
or Labour Court has to give reasons for its decision”. In
Hombe Gowda Educational Trust (2006 (1) S.C.C. 430) the
Apex Court announced that the Tribunal would not
normally interfere with the quantum of punishment
imposed by the employer unless an appropriate case is
made out therefore.
56. Power to set aside order of discharge or
dismissal and grant relief of reinstatement or lesser
punishment is not untrammeled power. This power has to
be exercised only when Tribunal is satisfied that the order
of discharge or dismissal was not justified. This
satisfaction of the Tribunal is objective satisfaction and
not subjective one. It involves application of the mind by
the Tribunal to various circumstances like nature of
delinquency committed by the workman, his past conduct,
impact of delinquency on employer’s business, besides
length of service rendered by him. Furthermore, the
Tribunal has to consider whether the decision taken by
the employer is just or not. Only after taking into
consideration these aspects, the Tribunal can upset the
punishment imposed by the employer. The quantum of
punishment cannot be interfered with without recording
specific findings on points referred above. No indulgence
is to be granted to a person, who is guilty of grave
misconduct like cheating, fraud, misappropriation of
employers fund, theft of public property etc. A reference
can be made to the precedent in Bhagirath Mal Rainwa
[1995 (I) LLJ 960].
57. As noted above, the claimant managed to prevail
upon the authorised officers of the bank to pass forged/
fabricated withdrawal forms/cheques, projecting that the
account holders were known to him and their identity has
been confirmed. Misconduct like cheating, fraud and
misappropriation of employers funds are grave one,
justifying punishment of dismissal from service. Question
for consideration comes as to whether punishment
awarded to the claimant was shockingly disproportionate
to his misconduct, justifying interference by this Tribunal?
In Firestone Tyre and Rubber Company of India (Pvt.)
Ltd. [1973 (1) S.C.C. 813], the Apex Court ruled that once
misconduct is proved, the Tribunal had to sustain order
of punishment unless it was harsh indicating victimization.
It has been further laid therein that if a proper enquiry is
conducted by an employer and a correct finding arrived at
regarding the misconduct, the Tribunal, even though now
empowered to differ from the conclusion arrived at by the
management, will have to give very cogent reasons for
not accepting the view of the employer. Again in Divisional
Controller K.S.R.T.C. (N.W.K.R.T.C) [2005 (3) S.C.C. 254] it
was laid that question of quantum of punishment would
not be weighed on amount of money misappropriated but
it should be based on loss of confidence, which is a primary
factor to be taken into account. Once a person is found
guilty of misappropriating his employer’s fund, there is
nothing wrong for the employer to lose confidence or faith
in such a person, awarding punishment of dismissal.
58. As proved by the bank, the claimant persuaded
his superiors to believe that identity of the customer(s)
stood confirmed and made them to pass forged withdrawal
slips and cheques for payment. Being a computer savvy,
he came to know that dormant accounts have not been
locked, when same were entered into the system. He
targeted dormant accounts and fictitious persons
presented forged withdrawal slips and cheques for
withdrawal of money out of those accounts. The claimant
misused his official position and made his superiors believe
as to the identity of those person as genuine account
holders as a consequence of which belief they passed
forged instruments for payment. The claimant acted with
an intention of causing wrongful gain to himself as well as
his associates and wrongful loss to the account holder(s)
and the bank. Element of deceit and injury to the person
deceived was there in the act committed by the claimant,
hence it answered all ingredients of fraud. It is a matter of
common knowledge that misconduct of fraud is of serious
nature, warranting penalty of dismissal. Reference can be
made to the precedent in Tika Ram & Sons Ltd. [1960 (1)
LLJ 514 S.C.].
59. Punishment of dismissal from service without
notice commensurate to the misconduct committed by the
claimant. It cannot be said that the punishment awarded
to the claimant was shockingly disproportionate to his
misconduct, justifying interference by the Tribunal. The
punishment of dismissal without notice cannot be said to
be harsh, indicating victimization. One who commits
misconducts, like cheating and fraud looses confidence
of his employer. Therefore, I am of the considered opinion
that the claimant has miserably failed to project that
punishment awarded to him is to be substituted by any
other punishment. The issue is, therefore, answered
accordingly.
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Issue No. 3
60. Much hue and cry has been made by the claimant
asserting that he has been discriminated while awarding
punishment. He claims that charge sheets were issued to
19 officers, besides him. None of them was awarded
punishment of dismissal from service, argues Shri Mavi.
As claimed, details of the officers, served with chargesheet
and penalty awarded to them, are reproduced hereunder:
1.
Shri P. N.
Chief
Minor penalty of ‘Reduction
Srivastava,
Manager
to one lower stage in the
scale of pay for a period of
one year without cumulative
effect’, vide orders dated
12.01.2008 of GM:HRD, Head
Office.
2.
Shri Anil
Chief
Minor penalty of ‘Censure’
Kashyap
Manager
vide order dated 08.03.2008
3.
Shri Ajay
Deputy
Minor penalty of ‘Reduction
Sharma,
Manager
to one lower stage in the time
scale of pay for a period of
one year without cumulative
effect’, vide orders dated
28.12.2007
4.
Shri M.
Deputy
Minor
penalty
of
Tigga
Manager
‘withholding
of
one
increment of pay for a period
of
one
year
without
cumulative effect’, vide order
dated 28.12.2007
5.
Shri Guru
Officer
Minor
penalty
of
Prasad
‘withholding
of
one
increment of pay for a period
of
one
year
without
cumulative effect’, vide order
dated 28.12.2007
6.
Shri R.S.
Officer
Minor
penalty
of
Pangtey
withholding
of
one
increment of pay for a period
of
one
year
without
cumulative effect’, vide order
dated 28.12.2007
7.
Shri B.C.
Manager
Note of Caution, vide letter
Mastana
dated 20.10.2007
8.
Shri L.K.
Manager
Note of Caution, vide letter
Bansal
dated 20.10.2007
9.
Ms.Rita
Manager
Dropped vide letter dated
Verma
20.10.2007
10. Shri Atul
Senior
Minor penalty of ‘Reduction
Garg
Manager
to one lower stage in the time
scale of pay for a period of
one year without cumulative
effect’, vide order dated
29.12.2007
11. Shri S.K.
Special
Warning,
vide
order
Sehgal
Assistant dated 19.02.2008
12. Smt. Smriti
Special
Warning,
vide
order
Raina
Assistant dated 19.02.2008
13. Sh. Ashwani Special
Warning,
vide
order
Kumar
Assistant dated 19.02.2008
Sharma
14. Shri C.P.
Computer Dropped,
vide
letter
Chhabra
Terminal
dated 20.10.2007
Operator
15. Shri Sushil
Clerk/
Note of Caution, vide
Lakra
Cashier
letter dated 20.10.2007
16. Sh. Manveer Clerk/
Note of Caution, vide
Jayant
Cashier
letter dated 20.10.2007
17. Shri S. K.
Head
Note of Caution, vide
Gupta
Cashier
letter dated 20.10.2007
18. Shri Nathu
Head
Note of Caution, vide
Ram
Cashier
letter dated 20.10.2007
19. Sh. S.K. Dua Manager
Dropped.
61. Whether award of minor penalty to the officers,
referred above, offends right of equality before law and
equal protection of law available to the claimant? Equality
before law and equal protection of laws are fundamental
rights of every person, ordains Article 14 of the
Constitution. The guiding principles laid in Article 14 are
that persons, who are similarly situated, shall be treated
alike both in privileges conferred and liability imposed,
which means that amongst equals the law should be equal
and should be equally administered and that like should
be treated alike. Article 16 of the Constitution guarantees
equality of opportunities for all citizens in matters relating
to employment or appointment to any office under the
State. What is guaranteed is the equality of opportunity.
Like all other employers, Government is also entitled to
pick and choose from amongst a large number of
candidates offering themselves for employment. But the
selection process must not be arbitrary. The guarantee
given by clause (a) of Article 16 of the Constitution will
cover (a) initial appointments (b) promotions (c)
termination of employment (d) and matters relating to
salary, periodical increments, leaves, gratuity, pension, age
of superannuation etc. Matters relating to employment or
appointments include all matters in relations to employment
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both prior and subsequent to the employment which are
incidental to the employment and form part of the terms
and conditions of such employment.
62. 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.
63. 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.
64. Whether claimant could project that the officers/
officials to whom charge sheet(s) were served were equally
placed with him in the matter of commission of
misconduct? As brought over the record, the claimant
persuaded his superiors to believe about the identity of
fictitious persons as genuine account holder(s). He made
his superiors to pass forged withdrawal slips and cheques
for payment. The bank has gone a step ahead when it
proved that the claimant was one of the appropriator of
the amount defrauded from the various accounts. He also
tried to silence the voice of Shri Prem Chand and Trilok Pal
by way of paying a sum of Rs.20000. These facts make out
that the misconduct, committed by the claimant, project
his culpable intention. As facts tell, the officer(s), who
acted at the instance of the claimant when he made them
to believe as to the identity of the customer(s), were
negligent in discharge of their duties. Their negligence, in
discharge of their duties, was taken to be culpable by the
bank and treated as misconduct.
65. In N.M. Roshan Umar Karim and Co. (AIR 1936
Mad. 508) following three different meaning of the word
‘misconduct’ were given:
“(a) Misconduct is not established by proving even
culpable negligence. It is something opposed to
accident or negligence and is doing of something
which the doer knows to be wrong or which he does
recklessly not caring what the result would be.
(b) Misconduct is distinguished from accident and
is not far from negligence - not only gross and
culpable negligence and involves that a person
misconducts himself when it is wrong conduct on
his part, in the existing circumstances to do or to fail
or omit to do a particular thing or to persist in the
act, failure or omission or acting with carelessness.
It is incorrect that a misconduct only refers to acts
of gross or culpable negligence and not mere
negligence.
(c) Misconduct does not ordinarily covers acts of
negligence. The test of misconduct is not what a
reasonable man would have done in the
circumstances. It means that servant is guilty of
something which was inconsistent with the conduct
expected of him by the rules of the company”.
Above three meanings were quoted by the Apex
Court with approval in Shiv Nath (AIR 1965 SC 1666).
66. In Ram Singh (1992 Lab. IC 2391) the Apex Court
observed that though the expression ‘misconduct’ is ‘not
capable of precise definition, its reflection receives its
connotation from the context, the delinquency in its
performance and its effect on the discipline and the nature
of duty. It may involve moral turpitude, it must be improper
or wrong behaviour, unlawful behaviour, willful in character,
forbidden act, a transgression of established and definite
rule of action, code of conduct but not mere error of
judgement, carelessness or negligence in performance of
duty, the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference to
the subject matter and the context wherein the term occurs,
regard being had to the scope of the statue and the public
purpose it seeks to serve.”
67. Generally speaking, misconduct is a
transgression of some established and definite rule of
action where no discretion is left except what necessity
may demand, it is violation of definite law, a forbidden act.
Misconduct means intentional wrong doing and would
include unlawful behaviour. A conduct which is
blameworthy would be misconduct, if by the commission
or omission of acts of the employee, the employer suffers
loss or it generates an atmosphere destructive of discipline.
In any case, the action of misconduct must have some
relation with the employee’s duty to his employer. If the
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act complained of is found to have some relationship to
the affairs of the employer’s business, having a tendency
to affect or disturb the peace and good order of the
establishment where the employee works or be subversive
of discipline in any direct or proximate sense, such act
would amount to misconduct.
68. An employee owes a duty to his employer to
exercise reasonable care in performance of his duty. In
other words, an employee must exercise reasonable care
and skill in performance of his duties. When he deliberately
neglects to carry out his work or perform his duty, when
required to do that with reasonable care, he is guilty of
misconduct of negligence. The concept of negligence
has been the subject matter of great deal of judicial
literature. The precise scope of the term negligence in the
contract of employment has been a matter of controversy.
However, for practical purposes, the statement of law
relating to negligence in Halsbury’s Laws of England
(Fourth Edn. Vo.34, para 1, P.3) is illustrative:
“Negligence is a specific tort and in any given
circumstances is the failure to exercise that care
which the circumstances demand. What amounts to
negligence depends on the facts of each particular
case. It may consist in omitting to do something
which ought to be done or in doing something which
ought to be done either in a different manner or not
at all. Where there is no duty to exercise care,
negligence in the popular sense has no legal
consequence. When there is a duty to exercise care,
reasonable care must be taken to avoid acts or
omissions which can be reasonably foreseen to be
likely to cause physical injury to persons or property.
The degree of care required in the particular case
depends on the surrounding circumstances, and may
vary according to the amount of the risk to be
encountered and to the magnitude of the prospective
injury. The duty of care is owed only to those
persons who are in the area of foreseeable danger;
the fact that the act of the defendant violated his
duty of care to a third person does not enable the
plaintiff who is also injured by the same act to claim
unless he is also within the area of foreseeable
danger. The same act or omission may accordingly
in some circumstances involve liability as being
negligent, although in other circumstances it will
not do so. The material consideration are the absence
of which is on the part of the defendant owed to the
plaintiff in the circumstances of the case and the
damage suffered by the plaintiff, together with a
demonstrable relation of cause and effect between
the two.”
69. Negligence, thus, in legal sense, is a negative
rather than a positive concept. In given circumstances, it
is the failure to exercise the care which the circumstances
demand. Where there is a duty to take care or to exercise
certain skill, failure to take care or exercise skill may indicate
negligence. In other words, it is the absence of such care,
skill and negligence, which is the duty of the person to
bring in performance of his work. Negligence is
characterized subjectively by an attitude of indifference
and it is, therefore, opposed to intentional act. Omission
to perform the duty may consist of a variety of things for
instance, doing nothing or wasting time by loitering,
loafing, idling or gossiping or sleeping during duty hours
or pretence of waiting instructions with a view to shirk
work or because of laziness or wilful indolence. An error
can be indicative of negligence and the degree of
culpability may indicate grossness of negligence. Classic
examples of acts of negligence are of a Santry who sleeps
at his post and allows enemies to slip through; a
compositor carelessly placing a plus sign instead of minus
sign in a question paper and may cause numerous
examinees to fail; a compounder in a hospital or chemist
shop who makes a mixture or other medicine carelessly
may cause quite a few deaths; the man at airport who does
not carefully filter the petrol poured into a plane may cause
it to crash; the railway employee who does not set the
point carefully may cause a head on collision. In such
cases, a single act of negligence itself would constitute
serious misconduct on the part of the employee.
70. The question whether a particular act or
negligence constitutes gross misconduct or not, will
depend upon peculiar facts and circumstances of the case
and nature of work performed by an employee as well as
the status or position he occupies. Seriousness of the
misconduct would be aggravated particularly when the
principal duty of the employee is to keep watch and
vigilance on the property of his employer as in the case of
watch and ward staff, who sleeps during duty hours and
commits an act of gross negligence. If an act of negligence
entails serious damages or consequences to the property
of the employer, it would be an act of gross negligence of
aggravated form. Standards of conduct expected of an
employee would be yardstick to gauze the severity or
triviality of his misconduct. A misconduct which may not
be viewed in certain circumstances to be serious, can be
serious in another set of circumstances. In other words, a
particular misconduct is severe or otherwise would depend
upon the facts of each particular case.
71. As an act done wilfully with a wrong intention
would amount to misconduct. Therefore, definition of
word ‘intention’ gains importance. Intention can be said
to consciously or wilfully or deliberately doing an act which
it is known or foreseen or appreciated or realized, will as a
probable, perhaps highly probable, perhaps morally certain,
consequence, expose the victim to the risk of peril of death
or grievous bodily harm, even though the actor may not
wish or desire the result to ensue, may be certain that it
will ensure, or may have wanton disregard or indifference
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as to whether it will nor not. Intention involves foresight
or knowledge of the probable or likely consequences of
injury, plus the desire or purpose or object or end to do an
act which will bring those consequences about. Foresight
or knowledge of the probable or likely consequences does
not or may not, itself suffice to constitute intention, but it
is naturally very strong evidence of such an intention.
Foresight or knowledge is the best basis to find the
requisite intention proved and this must normally be
expected to follow.
72. Intention is man’s state of mind, direct evidence
thereof, except through his own confession, cannot be
had and apart from confession it can be proved only by
circumstantial evidence. In other words, intention is a
matter of inference from all the circumstances of the case,
such as motive, preparations made, declarations of the
offender, nature and consequences of the act and the
attendant circumstances. Like most words, the word
‘intention’ is capable of different shades of meaning. It is
generally used in relation to the consequences of an act,
the effect caused thereby, not in relation to the act itself –
the voluntariness required to constitute an act is implied
by the very word. The Penal Code uses the word ‘intention’
in the sense that something is intentionally done if it is
done deliberately or purposely, in other words, it is willed
though not necessarily a desired result or a result which is
the purpose of the deed.
73. “Good faith’ plays an important part in law of
crimes and its presence is ordinarily a sufficient answer to
a charge of criminality in many cases. Good faith is defined
in positive aspect by Section 3(22) of the General Clauses
Act, 1897, which definition is extracted thus:
“3. (22) A thing shall be deemed to be done on ‘good
faith’ where it is in fact done honestly, whether it is
done negligently or not.”
74. Element of honesty, introduced by the above
definition, is not present in the definition given in the
Penal Code. Negative definition of the phrase is given in
Section 52 of the Penal Code, which runs thus:
“52. Nothing is said to be done or believed in ‘good
faith’ which is done or believed without care and
attention’.
75. As defined by the Penal Code, definition of
phrase ‘good faith’ has no reference to the moral element
of honesty and right motive which are involved in popular
significance of ‘good faith’, defined by General Clauses
Act. To establish good faith under the penal law, it is
necessary to prove that the person pleading good faith
acted with due care and attention and an honest blunder
cannot be protected, without establishing the exercise of
due care and attention. The plea of good faith may be
negatived on the ground of recklessness indicative of want
of due care and attention if the imputation in question,
have been made as categorical statements of facts.
However law does not exact the same degree of care and
attention from all persons. It varies with the position they
occupy. In this sense, the question of ‘good faith’ is always
question of fact to be determined in accordance with the
proved facts and circumstances of each case.
76. The ‘due’ care required must depend upon the
nature of the act, its magnitude and importance and the
facility a person has for the exercise of care and attention.
It does not constitute ‘good faith’ necessarily because
the person making the imputation believed it to be true.
Due care and attention imply a genuine effort to reach the
truth, and not the ready acceptance of an ill natured belief.
A surgeon working in his surgery would be judged by a
different standard from that applicable to a surgeon in the
field. But where a quack unskilled in surgery performs an
operation which even a trained surgeon seldom dares, he
cannot be accredited with good faith, if his patient trusting
him succumbs to his operation.
77. The circumstances that operate on the exercise
of care and attention are so varied and variable that it is
not possible to fix a general standard by which the
presence or absence of ‘good faith’ may, in any case, be
tested. But at the same time, in such cases, it is always
permissible to argue ex post facto; that is to say, it may be
shown that there was a want of ‘good faith’ because there
was absence of the requisite care and caution. On the
other hand, a person relying upon ‘good faith’ may show
that he had taken the necessary care and caution, and
that, therefore, his act was done in good faith. As
observed by the Law Commission in its First Report: ‘He
will be required to prove that his conduct was such as to
lead fairly to the inference that he acted in good faith as
alleged. It is true that he cannot prove directly what was
in his mind, but he may be able to prove facts by which
this may be sufficiently manifested”. To satisfy the Court
of his good faith, he must show at least that he acted
advisedly and that he had reasonable ground prima facie
for believing that he ought to do what he did.
78. In order to establish belief in good faith, a
person’s simple belief in good faith that circumstances
are such and such, ought not to be sufficient, there ought
to be sufficiently strong and just ground for his belief.
Belief must have a foundation and that must be shown.
Where a person acts with thoughtless precipitancy,
without making sufficient inquiries and jumping to a
conclusion upon materials wholly unjustifiable, it cannot
be said that he had exercised good faith.
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79. As a person, acting in good faith, is excepted
from criminality, presence of good faith in each case must
depend upon the circumstances which alone entitle a
person to exemption from criminal responsibility. The
burden lies on the accused to prove that he acted with
good faith. The question of good faith must be considered
with reference to the position of the accused and the
circumstances under which he acted. The law does not
exact the same care and attention from all persons
regardless of the position they occupy.
80. As noted above a misconduct based on
negligent act may enable the delinquent employee to take
a defence of acting in good faith or due care as expected
of him. If he fails in his defence his misconduct of acting in
negligent manner and causing loss to his employer cannot
be said to be of alarming nature. His negligence, if not of
the categories detailed above, would not lead the employer
to loose confidence in him and to award penalty of
dismissal.
81. Claimant persuaded the aforesaid officers to
pass fictitious withdrawal forms/cheques, without caring
about identity of the account holders. On his
representation, relating to the identity of account holder(s),
aforesaid officers acted and could not discharge their
duties with due diligence. Admittedly, aforesaid officers
remained negligent in performance of their duties and
committed misconduct. Claimant facilitated commission
of fraud, made bank and the account holders victim of
crime and became one of the appropriator of money
defrauded on the strength of fake vouchers, which fact
emerged out of the testimony of Shri Prem Chand, as
detailed above. Claimant paid Rs.20,000.00 to Shri Prem
Chand with an intent to dissuade him from pursuing his
complaint any further. Thus, it is crystal clear that the
claimant was one of the appropriator of the amount
obtained by fraud. His persuasion led the officers to commit
misconduct but he was standing on a different footing
than the officers, referred above. His involvement in the
misconduct is intentional while officers committed
misconduct, being negligent in discharge of their duties.
The claimant was standing on a different pedestal than
the officers to whom minor punishments were awarded.
In this situation, it does not lie in the mouth of the claimant
to assert that he was placed on the same pedestal on which
the aforesaid officers were, relating to misconduct
committed by them. I am of the considered opinion that
the claimant was placed differently, hence he cannot claim
equal protection of law when punishment was awarded to
him for the misconduct committed by him.
82. Whether the penalty of dismissal without notice,
awarded to the claimant, would relate back to the date of
order of dismissal passed by the bank? For an answer, it is
expedient to consider precedents handed down by the
Apex Court. In Ranipur Colliery [(1959) Supp. 2 SCR 719]
the employer conducted a domestic enquiry though
defective and passed an order of dismissal and moved the
Tribunal for approval of that order. It was ruled therein
that if the enquiry is not defective, the Tribunal has only
to see whether there was a prima facie case for dismissal
and whether the employer had come to the bonafide
conclusion that the employee was guilty of misconduct.
Thereafter on coming to that conclusion that the employer
had bonafide come to the conclusion that the employee
was guilty, that is, there was no unfair labour practice and
no victimization, the Tribunal would grant the approval
which would relate back to the date from which the
employer had ordered the dismissal. If the enquiry is
defective for any reason, the Tribunal would also have to
consider for itself on the evidence adduced before it
whether the dismissal was justified. However on coming
to the conclusion on its own appraisal of evidence adduced
before it that the dismissal was justified its approval of the
order of dismissal made by the employer on defective
enquiry would still relate back to the date when order was
made.
83. In Phulbari Tea Estate [1960 (I) S.C.R. 32] the
domestic enquiry held by the employer culminating in the
order of dismissal was found to be invalid, being in gross
violation of the rules of natural justice. Even before the
Tribunal, the employer did not lead proper evidence to
justify the order of dismissal and contended itself by merely
producing the statement of certain witnesses recorded
during the domestic enquiry and the workman had no
opportunity to cross-examine the witnesses before the
Tribunal. In the absence of any evidence before it,
justifying the dismissal, the Tribunal set aside the order of
dismissal and granted compensation in lieu of
reinstatement, which order was upheld by the Apex Court.
In that case question of relating back of the order of
dismissal did not arise.
84. In P. H. Kalyani [1963 (1) LLJ 673] the employer
dismissed the workman after holding a domestic enquiry
into the charges. Since some dispute was pending before
the Industrial Tribunal, the employer applied for “approval”
of action of dismissal in compliance with the proviso to
Section 33(2)(b) of the Act. The workman made an
application under Section 33-A of the Act. Apart from
relying on validity of domestic enquiry, the employer
adduced all the evidence before the Tribunal in support of
its action. On basis of evidence before it, the Tribunal
came to the conclusion that the facts of misconduct
committed by the workman were of serious nature
involving danger to human life and therefore dismissed
the application under Section 33-A and accorded
“approval” to the action of dismissal taken by the employer.
In this situation the Apex Court held that if the enquiry is
not defective and the action of the employer is bonafide,
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the Tribunal will grant the approval” and the dismissal
would “relate back to the date from which the employer
had ordered dismissal”. If the enquiry is invalid for any
reason, the Tribunal will have to consider for itself on the
evidence adduced before it, whether the dismissal was
justified. If it comes to the conclusion on its own appraisal
of such evidence that the dismissal was justified, the
dismissal would “still relate back to the date when the
order was made”. Sasa Musa Sugar Works case [1959 (II)
LLJ 388] was distinguished saying that observations made
therein “apply only to a case where the employer had
neither dismissed the employee nor had come to the
conclusion that a case for dismissal had been made. In
that case, the dismissal of the employee takes effect from
the date of the award and so until then the relation of
employer and employee will continue in law and in fact”.
85. D. C. Roy [(1976) Lab. I.C. 1142] is the illustration
where domestic enquiry held by the employer was found
to be invalid being violative of principles of natural justice
and the employer had justified the order of dismissal by
leading evidence before the Labour Court, on appraisal of
which the Labour Court found the order of dismissal
justified. In appeal, the Apex Court upheld the award with
the observation that “the ratio of Kalyani’s case (supra)
would therefore, govern the case and the judgment of the
Labour Court must relate back to the date on which the
order of dismissal was passed”.
86. In Gujarat Steel Tubes Ltd. [1980 (1) LLJ 137]
inverted image of the D.C. Roy’s case was presented by a
majority of three judge bench wherein it was held that
“where no enquiry has preceded punitive discharge, and
the Tribunal for the first time upholds the punishment,
this Court in D.C. Roy Vs. Presiding Officer (supra) has
taken the view that full wages be paid until the date of the
award. There cannot be any relation back of the date of
dismissal when the management passed the void order”.
Though the court ruled that law laid in D.C.Roy is correct
yet it followed obiter instead of the decision. Observations
of the Apex Court in above decision, bearing on the relate
back rule, were faulted in R. Thiruvirkolam [1997 (1) SCC 9]
on the ground that they “are not in the line with the
decision in Kalyani which was binding or with D.C.Roy to
which Learned Judge Krishna Iyer J. was a party. It also
does not match with the juristic principle discussed in
Wade”. The view taken in R.Thiruvirkolam (supra) was
affirmed in Punjab Dairy Development Corporation Ltd.
[1997 (2) LLJ 1041].
87. In view of the catena of decisions, detailed
above, it is clear that an employer can justify its action by
leading evidence before the Tribunal. This equally applies
to cases of total absence of enquiry and defective enquiry.
A case of defective enquiry stands on the same footing as
no enquiry. If no evidence is led or evidence adduced
does not justify the dismissal by the employer, the Tribunal
can order reinstatement or payment of compensation as it
may think fit. But if it finds on the evidence adduced before
it that the dismissal is justified, the doctrine of relate back
is pressed into service to bridge the time gap between the
rupture of the relationship of employer and employee and
the finding of the Tribunal.
88. If the workman is to be paid wages upto the
date of the award of the Tribunal, the Parliament has to
enact so, declares the Delhi High Court in Ranjit Singh
Tomar (ILR 1983 Delhi 802). Obviously the Act does not
make any provision for the situation. Precedents in
Ghanshyam Das Shrivastava [1973 (1) SCC 656], Capt.
M.Paul Anthony [1999 (3) SCC 679] and South Bengal
State Transport Corporation [2006 (2) SCC 584)]nowhere
deal with the controversy, hence are not discussed.
89. In view of the facts detailed above, punishment
of dismissal from service without notice would relate back
to the date of the order. Claimant could not bring it to light
that the order of dismissal from service would be applicable
from the date of the award and not from the date of the
order. All these facts would project that punishment of
dismissal without notice, awarded to the claimant, is legal,
fair and justified. Claimant could not show any illegality in
the order of dismissal passed by the bank. The issue is,
therefore, answered in favour of the bank and against the
claimant.
Relief
90. In view of above discussion, I am of the
considered opinion that the claimant is not a person on
whom the bank can depend upon. Banking business is
conducted on trust and confidence. When an employee is
found not to be trustworthy, his retention in service may
affect business of the bank. Such an employee cannot be
retained in service. Therefore punishment of dismissal is
not to be interfered with by this Tribunal. The claimant is
not entitled to any relief, not to talk of relief of reinstatement
in service. His claim statement is liable to be dismissed.
Accordingly, it is concluded that the action of the bank in
dismissing the claimant from service is legal and justified.
Claim statement is brushed aside. An award is passed in
favour of the bank and against the claimant. It be sent to
appropriate Government for publication.
Dated : 31.3.2014
Dr. R. K. YADAV, Presiding Officer
3404
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1294-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ;qdks cSad ds
izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaèk
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèkdj.k@Je
U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 61@2006) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 25@4@2014 dks izkIr gqvk FkkA
¹la- ,y&12012@8@2006&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1294.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 61/2006) of
the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure, in the Industrial
Dispute between the management of UCO Bank and their
workmen, which was received by the Central Government
on 25/04/2014.
[No. L-12012/8/2006-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING
OFFICER, CGIT-CUM-LABOURT COURT, NAGPUR
Case No.CGIT/NGP/61/2006
Date : 01.04.2014
Party No. 1
:
The Regional Manager,
United Commercial Bank,
Regional Office At 101,
Bhagwaghar Layout,
Dharampeth, Nagpur-440010
Versus
Party No. 2
:
Shri Shrawan M. Nikhar,
C/o., Joher Hardware, Shop No. 1,
Binaki Mangalwari,
Near Kanji House, Nagpur-17.
AWARD
(Dated: 1st April, 2014)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of Section 10 of
Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of United Commercial Bank and their
workman, Shri Shrawan Nikhar, for adjudication, as per
letter No.L-12012/8/2006-IR (B-II) dated 17.04.2006, with
the following schedule:-
“Whether the action of the management of UCO
Bank in dismissing the service of the Head Cashier
Shri S.M. Nikhar is legal and justified? If not, what
relief is the workman is entitled to?”
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the workman, Shri
Shrawan Nikhar, (“the workman” in short) filed the
statement of claim and the management of UCO Bank,
(“party no.1” in short) filed the written statement.
The case of the workman as projected in the
statement of claim is that the party no.1 is a nationalized
bank and therefore, provisions of the Act are applicable to
it and the service conditions of the employees are governed
by the provisions of Sastry Award, Desai Award and
different Bipartite Settlements and he came to be appointed
in the services of party no. 1 as a clerk at Ghuggus branch
w.e.f. 07.0l.1983 and he was elevated to special allowance
carrying post, i.e. as “Head Cashier Category E” w.e.f.
10.12.2002 and as he was the senior most clerk at Ghugus
branch, the post of “Head cashier category E” was
assigned to him and Ghuggus branch of the Bank is
situated in the ambit of the vast establishment of the
western coal fields Ltd., (“WCL” in short) and the entire
salary, over time payment and other payments of the staff
working in WCL in that area came to be routed through
the said branch and there were sizable number of saving
Bank accounts of the staff members of the WCL and other
accounts of the persons living in the locality of Ghuggus.
It is further pleaded by the workman that while he was
working at Ghuggus branch, charge sheet dated 28.10.2003
consisting of three charges, under clauses 19.05 (j), 19.05
(q) and 19.05(e) of the Bipartite Settlement was served on
him and he was suspended from services w.e.f. 30.06.2003
and the Disciplinary Authority appointed one shri N.P.
Pande as the enquiry officer, who conducted the enquiry
and perhaps on the basis of the report purported to have
been submitted by the said enquiry officer, the disciplinary
authority vide order dated 30.08.2004, awarded the
punishment of dismissal from service without any notice
on him and he came to be dismissed from service w.e.f.
30.08.2004 and he received the order of dismissal on
1l.09.2004 and he preferred an appeal against the order of
punishment, before the Appellate Authority, but his appeal
was rejected and dismissed.
The further case of the workman is that the action of
the party no.1 in dismissing him from services is not only
illegal, but also unjustified and the manner, in which the
enquiry was conducted and concluded against him
demonstrates that the same was not fair and when he was
suspended from the services, his headquarters was
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3405
whimsically came to be changed from Ghuggus to Ramtek
in Nagpur district, for reasons not known to him and there
was absolutely no logic in changing the headquarters and
the Regional office of party no.1 is situated at Nagpur and
the enquiry officer appointed to conduct the enquiry
against him also came from Regional Office, Nagpur and
in view of his suspension, a speedy and fair enquiry was
supposed to be made against him, but from the available
record of the enquiry, it can be found that the enquiry
officer right from the beginning of the enquiry had taken a
whimsical approach as to the place of conduction of the
enquiry and further went on changing the venue of the
enquiry for the reasons not known to him and when his
headquarters was previously fixed at Ghuggus and
subsequently changed to Ramtek, the enquiry should have
been conducted either at Ghuggus or at Ramtek, so as to
enable him to defend his case properly, but the same was
not done and the dates of the initial sittings of the enquiry
were fixed by the enquiry officer at Regional office, Nagpur
and it would have been most logical and convenient for all
the parties to continue the enquiry at Nagpur only, but the
enquiry officer after fixing the enquiry on 06.01.2004 and
14.01.2004 at Nagpur, fixed the date of enquiry at Ghuggus
on 17.01.2004 and 04.02.2004 and on 04.02.2004, his defence
representative could not able to attend the enquiry and
requested the enquiry officer over phone to adjourn the
enquiry and the next date of the enquiry was agreed to be
fixed on 24.02.2004 at Ghuggus and though the enquiry
officer agreed to fix the date of enquiry as 24.02.2004,
unilaterally, he changed the date from 24.02.2004 to
25.02.2004, which is clear from the change of the date from
24 to 25 made in the proceedings of the enquiry and he
alongwith his defence representative attended Ghuggus
branch for the purpose of enquiry on 24.02.2004, but there
was no body at the Branch nor there was any message at
the branch about the enquiry, to be conveyed to him and
the changed date of enquiry fixed for 25.02.2004 was
communicated in writing to him, which was received by
him on 28.02.2004 and as such, the decision of the enquiry
officer to proceed ex parte against him on 25.02.2004 is
illegal and accordingly, the entire evidence taken on
25.02.2004 and on the subsequent dates, in his absence is
also illegal and in the earlier proceedings, inspection of
original documents were called for and the enquiry officer,
before deciding to proceed ex parte did not bother to
enquire as to whether inspection of original documents
had been carried out or not and taking advantage of his
absence, the enquiry officer made undue haste in
continuing with the enquiry proceedings on 25.02.2004,
26.02.2004 and 27.02.2004 without taking into consideration
of the fact that such dates of enquiry were not pre-
intimated to him, so there was a total miscarriage of justice
and on the said ground alone, the enquiry is liable to be
declared as invalid and unfair.
It is further pleaded by the workman that the copies
of the proceedings of the ex parte enquiry received by him
subsequently, revealed that evidence came to be recorded
by the enquiry officer from 25.02.2004 to 27.02.2004 and
presenting officer was allowed to act as a witness, without
putting him in the witness box and after closure of the
evidence of the management ex parte, he was not given
any chance to adduce evidence in his defence and the
enquiry officer instead of acting as the enquiry officer,
played the role of the prosecutor and asked many questions
to the sole witness examined on behalf of the management,
to fill in the gaps and lacunas in the evidence and the
enquiry officer was biased against him and there was
calculated design in the mind of the enquiry officer to
conclude the enquiry hastily and that too ex parte and
there was violation of the principles of natural justice and
as the punishment was awarded against him on the basis
of such illegal enquiry, the same is also liable to be quashed
and set aside. It is also pleaded by the workman that from
the text of the communication made by the disciplinary
authority dated 21.04.2004, it is found that the Disciplinary
Authority agreed with the findings of the enquiry officer
that charge nos. 1, 2, 4 and 7 to 41 are proved against him
and the disciplinary authority did not supply a copy of
the enquiry report to him, even though called upon him to
submit his show cause against the proposed punishment
of dismissal from services without notice and even though
supply of the copy of the enquiry report is mandatory
provision of law, copy of such report was never supplied
to him and on 11.05.2004, he appeared before the
disciplinary authority for personal hearing in regard to the
proposed punishment and tried to point out as to how the
enquiry officer concluded the enquiry in a haste and non
supply of the copy of the enquiry report, the disciplinary
authority refused to hear him on that count and non of the
said submissions were reflected in the notes of personal
hearing and as such, the order impugned is liable to be set
aside. The further case of the workman is that he was
working as the Head Cashier and not the clerk and the
posting of huge account on different dates and in different
manners was made by the clerks, who had been assigned
the said duties and he was no way connected with the
posting of entries referred in the charge sheet and many
times, he was entrusted with the payment of withdrawals
as per situations warranted at the branch and the
discrepancies found in the accounts were because of over
sight, peculiar method of posting of salaries and over time
to huge number of employees on different dates and
inadequacy of staff and even though, there were mistakes
in casting balance and checking the balance, there was no
loss to the bank, since overdrafts if any, had been recovered
and in any rate and in any event, malafide intention had
not been proved as charged in the charge sheet and the
enquiry officer lost sight of these facts in the ex parte
3406
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
enquiry and the only witness examined by the management
was not a hand writing exparte and his evidence was far
from the truth and the witness deliberately avoided to
remark upon the staff position and indifferent credits
received from WCL for crediting the same in the accounts
of their employees on different dates and therefore, the
findings if any given by the enquiry officer purporting to
have been proved the charges are perverse and are liable
to be rejected and while awarding the punishment,
differential treatment had been given by the authority in
as much as on earlier occasions, the same Disciplinary
Authority had taken lenient view in cases of
misappropriation in respect of few members, who were of
the same caste of the disciplinary authority, but harsh,
unreasonable and uncalled for punishment has been
imposed on him on colourable exercise of power and the
punishment does not commensurate with the gravity of
the misconduct and is shockingly disproportionate.
The workman has prayed to set aside the order dated
30.08.2004 and to reinstate him in service with full back
wages and consequential benefits.
3. The party no. 1 in the written statement refuting
all the allegations made in the statement of claim have
pleaded inter-alia that the workman was working as head
cashier category ‘E’ at Ghugus branch and he committed
certain -irregularities including making number of fictitious
entries and intentional wrong debit/ credit entries in many
saving accounts, resulting in overdrafts in so many
accounts and he committed a fraud of Rs. 2000/- in S.B.
Account no. 100 on 07.06.2003, while making the payment
to the account holder by altering the amount in the said
account from Rs. 13000 to Rs. 15000/- and the figure/
amount in the token book, cash abstract, cash payment
book and the SBl ledger to cover up his fraudulent action
and the matter was reported by the Manager, Ghugus
branch on 09.06.2003, so one officer from the Regional
Office was sent to Ghugus branch for investigation into
the matter and the said officer submitted his report on
30.06.2003 and basing on the report of investigation, the
workman was put under suspension vide order dated
30.06.2003 and on their request, the Special investigation
officer, Mr. K.S. Ranganathan, ACO(lnspection) conducted
special investigation into the matter on 17.07.2003 and
submitted his report on 23.07.2003 and on the basis of the
special investigation report, charge sheet was submitted
against the workman on 28.10.2003 and on receipt of the
charge sheet, the workman requested to allow him to see
the original ledger/document/voucher and they advised
the workman vide their letter dated 06.12.203, to submit
his reply to the charge sheet and also conveyed him that
the original vouchers/ correspondence if any would be
provided at the time of the enquiry and the notification of
appointment of enquiry officer and presenting officer was
issued on 09.12.2003 and Mr. N.P. Pande and Mr. V.B.
Kulkarni were appointed as the enquiry officer and
presenting officer respectively and the enquiry was
conducted on various dates during the period from
06.01.2004 to 18.03.2004 and the workman participated in
the enquiry only on the first three dated and thereafter,
neither the workman nor his defence representative
participated in the enquiry for the reasons best known to
them and the enquiry officer submitted his report on
08.04.2004, holding all the charges levelled against the
workman except charge nos. 3, 5, 6, 11 and 12 to have been
proved and taking into account the gravity of the
irregularities, lapses and fraud committed by the workman,
the authority vide letter dated 21.04.2004 asked the
workman to appear on 11.05.2004 for personal hearing and
the copy of the inquiry report was also sent to him and
basing on the enquiry report and in due compliance of the
applicable rules and procedure, the disciplinary authority
issued the order of punishment of dismissal from services
against the workman on 30.08.2004 and the appeal preferred
by the workman against the order of punishment was
dismissed by the Appellate authority.
It is also pleaded by the party no.1 that the workman
accepted that Rs. 2000 had been taken by him and he had
repaid the amount of Rs. 2000/- to the bank and that he did
not attend the enquiry depending on his defence
representative and in the past, the workman had been
advised couple of times to improve, his behavioral attitude
and his functioning in the bank and the charges levelled
against the workman reflected that he had grossly abused
his official position and failed to discharge his duties with
utmost devotion and diligence and the principles of natural
justice, regulation and procedure of law were adopted in
carrying the investigation, special investigation,
submission of charge sheet, appointment of enquiry officer
and presenting officer and all possible opportunities were
given to the workman to participate in the enquiry and the
report of the enquiry officer was supplied to him and there
is no merit in the grounds raised by the workman and the
reference is deserved to be dismissed.
4. As this is a case of dismissal of the workman
from services, after conducting of a departmental enquiry
against him, the validity or other wise of the departmental
enquiry was taken up for consideration as a preliminary
issue and by order dated 22.05.2013, the same was held to
be illegal, improper and against the principles of natural
justice. It is necessary to mention here that the party no.1
was allowed to prove the charges levelled against the
workman before the Tribunal by adducing evidence.
5. To prove the charges levelled against the
workman, before this Tribunal, Party no.l examined Shri
Vilas Bhaurao Kulkarni as a witness and produced the
documents, Exts. M-III to M-X. The documents, Exts.
M-III to M-X are admitted into evidence and marked as
exhibits on behalf of the party no.1 without formal proof,
as the workman admitted the said documents.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3407
No evidence was adduced by the workman in
rebuttal.
6. The witness for the party no.l in his evidence on
affidavit has stated that the workman was working as head
cashier category ‘E’ at Ghugus Branch and the workman
committed certain irregularities and made number of
fictitious entries and made intentional wrong debit/credit
entries in many saving Bank Accounts, resulting in
overdrafts in number of accounts and the workman
committed a fraud of Rs. 2000/- in S.B. Account no. 1007
on 07.06.2003 while making the payment to the account
holder and to cover up his fraudulent action altered the
amount of W/s from Rs. 13000/- to Rs. 15000/ - and the
amount and figure in the token book, cash abstract, cash
payment book and SBI Ledger and the matter was reported
by the Manager, Ghugus Branch on 09.06.2003 vide letter
No. RO/PAD/ 13/03 and party no. 1 deputed one officer
from the office for investigation into the matter and the
said officer submitted his report on 30.06.2003 and basing
of the investigation report, charge sheet dated 28.10.2003
was submitted against the workman. After stating about
the above stated facts, the witness for the party no. 1 in
his evidence on affidavit has stated about the service of
the charge sheet on the workman, submission of a letter
by the workman in response to the charges, his own
appointment as the enquiry officer to conduct the enquiry
against the workman, issuance of notice to the workman
about the enquiry and attending of the enquiry by the
workman and as to how the departmental enquiry
proceeded against the workman. The witness has further
stated that the workman had accepted that Rs. 2000/- had
been taken by him and he had repaid the amount of Rs.
2000/- to the Bank. The witness has also stated that in the
past, the workman was advised couple of times to improve
his behaviour and his functioning in the Bank.
In his cross-examination, this witness has admitted
that he had never worked in Ghugus Branch of the Bank
and the posting of the transactions made in the Branch of
the Bank during the course of the day in the ledgers of the
branch is the duty of the clerk concerned and checking of
the entries made by the concerned clerk in the ledgers is
the duty of the checking officer and he cannot say as to
who was the checking officer of the entries made in the
ledgers in regard to which allegations have been made in
the charge sheet and he cannot say if the original
documents basing on which charges were levelled against
the workman have been produced before the Tribunal or
not.
7. At the time of argument, it was submitted by the
learned advocate for the workman that by order dated
22.05.2013, the departmental enquiry conducted against
the workman was held to be illegal, improper and not in
accordance with the principles of natural justice and the
party no. 1 was ordered to lead evidence before the
Tribunal to prove the charges levelled against the workman
and to prove the charges against the workman, party no. 1
examined one witness and the said witness has only stated
about one charge i.e. about the workman altering the
amount of Rs.13000/- to Rs. 15000/- in respect of Account
no. 1007 dated 07.06.2003 in withdrawal slip and concerned
registers and ledgers of the branch, but not a single
document to prove even the said single charge has been
produced by party no. I. From the materials on record, it is
found that party no. 1 has miserably failed to prove the
charge against the workman and as such, the workman is
entitled for reinstatement in service with continuity, full
back wages and all consequential benefits.
8. Per contra, it was submitted by the learned
advocate for the party no.1 that the workman while working
at Ghugus branch of the bank as head cashier category
“E” made fictitious entries intentionally in many savings
bank accounts resulting in overdrafts in so many accounts
and he also committed fraud of Rs. 2000/- in respect of
Account no. 1007 on 07.06.2003 while making payment to
the account holder by altering the amount of Rs. 13000/-
to Rs. 15000/- in the withdrawal slip and relevant registers
and ledgers and the charges levelled against the workman
were well proved in the departmental enquiry and it is
clear from the evidence of the witness examined by party
no.1 that the workman committed fraud of Rs. 2000/- in
respect of Account no. 1007 on 07.06.2003 and as
commission of grave misconduct has been proved against
the workman, the punishment of dismissal from services
imposed against the workman cannot be said to be
shockingly disproportionate and the punishment is
justified and there is no scope for the Tribunal to interfere
with the punishment and is not entitled to any relief.
9. Perused the record including the evidence, both
oral and documentary adduced by the parties. Admittedly,
by order dated 22.05.2013, the departmental enquiry
conducted against the workman was held to be illegal,
improper and against the principles of natural justice and
party no.1 was directed to prove the charges against the
workman by adducing evidence before this Tribunal. The
party no.1 in order to prove the charges against the
workman has examined only one witness, namely, Mr.
Vilasbhaurao Kulkarni, who had acted as the enquiry
officer to conduct the enquiry against the workman. From
the admission of the witness, it is clear that the witness
had never worked at Ghugus branch of the Bank, where
the misconducts were alleged to be committed by the
workman. This witness in his evidence on affidavit has
mostly stated about the submission of the charge sheet
against the workman and as to how the department enquiry
was conducted.
On perusal of the charge sheet submitted against
the workman, it is found that as many as 44 allegations
were made against the workman. However, the witness for
3408
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
the party no.1 has stated about the allegation no. 33.
However, party no.1 has neither produced the preliminary
enquiry report submitted against the workman nor the
withdrawal slip and concerned records and ledgers to
prove the said single charge also. From the evidence
adduced by the party no.1, it is found that party no.1 has
failed to prove the charges against the workman.
In view of the failure of the party no.1 to prove the
charges against the workman, the punishment imposed
against him cannot be sustained.
It is to be mentioned here that the learned advocate
for the party no. 1 has cited the decision reported in 20l2-
IV-LLJ-79 (Del) (Syndicate Bank Vs., R.K. Rohilla).
However, with respect, I am of the view that the said
decision has no application to this case, as in this case, it
is held that the charges levelled against the workman have
not been proved.
10. Now the only question remains for consideration
is as to what relief or reliefs the workman is entitled to. As
it is held that party no. 1 has failed to prove the charges
against the workman, the workman is entitled for
reinstatement in service with continuity and all
consequential reliefs. So far the back wages is concerned,
taking into consideration the entire facts and
circumstances of the case, I think that grant of 50% of the
wages from the date of dismissal of the workman till his
actual date of reinstatement in service. Hence, it is ordered:-
ORDER
The action of the management of UCO Bank in
dismissing the service of the Head Cashier Shri S.M. Nikhar
is illegal and unjustified. The workman is entitled for
reinstatement in service with continuity and all
consequential reliefs. The workman is also entitled for
50% of the wages from the date of his dismissal till his
actual date of reinstatement in service. The party no.1 is
directed to implement the award within 30 days of
publication of the award in the official gazette.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1295-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc ,.M
¯l/ cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] p.Mhx<+ ds iapkV (lanHkZ la[;k
506@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 25@4@2014
dks izkIr gqvk FkkA
¹la- ,y&12012@1@2000&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1295.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 506/2005)
of the Central Government Industrial Tribunal-cum-Labour
Court-II, Chandigarh as shown in the Annexure in the
Industrial Dispute between the management of Punjab and
Sind Bank and their workmen,which was received by the
Central Government on 25/4/2014.
[No. L-12012/1/2000-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : Sri Kewal Krishan, Presiding Officer.
Case No. I. D. No. 506/2005
Registered on 22.8.2005
Sh. Vijay Kumar,
S/o Late Sh. M. Ram,
Street Mochianwali
Bhadra Bazar,
Sirsa (Haryana).
...Petitioner
Versus
Punjab and Sind Bank,
The Chief Manager,
P&SB, Zonal Office,
Sector 17B, Chandigarh
...Respondents
APPEARANCES :
For the workman
:
Sh. Vikram Bajaj, Adv.
For the Management :
Sh. J.S. Sathi, Adv.
AWARD
(Passed on 4.3.2014)
Central Government vide Notification No. L-12012/
1/2000-IR(B-II) Dated 7.6.2000, by exercising its powers
under Section 10 Sub-section (1) Clause (d) and sub-
Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal :
“Whether the action of the management of Punjab
and Sind Bank Zonal Office, Chandigarh to fill up
the vacancy of Sub-staff by engaging empanelled
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3409
temporary peons for short spells one after the
another instead of filling up the vacancy regularly is
justified? If not, what relief is the disputant Sh.
Vijay Kumar, engaged by Sirsa Branch who has
claimed to have been replaced by another temporary
workman, is entitled to and is he entitled for
continuity of service?”
In response to the notice, the workman appeared
and filed statement of claim pleading that he was appointed
as Peon at Sirsa by the respondent management where he
worked from 5.6.1997 to 22.11.1997 continuously and
against permanent vacancy. No appointment letter was
given to him. The respondent management without
adopting any procedure terminated his services on
22.11.1997 which illegal. That the bank appointed other
persons after the termination of his services and the action
of the bank is illegal and he is entitled to reinstatement in
service with all the benefits.
Respondent management filed written statement
admitting that workman did service for 130 days and he
was engaged as a casual part time labourer to meet the
exigencies of the work and workman has no legal right to
continue in service. He was not engaged against any
sanctioned post. It is denied that any person was employed
after the termination of the service of the workman. That
there is no violation of any provision of law.
Workman led evidence and filed his affidavit.
On the other hand the management did not examine
any witness.
I have heard Sh. Vikram Bajaj, counsel for the
workman and Sh. J.S. Sathi, counsel for the management
and perused the file.
Learned counsel for the workman carried me through
the para 6 of the affidavit of the workman and submitted
that Teja Singh, Reshma and others were appointed after
the termination of the services of the workman which is in
violation of Section 25H of the Act and the workman is
entitled to be reinstated in service.
I have considered the contention of the learned
counsel.
The reference is whether the action of the
management to fill up the vacancies of Sub-staff by
engaging empanelled temporary Peons for short spells is
justified? There is no evidence on the file that any such
practice is being followed and if followed, the same is
unjustified.
It is further mentioned in the reference that the
workman claims that he has been replaced by another
temporary workman. Workman has pleaded in para 12 of
the claim petition that after the termination of his services,
the respondent management appointed another person
but did not disclose the name of the person who was
employed in his place. He has mentioned the names of
Teja Singh, Naresh Kumar, Pawan Kumar, Subhash Chander
and Anil Kumar in para 6 of the affidavit and at the same
time further mentioned that they have been also replaced
by Daya Nand. There is no evidence whatsoever to
establish on the file that the said persons were ever
employed by the bank after termination of the services of
the workman and it cannot be said that there was violation
of Section 25F of the Act. Here, the learned counsel
submitted that the statement of the workman remains
unrebutted on the file as the respondent management has
not led any evidence and therefore it be taken that the
persons were employed after the termination of the services
of the workman. If the management did not lead any
evidence, it cannot be said that the persons as find mention
in the affidavit were employed after the termination of the
services of the workman more particularly when their
names do not find mention in the claim petition. The ratio
of the authorities titled State of Haryana Vs. Dilbagh Singh
reported in 2007(1) SCT 808; and Mehboob Khan Vs.
Presiding Officer, Labour Court Ambala reported in 2013(3)
SCT are not applicable to the facts of the present case as
violation of Section 25H of the Act is not proved on the
file. Again it is not the case of the workman that the
provision of Section 25F has been violated for the obvious
reason he did not complete one year of continuous service
as defined under Section 25B of the Act.
In result it is held that workman has failed to prove
that the action of the management for filling up the
vacancies by engaging empanelled temporary Peons is
illegal and not justified. He is not entitled to any relief.
Thus the reference is accordingly answered against the
workman. Let hard and soft copy of the award be sent to
the Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1296-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc ,.M
¯l/ cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;] p.Mhx<+ ds iapkV (lanHkZ la[;k
1062@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
25&4&2014 dks izkIr gqvk FkkA
¹la- ,y&12012@181@1998&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
3410
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
New Delhi, the 24th April, 2014
S.O. 1296.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 1062/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court-II, Chandigarh as shown in the Annexure in
the Industrial Dispute between the management of Punjab
and Sind Bank and their workmen, received by the Central
Government on 25-4-2014.
[No. L-12012/181/1998-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 1062/2005
Registered on 20.9.2005
Sh. Gurnam Singh,
C/o Tek Chand Sharma, 25,
Sant Nagar, Civil Lines,
Ludhiana-140001
...Petitioner
Versus
The Zonal Manager,
Punjab and Sind Bank,
Zonal Office, Sector 17-B,
Chandigarh
....Respondent
APPEARANCES :
For the workman
:
Ex parte
For the Management :
Sh. J.S. Sathi, Adv.
AWARD
(Passed on 5.3.2014)
Central Government vide Notification No. L-12012/
181/98/IR(B-II) Dated 28.2.1999/8.3.1999, by exercising its
powers under Section 10 Sub-section (1) Clause (d) and
Sub-Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal:-
“Whether the action of the management of Punjab
and Sind Bank through General Manager in
terminating the service of Sh. Gurnam Singh w.e.f.
14.6.89 is justified and legal? If not, what relief the
concerned workman is entitled for and from what
date?”
In response to the notice, the workman submitted of
claim pleading that he joined the bank as Peon at Godewal
where he worked from January, 1985 to 30.11.1985 i.e. 157
days; and thereafter was transferred to another branch
where he worked for 129 days and thus he worked for
more than 240 days when his services were illegally
terminated on 14.6.1989 without serving any notice and
payment of compensation. That the persons who were
junior to him were regularized. That the work against which
the workman was employed was of permanent nature and
the same was available even after termination of his
services. That he was not reinstated despite request. Since
his termination is in violation of the provisions of Section
25F and 25G of the Act, he be reinstated in service.
Management filed written reply pleading that the
workman did not complete 240 days of service and no
person junior to him was retained in service. He was only
employed due to the exigency of the work and he cannot
claim to be absorbed in service as a matter of right.
Workman appeared in the witness box and filed his
affidavit reiterating the case as set out in the claim petition.
Workman was proceeded against ex parte vide order
dated 20.12.2013.
Management was proceeded against ex parte vide
order dated 27.2.2012.
However, Mr. J.S. Sathi appeared on behalf of
management and was heard.
It is the case of the workman himself that he worked
from January 1985 to 30.11.1985 for 157 days and thereafter
he worked at another place from October 1988 to 1989 at
another branch for over 129 days. Thus he did not
continuously work for a period of one year, during the
period of 12 calendar months preceding the date with
reference to which conclusion is to be made as find
mention in Section 25B of the Act and therefore he was
not to be served with any notice or to be paid any
compensation as envisaged under Section 25F of the Act.
There is nothing on the file to suggest that any person
junior to the workman was retained in service. It cannot
be said that there was violation of Section 25G of the Act.
In result, it is held that the termination of the workman
by the management cannot be termed as illegal and he is
not entitled to any relief. The reference is accordingly
answered against the workman. Let hard and soft copy of
the award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3411
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1297-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc ,.M
¯l/ cSad ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;&II] p.Mhx<+ ds iapkV (lanHkZ la[;k
602@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 25&4&2014
dks izkIr gqvk FkkA
¹la- ,y&12012@32@2003&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1297.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 602/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court-II, Chandigarh as shown in the Annexure in
the Industrial Dispute between the management of Punjab
and Sind Bank and their workmen, received by the Central
Government on 25-4-2014.
[No. L-12012/32/2003-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : Sri Kewal Krishan, Presiding Officer
Case No. I.D. No. 602/2005
Registered on 23.8.2005
Sh. Zulfi Ram,
S/o Sh. Bakshi Ram,
H. No. 5558,
Sector 55,
Chandigarh
...Petitioner
Versus
The Zonal Manager,
Punjab and Sind Bank,
Bank Square, Zonal Office,
Sector 17B, Chandigarh
...Respondents
APPEARANCES :
For the workman
:
Sh. Krishan Lal, Adv.
For the Management :
Sh. A.P.S. Guliani, Adv.
AWARD
(Passed on 18.3.2014)
Central Government vide Notification No. L-12012/
32/2003-IR(B-II) Dated 13.6.2003, by exercising its powers
under Section 10 sub-section (1) Clause (d) and sub-
section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal :
“Whether the action of the management of Punjab
and Sind Bank in terminating the services of
Sh. Zulfi Ram, S/o Sh. Bakshi Ram, Ex-Peon (daily
wages basis) w.e.f. 1.1.2002 without any notice and
without any retrenchment compensation is legal and
just? If not, what relief the concerned workman is
entitled to and from which date?”
In response to the notice the workman appeared
and submitted statement of claim pleading that he was
engaged as Peon with respondent management on daily
wage basis in Zonal Stationary Cell, Sector 26, Chandigarh
w.e.f. 1.8.1990 to 31.8.1990. Thereafter he worked from
1.11.1990 to December 1992 on daily wage basis. He was
appointed as temporary peon on minimum of the pay scale
and was posted at Garkhal where he worked without any
break from 1st August, 1994 to 30.9.1995. He continuously
worked from January 1996 to 31.12.2001 at Branch Office
Manauli, District Ropar. His services were arbitrarily
terminated without paying him any compensation in
violation of Section 25F of the Act. After his termination,
another person was appointed in his place. Since his
termination is against the provisions of law, management
be directed to reinstate him in service with all the benefits.
Respondent management filed written statement
pleading that the bank has its recruitment rules/procedure
for appointment of peon and the appointing authority is
the Zonal Head of a particular zone. The workman was
not appointed by following the procedure and therefore
no right accrued to him to remain in the employment of the
service. He was employed on purely temporary basis and
being employed at different branches of the bank, the
period cannot be clubbed together to determine the length
of service. It is denied that any person was employed
after the termination of the service of the workman.
It is further pleaded that there is no permanent
vacancy of the post of peon in the bank and as such
workman cannot be granted the relief claimed.
Parties led their evidence.
In support of its case the workman appeared in the
witness box and filed his affidavit reiterating his case as
set out in the claim petition.
On the other hand, management has examined
Ramesh Chander who filed his affidavit reiterating the stand
taken by the management in its written statement.
3412
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
I have heard Sh. Krishan Lal, counsel for the
workman and Sh. A.P.S. Guliani, counsel for the
management and perused the file with assistance.
The workman has specifically pleaded in para 1 of
the statement of claim that he worked in Zonal Stationary
Cell, Sector 26, Chandigarh from 1.8.1990 to 31.8.1990; and
thereafter he worked from 1.11.1990 to December 1992 on
daily wage basis. Thereafter he was appointed as a
temporary peon on the minimum of pay scale and posted
as Garkhal where he worked from 1.8.1994 to 30.12.1995.
He continuously worked from January 1996 to 31.12.2001
at Manauli Branch, District Ropar. The management did
not controvert the averments in its written reply and simply
pleaded that workman was not employed as per the rules
i.e. by the Zonal Head and the period he served at different
branches cannot be clubbed together. It means the
management admits that the workman was employed
initially on daily wage basis and thereafter in the minimum
pay scale at Garkhal where he worked from 1.8.1994 to
30.9.1995 and thereafter from January, 1996 to 31.12.2001
at Manauli District Ropar. Thus, lastly the workman worked
for more than 6 years continuously. There is no evidence
on the file that the workman did not work continuously at
Branch Office Manauli and thus he continuously worked
for more than 240 days in a calendar year and his services
would not have been terminated without complying with
the provisions of Section 25F of the Act. It is admitted
case he has not been paid any compensation or served
the notice as required under the said Section and therefore
termination of service being a retrenchment without
payment of compensation is not legal. If the bank
authorities did not follow the procedure in appointing the
workman, he cannot be blamed for the same as it is for the
concerned authorities to think over the matter before
employing the workman. Though it was pleaded that there
is no vacant permanent post of peon in the bank and
therefore workman cannot be adjusted but no cogent
evidence has come on the file that no such post is available
in the bank.
In similar cases and against the present respondent
management, in Writ Petition No.18154 of 2007 titled Baljit
Singh Vs. Presiding Officer and Others, the Hon’ble High
Court ordered the reinstatement of the workman with
continuity of service but without back wages.
In result, it is held that the action of the management
in terminating the service of the workman w.e.f. 1.1.2002 is
illegal and he is entitled to reinstatement with continuity
of service but without back wages. Respondent
management is directed to take him back in service within
one month from the publication of the award. The reference
is accordingly answered in favour of the workman. Let
hard and soft copy of the award be sent to the Central
Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 24 vizSy] 2014
dk-vk- 1298-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh èkkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ
bafM;k ds izcaèkra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaèk esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky;&II] p.Mhx<+ ds iapkV (lanHkZ la[;k
760@2005) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 25@4@2014
dks izkIr gqvk FkkA
¹la- ,y&12012@241@1997&vkbZvkj (ch&II)º
jfo dqekj] vuqHkkx vf/dkjh
New Delhi, the 24th April, 2014
S.O. 1298.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 760/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court-II, Chandigarh as shown in the Annexure in
the Industrial Dispute between the management of Bank
of India and their workmen, received by the Central
Government on 25/4/2014.
[No. L-12012/241/1997-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : Sri KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 760/2005
Registered on 2.9.2005
The General Secretary,
Bank of India Employees Association,
C/o Bank of India,
Sector 17, Chandigarh
....Petitioner
Versus
The Zonal Manager,
Bank of India, Zonal Office,
181-182, Sector 17,
Chandigarh
...Respondents
APPEARANCES :
For the Workman
:
Sh. O.P. Batra, Adv.
For the Management
:
Sh. Ranjan Lohan, Adv.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vizSy 26] 2014@oS'kk[k 6] 1936
3413
AWARD
(Passed on 12.3.2014)
Central Government vide Notification No. L-12012/
241/97/IR(B-II) Dated 26.2.1998, by exercising its powers
under Section 10 sub-section (1) Clause (d) and sub-
Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘Act’) has referred the following
Industrial dispute for adjudication to this Tribunal :
“Whether the action of the management of the Bank
of India in imposing of punishment of reduction of
two increments and denial of salary and allowances
for period of suspension of Sh. Jatinder Paul Bhagi
is legal and justified? If not, to what relief the
concerned workman is entitled and from what date?”
The workman while employed at Mai Heeran Gate
Branch, Jalandhar was served with the following charge-
sheet :
CHARGE-SHEET
On 18th July 1995 between around 11 to 11.30 AM
when Sh. Surinder Kumar staff – Subordinate was
receiving clearing cheques from some customer on
the seat/counter between your seat and the cash
cabins you entered into argument and scuffled with
Sh. R.K. Khanna, staff Cashier-in-Charge of the
Branch during the banking hours and in presence of
customers. In the process Sh. R.K. Khanna was
also manhandled by you which resulted in a swelling
on his forehead. You thereby created a disorderly
scene on the branch premises and also tarnished
the image of the bank.
He submitted reply and after considering the same
not satisfactory, Inquiry Officer was appointed who after
conducting an inquiry submitted a detailed report dated
29.3.1996 holding that the charges are proved against the
workman. Thereafter a show cause notice was issued to
the workman and after getting the reply and giving him
personal hearing, punishment was imposed by bringing
him down to lower stage in the scale of pay by two stages
in terms of Clause 21(iv)(c) of Bipartite Settlement dated
14.2.1995.
Now according to the workman it was Mr. R.K.
Khanna who picked up the quarrel and he was not at fault.
That the Inquiry Officer acted in a biased manner and
under the pressure of the Union, he was not allowed to
engage a counsel. He was also not supplied the copy of
the brief submitted by the Presenting Officer as well as
copy of the inquiry report and the punishing authority
without considering his written statement imposed the
penalty. The appeal preferred by him was dismissed
without assigning any reason. That the order of
punishment being illegal is liable to be set aside.
The respondent management filed written reply
pleading that the inquiry was conducted as per rules and
punishment awarded is legal and valid.
The case was adjourned from time to time for
arguments on the question whether the inquiry was fair
and legal, and on 9.9.2010, the learned counsel for the
workman submitted that he challenged the fairness of the
inquiry on the ground that the workman was awarded
punishment without sufficient evidence and the Court
observed that this fact do no relate to the fairness of
inquiry and the reference centers around the punishment
and its justification and the said order reads as follow :
Workman and counsel for the parties present. Vide
order dated 4.2.2005 the case is fixed for arguments
on fairness of inquiry. In his statement recorded
today and placed on record the learned counsel for
workman submits that he is challenging the fairness
of inquiry on the grounds that the workman was
awarded punishment without sufficient evidence.
He also submitted that on no other ground the
fairness of enquiry is challenged.
So far as the punishment is concerned that will be
considered after hearing of the entire case. Whether
there was or was not sufficient evidence for
punishing the workman does not relate to the fairness
of enquiry? The reference centers around the
punishment and its justification. Let the case be
fixed for the cross-examination of the witness of the
parties.
Thus, the Court gave a finding that the reference is
regarding the justification of the punishment awarded to
the workman and this order being not challenged by the
workman has attained finality.
Though the case was adjourned from time to time
for cross-examination of the witnesses but none was
produced and thereafter the evidence of the parties was
closed vide order dated 22.12.2011.
I have heard Sh. O. P. Batra, counsel for the workman
and Sh. Ranjan Lohan, counsel for the management and
perused the file carefully.
It was argued by Mr. O.P. Batra, counsel for the
workman that the workman was awarded double
punishment i.e. by bringing him down to lower stage in
the scale of pay by two stages, as well as his suspension
period was ordered to be treated as such and the
punishment so awarded is not justifiable in the entirety of
the circumstances and is liable to be set aside.
3414
THE GAZETTE OF INDIA : APRIL 26, 2014/VAISAKHA 6, 1936
[PART II—SEC. 3(ii)]
Learned counsel for the management has contended
that the punishment awarded is legal and valid and this
Court has limited powers to interfere with the punishment
awarded and in the present case when the workman has
mishandled a co-workman, the punishment awarded is
justified.
I have considered the respective contentions.
The relevant portion of the punishment order read
as follows:
It is therefore hereby ordered that the following
punishment be imposed upon you with immediate effect:-
“Bringing down to lower stage in the scale of pay
by two stages in terms of clause 21(iv)(c) of the
Bipartite Settlement dated 14.2.1995.”
Accordingly your basic pay shall stand reduced by
two stages with immediate effect. As regard your
suspension in terms of the order No. RO:P:IR:39 dated
17.4.1996, lifting you suspension, the decision in respect
of regularization as otherwise of the period of suspension
was to be taken while passing of this final orders. In this
respect it is hereby confirmed. As such the said period
shall not be treated as on duty and you shall not be entitled
for any pay and allowances etc. for the said period other
than the subsistence allowance paid/payable to you.
However, the said period shall count for qualifying service
under the Bank of India (Employees) Pension Regulations,
1995.
There is no denial of the fact that the power of Court
to interference with the quantum of punishment are limited
and can only interfere with it when the same is not justified
from the record. As stated above, the inquiry proceedings
are not under challenge. The charge against the workman
was that he entered into an argument and scuffled with
Sh. R.K. Khanna and also manhandled him which resulted
in a swelling on his forehead. Thus the perusal of the
charge-sheet shows that workman was charged on
account of the fact that it was he who entered into an
argument and scuffled with Sh. R.K. Khanna which resulted
in swelling on his forehead.
The Inquiry Officer recorded the finding at Page
No.15 of its inquiry report as found at Page No.165 on the
file of this Court and it read as follow :
From the above it is clear that there was swelling on
the forehead of Mr. Khanna after the incident. It is
also clear that there was manhandling of Mr. Khanna
by Mr. Bhagi. In my opinion when there is scuffle,
i.e. hathapai, both sides participate though degree
of participation by the two may vary. Hence when
the charge of scuffle is proved, the charge of
manhandling is automatically proved. However it
could not be proved that swelling on the forehead
of Mr. Khanna was due to manhandling by Mr. Bhagi.
It is also possible that swelling may be there prior to
occurrence of incident as Mr. Khanna was working
normally at his seat after the incident.
The inquiry officer found that there was a scuffle in
which both the sides participated though the degree of
participation may have varied. He did not record any clear-
cut finding that it was the workman who entered into an
arguments and scuffled with Sh. R.K. Khanna. The Inquiry
Officer gave a definite finding that the swelling on the
forehead of Mr. Khanna was not proved due to
manhandling by the workman. As per the charge-sheet, it
was the workman who started the argument and it was he
who scuffled with Mr. Khanna, meaning thereby, he was
the person who initiated the incident but the Inquiry Officer
has nowhere given a finding that the incident took place
at the instance and instigation of the workman. Rather,
the Inquiry Officer came to the conclusion that there was
a scuffle in which both sides participated and he did not
indict the workman anywhere that it was he who initiated
the argument as well as the scuffle and in the process also
mishandled Mr. Khanna. His finding that during the
incident both the sides participated shows that he was
unable to pin-point that whether it was the workman or
Mr. Khanna who initiated the argument and the scuffle
and when it is so, it cannot be said that it was the workman
who is guilty of misconduct.
In view of the findings of the Inquiry Officer himself,
the punishment awarded to the workman vide order dated
17.4.1996 do not seem to legal on the face of it and is liable
to be set aside.
In result, the impugned order dated 17.4.1996 vide
which punishment of reduction of two increments were
imposed is set aside and he is entitled to all the wages
during the period he remained under suspension minus
the subsistence allowance etc. paid to him during the said
period. Let hard and soft copy of the award be sent to the
Central Government for the further necessary action.
KEWAL KRISHAN, Presiding Officer
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.